J U D G M E N T

Y.K. Sabharwal, CJI.

Considering the far reaching changes that had taken place in the country after the enactment of the Indian Police Act, 1861 and absence of any comprehensive review at the national level of the police system after independence despite radical changes in the political, social and economic situation in the country, the Government of India, on 15th November, 1977, appointed a National Police Commission (hereinafter referred to as ’the Commission’).

The commission was appointed for fresh examination of the role and performance of the police both as a law enforcing agency and as an institution to protect the rights of the citizens enshrined in the Constitution. The terms and reference of the Commission were wide ranging.

The terms of reference, inter alia, required the Commission to redefine the role, duties, powers and responsibilities of the police with special reference to prevention and control of crime and maintenance of public order, evaluate the performance of the system, identify the basic weaknesses or inadequacies, examine if any changes necessary in the method of administration, disciplinary control and accountability, inquire into the system of investigation and prosecution, the reasons for delay and failure and suggest how the system may be modified or changed and made efficient, scientific and consistent with human dignity, examine the nature and extent of the special responsibilities of the police towards the weaker sections of the community and suggest steps and to ensure prompt action on their complaints for the safeguard of their rights and interests.

The Commission was required to recommend measures and institutional arrangements to prevent misuse of powers by the police, by administrative or executive instructions, political or other pressures or oral orders of any type, which are contrary to law, for the quick and impartial inquiry of public complaints made against the police about any misuse of police powers. The Chairman of the Commission was a renowned and highly reputed former Governor.

A retired High Court Judge, two former Inspector Generals of Police and a Professor of TATA Institute of Special Sciences were members with the Director, CBI as a full time Member Secretary. The Commission examined all issues in depth, in period of about three and a half years during which it conducted extensive exercise through analytical studies and research of variety of steps combined with an assessment and appreciation of actual field conditions. Various study groups comprising of prominent public men, Senior Administrators, Police Officers and eminent academicians were set up. Various seminars held, research studies conducted, meetings and discussions held with the Governors, Chief Ministers, Inspector Generals of Police, State Inspector Generals of Police and Heads of Police organizations.

The Commission submitted its first report in February 1979, second in August 1979, three reports each in the years 1980 and 1981 including the final report in May 1981. In its first report, the Commission first dealt with the modalities for inquiry into complaints of police misconduct in a manner which will carry credibility and satisfaction to the public regarding their fairness and impartiality and rectification of serious deficiencies which militate against their functioning efficiently to public satisfaction and advised the Government for expeditious examination of recommendations for immediate implementation.

The Commission observed that increasing crime, rising population, growing pressure of living accommodation, particularly, in urban areas, violent
outbursts in the wake of demonstrations and agitations arising from labour disputes, the agrarian unrest, problems and difficulties of students, political activities including the cult of extremists, enforcement of economic and social legislation etc. have all added new dimensions to police tasks in the country and tended to bring the police in confrontation with the public much more frequently than ever before.

The basic and fundamental problem regarding police taken note of was as to how to make them functional as an efficient and impartial law enforcement agency fully motivated and guided by the objectives of service to the public at large, upholding the constitutional rights and liberty of the people.

Various recommendations were made.

In the second report, it was noticed that the crux of the police reform is to secure professional independence for the
police to function truly and efficiently as an impartial agent of the law of the land and, at the same time, to enable the Government to oversee the police performance to ensure its conformity to the law.

A supervisory mechanism without scope for illegal, irregular or mala fide interference with police functions has to be devised.

It was earnestly hoped that the Government would examine and publish the report expeditiously so that the process for implementation of various recommendations made therein could start right away.

The report, inter alia, noticed the phenomenon of frequent and indiscriminate transfers ordered on political considerations as also other unhealthy influences and pressures brought to bear on police and, inter alia, recommended for the Chief of Police in a State, statutory tenure of office by including it in a specific provision in the Police Act itself and also recommended the preparation of a panel of IPS officers for posting as Chiefs of Police in States.

The report also recommended the constitution of Statutory Commission in each State the function of which shall include laying down broad policy guidelines and directions for the performance of preventive task and service oriented functions by the police and also functioning as a forum of appeal for disposing of representations from any Police Officer of the rank of Superintendent of Police and above, regarding his being subjected to illegal or irregular orders in the performance of his duties.

With the 8th and final report, certain basic reforms for the effective functioning of the police to enable it to promote the dynamic role of law and to render impartial service to the people were recommended and a draft new Police Act incorporating the recommendations was annexed as an appendix.

When the recommendations of National Police Commission were not implemented, for whatever reasons or compulsions, and they met the same fate as the recommendations of many other Commissions, this petition under Article 32 of the Constitution of India was filed about 10 years back, inter alia, praying for issue of directions to Government of India to frame a new Police Act on the lines of the model Act drafted by the Commission in order to ensure that the police is made accountable essentially and primarily to the law of the land and the people.

The first writ petitioner is known for his outstanding contribution as a Police Officer and in recognition of his outstanding contribution, he was awarded the “Padma Shri” in 1991.

He is a retired officer of Indian Police Service and served in various States for three and a half decades.

He was Director General of Police of Assam and Uttar Pradesh besides the Border Security Force.

The second petitioner also held various high positions in police.

The third petitioner \026 Common cause is an organization which has brought before this Court and High Courts various issues of public interest.

The first two petitioners have personal knowledge of the working of the police and also problems of the people. It has been averred in the petition that the violation of fundamental and human rights of the citizens are generally in the nature of non-enforcement and discriminatory application of the laws so that those having clout are not held accountable even for blatant violations of laws and, in any case, not brought to justice for the direct violations of the rights of citizens in the form of unauthorized detentions, torture, harassment, fabrication of evidence, malicious prosecutions etc.

The petition sets out certain glaring examples of police inaction.

According to the petitioners, the present distortions and aberrations in the functioning of the police have their roots in the Police Act of 1861, structure and organization of police having basically remained unchanged all these years. The petition sets out the historical background giving reasons why the police functioning has caused so much disenchantment and dissatisfaction. It also sets out recommendations of various Committees which were never implemented.

Since the misuse and abuse of police has reduced it to the status of a mere tool in the hands of unscrupulous masters and in the process, it has caused serious violations of the rights of the people, it is contended that there is immediate need to re-define the scope and functions of police, and provide for its accountability to the law of the land, and implement the core recommendations of the National Police Commission.

The petition refers to a research paper ’Political and Administrative Manipulation of the Police’ published in 1979 by Bureau of Police Research and Development, warning that excessive control of the political executive and its principal advisers over the police has the inherent danger of making the police a tool for subverting the process of law, promoting the growth of authoritarianism, and shaking the very foundations of democracy. The commitment, devotion and accountability of the police has to be only to the Rule of Law.

The supervision and control has to be such that it ensures that the police serves the people without any regard, whatsoever, to the status and position of any person while investigating a crime or taking preventive measures.

Its approach has to be service oriented, its role has to be defined so that in appropriate cases, where on account of acts of omission and commission of police, the Rule of Law becomes a casualty, the guilty Police Officers are brought to book and appropriate action taken without any delay.

The petitioners seek that Union of India be directed to re- define the role and functions of the police and frame a new Police Act on the lines of the model Act drafted by the National Police Commission in order to ensure that the police is made accountable essentially and primarily to the law of the land and the people.

Directions are also sought against the Union of India and State Governments to constitute various Commissions and Boards laying down the policies and
ensuring that police perform their duties and functions free from any pressure and also for separation of investigation work from that of law and order.
The notice of the petition has also been served on State Governments and Union Territories.

We have heard Mr. Prashant Bhushan for the petitioners, Mr. G.E. Vahanvati, learned Solicitor General for the Union of India, Ms. Indu Malhotra for the National Human Rights Commission and Ms. Swati Mehta for the Common Welfare Initiatives.

For most of the State Governments/Union Territories oral submissions were not made.

None of the State Governments/Union Territories urged that any of the suggestion put forth by the petitioners and Solicitor General of India may not be accepted. Besides the report submitted to the Government of India by National Police Commission (1977-81), various other high powered Committees and Commissions have examined the issue of police reforms, viz. (i) National Human Rights Commission (ii) Law Commission (iii) Ribeiro Committee (iv) Padmanabhaiah Committee and (v) Malimath Committee on Reforms of Criminal Justice System. In addition to above, the Government of India in terms of Office Memorandum dated 20th September, 2005 constituted a Committee comprising Shri Soli Sorabjee, former Attorney General and five others to draft a new Police Act in view of the changing role of police due to various socio-economic and political changes which have taken place in the country and the challenges posed by modern day global terrorism, extremism, rapid urbanization as well as fast evolving aspirations of a modern democratic society.

The Sorabjee Committee has prepared a draft outline for a new Police Act (9th September, 2006). About one decade back, viz. on 3rd August, 1997 a letter was sent by a Union Home Minister to the State Governments revealing a distressing situation and expressing the view that if the Rule of Law has to prevail, it must be cured. Despite strong expression of opinions by various Commissions, Committees and even a Home Minister of the country, the position has not improved as these opinions have remained only on paper, without any action. In fact, position has deteriorated further. The National Human Rights Commission in its report dated 31st May, 2002, inter alia, noted that:

“Police Reform:

28(i) The Commission drew attention in its 1st April 2002 proceedings to the need to act decisively on the deeper question of Police Reform, on which recommendations of the National Police Commission (NPC) and of the National Human Rights Commission have been pending despite efforts to have them acted upon.

The Commission added that recent event in Gujarat and, indeed, in other States of the country, underlined the need to proceed without delay to implement the reforms that have already been recommended in order to preserve the integrity of the investigating process and to insulate it from ’extraneous influences’.

In the above noted letter dated 3rd April, 1997 sent to all the State Governments, the Home Minister while echoing the overall popular perception that there has been a general fall in the performance of the police as also a deterioration in the policing system as a whole in the country, expressed that time had come to rise above limited perceptions to bring about some drastic changes in the shape of reforms and restructuring of the police before the country is overtaken by unhealthy developments.

It was expressed that the popular perception all over the country appears to be that many of the deficiencies in the functioning of the police had arisen largely due to an overdose of unhealthy and petty political interference at various levels starting from transfer and posting of policemen of different ranks, misuse of police for partisan purposes and political patronage quite often extended to corrupt police personnel.

The Union Home Minister expressed the view that rising above narrow and partisan considerations, it is of great national importance to insulate the police from the growing tendency of partisan or political interference in the discharge of its lawful functions of prevention and control of crime including investigation of cases and maintenance of public order.

Besides the Home Minister, all the Commissions and Committees above noted, have broadly come to the same conclusion on the issue of urgent need for police reforms. There is convergence of views on the need to have (a) State Security Commission at State level; (b) transparent procedure for the appointment of Police Chief and the desirability of giving him a minimum fixed tenure; (c) separation of investigation work from law and order; and (d) a new Police Act which should reflect the democratic aspirations of the people. It has been contended that a statutory State Security Commission with its recommendations binding on the Government should have been established long before.

The apprehension expressed is that any Commission without giving its report binding effect would be ineffective. More than 25 years back i.e. in August 1979, the Police Commission Report recommended that the investigation task should be beyond any kind of intervention by the executive or non-executive.

For separation of investigation work from law and order even the Law Commission of India in its 154th Report had recommended such separation to ensure speedier investigation, better expertise and improved rapport with the people without of-course any water tight compartmentalization in view of both functions being closely inter-related at the ground level.

The Sorabjee Committee has also recommended establishment of a State Bureau of Criminal Investigation by the State Governments under the charge of a Director who shall report to the Director General of Police.

In most of the reports, for appointment and posting, constitution of a Police Establishment Board has been recommended comprising of the Director General of Police of the State and four other senior officers.

It has been further recommended that there should be a Public Complaints Authority at district level to examine the complaints from the public on police excesses, arbitrary arrests and detentions, false implications in criminal cases, custodial violence etc. and for making necessary recommendations.

Undoubtedly and undisputedly, the Commission did commendable work and after in depth study, made very useful recommendations.

After waiting for nearly 15 years, this petition was filed.

More than ten years have elapsed since this petition was filed.

Even during this period, on more or less similar lines, recommendations for police reforms have been made by other high powered committees as above noticed. The Sorabjee Committee has also prepared a draft report.

We have no doubt that the said Committee would also make very useful recommendations and come out with a model new Police Act for consideration of the Central and the State Governments.

We have also no doubt that Sorabjee Committee Report and the new Act will receive due attention of the Central Government which may recommend to the State Governments to consider passing of State Acts on the suggested lines.

We expect that the State Governments would give it due consideration and would pass suitable legislations on recommended lines, the police being a State subject under the Constitution of India.

The question, however, is whether this Court should further wait for Governments to take suitable steps for police reforms.

The answer has to be in the negative. Having regard to (i) the gravity of the problem; (ii) the urgent need for preservation and strengthening of Rule of Law; (iii) pendency of even this petition for last over ten years; (iv) the fact that various Commissions and Committees have made recommendations on similar lines for introducing reforms in the police set-up in the country; and (v) total uncertainty as to when police reforms would be introduced, we think that there cannot be any further wait, and the stage has come for issue of appropriate directions for immediate compliance so as to be operative till such time a new model Police Act is prepared by the Central Government and/or the State Governments pass the requisite legislations.

It may further be noted that the quality of Criminal Justice System in the country, to a large extent, depends upon the working of the police force.

Thus, having regard to the larger public interest, it is absolutely necessary to issue the requisite directions.

Nearly ten years back, in Vineet Narain & Ors. v. Union of India & Anr. [(1998) 1 SCC 226], this Court noticed the urgent need for the State Governments to set up the requisite mechanism and directed the Central Government to pursue the matter of police reforms with the State Governments and ensure the setting up of a mechanism for selection/appointment, tenure, transfer and posting of not merely the Chief of the State Police but also all police officers of the rank of Superintendents of Police and above.

The Court expressed its shock that in some States the tenure of a Superintendent of Police is for a few months and transfers are made for whimsical reasons which has not only demoralizing effect on the police force but is also alien to the envisaged constitutional machinery.

It was observed that apart from demoralizing the police force, it has also the adverse effect of politicizing the personnel and, therefore, it is essential that prompt measures are taken by the Central Government.

The Court then observed that no action within the constitutional scheme found necessary to remedy the situation is too stringent in these circumstances.

More than four years have also lapsed since the report above noted was submitted by the National Human Rights commission to the Government of India.

The preparation of a model Police Act by the Central Government and enactment of new Police Acts by State Governments providing therein for the composition of State Security Commission are things, we can only hope for the present.

Similarly, we can only express our hope that all State Governments would rise to the occasion and enact a new Police Act wholly insulating the police from any pressure whatsoever thereby placing in position an important measure for securing the rights of the citizens under the Constitution for the Rule of Law, treating everyone equal and being partisan to none, which will also help in securing an efficient and better
criminal justice delivery system.

It is not possible or proper to leave this matter only with an expression of this hope and to await developments further.

It is essential to lay down guidelines to be operative till the new legislation is enacted by the State Governments.

Article 32 read with Article 142 of the Constitution empowers this Court to issue such directions, as may be necessary for doing complete justice in any cause or matter.

All authorities are mandated by Article 144 to act in aid of the orders passed by this Court.

The decision in Vineet Narain’s case (supra) notes various decisions of this Court where guidelines and directions to be observed were issued in absence of legislation and implemented till legislatures pass appropriate legislations.

With the assistance of learned counsel for the parties, we have perused the various reports. In discharge of our constitutional duties and obligations having regard to the aforenoted position, we issue the following directions to the Central Government, State Governments and Union Territories for compliance till framing of the appropriate legislations :

State Security Commission (1)

The State Governments are directed to constitute a State Security Commission in every State to ensure that the State Government does not exercise unwarranted influence or pressure on the State police and for laying down the broad policy guidelines so that the State police always acts according to the laws of the land and the Constitution of the country.

This watchdog body shall be headed by the Chief Minister or Home Minister as Chairman and have the DGP of the State as its ex-officio Secretary.

The other members of the Commission shall be chosen in such a manner that it is able to function independent of Government control.

For this purpose, the State may choose any of the models recommended by the National Human Rights Commission, the Ribeiro Committee or the Sorabjee Committee, which are as under:

NHRC Ribeiro Committee Sorabjee Committee
1. Chief Minister/HM as Chairman.
1. Minister i/c Police as Chairman
1. Minister i/c Police (ex- officio Chairperson)
2. Lok Ayukta or, in his absence, a retired Judge of High Court to be nominated by Chief Justice or a Member of State Human Rights Commission.
2. Leader of Opposition.
2. Leader of Opposition.
3. A sitting or retired Judge nominated by Chief Justice of High Court.
3. Judge, sitting or retired, nominated by Chief Justice of High Court.
3. Chief Secretary
4. Chief Secretary
4. Chief Secretary
4. DGP (ex-officio Secretary)
5. Leader of Opposition in Lower House.
5. Three non-political citizens of proven merit and integrity.
5. Five independent Members.
6. DGP as ex-officio Secretary.
6. DG Police as Secretary. –

The recommendations of this Commission shall be binding on the State Government.

The functions of the State Security Commission would include laying down the broad policies and giving directions for the performance of the preventive tasks and service oriented functions of the police, evaluation of the performance of the State police and preparing a report thereon for being placed before the State legislature.

Selection and Minimum Tenure of DGP:
(2) The Director General of Police of the State shall be selected by the State Government from amongst the
three senior-most officers of the Department who have been empanelled for promotion to that rank by the Union Public Service Commission on the basis of their length of service, very good record and range of experience for heading the police force.

And, once he has been selected for the job, he should have a minimum tenure of at least two years irrespective of his date of superannuation.

The DGP may, however, be relieved of his responsibilities by the State Government acting in consultation with the State Security Commission consequent upon any action taken against him under the All India Services (Discipline and Appeal) Rules or following his
conviction in a court of law in a criminal offence or in a case of corruption, or if he is otherwise incapacitated from discharging his duties.

Minimum Tenure of I.G. of Police & other officers:
(3) Police Officers on operational duties in the field like the Inspector General of Police in-charge Zone, Deputy Inspector General of Police in-charge Range,
Superintendent of Police in-charge district and Station House Officer in-charge of a Police Station shall also have a prescribed minimum tenure of two years unless it is found necessary to remove them prematurely following disciplinary proceedings against them or their conviction in a criminal offence or in a case of corruption or if the incumbent is otherwise incapacitated from discharging his responsibilities.
This would be subject to promotion and retirement of the officer.

Separation of Investigation:
(4) The investigating police shall be separated from the law and order police to ensure speedier investigation, better expertise and improved rapport with the people.

It must, however, be ensured that there is full coordination between the two wings.

The separation, to start with, may be effected in towns/urban areas which have a population of ten lakhs or more, and gradually extended to smaller towns/urban areas also. Police Establishment Board:
(5)There shall be a Police Establishment Board in each State which shall decide all transfers, postings, promotions and other service related matters of
officers of and below the rank of Deputy Superintendent of Police.

The Establishment Board shall be a departmental body comprising the Director General of Police and four other senior officers of the Department.

The State Government may interfere with decision of the Board in exceptional cases only after recording its reasons for doing so.

The Board shall also be authorized to make appropriate recommendations to the State Government regarding the posting and transfers of officers of and above the rank of Superintendent of Police, and the Government is expected to give due weight to these recommendations and shall normally accept it.

It shall also function as a forum of appeal for disposing of representations from officers of the rank of Superintendent of Police and above regarding their promotion/transfer/disciplinary proceedings or their being subjected to illegal or irregular orders and
generally reviewing the functioning of the police in the State.

Police Complaints Authority:
(6) There shall be a Police Complaints Authority at the district level to look into complaints against police officers of and up to the rank of Deputy
Superintendent of Police.

Similarly, there should be another Police Complaints Authority at the State level to look into complaints against officers of the rank of Superintendent of Police and above.

The district level Authority may be headed by a retired District Judge while the State level Authority may be headed by a retired Judge of the High Court/Supreme Court.

The head of the State level Complaints Authority shall be chosen by the State Government out of a panel of names proposed by the Chief Justice; the head of the district level Complaints Authority may also be chosen out of a panel of names proposed by the Chief Justice or a Judge of the High Court nominated by him.

These Authorities may be assisted by three to five members depending upon the volume of complaints in different States/districts, and they shall be selected by the State Government from a panel prepared by the State Human Rights Commission/Lok Ayukta/State Public Service Commission.

The panel may include members from amongst retired civil servants, police officers or officers from any other department, or from the civil society.

They would work whole time for the Authority and would have to be suitably remunerated for the services rendered by them.

The Authority may also need the services of regular staff to conduct field inquiries.

For this purpose, they may utilize the services of retired investigators from the CID, Intelligence, Vigilance or any other organization.

The State level Complaints Authority would take cognizance of only allegations of serious misconduct by the police personnel, which would include incidents involving death, grievous hurt or rape in police custody.

The district level Complaints Authority would, apart from above cases, may also inquire into allegations of extortion, land/house grabbing or any incident involving serious abuse of authority.

The recommendations of the Complaints Authority, both at the district and State levels, for any action, departmental or criminal, against a delinquent police officer shall be binding on the concerned authority. National Security Commission:

(7) The Central Government shall also set up a National Security Commission at the Union level to prepare a panel for being placed before the appropriate Appointing Authority, for selection and placement of Chiefs of the Central Police Organisations (CPO), who should also be given a minimum tenure of two years.

The Commission would also review from time to time measures to upgrade the effectiveness of these forces, improve the service conditions of its personnel, ensure that there is proper coordination between them and that the forces are generally utilized for the purposes they were raised and make recommendations in that behalf.

The National Security Commission could be headed by the Union Home Minister and comprise heads of the CPOs and a couple of security experts as members with the Union Home Secretary as its Secretary. The aforesaid directions shall be complied with by the Central Government, State Governments or Union Territories, as the case may be, on or before 31st December, 2006 so that the bodies afore-noted became operational on the onset of the new year.

The Cabinet Secretary, Government of India and the Chief Secretaries of State Governments/Union Territories are directed to file affidavits of compliance by 3rd January, 2007.

Before parting, we may note another suggestion of Mr. Prashant Bhushan that directions be also issued for dealing with the cases arising out of threats emanating from international terrorism or organized crimes like drug trafficking, money laundering, smuggling of weapons from across the borders, counterfeiting of currency or the activities of mafia groups with trans-national links to be treated as measures taken for the defence of India as mentioned in Entry I of the Union List in the Seventh Schedule of the Constitution of India and as internal security measures as contemplated under Article 355 as these threats and activities aim at destabilizing the country and subverting the economy and thereby weakening its defence.

The suggestion is that the investigation of above cases involving inter-state or international ramifications deserves to be entrusted to the Central Bureau of Investigation.

The suggestion, on the face of it, seems quite useful. But, unlike the aforesaid aspects which were extensively studied and examined by various experts and reports submitted and about which for that reason, we had no difficulty in issuing directions, there has not been much study or material before us, on the basis whereof we could safely issue the direction as suggested.

For considering this suggestion, it is necessary to enlist the views of expert bodies. We, therefore, request the National Human Rights Commission, Sorabjee Committee and Bureau of Police Research and Development to examine the aforesaid suggestion of Mr. Bhushan and assist this Court by filing their considered views within four months.

The Central Government is also directed to examine this suggestion and submit its views within that time.

Further suggestion regarding monitoring of the aforesaid directions that have been issued either by National Human Rights Commission or the Police Bureau would be considered on filing of compliance affidavits whereupon the matter shall be listed before the Court.

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J U D G M E N T

MARKANDEY KATJU, J.
This writ petition under Article 32 of the Constitution of India has been filed with a prayer for issuing a writ of certiorari and /or mandamus for quashing the Sessions Trial No. 1201 of 2001 under sections 366 and 368 of the Indian Penal Code arising out of FIR No. 336 of 2000 registered at Police Station Sarojini Nagar, Lucknow and pending in the Fast Track Court V, Lucknow.

The facts of the case are as under:
The petitioner is a young woman now aged about 27 years who is a graduate and at the relevant time was pursuing her Masters course in Hindi in the Lucknow University. Due to the sudden death of her parents she started living with her brother Ajay Pratap Singh at LDA Colony, Kanpur Road, Lucknow, where she did her intermediate in 1997 and graduation in 2000.

It is alleged by the petitioner that on 2.11.2000 she left her brother’s house of her own free will and got married at Arya Samaj Mandir, Delhi to one Bramha Nand Gupta who has business in Delhi and other places and they have a child out of this wedlock.

Thereafter on 4.11.2000, the petitioner’s brother lodged a missing person report at Sarojini Nagar Police Station, Lucknow and consequently the police arrested two sisters of the petitioner’s husband along with the husband of one of the sisters and the cousin of the petitioner’s husband. The persons arrested were Mamta Gupta, Sangita Gupta (sisters of Brahma Nand Gupta), as well as Rakesh Gupta (husband of Mamta Gupta) and Kallu Gupta cousin of the petitioner’s husband. Mamta was in jail with her one month old child.

It is further alleged that the petitioner’s brothers Ajay Pratap Singh, Shashi Pratap Singh and Anand Pratap Singh were furious because the petitioner underwent an inter-caste marriage, and hence they went to the petitioner’s husband’s paternal residence and vehemently beat up her husband’s mother and uncle, threw the luggage, furniture, utensils, etc. from the house and locked it with their lock. One brother of the petitioner’s husband was allegedly locked in a room by the petitioner’s brothers for four or five days without meals and water. The petitioner’s brothers also allegedly cut away the harvest crops of the agricultural field of the petitioner’s husband and sold it, and they also took forcible possession of the field. They also lodged a false police report alleging kidnapping of the petitioner against her husband and his relatives at Police Station Sarojini Nagar, Lucknow, due to which the sisters of the petitioner’s husband, and the husband of one of the sisters, were arrested and detained in Lucknow jail. The petitioner’s brothers also illegally took possession of the shop of the petitioner’s husband. The petitioner’s husband has a shop at Badan Singh Market, Rangpuri in the name of Gupta Helmet Shop whose possession was forcibly taken over by her brothers.

It is further alleged that the petitioner’s brothers are threatening to kill the petitioner’s husband and his relatives, and kidnap and kill her also. The Gupta family members are afraid of going to Lucknow out of fear of violence by the petitioner’s brothers, who are of a criminal bent.

It is alleged that the petitioner’s husband and relatives have been falsely framed by her brothers Shashi Pratap Singh, Ajay Pratap Singh and Anand Pratap Singh who were furious because of the inter-caste marriage of the petitioner with Bramha Nand Gupta. Mamta Gupta, Rakesh Gupta and Sangita Gupta were arrested on 17.12.2000, whereas Kallu Gupta was arrested on 02.12.2000. It is alleged that the three relatives of the petitioner’s husband were not granted bail for a long time and their lives got ruined though there was no case against them that they instigated the petitioner to get married to Bramha Nand Gupta. It is also alleged that the petitioner ran from pillar to post to save her husband and relatives from harassment and she then approached the Rajasthan Women Commission, Jaipur, as she was staying in Jaipur almost in hiding apprehending danger to her and her husband’s life. The Commission recorded her statement on 13.3.2001 and the same was forwarded to the Superintendent of Police (City), Lucknow for necessary action. The President of the Rajasthan State Women Commission also wrote a letter to the National Human Rights Commission on 13.3.2001 requesting the Commission and the Chief Secretary, Government of Uttar Pradesh, to intervene in the matter. A final report was submitted by the SHO, Police Station Sarojini Nagar, Lucknow before the learned Judicial Magistrate inter-alia mentioning that no offence was committed by any of the accused persons and consequently the learned Sessions Judge, Lucknow enlarged the accused on bail on furnishing a personal bond on 16.5.2001 by observing that neither was there any offence nor were the accused involved in any offence. The Superintendent of Police, Lucknow informed the National Human Rights Commission that all the accused persons have been released on bail on 17.5.2001.

Thereafter the Investigating Officer recorded the statement of the petitioner Lata Gupta @ Lata Singh on 28.5.2001 and for this purpose armed security was provided to her. The learned Chief Judicial Magistrate, Lucknow recorded the statement of the petitioner under section 164 Cr.P.C. on 29.5.2001. In that statement the petitioner stated that she married Bramha Nand Gupta of her own free will. Despite this statement, the learned Chief Judicial Magistrate, Lucknow passed the committal order on 5.10.2001 ignoring the fact that the Police had already filed a final report in the matter.

It appears that a protest petition was filed against the final report of the Police alleging that the petitioner was not mentally fit. However, the petitioner was medically examined by the Board of Doctors of Psychiatric Centre, Jaipur, who have stated that the petitioner was not suffering from any type of mental illness.

The Fast Track Court, Lucknow before whom the case was pending issued non-bailable warrants against all the four accused, and against the order of the Fast Track Court, the accused filed a petition under section 482 Cr.P.C. in the Allahabad High Court (Lucknow Bench) which was registered as Crl. Misc. No. 520/2003. The High Court directed the accused to appear before the Sessions Judge who would himself scrutinize whether the accused committed any offence or not. The matter is still pending.

The petitioner alleged that she cannot visit Lucknow as she apprehends danger to her life and the lives of her husband and small child. She has further alleged that her brothers have assaulted, humiliated and irreparably harmed the entire family members of her husband Bramha Nand Gupta and their properties, and even the remote relatives were not spared and were threatened to be killed. Their properties including the house and agricultural lands and shops were forcibly taken over by the brothers of the petitioner and the lives of the petitioner and her husband are in constant danger as her brothers have been threatening them.

We have considered the above facts and have heard learned counsel for the petitioner and the learned counsel for the State Government. This case reveals a shocking state of affairs. There is no dispute that the petitioner is a major and was at all relevant times a major. Hence she is free to marry anyone she likes or live with anyone she likes. There is no bar to an inter-caste marriage under the Hindu Marriage Act or any other law. Hence, we cannot see what offence was committed by the petitioner, her husband or her husband’s relatives.

We are of the opinion that no offence was committed by any of the accused and the whole criminal case in question is an abuse of the process of the Court as well as of the administrative machinery at the instance of the petitioner’s brothers who were only furious because the petitioner married outside her caste. We are distressed to note that instead of taking action against the petitioner’s brothers for their unlawful and high-handed acts (details of which have been set out above) the police has instead proceeded against the petitioner’s husband and his relatives.

Since several such instances are coming to our knowledge of harassment, threats and violence against young men and women who marry outside their caste, we feel it necessary to make some general comments on the matter. The nation is passing through a crucial transitional period in our history, and this Court cannot remain silent in matters of great public concern, such as the present one.

The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence, inter-caste marriages are in fact in the national interest as they will result in destroying the caste system. However, disturbing news are coming from several parts of the country that young men and women who undergo inter-caste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished. This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or interreligious marriage. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, and any one who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law. We sometimes hear of ‘honour’ killings of such persons who undergo inter-caste or inter-religious marriage of their own free will. There is nothing honourable in such killings, and in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal minded persons who deserve harsh punishment. Only in this way can we stamp out such acts of barbarism.

In the circumstances, the writ petition is allowed. The proceedings in Sessions Trial No. 1201/2001 titled State of U.P. vs. Sangita Gupta & Ors. arising out of FIR No. 336/2000 registered at Police Station Sarojini Nagar, Lucknow and pending in the Fast Track Court V, Lucknow are quashed. The warrants against the accused are also quashed. The police at all the concerned places should ensure that neither the petitioner nor her husband nor any relatives of the petitioner’s husband are harassed or threatened nor any acts of violence are committed against them. If anybody is found doing so, he should be proceeded against sternly in accordance with law, by the authorities concerned.

We further direct that in view of the allegations in the petition (set out above) criminal proceedings shall be instituted forthwith by the concerned authorities against the petitioner’s brothers and others involved in accordance with law. Petition allowed.

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DATE OF JUDGMENT: 05/04/2006

BENCH: S.B. Sinha & P.P. Naolekar

J U D G M E N T

WITH
Criminal Appeal No. 287/2006 @ S.L.P.(Crl.)No.997/2006

S.B. SINHA, J :
These two appeals arising out of the same judgment and involving common question of law and fact were taken up for hearing together and are being disposed of by this common judgment. The Appellants herein, Munivel (original accused No.5), Kalith (original accused No.4), Selvam @ Silvakumar (original accused No.1), Sasi @ Sasikumar (original accused No.2) and Madhu @ Madhusudanan (original accused No.3) were convicted under Section 302 read with Section 149 of the Indian Penal Code (’IPC’ for short) and sentenced to undergo rigorous imprisonment for life. Accused No.2 was also convicted under Section 307 IPC and sentenced to undergo ten years rigorous imprisonment. Accused No.3 was convicted for an offence under Section 302 IPC and sentenced to undergo life imprisonment. Accused No.4 was also convicted under Section 326 IPC and sentenced to undergo rigorous imprisonment for seven years. Accused No.5 was also convicted under Section 324 IPC and sentenced to undergo three years rigorous imprisonment. All the sentences were, however, directed to run concurrently. In an appeal preferred by the afore-mentioned accused persons, the High Court modified the judgment of the learned trial court in the following terms:

“Under those circumstances, the conviction imposed by the Trial Court on A-1, A-2 and A-5 or the offence under Section 302 read with 149 IPC, is perfectly correct. But a slight modification could be made as regards A-1 and A-2. In the case, A-3 has been convicted only for Section 302 IPC simplicitor. A-1 has been convicted for the offence under Section 302 read with 149 IPC. But both A-1 and A-3 have attacked the deceased and caused injury. Though the injury caused by A-1 is not fatal, it would be appropriate to convict A-1 and A-2 for the offence under Section 302 read with 34 IPC. Therefore, the conviction imposed on A-1 and A-2 is modified to the extent that they are convicted for the offence under Section 302 read with 34 IPC, instead of Section 302 read with 149 IPC and A-2’s conviction for the offence under Section 307 IPC is confirmed.”

The High Court confirmed the judgment of conviction and sentence imposed by the Trial Court in respect of other offences on accused Nos.3, 4 and 5 under Sections 302, 326, 324 and 302 read with Section 149 IPC respectively.

Accused Nos. 1, 2 and 3 preferred the special leave petition before this Court, but the same was dismissed. Mr. A.T.M. Rangaramanujam, learned Senior Counsel and Mr. P. Ramesh, learned counsel appearing on behalf of the Appellants in these appeals, raised only two contentions before us – (i) having regard to the role played by them, they cannot be said to have committed an offence under Section 302 IPC read with Section 149 IPC; and (ii) no case has been made out even for convicting them for offences under Sections 326 IPC and 307 IPC respectively. Before we advert to the merit of the matters, we may briefly notice the following facts:

P.W.1-Raja and P.W.2-Kannan are the sons of deceased Babu Naidu. P.W.3-Venkatesan is his brother. Tmt. Balamani, who examined herself as P.W.4, is the wife of the deceased. P.W.5-Leela and P.W.6-Gandhimathi are the daughters of the deceased. P.W.7- Srinivasan and P.W.8-Panneer Selvam were the friends of the deceased. P.W.10-Tmt. Pushpa is the wife of afore-mentioned P.W.3- Venkatesan. The accused Nos.1 and 2 were brothers, whereas accused Nos. 3 and 5 are their associates. The mother of the accused Nos. 1 and 2, Jayalakshmi, was distantly related to the deceased. The family of both the parties were carrying on business of chit transactions. P.W.4-Balamani joined chit transactions carried out by the said Jayalakshmi, but allegedly did not pay the amount payable therefor regularly. Further, allegedly, two other subscribers introduced by P.W.4-Balamani had also not paid back the chit amount to Jayalakshmi, as a result whereof there used to be frequent quarrels between the parties.

It is further alleged that a proposal made for marriage of accused No.1-Selvam with a girl failed. The relatives of the said girl came to the village for inquiring about the suitability of the accused No.1. On suspicion that certain informations were allegedly furnished by Babu Naidu, the deceased, pursuant whereto the girl’s family declined to give her in marriage with Selvam, they bore grudge against the family of the deceased. On 16.3.1994, P.W.1 was in his shop. He was joined by P.W.2-Kannan. Both of them were proceeding to their houses at about 12.15 in the mid-night. When they reached near their houses, the accused persons accosted them with deadly weapons. Selvam allegedly shouted at P.W.2-Kannan saying that in view of their conduct, the image of his family had been spoiled and so his entire family should be done away with; whereupon accused No.2-Sasi stabbed P.W.2 on his abdomen as a result whereof he cried out. His intestines came out. Upon seeing the said ghastly sight, P.W.1-Raja cried aloud, ran into his house and informed his parents about the said occurrence, whereupon they rushed to the scene of occurrence. Accused No.3-Madhu, allegedly, stabbed the deceased on his shoulder and right thigh. When he turned round and tried to go into the house by climbing the stairs, accused No.1 prevented him from doing so and hit him with a knife on his head. On hearing the cries, P.W.3-Venkatesan, a neighbour, came out of his house along with his wife, P.W.10. They saw the incident. When they came to the scene of occurrence, the accused No.4-Kalith attacked him with a knife on his hand, as a result whereof P.W.3 suffered an injury on the back side of his right hand, as also in the fingers. Seeing the said assault, P.W.10 shouted, whereupon accused No.5-Munivel cut the ring fingers of both her left and right hands. P.W.7-Srinivasan and P.W.8-Selvam and other persons by that time arrived at the scene. The accused persons then fled away. The deceased and other ’injured persons’ thereafter were taken to Virugambakkam Police Station. A First Information Report (FIR) was lodged. Thereafter, they were referred to Royapettah Hospital. A case was registered for offences under Sections 147, 148, 448, 326 and 307 of the Indian Penal Code. On the basis of the said FIR, P.W.19-Venkateswaran, the Inspector of Police, took up investigation and visited the scene of occurrence. He, thereafter, received the message as regard death of the said Babu Naidu, whereafter Section 302 IPC was also added in the FIR. Keeping in view the nature of injuries suffered by P.W.2, a dying declaration was also recorded by a Magistrate. During the course of investigation, the accused persons were arrested and it is stated that on confession having been made by the accused Nos.3 and 4, two knives marked as M.Os. 4 and 7, as well as a shirt M.O.27 were recovered from their possession. Similarly, on alleged confession made by the accused Nos. 2 and 4, other weapons and knives marked as M.Os. 3, 5 and 6 were recovered. All such recoveries were made on 18.3.1994.

The part played by each of the Appellants herein and the extent thereof were categorically stated by all the eye-witnesses ’injured persons’ viz., P.Ws. 2, 3, 4, 5, 6, 7, 8 and 10.

As the statements of all the material witnesses are identical and corroborative of each other, we would notice hereinbelow the statements of P.W.1 only, which reads:

“On 16.3.94, at 12 O’clock in the night, I was remaining in my shop. At that time, my brother Kannan who was working under a Doctor came to me as usual to take me home along with him. Both of us were on our way home. The five accused came running with knife. Then Selvam intercepted us and said, “You have not given the chit amount to my mother; you have prevented the girl who was to be married to me; I will completely destroy all of you with your family”. A-2 Sasi with the knife he was holding in his hand stabbed Kannan at the left side of his abdomen. Because of this, my elder brother’s intestine has come out. I screamed out and immediately ran to our up-stair. I told my mother that, my brother was stabbed by them. At once, my father, came down from the upstair, without a shirt on him. At that time, Madhu, mechanic, hacked him at his right shoulder and right thigh. (He showed the length of that knife by his hand and said, he had hacked with such a knife). A-1 Selvam with a curved knife hacked my father at the backside of his head. My father swooned and fell down in a pool of blood. I, my mother, my sisters screamed out; ’Oh’. At that time, my uncle Venkatesan and his wife Pushpa came running from their house, nearby. The accused Kali hacked Venkatesan at his right hand, back and fingers. My aunt Pushpa screamed out “Aioh”. At that time, Munivel cut forcibly two of the fingers of my aunt Pushpa. Seenivasan, Selwaraj, Panneerselvam, Babu and Mohan chased the accused who were running away. The accused got into an auto at Arunachalam road and fled.”

It is not disputed that P.W.3 and P.W.10 are independent witnesses. It is also not disputed that they suffered some injury on their hands.
As regard the nature of injuries suffered by P.W.10 and her husband, P.W.3 was not cross-examined.

The injuries on the person of P.W.3 were medically examined by P.W.11-Dr. S. Loganathan. The said witness stated:

“On 17.3.94 at 1 O’clock in the night, Venkatesan, around 45 years, was brought by P.C.8120. He stated that, he was also attacked at the same time as has been seen in the Accident Register related to Kannan. On examining him, he was found in his normal senses and he could also talk. His ring finger on his right hand was seen cut. There was an incised injury seen on his back and it measure 2 x 1 x 2″CM. I sent him to the Doctor for emergency treatment. The aforesaid injury could have been came at the time and manner said by him. Ex.P.5 is the copy of the related Accident Register. In that early morning at 1.05 hrs, one Pushpa aged 30 was brought by the aforesaid Police constable and she was in her senses and she stated that she was attacked as has been seen in the aforesaid Accident Register and she could talk. The ring finders of both of her hands were damaged. At that time, there was simple injury with abrasion noticed on the ring fingers. I sent her to the duty doctor for treatment. The occurrence could have happened at the time and manner stated by her. Ex.P.5 is the copy of the Accident Register given by me.”
P.W.10, Pushpa, in her evidence stated:

“.The witness Venkatesan is my husband. In the 3rd month of 1994, on one day, in the night, at 12 O’clock, I was keeping awake in my house. At that time my husband was asleep. On hearing noise, we went out. The 5 accused were having knives with them. A4 attacked my husband with a knife at his right hand and back. On seeing it, I screamed. At once A5 cut my fingers forcibly with a knife. Now, I am unable to move my right hand ring finger and my left hand ring finger. After a while, Raja took us by an auto to the Police Station. From there, we went to the Royapettai hospital.”

The contention of the learned counsel appearing on behalf of the Appellants is that the doctor had not disclosed the dimension of the said injuries. In relation to the injury suffered by P.W.10-Pushpa, it was also not stated whether the injury was a deep incised wound or not. Our attention has moreover been drawn to the fact that according to the doctor, P.W.10 suffered an abrasion. Criticism was also made to the effect that although the injured were sent to the duty doctor, he had not been examined.

We may, at this juncture, notice the following findings arrived at by the learned Sessions Judge:
“As Kalith had cut off the right hand ring finger of P.W.3 Venkatesan and hacked him on his back and wounded him; I find him guilty of offence u/s 326 IPC. The accused Munivel has attacked P.W.10 Pushpa with knife and inflicted abrasions and cut away her ring fingers on both her hands. In the related copy of the Accident Register Ex.P.6, the concerned Dr. Loganathan has failed to mention this fact and this shows, along with certain other truths, that, he has failed to discharge his duty. Hence, though there are no clear evidence to show that, Pushpa has been inflicted injuries in such a manner to lose her ring fingers in both her hands and seen in a shivering state; I find the accused Munivel to be guilty of offence u/s 324 I.P.C.”

It was submitted that in view of the afore-mentioned finding, it must be held that no injury was caused to P.W.10-Pushpa by the Appellant-Munivel and in any view of the matter, her statements before the court being contrary to the medical evidence, the same should not have been accepted by the trial court as well as the High Court.

It was further submitted that having regard to the fact that the Appellants herein had not participated in the assault on the deceased or his family members, and further having regard to the fact that they are not related to the accused Nos. 1 and 2, with whom the deceased and his family members were stated to be on inimical terms, they cannot be held guilty of the offence punishable under Section 302/149 IPC. The learned counsel would contend that in view of the statements made by the prosecution witnesses, it is highly doubtful that the Appellants herein had participated in the occurrence and more so because the weapons seized from them had not been sent for chemical examination. It was further pointed out that although a finger of P.W.3 was said to have been severed, the same was not recovered by the Investigating Officer, P.W.19. Mr. Subramonium Prasad, learned counsel appearing on behalf of the State, on the other hand, supported the findings of the courts below.

The incident in question is not denied or disputed. Death of Babu Naidu is also not disputed. The fact that P.Ws. have received injuries on their persons, is also not disputed and otherwise stand proved. A finding of fact has been arrived at by the trial Judge, as also by the High Court that the offences, with which the Appellants herein together with other three accused persons were charged with, have been fully proved. We have noticed hereinbefore that the special leave petition filed by the main accused, namely, accused Nos.1, 2 and 3 has been dismissed.

The primary question which would, therefore, arise for our consideration is as to whether the Appellants herein can be said to have formed a common object with accused Nos.1, 2 and 3 to commit the alleged offences or not.

All the accused persons came together. All of them were armed with knives. They accosted P.Ws. 1 and 2. They caused the death of the deceased round about mid-night on the street. The first incident took place near the house of the deceased. The stab injury was given to P.W.2-Kannan as a result whereof his intestines came out. When P.W.1, on seeing this, went inside the house and narrated the same to his parents and others, the deceased and his wife P.W.4 came out followed by their daughters P.W.5 and P.W.6. The deceased was not only given a fatal blow by the accused No.2, when he intended to save himself from further attack and was running towards the stairs, he was prevented by accused No.1 from doing so. He was assaulted by him. P.W.3 and P.W.10 came to the scene of occurrence on hearing their cries. P.W.3, admittedly, is a constable. It is, therefore, but natural that he sought to intervene. A grievous injury was caused to him by the Appellant-Kalith.

It is also natural that seeing her husband being assaulted by a knife, P.W.10 would make an attempt to intervene. She was also assaulted with a knife resulting in her suffering injuries on both of her hands. We may now deal with the criticism that the medical evidence and the ocular evidence in this case is wholly unwarranted. P.W.11- Dr. S. Loganathan in his deposition referred to the Accident Register. So far as an injury received by P.W.3 is concerned, he categorically stated that not only his ring finger on right hand had been seen cut, he also suffered an incised injury on his back, whereupon he was sent to the duty doctor for emergency treatment. As regards the injury suffered by P.W.10, the doctor referred to the Accident Register. He found that the ring fingers of both her hands were injured. He might have mistakenly stated that the same appeared to him, at that time, to be a simple injury with abrasion, but the fact remains that she was also sent to the duty doctor/emergency for treatment, which indicates that the contents of the injury report was correct.

It may be that the duty doctor had not been examined, but the same is not very material for the purpose of the present case. Two facts in this regard are of some significance: firstly, as regard the nature of injuries suffered by P.W.10, she had not been cross-examined; secondly, P.W.11 referred to the Accident Registers wherein, as regard the injuries suffered by P.W.3 and P.W.10, it was recorded:

“P.W.3 (Venkatesan):
Nature of injury : Alleged assault as per and treatment AR No.029471
(State simple, grievous or opinion reserved)
O/E : Patient conscious (N.C) Right middle Finger cut off. Cut injury over back of chest about 2″ x 1=”.
Treatment given Referred to DAOS.”
P.W.10 (Pushpa):
Nature of injury and treatment- (State simple, grievous opinion reserved) : Alleged assault by known person at about 12.15 a.m. (N.C) residing at the above address by (N.C) knife.
O/E : Patient conscious (N.C) cut injury Left ring finger and right ring finger.
Treatment given Refer to DAOS.”

It was, therefore, clearly established that the said witnesses suffered injuries.

Doctor, P.W.11, examined them at about 1 a.m. on 17.3.1994, that is, immediately after the incident took place. We do not find any material contradiction between the ocular evidence and medical evidence. The genuineness or otherwise of the said Accident Registers is not in question. Correctness of the entries made therein is not in issue. Even no suggestion has been given to the doctor that the entries made in the said Accident Registers were not correct. Only because the Investigating Officer was negligent and did not make any attempt to recover the cut fingers of P.W.3, the same by itself would not be sufficient to discard the consistent evidences of all the eye-witnesses.

For the purpose of invoking Section 149 of the Indian Penal Code, the entire incident must be taken into consideration. The occurrence resulted in death of one person and suffering of grievous injuries by some of the prosecution witnesses were part of the same transaction.

The Appellants, as stated, came with the other accused persons with deadly weapons at mid-night. The active role played by both the Appellants herein, clearly stand proved by the evidence of the prosecution witnesses.

We have noticed hereinbefore that not only at the dead of night P.W.1 and other witnesses were attacked, accused Nos.1 and 2 also went inside the house of the deceased and prevented the deceased from escaping from further assault.

Whoever had come to the scene of occurrence and tried to intervene, had suffered injuries at the hands of one or the other accused persons. P.W.3 and P.W.10, it is true, were related to the deceased, but, they were also related to accused Nos. 1 and 2, as admittedly, both the families are related to each other. It is not the case of the Appellants or for that matter the accused Nos. 1 and 2 that P.W.3 and P.W.10 were inimical to them. There is nothing on record to show that they bore any grudge towards them. It is in the aforementioned fact situation, the role played by the Appellants herein must be considered.

They did not make any attempt to stop the Appellants Nos.1 and 2 from continuing assault on the family members of P.W.2. They had not only watched as to how P.W.2-Kannan, son of the deceased, the deceased himself, P.W.-4 wife of deceased and the two daughters, i.e., P.W.5-Leela and P.W.6-Gandhimathi, suffered injuries after injuries at the hands of the accused Nos.1 and 3, but even when P.W.3-Venkatesan came to intervene, a grievous injury was caused by Appellant-Kalith and when thereafter P.W.10, a lady intervened, she also had sustained injuries on her hands. It is immaterial, in the aforementioned fact situation obtaining herein that P.W.10 suffered simple injury, in view of the fact that whoever had come to interfere had been dealt with one way or the other by the accused persons. We, therefore, have no hesitation in rejecting the contentions of the learned counsel for the Appellants that the medical evidence is contrary to the ocular evidence and Section 149 is not attracted. In Triloki Nath & Ors. vs. State of U.P. [(2005) 9 SCALE 76], this Court opined:

“For the purpose of attracting Section 149 of the IPC, it is not necessary that there should be a preconcert by way of a meeting of the persons of the unlawful assembly as to the common object. If a common object is adopted by all the persons and shared by them, it would serve the purpose.”

Yet again in Bishna @ Bhiswadeb Mahato & Ors. vs. State of West Bengal [(2005) 9 SCALE 204], the afore-mentioned principle has been reiterated. Section 149 of the Indian Penal Code provides for vicarious liability. If an offence is committed by any member of an unlawful assembly in prosecution of a common object thereof or such as the members of that assembly knew that the offence to be likely to be committed in prosecution of that object, every person who at the time of committing that offence was member would be guilty of the offence committed. The common object may be commission of one offence while there may be likelihood of commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. Whether a member of such unlawful assembly was aware as regard likelihood of commission of another offence or not would depend upon the facts and circumstances of each case. Background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime would be relevant factors for drawing an inference in that behalf. [See Rajendra Shantaram Todankar vs. State of Maharashtra & Ors. reported in (2003) 2 SCC 257.]

It is also well-settled that if death had been caused in prosecution of the common object of an unlawful assembly, it would not be necessary to record a definite or specific finding as to which particular accused out of the members of the unlawful assembly caused the fatal injury. [See State of Rajasthan vs. Nathu & Ors. reported in (2003) 5 SCC 537.]

For the foregoing reasons, in our view, there is no merit in these appeals. The appeals are dismissed accordingly.

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IN THE SUPREME COURT OF INDIA
CASE NO.: Writ Petition (civil) 61 of 2002
M.Nagaraj & Others …PETITIONER
Vs
Union of India & Others …RESPONDENT
DATE OF JUDGMENT: 19/10/2006
BENCH: Y.K.SABHARWAL CJI & K.G.BALAKRISHNAN & S.H.KAPADIA & C.K.THAKKER & P.K. BALASUBRAMANYAN

J U D G M E N T

with
WP (C) Nos.62, 81, 111, 134, 135, 206, 226, 227, 255, 266, 269, 279, 299, 294, 295, 298, 250, 319, 375, 386, 387, 320, 322, 323, 338, 234, 340, 423, 440, 453, 460, 472, 482, 483, 484, 485, 550, 527 and 640 of 2002, SLP (C) Nos. 4915-4919 of 2003, W.P. (C) Nos.153/2003, C.P. (C) No. 404/2004 in W.P.(C) No. 255/2002, C.P. (C) No.505/2002 in WP (C) No.61/2002, C.P. (C) No.553/2002 in WP (C) No.266/2002, C.P. (C) No.570/2002 in WP (C) No.255/2002, C.P. (C) No.122/2003 in WP (C) No.61/2002, C.P. (C) No.127/2003 in WP (C) No.61/2002, C.P. (C) No.85/2003 in WP (C) No.255/2002, W.P. (C) Nos. 313 and 381 of 2003, CIVIL APPEAL Nos. 12501-12503/1996, SLP (C) No.754/1997, WP (C) No.460 of 2003, CIVIL APPEAL Nos. 7802/2001 and 7803/2001, W.P. (C) No.469/2003, SLP (C) No.19689/1996, WP (C) No. 563/2003, WP (C) No.2/2003, WP (C) Nos. 515, 519 and 562 of 2004, WP (C) No. 413 of 1997, WP (C) No.286 of 2004 and SLP (C) No.14518 of 2004.

DELIVERED BY: S.H.KAPADIA, J. KAPADIA, J.

The width and amplitude of the right to equal opportunity in public employment, in the context of reservation, broadly falls for consideration in these writ petitions under Article 32 of the Constitution.

FACTS IN WRIT PETITION (CIVIL) NO.61 OF 2002:
The facts in the above writ petition, which is the lead petition, are as follows. Petitioners have invoked Article 32 of the Constitution for a writ in the nature of certiorari to quash the Constitution (Eighty-Fifth Amendment] Act, 2001 inserting Article 16(4A) of the Constitution retrospectively from 17.6.1995 providing reservation in promotion with consequential seniority as being unconstitutional and violative of the basic structure. According to the petitioners, the impugned amendment reverses the decisions of this Court in the case of Union of India and others v. Virpal Singh Chauhan and others , Ajit Singh Januja and others v. State of Punjab and others (Ajit Singh-I), Ajit Singh and others (II) v. State of Punjab and others , Ajit Singh and others (III) v. State of Punjab and others , Indra Sawhney and others v. Union of India , and M. G. Badappanavar and another v. State of Karnataka and others . Petitioners say that the Parliament has appropriated the judicial power to itself and has acted as an appellate authority by reversing the judicial pronouncements of this Court by the use of power of amendment as done by the impugned amendment and is, therefore, violative of the basic structure of the Constitution. The said amendment is, therefore, constitutionally invalid and is liable to be set aside. Petitioners have further pleaded that the amendment also seeks to alter the fundamental right of equality which is part of the basic structure of the Constitution. Petitioners say that the equality in the context of Article 16(1) connotes “accelerated promotion” so as not to include consequential seniority. Petitioners say that by attaching consequential seniority to the accelerated promotion, the impugned amendment violates equality in Article 14 read with Article 16(1). Petitioners further say that by providing reservation in the matter of promotion with consequential seniority, there is impairment of efficiency. Petitioners say that in the case of Indra Sawhney5 decided on 16.11.1992, this Court has held that under Article 16(4), reservation to the backward classes is permissible only at the time of initial recruitment and not in promotion. Petitioners say that contrary to the said judgment delivered on 16.11.1992, the Parliament enacted the Constitution (SeventySeventh Amendment) Act, 1995. By the said amendment, Article 16(4A) was inserted, which reintroduced reservation in promotion. The Constitution (Seventy-Seventh Amendment) Act, 1995 is also challenged by some of the petitioners. Petitioners say that if accelerated seniority is given to the roster-point promotees, the consequences would be disastrous. A roster-point promotee in the graduate stream would reach the 4th level by the time he attains the age of 45 years. At the age of 49, he would reach the highest level and stay there for nine years. On the other hand, the general merit promotee would reach the 3rd level out of 6 levels at the age of 56 and by the time, he gets eligibility to the 4th level, he would have retired from service. Petitioners say that the consequences of the impugned 85th Amendment which provides for reservation in promotion, with consequential seniority, would result in reverse discrimination in the percentage of representation of the reserved category officers in the higher cadre.

BROAD ISSUES IN WRIT PETITION No.527 OF 2002:
The broad issues that arise for determination in this case relate to the:
1. Validity
2. Interpretation
3. Implementation of (i) the Constitution (Seventy-Seventh Amendment) Act, 1995, the Constitution (Eighty-First Amendment) Act, 2000, the Constitution (Eighty-Second Amendment) Act, 2000, and the Constitution (Eighty-Fifth Amendment) Act, 2001; and, (ii) Action taken in pursuance thereof which seek to reverse decisions of the Supreme Court in matters relating to promotion and their application with retrospective effect.

ARGUMENTS:
The substance of the arguments advanced on behalf of the petitioners briefly is as follows: Equality is a part of the basic structure and it is impossible to conceive of the Constitution without equality as one of its central components. That, equality is the basic feature referred to in the preamble to our Constitution. Petitioners further submit that Article 16 is integral to equality; that, Article 16 has to be read with Article 14 and with several Articles in Part-IV. According to the petitioners, the Constitution places an important significance on public employment and the rule of equality, inasmuch as, a specific guarantee is given under Article 16 protecting equality principles in public employment. In this connection, reliance is also placed on the provisions of Part XIV to show that the Constitution makers had given importance to public employment by making a special provision in the form of Part XIV providing certain rights and protection to the office holders in the services of the Union and the States. These provisions are Articles 309, 311, 315, 316, 317 and 318 to 323. Special provisions have also been made in Article 323-A which permits establishment of tribunals as special and adjudicatory mechanism. That, Article 335 recognizes the importance of efficiency in administration and the various provisions of the Constitution indicate that public employment was and is even today of central concern to the Constitution. It is urged that equality in matters of public employment cannot be considered as merely an abstract concept. Petitioners say that over the years, this Court has delivered many decisions laying down that principles of ’equality’ and ’affirmative action’ are the pillars of our Constitution. These judgments also provide conclusions based on principles which gave meaning to equality both as an individual right and as group expectations. It is submitted that clause (4) of Article 16 is an instance of the classification implicit and permitted by Article 16(1) and that this view of equality did not dilute the importance of Article 16(1) or Article 16(2) but merely treated Article 16(4) as an instance of the classification; that this relationship of sub-clauses within Article 16 is not an invitation for reverse discrimination and that, equality of opportunity cannot be overruled by affirmative action. It is submitted that “equality in employment”consists of equality of opportunity [Article 16(1)], antidiscrimination [Article 16(2)], special classification [Article 16(3)], affirmative action [Article 16(4)] which does not obliterate equality but which stands for classification within equality], and lastly, efficiency [Article 335]. As regards the words ’nothing in this article’ in Article 16(4), it is urged that these words cannot wipe out Article 16(1) and, therefore, they have a limited meaning. It is urged that the said words also occur in Articles 16(4A) and 16(4B). It is urged that equality in the Constitution conceives the individual right to be treated fairly without discrimination in the matter of equality of opportunity. It also conceives of affirmative action in Article 15(4) and Article 16(4). It enables classification as a basis for enabling preferences and benefits for specific beneficiary groups and that neither classification nor affirmative action can obliterate the individual right to equal opportunity. Therefore, a balance has to be evolved to promote equal opportunities while protecting individual rights. It is urged that as an individual right in Article 16(1), enforceability is provided for whereas “group expectation” in Article 16(4) is not a fundamental right but it is an enabling power which is not coupled with duty. It is submitted that if the structural balance of equality in the light of the efficiency is disturbed and if the individual right is encroached upon by excessive support for group expectations, it would amount to reverse discrimination.

On the question of power of amendment, it is submitted that the limited power of amendment cannot become an unlimited one. A limited amendment power is one of the basic features of our Constitution and, therefore, limits on that power cannot be destroyed. Petitioners submit that Parliament cannot under Article 368 expand its amending power so as to acquire for itself the right to abrogate the Constitution and if the width of the amendment invites abrogation of the basic structure then such amendment must fail. Reliance is placed in this connection on the judgment in Minerva Mills Ltd. and others v. Union of India and others . On the question of balancing of fundamental rights vis-‘-vis directive principles, it is submitted that directive principles cannot be used to undermine the basic structure principles underlying fundamental rights including principles of equality, fundamental freedoms, due process, religious freedom and judicial enforcement. On the question of balancing and structuring of equality in employment, it is urged that quotas are subject to quantitative limits and qualitative exclusions; that, there is a distinction between quota limits (example 15% to SCs) and ceiling-limits/maximum permissible reservation limits (example 50%) which comes under the category of quantitative limits. However, quotas are also subject to qualitative exclusions like creamy layer. It is urged that in numerous judgments and in particular in Indra Sawhney5, M.G. Badaappanavar6, Ajit Singh (II)3, the equality of opportunity in public employment is clarified in order to structure and balance Articles 16(1) and 16(4). In answer to the respondents’ contentions that Articles 16(4A) and 16(4B) and the changes to Article 335 are merely enabling provisions and that in a given case if the exercise undertaken by the appropriate Government is found to be arbitrary, this Court will set it right, it is contended that ingressing the basic structure is a per se violation of the Constitution. In this connection, it is alleged that the basis for impugned amendments is to overrule judicial decisions based on holistic interpretation of the Constitution and its basic values, concepts and structure. In this connection, it is urged that the 77th Amendment introducing Article 16(4A) has the effect of nullifying the decision in the case of Indra Sawhney5; that, the 81st Amendment introducing Article 16(4B) has been brought in to nullify the effect of the decision in R.K. Sabharwal & Others v. State of Punjab and others , in which it has been held that carry forward vacancies cannot be filled exceeding 50% of the posts. Petitioners say that similarly the Constitution (Eighty-Second Amendment) Act, 2000 introducing the proviso to Article 335 has been introduced to nullify the effect of the decision in the case of Indra Sawhney5 and a host of other cases, which emphasize the importance of maintaining efficiency in administration. It is submitted that, the 85th Amendment adding the words ’with consequential seniority’ in Article 16(4A) has been made to nullify the decision in Ajit Singh (II)3. Accordingly it is urged that the impugned amendments are violative of the basic structure and the fundamental values of the Constitution articulated in the preamble and encapsulated in Articles 14, 16 and 19; that, they violate the fundamental postulates of equality, justice, rule of law and secularism as enshrined in the Constitution and that they violate the fundamental role of the Supreme Court as interpreter of the Constitution. That, the impugned amendments create an untrammelled, unrestrained and unconstitutional regime of reservations which destroys the judicial power and which undermines the efficacy of judicial review which is an integral part of rule of law. It is argued that, Articles 14 and 16 have to be read with Article 335 as originally promulgated; that, the impugned amendments invade the twin principles of efficiency, merit and the morale of public services and the foundation of good governance. It is urged vehemently that the impugned amendments open the floodgates of disunity, disharmony and disintegration.

On behalf of the respondents, following arguments were advanced. The power of amendment under Article 368 is a ’constituent’ power and not a ’constituted power’; that, that there are no implied limitations on the constituent power under Article 368; that, the power under Article 368 has to keep the Constitution in repair as and when it becomes necessary and thereby protect and preserve the basic structure. In such process of amendment, if it destroys the basic feature of the Constitution, the amendment will be unconstitutional. Constitution, according to the respondents, is not merely what it says. It is what the last interpretation of the relevant provision of the Constitution given by the Supreme Court which prevails as a law. The interpretation placed on the Constitution by the Court becomes part of the Constitution and, therefore, it is open to amendment under Article 368. An interpretation placed by the Court on any provision of the Constitution gets inbuilt in the provisions interpreted. Such articles are capable of amendment under Article 368. Such change of the law so declared by the Supreme Court will not merely for that reason alone violate the basic structure of the Constitution or amount to usurpation of judicial power. This is how Constitution becomes dynamic. Law has to change. It requires amendments to the Constitution according to the needs of time and needs of society. It is an ongoing process of judicial and constituent powers, both contributing to change of law with the final say in the judiciary to pronounce on the validity of such change of law effected by the constituent power by examining whether such amendments violate the basic structure of the Constitution. On every occasion when a constitutional matter comes before the Court, the meaning of the provisions of the Constitution will call for interpretation, but every interpretation of the Article does not become a basic feature of the Constitution. That, there are no implied limitations on the power of the Parliament under Article 368 when it seeks to amend the Constitution. However, an amendment will be invalid, if it interferes with or undermines the basic structure. The validity of the amendment is not to be decided on the touchstone of Article 13 but only on the basis of violation of the basic features of the Constitution.

It is further submitted that amendments for giving effect to the directive principles cannot offend the basic structure of the Constitution. On the contrary, the amendments which may abrogate individual rights but which promote Constitutional ideal of ’justice, social, economic and political’ and the ideal of ’equality of status’ are not liable to be struck down under Article 14 or Article 16(1) and consequently, such amendments cannot violate the basic structure of the Constitution. That, the amendments to the Constitution which are aimed at removing social and economic disparities cannot offend the basic structure. It is urged that the concepts flowing from the preamble to the Constitution constitute the basic structure; that, basic structure is not found in a particular Article of the Constitution; and except the fundamental right to live in Article 21 read with Article 14, no particular Article in Part-III is a basic feature. Therefore, it is submitted that equality mentioned in Articles 14 and 16 is not to be equated to the equality which is a basic feature of the Constitution. It is submitted that the principle of balancing of rights of the general category and reserved category in the context of Article 16 has no nexus to the basic feature of the Constitution. It is submitted that basic feature consists of constitutional axioms like constitutional supremacy, and democratic form of government, secularism, separation of powers etc. Respondents contend that Article 16(4) is a part of the Constitution as originally enacted. The exercise of the power by the delegate under Article 16(4) will override Article 16(1). It is not by virtue of the power of the delegate, but it is by virtue of constituent power itself having authorized such exercise by the delegate under Article 16(4), that article 16(1) shall stand overruled. The only limitation on the power of delegate is that it should act within four corners of Article 16(4), namely, backward classes, which in the opinion of the State are not adequately represented in public employment. If this condition precedent is satisfied, a reservation will override Article 16(1) on account of the words ’nothing in this Article shall prevent the State’. It is urged that jurisprudence relating to public services do not constitute basic feature of the Constitution. That, the right to consideration for promotion in service matters is not a basic feature. It is lastly submitted that Articles 16(4A) and 16(4B) are only enabling provisions; that, the constitutionality of the enabling power in Articles 16(4A) and 16(4B) is not to be tested with reference to the exercise of the power or manner of exercise of such power and that the impugned amendments have maintained the structure of Articles 16(1) to 16(4) intact. In this connection, it is submitted that the impugned amendments have retained reservations at the recruitment level inconformity with the judgment in Indra Sawhney5, which has confined Article 16(4) only to initial appointments; that Article 16(4A) is a special provision which provides for reservation for promotion only to SCs and STs. It is urged that if SCs/STs and OBCs are lumped together, OBCs will take away all the vacancies and, therefore, Article 16(4A) has been inserted as a special provision. That, in Indra Sawhney5, the focus was on Backward Classes and not on SCs/STs and, therefore, there was no balancing of rights of three groups, namely, general category, other backward classes and scheduled castes/scheduled tribes. It is, therefore, contended that under Article 16(4A), reservation is limited. It is not to the extent of 50% but it is restricted only to SCs and STs, and, therefore, the “risk element” pointed out in Indra Sawhney5 stands reduced. To carve out SCs/STs and make a separate classification is not only constitutional, but it is a constitutional obligation to do so under Article 46. That, Article 16(4) is an overriding provision over Article 16(1) and if Article 16(4) cannot be said to constitute reverse discrimination then Article 16(4A) also cannot constitute reverse discrimination. It is next submitted that this Court has taken care of the interests of the general category by placing a ceiling on filling-up of vacancies only to a maximum of 50% for reservation. The said 50% permitted by this Court can be reserved in such manner as the appropriate Government may deem fit. It is urged that if it is valid to make reservation at higher levels by direct recruitment, it can also be done for promotion after taking into account the mandate of Article 335. It is next submitted that the amendment made by Article 16(4B) makes an exception to 50% ceiling-limit imposed by Indra Sawhney5, by providing that the vacancies of previous years will not be considered with the current year’s vacancies. In this connection, it was urged that Article 16(4B) applies to reservations under Article 16(4) and, therefore, if reservation is found to be within reasonable limits, the Court would uphold such reservations depending upon the facts of the case and if reservation suffers from excessiveness, it may be invalidated. Therefore, the enabling power under Article 16(4B) cannot be rendered invalid. For the above reasons, respondents submit that there is no infirmity in the impugned constitutional amendments.

KEY ISSUE:
It is not necessary for us to deal with the above arguments serially. The arguments are dealt with by us in the following paragraphs subject-wise. The key issue, which arises for determination in this case is \026 whether by virtue of the impugned constitutional amendments, the power of the Parliament is so enlarged so as to obliterate any or all of the constitutional limitations and requirements?

STANDARDS OF JUDICIAL REVIEW OF CONSTITUTIONAL AMENDMENTS:
Constitution is not an ephermal legal document embodying a set of legal rules for the passing hour. It sets out principles for an expanding future and is intended to endure for ages to come and consequently to be adapted to the various crisis of human affairs. Therefore, a purposive rather than a strict literal approach to the interpretation should be adopted. A Constitutional provision must be construed not in a narrow and constricted sense but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that constitutional provision does not get fossilized but remains flexible enough to meet the newly emerging problems and challenges. This principle of interpretation is particularly apposite to the interpretation of fundamental rights. It is a fallacy to regard fundamental rights as a gift from the State to its citizens. Individuals possess basic human rights independently of any constitution by reason of basic fact that they are members of the human race. These fundamental rights are important as they possess intrinsic value. Part-III of the Constitution does not confer fundamental rights. It confirms their existence and gives them protection. Its purpose is to withdraw certain subjects from the area of political controversy to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. Every right has a content. Every foundational value is put in Part-III as fundamental right as it has intrinsic value. The converse does not apply. A right becomes a fundamental right because it has foundational value. Apart from the principles, one has also to see the structure of the Article in which the fundamental value is incorporated. Fundamental right is a limitation on the power of the State. A Constitution, and in particular that of it which protects and which entrenches fundamental rights and freedoms to which all persons in the State are to be entitled is to be given a generous and purposive construction. In the case of Sakal Papers (P) Ltd. & Others v. Union of India and others this Court has held that while considering the nature and content of fundamental rights, the Court must not be too astute to interpret the language in a literal sense so as to whittle them down. The Court must interpret the Constitution in a manner which would enable the citizens to enjoy the rights guaranteed by it in the fullest measure. An instance of literal and narrow interpretation of a vital fundamental right in the Indian Constitution is the early decision of the Supreme Court in the case of A.K. Gopalan v. State of Madras . Article 21 of the Constitution provides that no person shall be deprived of his life and personal liberty except according to procedure established by law. The Supreme Court by a majority held that ’procedure established by law’ means any procedure established by law made by the Parliament or the legislatures of the State. The Supreme Court refused to infuse the procedure with principles of natural justice. It concentrated solely upon the existence of enacted law. After three decades, the Supreme Court overruled its previous decision in A.K. Gopalan10 and held in its landmark judgment in Maneka Gandhi v. Union of India and another that the procedure contemplated by Article 21 must answer the test of reasonableness. The Court further held that the procedure should also be in conformity with the principles of natural justice. This example is given to demonstrate an instance of expansive interpretation of a fundamental right. The expression ’life’ in Article 21 does not connote merely physical or animal existence. The right to life includes right to live with human dignity. This Court has in numerous cases deduced fundamental features which are not specifically mentioned in Part-III on the principle that certain unarticulated rights are implicit in the enumerated guarantees. For example, freedom of information has been held to be implicit in the guarantee of freedom of speech and expression. In India, till recently, there is no legislation securing freedom of information. However, this Court by a liberal interpretation deduced the right to know and right to access information on the reasoning that the concept of an open government is the direct result from the right to know which is implicit in the right of free speech and expression guaranteed under Article 19(1)(a). The important point to be noted is that the content of a right is defined by the Courts. The final word on the content of the right is of this Court. Therefore, constitutional adjudication plays a very important role in this exercise. The nature of constitutional adjudication has been a subject matter of several debates. At one extreme, it is argued that judicial review of legislation should be confined to the language of the constitution and its original intent. At the other end, noninterpretivism asserts that the way and indeterminate nature of the constitutional text permits a variety of standards and values. Others claim that the purpose of a Bill of Rights is to protect the process of decision making.

The question which arises before us is regarding nature of the standards of judicial review required to be applied in judging the validity of the constitutional amendments in the context of the doctrine of basic structure. The concept of a basic structure giving coherence and durability to a Constitution has a certain intrinsic force. This doctrine has essentially developed from the German Constitution. This development is the emergence of the constitutional principles in their own right. It is not based on literal wordings. In S.R. Bommai & Others etc. v. Union of India & Others etc. , the basic structure concept was resorted to although no question of constitutional amendment was involved in that case. But this Court held that policies of a State Government directed against an element of the basic structure of the Constitution would be a valid ground for the exercise of the central power under Article 356, that is, imposition of the President’s rule. In that case, secularism was held to be an essential feature of the Constitution and part of its basic structure. A State Government may be dismissed not because it violates any particular provision of the Constitution but because it acts against a vital principle enacting and giving coherence to a number of particular provisions, example: Articles 14, 15 and 25. In S.R. Bommai12, the Court clearly based its conclusion not so much on violation of particular constitutional provision but on this generalized ground i.e. evidence of a pattern of action directed against the principle of secularism. Therefore, it is important to note that the recognition of a basic structure in the context of amendment provides an insight that there are, beyond the words of particular provisions, systematic principles underlying and connecting the provisions of the Constitution. These principles give coherence to the Constitution and make it an organic whole. These principles are part of Constitutional law even if they are not expressly stated in the form of rules. An instance is the principle of reasonableness which connects Articles 14, 19 and 21. Some of these principles may be so important and fundamental, as to qualify as ’essential features’ or part of the ’basic structure’ of the Constitution, that is to say, they are not open to amendment. However, it is only by linking provisions to such overarching principles that one would be able to distinguish essential from less essential features of the Constitution.

The point which is important to be noted is that principles of federalism, secularism, reasonableness and socialism etc. are beyond the words of a particular provision. They are systematic and structural principles underlying and connecting various provisions of the Constitution. They give coherence to the Constitution. They make the Constitution an organic whole. They are part of constitutional law even if they are not expressly stated in the form of rules. For a constitutional principle to qualify as an essential feature, it must be established that the said principle is a part of the constitutional law binding on the legislature. Only thereafter, the second step is to be taken, namely, whether the principle is so fundamental as to bind even the amending power of the Parliament, i.e. to form a part of the basic structure. The basic structure concept accordingly limits the amending power of the Parliament. To sum up: in order to qualify as an essential feature, a principle is to be first established as part of the constitutional law and as such binding on the legislature. Only then, it can be examined whether it is so fundamental as to bind even the amending power of the Parliament i.e. to form part of the basic structure of the Constitution. This is the standard of judicial review of constitutional amendments in the context of the doctrine of basic structure.

As stated above, the doctrine of basic structure has essentially emanated from the German Constitution. Therefore, we may have a look at common constitutional provisions under German Law which deal with rights, such as, freedom of press or religion which are not mere values, they are justiciable and capable of interpretation. The values impose a positive duty on the State to ensure their attainment as far as practicable. The rights, liberties and freedoms of the individual are not only to be protected against the State, they should be facilitated by it. They are to be informed. Overarching and informing of these rights and values is the principle of human dignity under the German basic law. Similarly, secularism is the principle which is the overarching principle of several rights and values under the Indian Constitution. Therefore, axioms like secularism, democracy, reasonableness, social justice etc. are overarching principles which provide linking factor for principle of fundamental rights like Articles 14, 19 and 21. These principles are beyond the amending power of the Parliament. They pervade all enacted laws and they stand at the pinnacle of the hierarchy of constitutional values. For example, under the German Constitutional Law, human dignity under Article 1 is inviolable. It is the duty of the State not only to protect the human dignity but to facilitate it by taking positive steps in that direction. No exact definition of human dignity exists. It refers to the intrinsic value of every human being, which is to be respected. It cannot be taken away. It cannot give. It simply is. Every human being has dignity by virtue of his existence. The Constitutional Courts in Germany, therefore, see human dignity as a fundamental principle within the system of the basic rights. This is how the doctrine of basic structure stands evolved under the German Constitution and by interpretation given to the concept by the Constitutional Courts. Under the Indian Constitution, the word ’federalism’ does not exist in the preamble. However, its principle (not in the strict sense as in U.S.A.) is delineated over various provisions of the Constitution. In particular, one finds this concept in separation of powers under Articles 245 and 246 read with the three lists in the seventh schedule to the Constitution.

To conclude, the theory of basic structure is based on the concept of constitutional identity. The basic structure jurisprudence is a pre-occupation with constitutional identity. In Kesavananda Bharati Sripadagalvaru and others v. State of Kerala and another , it has been observed that ’one cannot legally use the constitution to destroy itself’. It is further observed ’the personality of the constitution must remain unchanged’. Therefore, this Court in Kesavananda Bharati13, while propounding the theory of basic structure, has relied upon the doctrine of constitutional identity. The word ’amendment’ postulates that the old constitution survives without loss of its identity despite the change and it continues even though it has been subjected to alteration. This is the constant theme of the opinions in the majority decision in Kesavananda Bharati13. To destroy its identity is to abrogate the basic structure of the Constitution. This is the principle of constitutional sovereignty. Secularism in India has acted as a balance between socio-economic reforms which limits religious options and communal developments. The main object behind the theory of the constitutional identity is continuity and within that continuity of identity, changes are admissible depending upon the situation and circumstances of the day. Lastly, constitutionalism is about limits and aspirations. According to Justice Brennan, interpretation of the Constitution as a written text is concerned with aspirations and fundamental principles. In his Article titled ’Challenge to the Living Constitution’ by Herman Belz, the author says that the Constitution embodies aspiration to social justice, brotherhood and human dignity. It is a text which contains fundamental principles. Fidelity to the text qua fundamental principles did not limit judicial decision making. The tradition of the written constitutionalism makes it possible to apply concepts and doctrines not recoverable under the doctrine of unwritten living constitution. To conclude, as observed by Chandrachud, CJ, in Minerva Mills Ltd.7, ’the Constitution is a precious heritage and, therefore, you cannot destroy its identity’. Constitutional adjudication is like no other decision-making. There is a moral dimension to every major constitutional case; the language of the text is not necessarily a controlling factor. Our constitution works because of its generalities, and because of the good sense of the Judges when interpreting it. It is that informed freedom of action of the Judges that helps to preserve and protect our basic document of governance.

IS EQUALITY A PART OF THE FUNDAMENTAL FEATURES OR THE BASIC STRUCTURE OF THE CONSTITUTION?
At the outset, it may be noted that equality, rule of law, judicial review and separation of powers are distinct concepts. They have to be treated separately, though they are intimately connected. There can be no rule of law if there is no equality before the law; and rule of law and equality before the law would be empty words if their violation was not a matter of judicial scrutiny or judicial review and judicial relief and all these features would lose their significance if judicial, executive and legislative functions were united in only one authority, whose dictates had the force of law. The rule of law and equality before the law are designed to secure among other things justice both social and economic. Secondly, a federal Constitution with its distribution of legislative powers between Parliament and State legislatures involves a limitation on legislative powers and this requires an authority other than Parliament and State Legislatures to ascertain whether the limits are transgressed and to prevent such violation and transgression. As far back as 1872, Lord Selbourne said that the duty to decide whether the limits are transgressed must be discharged by courts of justice. Judicial review of legislation enacted by the Parliament within limited powers under the controlled constitution which we have, has been a feature of our law and this is on the ground that any law passed by a legislature with limited powers is ultra vires if the limits are transgressed. The framers conferred on the Supreme Court the power to issue writs for the speedy enforcement of those rights and made the right to approach the Supreme Court for such enforcement itself a fundamental right. Thus, judicial review is an essential feature of our constitution because it is necessary to give effect to the distribution of legislative power between Parliament and State legislatures, and is also necessary to give practicable content to the objectives of the Constitution embodied in Part-III and in several other Articles of our Constitution. In the case of Minerva Mills7, Chandrachud, C.J., speaking for the majority, observed that Articles 14 and 19 do not confer any fanciful rights. They confer rights which are elementary for the proper and effective functioning of democracy. They are universally regarded by the universal Declaration of Human Rights. If Articles 14 and 19 are put out of operation, Article 32 will be rendered nugatory. In the said judgment, the majority took the view that the principles enumerated in Part-IV are not the proclaimed monopoly of democracies alone. They are common to all polities, democratic or authoritarian. Every State is goal-oriented and every State claims to strive for securing the welfare of its people. The distinction between different forms of Government consists in the fact that a real democracy will endeavour to achieve its objectives through the discipline of fundamental freedoms like Articles 14 and 19. Without these freedoms, democracy is impossible. If Article 14 is withdrawn, the political pressures exercised by numerically large groups can tear the country apart by leading it to the legislation to pick and choose favoured areas and favourite classes for preferential treatment.

From these observations, which are binding on us, the principle which emerges is that “equality” is the essence of democracy and, accordingly a basic feature of the Constitution. This test is very important. Free and fair elections per se may not constitute a basic feature of the Constitution. On their own, they do not constitute basic feature. However, free and fair election as a part of representative democracy is an essential feature as held in the Indira Nehru Gandhi v. Raj Narain (Election case). Similarly, federalism is an important principle of constitutional law. The word ’federalism’ is not in the preamble. However, as stated above, its features are delineated over various provisions of the Constitution like Articles 245, 246 and 301 and the three lists in the seventh schedule to the Constitution. However, there is a difference between formal equality and egalitarian equality which will be discussed later on.

The theory of basic structure is based on the principle that a change in a thing does not involve its destruction and destruction of a thing is a matter of substance and not of form. Therefore, one has to apply the test of overarching principle to be gathered from the scheme and the placement and the structure of an Article in the Constitution. For example, the placement of Article 14 in the equality code; the placement of Article 19 in the freedom code; the placement of Article 32 in the code giving access to the Supreme Court. Therefore, the theory of basic structure is the only theory by which the validity of impugned amendments to the Constitution is to be judged.

WORKING TEST IN THE MATTER OF APPLICATION OF THE DOCTRINE OF BASIC STRUCTURE:
Once it is held that fundamental rights could be abridged but not destroyed and once it is further held that several features of the Constitution can not be destroyed, the concept of ’express limitation’ on the amending power loses its force for a precise formulation of the basic feature of the Constitution and for the courts to pronounce on the validity of a constitutional amendment.

A working test has been evolved by Chandrachud, J. in the Election Case14, in which the learned Judge has rightly enunciated, with respect, that “for determining whether a particular feature of the Constitution is a part of its basic structure, one has per force to examine in each individual case the place of the particular feature in the scheme of the Constitution, its object and purpose and the consequences of its denial on the integrity of the Constitution as a fundamental instrument of the country’s governance.”
Applying the above test to the facts of the present case, it is relevant to note that the concept of ’equality’ like the concept of ’representative democracy’ or ’secularism’ is delineated over various Articles. Basically, Part-III of the Constitution consists of the equality code, the freedom code and the right to move the courts. It is true that equality has several facets. However, each case has to be seen in the context of the placement of an Article which embodies the foundational value of equality.

CONCEPT OF RESERVATION:
Reservation as a concept is very wide. Different people understand reservation to mean different things. One view of reservation as a generic concept is that reservation is anti-poverty measure. There is a different view which says that reservation is merely providing a right of access and that it is not a right to redressal. Similarly, affirmative action as a generic concept has a different connotation. Some say that reservation is not a part of affirmative action whereas others say that it is a part of affirmative action. Our Constitution has, however, incorporated the word ’reservation’ in Article 16(4) which word is not there in Article 15(4). Therefore, the word ’reservation’ as a subject of Article 16(4) is different from the word ’reservation’ as a general concept. Applying the above test, we have to consider the word ’reservation’ in the context of Article 16(4) and it is in that context that Article 335 of the Constitution which provides for relaxation of the standards of evaluation has to be seen. We have to go by what the Constitution framers intended originally and not by general concepts or principles. Therefore, schematic interpretation of the Constitution has to be applied and this is the basis of the working test evolved by Chandrachud, J. in the Election Case14.

JUSTICE, SOCIAL, ECONOMIC AND POLITICAL IS PROVIDED NOT ONLY IN PART-IV (DIRECTIVE PRINCIPLES) BUT ALSO IN PART-III (FUNDAMENTAL RIGHTS):
India is constituted into a sovereign, democratic republic to secure to all its citizens, fraternity assuring the dignity of the individual and the unity of the nation. The sovereign, democratic republic exists to promote fraternity and the dignity of the individual citizen and to secure to the citizens certain rights. This is because the objectives of the State can be realized only in and through the individuals. Therefore, rights conferred on citizens and non-citizens are not merely individual or personal rights. They have a large social and political content, because the objectives of the Constitution cannot be otherwise realized. Fundamental rights represent the claims of the individual and the restrictions thereon are the claims of the society. Article 38 in PartIV is the only Article which refers to justice, social, economic and political. However, the concept of justice is not limited only to directive principles. There can be no justice without equality. Article 14 guarantees the fundamental right to equality before the law on all persons. Great social injustice resulted from treating sections of the Hindu community as ’untouchable’ and, therefore, Article 17 abolished untouchability and Article 25 permitted the State to make any law providing for throwing open all public Hindu religious temples to untouchables. Therefore, provisions of Part-III also provide for political and social justice.

This discussion is important because in the present case, we are concerned with reservation. Balancing a fundamental right to property vis-‘-vis Articles 39(b) and 39(c) as in Kesavananda Bharati13 and Minerva Mills7 cannot be equated with the facts of the present case. In the present case, we are concerned with the right of an individual of equal opportunity on one hand and preferential treatment to an individual belonging to a backward class in order to bring about equal levelplaying field in the matter of public employment. Therefore, in the present case, we are concerned with conflicting claims within the concept of ’justice, social, economic and political’, which concept as stated above exists both in Part-III and Part-IV of the Constitution. Public employment is a scarce commodity in economic terms. As the supply is scarce, demand is chasing that commodity. This is reality of life. The concept of ’public employment’ unlike right to property is socialistic and, therefore, falls within the preamble to the Constitution which states that WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC. Similarly, the preamble mentions the objective to be achieved, namely, justice, social, economic and political. Therefore, the concept of ’equality of opportunity’ in public employment concerns an individual, whether that individual belongs to general category or backward class. The conflicting claim of individual right under Article 16(1) and the preferential treatment given to a backward class has to be balanced. Both the claims have a particular object to be achieved. The question is of optimization of these conflicting interests and claims.

EQUITY, JUSTICE AND MERIT:
The above three concepts are independent variable concepts. The application of these concepts in public employment depends upon quantifiable data in each case. Equality in law is different from equality in fact. When we construe Article 16(4), it is equality in fact which plays the dominant role. Backward classes seek justice. General class in public employment seeks equity. The difficulty comes in when the third variable comes in, namely, efficiency in service. In the issue of reservation, we are being asked to find a stable equilibrium between justice to the backwards, equity for the forwards and efficiency for the entire system. Equity and justice in the above context are hard-concepts. However, if you add efficiency to equity and justice, the problem arises in the context of the reservation. This problem has to be examined, therefore, on the facts of each case. Therefore, Article 16(4) has to be construed in the light of Article 335 of the Constitution. Inadequacy in representation and backwardness of Scheduled Caste and Scheduled Tribes are circumstances which enable the State Government to act under Article 16(4) of the Constitution. However, as held by this Court the limitations on the discretion of the government in the matter of reservation under Article 16(4) as well as Article 16(4A) come in the form of Article 335 of the Constitution.

Merit is not a fixed absolute concept. Amartya Sen, in a book, Meritocracy and Economic Inequality, edited by Kenneth Arrow, points out that merit is a dependent idea and its meaning depends on how a society defines a desirable act. An act of merit in one society may not be the same in another. The difficulty is that there is no natural order of ’merit’ independent of our value system. The content of merit is contextspecific. It derives its meaning from particular conditions and purposes. The impact of any affirmative action policy on ’merit’ depends on how that policy is designed. Unfortunately, in the present case, the debate before us on this point has taken place in an empirical vacuum. The basic presumption, however, remains that it is the State who is in the best position to define and measure merit in whatever ways they consider it to be relevant to public employment because ultimately it has to bear the costs arising from errors in defining and measuring merit. Similarly, the concept of “extent of reservation” is not an absolute concept and like merit it is contextspecific.

The point which we are emphasizing is that ultimately the present controversy is regarding the exercise of the power by the State Government depending upon the fact-situation in each case. Therefore, ’vesting of the power’ by an enabling provision may be constitutionally valid and yet ’exercise of the power’ by the State in a given case may be arbitrary, particularly, if the State fails to identify and measure backwardness and inadequacy keeping in mind the efficiency of service as required under Article 335.

RESERVATION AND AFFIRMATIVE ACTION:
Equality of opportunity has two different and distinct concepts. There is a conceptual distinction between a non-discrimination principle and affirmative action under which the State is obliged to provide levelplaying field to the oppressed classes. Affirmative action in the above sense seeks to move beyond the concept of non-discrimination towards equalizing results with respect to various groups. Both the conceptions constitute “equality of opportunity”. It is the equality “in fact” which has to be decided looking at the ground reality. Balancing comes in where the question concerns the extent of reservation. If the extent of reservation goes beyond cut-off point then it results in reverse discrimination. Anti-discrimination legislation has a tendency of pushing towards de facto reservation. Therefore, a numerical benchmark is the surest immunity against charges of discrimination. Reservation is necessary for transcending caste and not for perpetuating it. Reservation has to be used in a limited sense otherwise it will perpetuate casteism in the country. Reservation is under-written by a special justification. Equality in Article 16(1) is individualspecific whereas reservation in Article 16(4) and Article 16(4A) is enabling. The discretion of the State is, however, subject to the existence of “backwardness” and “inadequacy of representation” in public employment. Backwardness has to be based on objective factors whereas inadequacy has to factually exist. This is where judicial review comes in. However, whether reservation in a given case is desirable or not, as a policy, is not for us to decide as long as the parameters mentioned in Articles 16(4) and 16(4A) are maintained. As stated above, equity, justice and merit (Article 335)/efficiency are variables which can only be identified and measured by the State. Therefore, in each case, a contextual case has to be made out depending upon different circumstances which may exist Statewise.

EXTENT OF RESERVATION:
Social justice is one of the sub-divisions of the concept of justice. It is concerned with the distribution of benefits and burdens throughout a society as it results from social institutions \026 property systems, public organisations etc. The problem is \026 what should be the basis of distribution? Writers like Raphael, Mill and Hume define ’social justice’ in terms of rights. Other writers like Hayek and Spencer define ’social justice’ in terms of deserts. Socialist writers define ’social justice’ in terms of need. Therefore, there are three criteria to judge the basis of distribution, namely, rights, deserts or need. These three criteria can be put under two concepts of equality \026 “formal equality” and “proportional equality”. “Formal equality” means that law treats everyone equal and does not favour anyone either because he belongs to the advantaged section of the society or to the disadvantaged section of the society. Concept of “proportional equality” expects the States to take affirmative action in favour of disadvantaged sections of the society within the framework of liberal democracy. Under the Indian Constitution, while basic liberties are guaranteed and individual initiative is encouraged, the State has got the role of ensuring that no class prospers at the cost of other class and no person suffers because of drawbacks which is not his but social.

The question of extent of reservation involves two questions:
1. Whether there is any upper limit beyond which reservation is not permissible?
2. Whether there is any limit to which seats can be reserved in a particular year; in other words the issue is whether the percentage limit applies only on the total number of posts in the cadre or to the percentage of posts advertised every year as well?
The question of extent of reservation is closely linked to the issue whether Article 16(4) is an exception to Article 16(1) or is Article 16(4) an application of Article 16(1). If Article 16(4) is an exception to Article 16(1) then it needs to be given a limited application so as not to eclipse the general rule in Article 16(1). But if Article 16(4) is taken as an application of Article 16(1) then the two articles have to be harmonized keeping in view the interests of certain sections of the society as against the interest of the individual citizens of the society. Maximum limit of reservation possible Word of caution against excess reservation was first pointed out in The General Manager, Southern Railway and another v. Rangachari Gajendragadkar, J. giving the majority judgment said that reservation under Article 16(4) is intended merely to give adequate representation to backward communities. It cannot be used for creating monopolies or for unduly or illegitimately disturbing the legitimate interests of other employees. A reasonable balance must be struck between the claims of backward classes and claims of other employees as well as the requirement of efficiency of administration. However, the question of extent of reservation was not directly involved in Rangachari15. It was directly involved in M.R. Balaji & Ors. V. The State of Mysore & Ors. with reference to Article 15(4). In this case, 60% reservations under Article 15(4) was struck down as excessive and unconstitutional. Gajendragadkar, J. observed that special provision should be less than 50 per cent, how much less would depend on the relevant prevailing circumstances of each case. But in State of Kerala and another v. N.M. Thomas and others Krishna Iyer, J. expressed his concurrence to the views of Fazal Ali, J. who said that although reservation cannot be so excessive as to destroy the principle of equality of opportunity under clause (1) of Article 16, yet it should be noted that the Constitution itself does not put any bar on the power of the Government under Article 16(4). If a State has 80% population which is backward then it would be meaningless to say that reservation should not cross 50%.

However, in Indra Sawhney5 the majority held that the rule of 50% laid down in Balaji16 was a binding rule and not a mere rule of prudence. Giving the judgment of the Court in Indra Sawhney5, Reddy, J. stated that Article 16(4) speaks of adequate representation not proportionate representation although proportion of population of backward classes to the total population would certainly be relevant. He further pointed out that Article 16(4) which protects interests of certain sections of society has to be balanced against Article 16(1) which protects the interests of every citizen of the entire society. They should be harmonised because they are restatements of principle of equality under Article 14. (emphasis added) Are reserved category candidates free to contest for vacancies in general category

In Indra Sawhney5 Reddy, J. noted that reservation under Article 16(4) do not operate on communal ground. Therefore if a member from reserved category gets selected in general category, his selection will not be counted against the quota limit provided to his class. Similarly, in R.K. Sabharwal8 the Supreme Court held that while general category candidates are not entitled to fill the reserved posts; reserved category candidates are entitled to compete for the general category posts. The fact that considerable number of members of backward class have been appointed/promoted against general seats in the State services may be a relevant factor for the State Government to review the question of continuing reservation for the said class. Number of vacancies that could be reserved Wanchoo, J. who had given dissenting judgment in Rangachari15 observed that the requirement of Article 16(4) is only to give adequate representation and since Constitution-makers intended it to be a short-term measure it may happen that all the posts in a year may be reserved. He opined that reserving a fixed percentage of seats every year may take a long time before inadequacy of representation is overcome. Therefore, the Government can decide to reserve the posts. After having reserved a fixed number of posts the Government may decide that till those posts are filled up by the backward classes all appointments will go to them if they fulfil the minimum qualification. Once this number is reached the Government is deprived of its power to make further reservations. Thus, according to Wanchoo, J. the adequacy of representation has to be judged considering the total number of posts even if in a single year or for few years all seats are reserved provided the scheme is short-term. The idea given by Wanchoo, J. in Rangachari15 did not work out in practice because most of the time even for limited number of reservations, every year qualified backward class candidates were not available. This compelled the government to adopt carry-forward rule. This carry-forward rule came in conflict with Balaji16 ruling. In cases where the availability of reserved category candidates is less than the vacancies set aside for them, the Government has to adopt either of the two alternatives: (1) the State may provide for carrying on the unfulfilled vacancies for the next year or next to the next year, or (2) instead of providing for carrying over the unfulfilled vacancies to the coming years, it may provide for filling of the vacancies from the general quota candidates and carry forward the unfilled posts by backward classes to the next year quota. But the problem arises when in a particular year due to carry forward rule more than 50% of vacancies are reserved. In T. Devadasan v. Union of India and another , this was the issue. Union Public Service Commission had provided for 17=% reservation for Scheduled Castes and Scheduled Tribes. In case of nonavailability of reserved category candidates in a particular year the posts had to be filled by general category candidates and the number of such vacancies were to be carried forward to be filled by the reserved category candidate next year. Due to this, the rule of carry forward reservation in a particular year amounted to 65% of the total vacancies. The petitioner contended that reservation was excessive which destroyed his right under Article 16(1) and Article 14. The court on the basis of decision in Balaji16 held the reservation excessive and, therefore, unconstitutional. It further stated that the guarantee of equality under Article 16(1) is to each individual citizen and to appointments to any office under the State. It means that on every occasion for recruitment the State should see that all citizens are treated equally. In order to effectuate the guarantee each year of recruitment will have to be considered by itself. Thus, majority differed from Wanchoo’s, J. decision in Rangachari15 holding that a cent per cent reservation in a particular year would be unconstitutional in view of Balaji16 decision. Subba Rao, J. gave dissenting judgment. He relied on Wanchoo’s, J. judgment in Rangachari15 and held that Article 16(4) provides for adequate representation taking into consideration entire cadre strength. According to him, if it is within the power of the State to make reservations then reservation made in one selection or spread over many selections is only a convenient method of implementing the provision of reservation. Unless it is established that an unreasonably disproportionate part of the cadre strength is filled up with the said castes and tribes, it is not possible to contend that the provision is not one of reservation but amounts to an extinction of the fundamental right.

In the case of Thomas17 under the Kerala State and Subordinate Services Rules, 1950 certain relaxation was given to Scheduled Caste and Scheduled Tribe candidates passing departmental tests for promotions. For promotion to upper division clerks from lower division clerks the criteria of seniority-cum-merit was adopted. Due to relaxation in merit qualification in 1972, 34 out of 51 vacancies in upper division clerks went to Scheduled Caste candidates. It appeared that the 34 members of SC/ST had become senior most in the lower grade. The High Court quashed the promotions on the ground that it was excessive. The Supreme Court upheld the promotions. Ray, C.J. held that the promotions made in services as a whole is no where near 50% of the total number of the posts. Thus, the majority differed from the ruling of the court in Devadasan19 basically on the ground that the strength of the cadre as a whole should be taken into account. Khanna, J. in his dissenting opinion made a reference to it on the ground that such excessive concession would impair efficiency in administration.

In Indra Sawhney5, the majority held that 50% rule should be applied to each year otherwise it may happen that (if entire cadre strength is taken as a unit) the open competition channel gets choked for some years and meanwhile the general category candidates may become age barred and ineligible. The equality of opportunity under Article 16(1) is for each individual citizen while special provision under Article 16(4) is for socially disadvantaged classes. Both should be balanced and neither should be allowed to eclipse the other. However, in R.K. Sabharwal8 which was a case of promotion and the issue in this case was operation of roster system, the Court stated that entire cadre strength should be taken into account to determine whether reservation up to the required limit has been reached. With regard to ruling in Indra Sawhney case5 that reservation in a year should not go beyond 50% the Court held that it applied to initial appointments. The operation of a roster, for filling the cadre strength, by itself ensures that the reservation remains within the 50% limit. In substance the court said that presuming that 100% of the vacancies have been filled, each post gets marked for the particular category of candidate to be appointed against it and any subsequent vacancy has to be filled by that category candidate. The Court was concerned with the possibility that reservation in entire cadre may exceed 50% limit if every year half of the seats are reserved. The Constitution (Eighty-first Amendment) Act, 2000 added Article 16(4B) which in substance gives legislative assent to the judgment in R.K. Sabharwal8.

CATCH-UP RULE \026 IS THE SAID RULE A CONSTITUTIONAL REQUIREMENT UNDER ARTICLE 16(4):
One of the contentions advanced on behalf of the petitioners is that the impugned amendments, particularly, the Constitution (Seventy-Seventh Amendment) and (Eight-Fifth Amendment) Acts, obliterate all constitutional limitations on the amending power of the Parliament. That the width of these impugned amendments is so wide that it violates the basic structure of equality enshrined in the Constitution. The key issue which arises for determination is \026 whether the above “catch-up” rule and the concept of “consequential seniority” are constitutional requirements of Article 16 and of equality, so as to be beyond the constitutional amendatory process. In other words, whether obliteration of the “catch-up” rule or insertion of the concept of “consequential seniority code”, would violate the basic structure of the equality code enshrined in Articles 14, 15 and 16.

The concept of “catch-up” rule appears for the first time in the case of Virpal Singh Chauhan1 . In the category of Guards in the Railways, there were four categories, namely, Grade ’C’, Grade ’B’, Grade ’A’ and Grade ’A’ Special. The initial recruitment was made to Gr. ’C’. Promotion from one grade to another was by seniority-cum-suitability. The rule of reservation was applied not only at the initial stage of appointment to Grade ’C’ but at every stage of promotion. The percentage reserved for SC was 15% and for ST, it was 7.5%. To give effect to the rule of reservation, a fortypoint roster was prepared in which certain points were reserved for SCs and STs respectively. Subsequently, a hundred-point roster was prepared reflecting the same percentages. In 1986, general candidates and members of SCs/STs came within Grade ’A’ in Northern-Railway. On 1.8.1986, the Chief Controller promoted certain general candidates on ad hoc basis to Grade ’A’ Special. Within three months, they were reverted and SCs and STs were promoted. This action was challenged by general candidates as arbitrary and unconstitutional before the tribunal. The general candidates asked for three reliefs, namely, (a) to restrain the Railways from filling-up the posts in higher grades in the category of Guards by applying the rule of reservation; (b) to restrain the Railway from acting upon the seniority list prepared by them; and (c) to declare that the general candidates were alone entitled to be promoted and confirmed in Grade ’A’ Special on the strength of their seniority earlier to the reserved category employees. The contention of the general candidates was that once the quota prescribed for the reserved group is satisfied, the fortypoint roster cannot be applied because that roster was prepared to give effect to the rule of reservation. It was contended by the general candidates that accelerated promotion may be given but the Railways cannot give consequential seniority to reserved category candidates in the promoted category. (Emphasis added). In this connection, the general category candidates relied upon the decisions of the Allahabad and Madhya Pradesh High Courts. It was contended by the general candidates that giving consequential seniority in addition to accelerated promotion constituted conferment of double benefit upon the members of the reserved category and, therefore, violated the rule of equality in Article 16(1). It was further urged that accelerated promotion-cumaccelerated seniority is destructive of the efficiency of administration inasmuch as by this means the higher echelons of administration would be occupied entirely by members of reserved categories. This was opposed by the reserved category candidates who submitted that for the purposes of promotion to Grade ’A’ Special, the seniority list pertaining to Grade ’A’ alone should be followed; that, the administration should not follow the seniority lists maintained by the administration pertaining to Grade ’C’ as urged by the general candidates and since SCs and STs were senior to the general candidates in Grade ’A’, the seniority in Grade ’A’ alone should apply. In short, the general candidates relied upon the ’catch-up’ rule, which was opposed by the members of SC/ST. They also relied upon the judgment of this Court in R.K. Sabharwal8.

This Court gave following reasons for upholding the decision of the tribunal. Firstly, it was held that a rule of reservation as such does not violate Article 16(4). Secondly, this Court opined, that there is no uniform method of providing reservation. The extent and nature of reservation is a matter for the State to decide having regards to the facts and requirements of each case. It is open to the State, if so advised, to say that while the rule of reservation shall be applied, the candidate promoted earlier by virtue of rule of reservation/roster shall not be entitled to seniority over seniors in the feeder category and that it is open to the State to interpret the ’catch-up’ rule in the service conditions governing the promotions [See: para 24]. Thirdly, this Court did not agree with the view expressed by the tribunal [in Virpal Singh Chauhan1] that a harmonious reading of clauses (1) to (4) of Article 16 should mean that a reserved category candidate promoted earlier than his senior general category candidates in the feeder grade shall necessarily be junior in the promoted category to such general category. This Court categorically ruled, vide para 27, that such catch-up principle cannot be said to be implicit in clauses (1) to (4) of Article 16 (emphasis supplied). Lastly, this Court found on facts that for 11 vacancies, 33 candidates were considered and they were all SC/ST candidates. Not a single candidate belonged to general category. It was argued on behalf of the general candidates that all top grades stood occupied exclusively by the reserved category members, which violated the rule of equality underlying Articles 16(1), 16(4) and 14. This Court opined that the above situation arose on account of faulty implementation of the rule of reservation, as the Railways did not observe the principle that reservation must be in relation to ’posts’ and not ’vacancies’ and also for applying the roster even after the attainment of the requisite percentage reserved for SCs/STs. In other words, this Court based its decision only on the faulty implementation of the rule by the Railways which the Court ordered to be rectified. The point which we need to emphasize is that the Court has categorically ruled in Virpal Singh Chauhan1 that the ’catch-up’ rule is not implicit in clauses (1) to (4) of Article 16. Hence, the said rule cannot bind the amending power of the Parliament. It is not beyond the amending power of the Parliament.

In Ajit Singh (I)2, the controversy which arose for determination was \026 whether after the members of SCs/STs for whom specific percentage of posts stood reserved having been promoted against those posts, was it open to the administration to grant consequential seniority against general category posts in the higher grade. The appellant took a clear stand that he had no objection if members of SC/ST get accelerated promotions. The appellant objected only to the grant of consequential seniority. Relying on the circulars issued by the administration dated 19.7.1969 and 8.9.1969, the High Court held that the members of SCs/STs can be promoted against general category posts on basis of seniority. This was challenged in appeal before this Court. The High Court ruling was set aside by this Court on the ground that if the ’catch-up’ rule is not applied then the equality principle embodied in Article 16(1) would stand violated. This Court observed that the ’catch-up’ rule was a process adopted while making appointments through direct recruitment or promotion because merit cannot be ignored. This Court held that for attracting meritorious candidate a balance has to be struck while making provisions for reservation. It was held that the promotion is an incident of service. It was observed that seniority is one of the important factors in making promotion. It was held that right to equality is to be preserved by preventing reverse discrimination. Further, it was held that the equality principle requires exclusion of extra-weightage of roster-point promotion to a reserved category candidate (emphasis supplied). This Court opined that without ’catch-up’ rule giving weightage to earlier promotion secured by roster-point promotee would result in reverse discrimination and would violate equality under Articles 14, 15 and 16. Accordingly, this Court took the view that the seniority between the reserved category candidates and general candidates in the promoted category shall be governed by their panel position. Therefore, this Court set aside the factor of extra-weightage of earlier promotion to a reserved category candidate as violative of Articles 14 and 16(1) of the Constitution. Therefore, in Virpal Singh Chauhan1, this Court has said that the ’catch-up’ rule insisted upon by the Railways though not implicit in Articles 16(1) and 16(4), is constitutionally valid as the said practice/process was made to maintain efficiency. On the other hand, in Ajit Singh (I)2, this Court has held that the equality principle excludes the extra-weightage given by the Government to roster-point promotees as such weightage is against merit and efficiency of the administration and that the Punjab Government had erred in not taking into account the said merit and efficiency factors.

In the case of Ajit Singh (II)3, three interlocutory applications were filed by State of Punjab for clarification of the judgment of this Court in Ajit Singh (I)2. The limited question was \026 whether there was any conflict between the judgments of this Court in Virpal Singh Chauhan1 and Ajit Singh (I)2 on one hand and vis-‘-vis the judgment of this Court in Jagdish Lal and others v. State of Haryana and others . The former cases were decided in favour of general candidates whereas latter was a decision against the general candidates. Briefly, the facts for moving the interlocutory applications were as follows. The Indian Railways following the law laid down in Virpal Singh Chauhan1 issued a circular on 28.2.1997 to the effect that the reserved candidates promoted on roster-points could not claim seniority over the senior general candidates promoted later on. The State of Punjab after following Ajit Singh (I)2 revised their seniority list and made further promotions of the senior general candidates following the ’catch-up’ rule. Therefore, both the judgments were against the reserved candidates. However, in the later judgment of this Court in the case of Jagdish Lal20, another three-Judge bench took the view that under the general rule of service jurisprudence relating to seniority, the date of continuous officiation has to be taken into account and if so, the roster-point promotees were entitled to the benefit of continuous officiation. In Jagdish Lal20, the bench observed that the right to promotion was a statutory right while the rights of the reserved candidates under Article 16(4) and Article 16(4A) were fundamental rights of the reserved candidates and, therefore, the reserved candidates were entitled to the benefit of continuous officiation.

Accordingly, in Ajit Singh (II)3, three points arose for consideration:
(i) Can the roster point promotees count their seniority in the promoted category from the date of their continuous officiation vis-‘-vis general candidates, who were senior to them in the lower category and who were later promoted to the same level?
(ii) Have Virpal1 and Ajit Singh (I)2 have been correctly decided and has Jagdish Lal20 been correctly decided?
(iii) Whether the catch-up principles are tenable?

At the outset, this Court stated that it was not concerned with the validity of constitutional amendments and, therefore, it proceeded on the assumption that Article 16(4A) is valid and is not unconstitutional. Basically, the question decided was whether the ’catchup’ principle was tenable in the context of Article 16(4). It was held that the primary purpose of Article 16(4) and Article 16(4A) is to give due representation to certain classes in certain posts keeping in mind Articles 14, 16(1) and 335; that, Articles 14 and 16(1) have prescribed permissive limits to affirmative action by way of reservation under Articles 16(4) and 16(4A) of the Constitution; that, Article 335 is incorporated so that efficiency of administration is not jeopardized and that Articles 14 and 16(1) are closely connected as they deal with individual rights of the persons. They give a positive command to the State that there shall be equality of opportunity of all citizens in public employment. It was further held that Article 16(1) flows from Article 14. It was held that the word ’employment’ in Article 16(1) is wide enough to include promotions to posts at the stage of initial level of recruitment. It was observed that Article 16(1) provides to every employee otherwise eligible for promotion fundamental right to be considered for promotion. It was held that equal opportunity means the right to be considered for promotion. The right to be considered for promotion was not a statutory right. It was held that Articles 16(4) and 16(4A) did not confer any fundamental right to reservation. That they are only enabling provisions. Accordingly, in Ajit Singh (II)3, the judgment of this Court in Jagdish Lal20 case was overruled. However, in the context of balancing of fundamental rights under Article 16(1) and the rights of reserved candidate under Articles 16(4) and 16(4A), this Court opined that Article 16(1) deals with a fundamental right whereas Articles 16(4) and 16(4A) are only enabling provisions and, therefore, the interests of the reserved classes must be balanced against the interests of other segments of society. As a remedial measure, the Court held that in matters relating to affirmative action by the State, the rights under Articles 14 and 16 are required to be protected and a reasonable balance should be struck so that the affirmative action by the State does not lead to reverse discrimination.

Reading the above judgments, we are of the view that the concept of ’catch-up’ rule and ’consequential seniority’ are judicially evolved concepts to control the extent of reservation. The source of these concepts is in service jurisprudence. These concepts cannot be elevated to the status of an axiom like secularism, constitutional sovereignty etc. It cannot be said that by insertion of the concept of ’consequential seniority’ the structure of Article 16(1) stands destroyed or abrogated. It cannot be said that ’equality code’ under Article 14, 15 and 16 is violated by deletion of the ’catch-up’ rule. These concepts are based on practices. However, such practices cannot be elevated to the status of a constitutional principle so as to be beyond the amending power of the Parliament. Principles of service jurisprudence are different from constitutional limitations. Therefore, in our view neither the ’catch-up’ rule nor the concept of ’consequential seniority’ are implicit in clauses (1) and (4) of Article 16 as correctly held in Virpal Singh Chauhan1.

Before concluding, we may refer to the judgment of this court in M.G. Badappanavar6. In that case the facts were as follows. Appellants were general candidates. They contended that when they and the reserved candidates were appointed at Level-1 and junior reserved candidates got promoted earlier on the basis of rosterpoints to Level-2 and again by way of roster-points to Level-3, and when the senior general candidate got promoted to Level-3, then the general candidate would become senior to the reserved candidate at Level-3. At Level-3, the reserved candidate should have been considered along with the senior general candidate for promotion to Level-4. In support of their contention, appellants relied upon the judgment of the Constitution Bench in Ajit Singh (II)3. The above contentions raised by the appellants were rejected by the tribunal. Therefore, the general candidates came to this Court in appeal. This Court found on facts that the concerned Service Rule did not contemplate computation of seniority in respect of roster promotions. Placing reliance on the judgment of this Court in Ajit Singh (I)2 and in Virpal Singh1, this court held that roster promotions were meant only for the limited purpose of due representation of backward classes at various levels of service and, therefore, such roster promotions did not confer consequential seniority to the roster-point promotee. In Ajit Singh (II)3, the circular which gave seniority to the roster-point promotees was held to be violative of Articles 14 and 16. It was further held in M. G. Badappanavar6 that equality is the basic feature of the Constitution and any treatment of equals as unequals or any treatment of unequals as equals violated the basic structure of the Constitution. For this proposition, this Court placed reliance on the judgment in Indra Sawhney5 while holding that if creamy layer among backward classes were given some benefits as backward classes, it will amount to equals being treated unequals. Applying the creamy layer test, this Court held that if roster-point promotees are given consequential seniority, it will violate the equality principle which is part of the basic structure of the Constitution and in which event, even Article 16(4A) cannot be of any help to the reserved category candidates. This is the only judgment of this Court delivered by three-Judge bench saying that if roster-point promotees are given the benefit of consequential seniority, it will result in violation of equality principle which is part of the basic structure of the Constitution. Accordingly, the judgment of the tribunal was set aside. The judgment in the case of M. G. Badappanavar6 was mainly based on the judgment in Ajit Singh (I)’2 which had taken the view that the departmental circular which gave consequential seniority to the ’roster-point promotee’, violated Articles 14 and 16 of the Constitution. In none of the above cases, the question of the validity of the constitutional amendments was involved. Ajit Singh (I)’2, Ajit Singh (II)’3 and M. G. Badappanavar6 were essentially concerned with the question of ’weightage’. Whether weightage of earlier accelerated promotion with consequential seniority should be given or not to be given are matters which would fall within the discretion of the appropriate Government, keeping in mind the backwardness, inadequacy and representation in public employment and overall efficiency of services. The above judgments, therefore, did not touch the questions which are involved in the present case.

SCOPE OF THE IMPUGNED AMENDMENTS
Before dealing with the scope of the constitutional amendments we need to recap the judgments in Indra Sawhney5 and R.K. Sabharwal8 . In the former case the majority held that 50% rule should be applied to each year otherwise it may happen that the open competition channel may get choked if the entire cadre strength is taken as a unit. However in R.K. Sabharwal8, this court stated that the entire cadre strength should be taken into account to determine whether the reservation up to the quota-limit has been reached. It was clarified that the judgment in Indra Sawhney5 was confined to initial appointments and not to promotions. The operation of the roster for filling the cadre strength, by itself, ensure that the reservation remains within the ceiling-limit of 50%.
In our view, appropriate Government has to apply the cadre strength as a unit in the operation of the roster in order to ascertain whether a given class/group is adequately represented in the service. The cadre strength as a unit also ensures that upper ceiling-limit of 50% is not violated. Further, roster has to be postspecific and not vacancy based.

With these introductory facts, we may examine the scope of the impugned constitutional amendments. The Supreme Court in its judgment dated 16.11.92 in Indra Sawhney5 stated that reservation of appointments or posts under Article 16(4) is confined to initial appointment and cannot extend to reservation in the matter of promotion. Prior to the judgment in Indra Sawhney5 reservation in promotion existed. The Government felt that the judgment of this court in Indra Sawhney5 adversely affected the interests of SCs and STs in services, as they have not reached the required level. Therefore, the Government felt that it was necessary to continue the existing policy of providing reservation in promotion confined to SCs and STs alone. We quote hereinbelow Statement of Objects and Reasons with the text of the Constitution (Seventy-Seventh Amendment) Act, 1995 introducing clause (4A) in Article 16 of the Constitution:

“THE CONSTITUTION (SEVENTY-SEVENTH AMENDMENT) ACT, 1995
STATEMENT OF OBJECTS AND REASONS
The Scheduled Castes and the Scheduled Tribes have been enjoying the facility of reservation in promotion since 1955. The Supreme Court in its judgment dated 16th November, 1992 in the case of Indra Sawhney v. Union of India5, however, observed that reservation of appointments or posts under Article 16(4) of the Constitution is confined to initial appointment and cannot extent to reservation in the matter of promotion. This ruling of the Supreme Court will adversely affect the interests of the Scheduled Castes and the Scheduled Tribes. Since the representation of the Scheduled Castes and the Scheduled Tribes in services in the States have not reached the required level, it is necessary to continue the existing dispensation of providing reservation in promotion in the case of the Scheduled Castes and the Scheduled Tribes. In view of the commitment of the Government to protect the interests of the Scheduled Castes and the Scheduled Tribes, the Government have decided to continue the existing policy of reservation in promotion for the Scheduled Castes and the Scheduled Tribes. To carry out this, it is necessary to amend Article 16 of the Constitution by inserting a new clause (4A) in the said Article to provide for reservation in promotion for the Scheduled Castes and the Scheduled Tribes.

2. The Bill seeks to achieve the aforesaid object.

THE CONSTITUTION (SEVENTY-SEVENTH AMENDMENT) ACT, 1995
[Assented on 17th June, 1995, and came into force on 17.6.1995]
An Act further to amend the Constitution of India
BE it enacted by Parliament in the Fortysixth
Year of the Republic of India as follows:-
1. Short title.\027- This Act may be called the Constitution (Seventy-seventh Amendment) Act, 1995.
2. Amendment of Article 16. \027- In Article 16 of the Constitution, after clause (4), the following clause shall be inserted, namely:-
“(4A) Nothing in this Article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.”
The said clause (4A) was inserted after clause (4) of Article 16 to say that nothing in the said Article shall prevent the State from making any provision for reservation in matters of promotion to any class(s) of posts in the services under the State in favour of SCs and STs which, in the opinion of the States, are not adequately represented in the services under the State. Clause (4A) follows the pattern specified in clauses (3) and (4) of Article 16. Clause (4A) of Article 16 emphasizes the opinion of the States in the matter of adequacy of representation. It gives freedom to the State in an appropriate case depending upon the ground reality to provide for reservation in matters of promotion to any class or classes of posts in the services. The State has to form its opinion on the quantifiable data regarding adequacy of representation. Clause (4A) of Article 16 is an enabling provision. It gives freedom to the State to provide for reservation in matters of promotion. Clause (4A) of Article 16 applies only to SCs and STs. The said clause is carved out of Article 16(4). Therefore, clause (4A) will be governed by the two compelling reasons \026 “backwardness” and “inadequacy of representation”, as mentioned in Article 16(4). If the said two reasons do not exist then the enabling provision cannot come into force. The State can make provision for reservation only if the above two circumstances exist. Further in Ajit Singh (II)3 , this court has held that apart from ’backwardness’ and ’inadequacy of representation’ the State shall also keep in mind ’overall efficiency’ (Article 335). Therefore, all the three factors have to be kept in mind by the appropriate Government by providing for reservation in promotion for SCs and STs. After the Constitution (Seventy-Seventh Amendment) Act, 1995, this court stepped in to balance the conflicting interests. This was in the case of Virpal Singh Chauhan1 in which it was held that a roster-point promotee getting the benefit of accelerated promotion would not get consequential seniority. As such, consequential seniority constituted additional benefit and, therefore, his seniority will be governed by the panel position. According to the Government, the decisions in Virpal Singh1 and Ajit Singh (I)2 bringing in the concept of “catch-up” rule adversely affected the interests of SCs and STs in the matter of seniority on promotion to the next higher grade.

In the circumstances, clause (4A) of Article 16 was once again amended and the benefit of consequential seniority was given in addition to accelerated promotion to the roster-point promotees. Suffice it to state that, the Constitution (Eighty-Fifth Amendment) Act, 2001 was an extension of clause (4A) of Article 16. Therefore, the Constitution (Seventy-Seventh Amendment) Act, 1995 has to be read with the Constitution (Eighty-Fifth Amendment) Act, 2001.
We quote hereinbelow Statement of Objects and Reasons with the text of the Constitution (Eighty-Fifth Amendment) Act, 2001:

“THE CONSTITUTION (EIGHTY-FIFTH AMENDMENT) ACT, 2001
STATEMENT OF OBJECTS AND REASONS

The Government servants belonging to the Scheduled Castes and the Scheduled Tribes had been enjoying the benefit of consequential seniority on their promotion on the basis of rule of reservation. The judgments of the Supreme Court in the case of Union of India v. Virpal Singh Chauhan (1995) 6 SCC 684 and Ajit Singh Januja (No.1) v. State of Punjab AIR 1996 SC 1189, which led to the issue of the O.M. dated 30th January, 1997, have adversely affected the interest of the Government servants belonging to the Scheduled Castes and Scheduled Tribes category in the matter of seniority on promotion to the next higher grade. This has led to considerable anxiety and representations have also been received from various quarters including Members of Parliament to protect the interest of the Government servants belonging to Scheduled Castes and Scheduled Tribes.

2. The Government has reviewed the position in the light of views received from various quarters and in order to protect the interest of the Government servants belonging to the Scheduled Castes and Scheduled Tribes, it has been decided to negate the effect of O.M. dated 30th January 1997 immediately. Mere withdrawal of the O.M. dated 30th will not meet the desired purpose and review or revision of seniority of the Government servants and grant of consequential benefits to such Government servants will also be necessary. This will require amendment to Article 16(4A) of the Constitution to provide for consequential seniority in the case of promotion by virtue of rule of reservation. It is also necessary to give retrospective effect to the proposed constitutional amendment to Article 16(4A) with effect from the date of coming into force of Article 16(4A) itself, that is, from the 17th day of June, 1995.

3. The Bill seeks to achieve the aforesaid objects.

THE CONSTITUTION (EIGHTY-FIFTH AMENDMENT) ACT, 2001
The following Act of Parliament received the assent of the President on the 4th January, 2002 and is published for general information:-
An Act further to amend the Constitution of India.
BE it enacted by Parliament in the Fiftysecond Year of the Republic of India as follows:-
1. Short title and commencement.- (1) This Act may be called the Constitution (Eighty-fifth Amendment) Act, 2001. (2) It shall be deemed to have come into force on the 17th day of June 1995.

2. Amendment of Article 16.- In Article 16 of the Constitution, in clause (4A), for the words “in matters of promotion to any class”, the words “in matters of promotion, with consequential seniority, to any class” shall be substituted.”

Reading the Constitution (Seventy-Seventh Amendment) Act, 1995 with the Constitution (EightyFifth Amendment) Act, 2001, clause (4A) of Article 16 now reads as follows:

“(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which in the opinion of the State are not adequately represented in the services under the State.”

The question in the present case concerns the width of the amending powers of the Parliament. The key issue is \026 whether any constitutional limitation mentioned in Article 16(4) and Article 335 stand obliterated by the above constitutional amendments.

In R.K. Sabharwal8, the issue was concerning operation of roster system. This court stated that the entire cadre strength should be taken into account to determine whether reservation up to the required limit has been reached. It was held that if the roster is prepared on the basis of the cadre strength, that by itself would ensure that the reservation would remain within the ceiling-limit of 50%. In substance, the court said that in the case of hundred-point roster each post gets marked for the category of candidate to be appointed against it and any subsequent vacancy has to be filled by that category candidate alone (replacement theory). The question which remained in controversy, however, was concerning the rule of ’carry-forward’. In Indra Sawhney5 this court held that the number of vacancies to be filled up on the basis of reservation in a year including the ’carry-forward’ reservations should in no case exceed the ceiling-limit of 50%. However, the Government found that total reservation in a year for SCs, STs and OBCs combined together had already reached 49=% and if the judgment of this court in Indra Sawhney5 had to be applied it became difficult to fill “backlog vacancies”. According to the Government, in some cases the total of the current and backlog vacancies was likely to exceed the ceilinglimit of 50%. Therefore, the Government inserted clause (4B) after clause (4A) in Article 16 vide the Constitution (Eighty-First Amendment) Act, 2000. By clause (4B) the “carry-forward”/”unfilled vacancies” of a year is kept out and excluded from the overall ceiling-limit of 50% reservation. The clubbing of the backlog vacancies with the current vacancies stands segregated by the Constitution (Eighty-First Amendment) Act, 2000. Quoted hereinbelow is the Statement of Objects and Reasons with the text of the Constitution (Eighty-First Amendment) Act, 2000:

“THE CONSTITUTION (EIGHTY FIRST AMENDMENT) ACT, 2000
(Assented on 9th June, 2000 and came into force 9.6.2000)
STATEMENT OF OBJECTS AND REASONS

Prior to August 29, 1997, the vacancies reserved for the Scheduled Castes and the Scheduled Tribes, which could not be filled up by direct recruitment on account of nonavailability of the candidates belonging to the Scheduled Castes or the Scheduled Tribes, were treated as “Backlog Vacancies”. These vacancies were treated as a distinct group and were excluded from the ceiling of fifty per cent reservation. The Supreme Court of India in its judgment in the Indra Sawhney versus Union of India held that the number of vacancies to be filled up on the basis of reservations in a year including carried forward reservations should in no case exceed the limit of fifty per cent. As total reservations in a year for the Scheduled Castes, the Scheduled Tribes and the other Backward Classes combined together had already reached forty-nine and a half per cent and the total number of vacancies to be filled up in a year could not exceed fifty per cent., it became difficult to fill the “Backlog Vacancies” and to hold Special Recruitment Drives. Therefore, to implement the judgment of the Supreme Court, an Official Memorandum dated August 29, 1997 was issued to provide that the fifty per cent limit shall apply to current as well as “Backlog Vacancies” and for discontinuation of the Special Recruitment Drive. Due to the adverse effect of the aforesaid order dated August 29, 1997, various organisations including the Members of Parliament represented to the central Government for protecting the interest of the Scheduled castes and the Scheduled Tribes. The Government, after considering various representations, reviewed the position and has decided to make amendment in the constitution so that the unfilled vacancies of a year, which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) of Article 16 of the Constitution, shall be considered as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty percent, reservation on total number of vacancies of that year. This amendment in the Constitution would enable the State to restore the position as was prevalent before august 29, 1997. The Bill seeks to achieve the aforesaid object.

THE CONSTITUTION (EIGHTY-FIRST AMENDMENT) ACT, 2000
(Assented on 9th June, 2000 and came into force 9.6.2000)
An Act further to amend the Constitution of India.

BE it enacted by Parliament in the Fiftyfirst Year of the Republic of India as follows:-
1. Short title: This Act may be called the Constitution (Eighty-first Amendment) Act, 2000.

2. Amendment of Article 16: In Article 16 of the Constitution, after clause (4A), the following clause shall be inserted, namely: – “(4B) Nothing in this Article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.”

The Constitution (Eighty-First Amendment) Act, 2000 gives, in substance, legislative assent to the judgment of this Court in R.K. Sabharwal8. Once it is held that each point in the roster indicates a post which on falling vacant has to be filled by the particular category of candidate to be appointed against it and any subsequent vacancy has to be filled by that category candidate alone then the question of clubbing the unfilled vacancies with current vacancies do not arise. Therefore, in effect, Article 16(4B) grants legislative assent to the judgment in R.K. Sabharwal8. If it is within the power of the State to make reservation then whether it is made in one selection or deferred selections, is only a convenient method of implementation as long as it is post based, subject to replacement theory and within the limitations indicated hereinafter.

As stated above, clause (4A) of Article 16 is carved out of clause (4) of Article 16. Clause (4A) provides benefit of reservation in promotion only to SCs and STs. In the case of S. Vinod Kumar and another v. Union of India and others this court held that relaxation of qualifying marks and standards of evaluation in matters of reservation in promotion was not permissible under Article 16(4) in view of Article 335 of the Constitution. This was also the view in Indra Sawhney5. By the Constitution (Eighty-Second Amendment) Act, 2000, a proviso was inserted at the end of Article 335 of the Constitution which reads as under:

“Provided that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State.”

This proviso was added following the benefit of reservation in promotion conferred upon SCs and STs alone. This proviso was inserted keeping in mind the judgment of this court in Vinod Kumar21 which took the view that relaxation in matters of reservation in promotion was not permissible under Article 16(4) in view of the command contained in Article 335. Once a separate category is carved out of clause (4) of Article 16 then that category is being given relaxation in matters of reservation in promotion. The proviso is confined to SCs and STs alone. The said proviso is compatible with the scheme of Article 16(4A).

INTRODUCTION OF “TIME” FACTOR IN VIEW OF ARTICLE 16(4B):
As stated above, Article 16(4B) lifts the 50% cap on carry-over vacancies (backlog vacancies). The ceiling- limit of 50% on current vacancies continues to remain. In working-out the carry-forward rule, two factors are required to be kept in mind, namely, unfilled vacancies and the time factor. This position needs to be explained. On one hand of the spectrum, we have unfilled vacancies; on the other hand, we have a time-spread over number of years over which unfilled vacancies are sought to be carried-over. These two are alternating factors and, therefore, if the ceiling-limit on the carry-over of unfilled vacancies is removed, the other alternative time-factor comes in and in that event, the time-scale has to be imposed in the interest of efficiency in administration as mandated by Article 335. If the time-scale is not kept then posts will continue to remain vacant for years, which would be detrimental to the administration. Therefore, in each case, the appropriate Government will now have to introduce the time-cap depending upon the fact-situation. What is stated hereinabove is borne out by Service Rules in some of the States where the carryover rule does not extend beyond three years.

WHETHER IMPUGNED CONSTITUTIONAL AMENDMENTS VIOLATES THE PRINCIPLE OF BASIC STRUCTURE:
The key question which arises in the matter of the challenge to the constitutional validity of the impugned amending Acts is – whether the constitutional limitations on the amending power of the Parliament are obliterated by the impugned amendments so as to violate the basic structure of the Constitution.

In the matter of application of the principle of basic structure, twin tests have to be satisfied, namely, the ’width test’ and the test of ’identity’. As stated hereinabove, the concept of the ’catch-up’ rule and ’consequential seniority’ are not constitutional requirements. They are not implicit in clauses (1) and (4) of Article 16. They are not constitutional limitations. They are concepts derived from service jurisprudence. They are not constitutional principles. They are not axioms like, secularism, federalism etc. Obliteration of these concepts or insertion of these concepts do not change the equality code indicated by Articles 14, 15 and 16 of the Constitution. Clause (1) of Article 16 cannot prevent the State from taking cognizance of the compelling interests of backward classes in the society. Clauses (1) and (4) of Article 16 are restatements of the principle of equality under Article 14. Clause (4) of Article 16 refers to affirmative action by way of reservation. Clause (4) of Article 16, however, states that the appropriate Government is free to provide for reservation in cases where it is satisfied on the basis of quantifiable data that backward class is inadequately represented in the services. Therefore, in every case where the State decides to provide for reservation there must exist two circumstances, namely, ’backwardness’ and ’inadequacy of representation’. As stated above \026 equity, justice and efficiency are variable factors. These factors are context-specific. There is no fixed yardstick to identify and measure these three factors, it will depend on the facts and circumstances of each case. These are the limitations on the mode of the exercise of power by the State. None of these limitations have been removed by the impugned amendments. If the concerned State fails to identify and measure backwardness, inadequacy and overall administrative efficiency then in that event the provision for reservation would be invalid. These amendments do not alter the structure of Articles 14, 15 and 16 (equity code). The parameters mentioned in Article 16(4) are retained. Clause (4A) is derived from clause (4) of Article 16. Clause (4A) is confined to SCs and STs alone. Therefore, the present case does not change the identity of the Constitution. The word “amendment” connotes change. The question is \026 whether the impugned amendments discard the original constitution. It was vehemently urged on behalf of the petitioners that the Statement of Objects and Reasons indicate that the impugned amendments have been promulgated by the Parliament to overrule the decision of this court. We do not find any merit in this argument. Under Article 141 of the Constitution the pronouncement of this court is the law of the land. The judgments of this court in Virpal Singh1, Ajit Singh (I)2 , Ajit Singh (II)3 and Indra Sawhney5, were judgments delivered by this court which enunciated the law of the land. It is that law which is sought to be changed by the impugned constitutional amendments. The impugned constitutional amendments are enabling in nature. They leave it to the States to provide for reservation. It is wellsettled that the Parliament while enacting a law does not provide content to the “right”. The content is provided by the judgments of the Supreme Court. If the appropriate Government enacts a law providing for reservation without keeping in mind the parameters in Article 16(4) and Article 335 then this court will certainly set aside and strike down such legislation. Applying the “width test”, we do not find obliteration of any of the constitutional limitations. Applying the test of “identity”, we do not find any alteration in the existing structure of the equality code. As stated above, none of the axioms like secularism, federalism etc. which are overarching principles have been violated by the impugned constitutional amendments. Equality has two facets \026 “formal equality” and “proportional equality”. Proportional equality is equality “in fact” whereas formal equality is equality “in law”. Formal equality exists in the Rule of Law. In the case of proportional equality the State is expected to take affirmative steps in favour of disadvantaged sections of the society within the framework of liberal democracy. Egalitarian equality is proportional equality.

The criterion for determining the validity of a law is the competence of the law-making authority. The competence of the law-making authority would depend on the ambit of the legislative power, and the limitations imposed thereon as also the limitations on mode of exercise of the power. Though the amending power in Constitution is in the nature of a constituent power and differs in content from the legislative power, the limitations imposed on the constituent power may be substantive as well as procedural. Substantive limitations are those which restrict the field of the exercise of the amending power. Procedural limitations on the other hand are those which impose restrictions with regard to the mode of exercise of the amending power. Both these limitations touch and affect the constituent power itself, disregard of which invalidates its exercise. [See: Kihoto Hollohan v. Zachillhu & Others ].

Applying the above tests to the present case, there is no violation of the basic structure by any of the impugned amendments, including the Constitution (Eighty-Second) Amendment Act, 2000. The constitutional limitation under Article 335 is relaxed and not obliterated. As stated above, be it reservation or evaluation, excessiveness in either would result in violation of the constitutional mandate. This exercise, however, will depend on facts of each case. In our view, the field of exercise of the amending power is retained by the impugned amendments, as the impugned amendments have introduced merely enabling provisions because, as stated above, merit, efficiency, backwardness and inadequacy cannot be identified and measured in vacuum. Moreover, Article 16(4A) and Article 16(4B) fall in the pattern of Article 16(4) and as long as the parameters mentioned in those articles are complied-with by the States, the provision of reservation cannot be faulted. Articles 16(4A) and 16(4B) are classifications within the principle of equality under Article 16(4). In conclusion, we may quote the words of Rubenfeld:

“ignoring our commitments may make us rationale but not free. It cannot make us maintain our constitutional identity”.

ROLE OF ENABLING PROVISIONS IN THE CONTEXT OF ARTICLE 14:
The gravamen of Article 14 is equality of treatment. Article 14 confers a personal right by enacting a prohibition which is absolute. By judicial decisions, the doctrine of classification is read into Article 14. Equality of treatment under Article 14 is an objective test. It is not the test of intention. Therefore, the basic principle underlying Article 14 is that the law must operate equally on all persons under like circumstances. [Emphasis added]. Every discretionary power is not necessarily discriminatory. According to the Constitutional Law of India, by H.M. Seervai, 4th Edn. 546, equality is not violated by mere conferment of discretionary power. It is violated by arbitrary exercise by those on whom it is conferred. This is the theory of ’guided power’. This theory is based on the assumption that in the event of arbitrary exercise by those on whom the power is conferred would be corrected by the Courts. This is the basic principle behind the enabling provisions which are incorporated in Articles 16(4A) and 16(4B). Enabling provisions are permissive in nature. They are enacted to balance equality with positive discrimination. The constitutional law is the law of evolving concepts. Some of them are generic others have to be identified and valued. The enabling provisions deal with the concept, which has to be identified and valued as in the case of access vis-‘-vis efficiency which depends on the factsituation only and not abstract principle of equality in Article 14 as spelt out in detail in Articles 15 and 16. Equality before the law, guaranteed by the first part of Article 14, is a negative concept while the second part is a positive concept which is enough to validate equalizing measures depending upon the fact-situation. It is important to bear in mind the nature of constitutional amendments. They are curative by nature. Article 16(4) provides for reservation for backward classes in cases of inadequate representation in public employment. Article 16(4) is enacted as a remedy for the past historical discriminations against a social class. The object in enacting the enabling provisions like Articles 16(4), 16(4A) and 16(4B) is that the State is empowered to identify and recognize the compelling interests. If the State has quantifiable data to show backwardness and inadequacy then the State can make reservations in promotions keeping in mind maintenance of efficiency which is held to be a constitutional limitation on the discretion of the State in making reservation as indicated by Article 335. As stated above, the concepts of efficiency, backwardness, inadequacy of representation are required to be identified and measured. That exercise depends on availability of data. That exercise depends on numerous factors. It is for this reason that enabling provisions are required to be made because each competing claim seeks to achieve certain goals. How best one should optimize these conflicting claims can only be done by the administration in the context of local prevailing conditions in public employment. This is amply demonstrated by the various decisions of this Court discussed hereinabove. Therefore, there is a basic difference between ’equality in law’ and ’equality in fact’ (See: ’Affirmative Action’ by William Darity). If Articles 16(4A) and 16(4B) flow from Article 16(4) and if Article 16(4) is an enabling provision then Articles 16(4A) and 16(4B) are also enabling provisions. As long as the boundaries mentioned in Article 16(4), namely, backwardness, inadequacy and efficiency of administration are retained in Articles 16(4A) and 16(4B) as controlling factors, we cannot attribute constitutional invalidity to these enabling provisions. However, when the State fails to identify and implement the controlling factors then excessiveness comes in, which is to be decided on the facts of each case. In a given case, where excessiveness results in reverse discrimination, this Court has to examine individual cases and decide the matter in accordance with law. This is the theory of ’guided power’. We may once again repeat that equality is not violated by mere conferment of power but it is breached by arbitrary exercise of the power conferred.

APPLICATION OF DOCTRINE OF “GUIDED POWER” ARTICLE 335 :
Applying the above tests to the proviso to Article 335 inserted by the Constitution (Eighty-Second Amendment) Act, 2000, we find that the said proviso has a nexus with Articles 16(4A) and 16(4B). Efficiency in administration is held to be a constitutional limitation on the discretion vested in the State to provide for reservation in public employment. Under the proviso to Article 335, it is stated that nothing in Article 335 shall prevent the State to relax qualifying marks or standards of evaluation for reservation in promotion. This proviso is also confined only to members of SCs and STs. This proviso is also conferring discretionary power on the State to relax qualifying marks or standards of evaluation. Therefore, the question before us is \026 whether the State could be empowered to relax qualifying marks or standards for reservation in matters of promotion. In our view, even after insertion of this proviso, the limitation of overall efficiency in Article 335 is not obliterated. Reason is that “efficiency” is variable factor. It is for the concerned State to decide in a given case, whether the overall efficiency of the system is affected by such relaxation. If the relaxation is so excessive that it ceases to be qualifying marks then certainly in a given case, as in the past, the State is free not to relax such standards. In other cases, the State may evolve a mechanism under which efficiency, equity and justice, all three variables, could be accommodated. Moreover, Article 335 is to be read with Article 46 which provides that the State shall promote with special care the educational and economic interests of the weaker sections of the people and in particular of the scheduled castes and scheduled tribes and shall protect them from social injustice. Therefore, where the State finds compelling interests of backwardness and inadequacy, it may relax the qualifying marks for SCs/STs. These compelling interests however have to be identified by weighty and comparable data.

In conclusion, we reiterate that the object behind the impugned Constitutional amendments is to confer discretion on the State to make reservations for SCs/STs in promotions subject to the circumstances and the constitutional limitations indicated above.

TESTS TO JUDGE THE VALIDITY OF THE IMPUGNED STATE ACTS:
As stated above, the boundaries of the width of the power, namely, the ceiling-limit of 50% (the numerical benchmark), the principle of creamy layer, the compelling reasons, namely, backwardness, inadequacy of representation and the overall administrative efficiency are not obliterated by the impugned amendments. At the appropriate time, we have to consider the law as enacted by various States providing for reservation if challenged. At that time we have to see whether limitations on the exercise of power are violated. The State is free to exercise its discretion of providing for reservation subject to limitation, namely, that there must exist compelling reasons of backwardness, inadequacy of representation in a class of post(s) keeping in mind the overall administrative efficiency. It is made clear that even if the State has reasons to make reservation, as stated above, if the impugned law violates any of the above substantive limits on the width of the power the same would be liable to be set aside.
Are the impugned amendments making an inroad into the balance struck by the judgment of this court in the case of Indra Sawhney5: Petitioners submitted that equality has been recognized to be a basic feature of our Constitution. To preserve equality, a balance was struck in Indra Sawhney5 so as to ensure that the basic structure of Articles 14, 15 and 16 remains intact and at the same time social upliftment, as envisaged by the Constitution, stood achieved. In order to balance and structure the equality, a ceiling-limit on reservation was fixed at 50% of the cadre strength, reservation was confined to initial recruitment and was not extended to promotion. Petitioners further submitted that in Indra Sawhney5, vide para 829 this Court has held that reservation in promotion was not sustainable in principle. Accordingly, petitioners submitted that the impugned constitutional amendments makes a serious inroad into the said balance struck in the case of Indra Sawhney5 which protected equality as a basic feature of our Constitution. We quote hereinbelow paragraph 829 of the majority judgment in the case of Indra Sawhney5 which reads as follows:

“829. It is true that Rangachari15 has been the law for more than 30 years and that attempts to re-open the issue were repelled in Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India and others . It may equally be true that on the basis of that decision, reservation may have been provided in the matter of promotion in some of the Central and State services but we are convinced that the majority opinion in Rangachari15, to the extent it holds, that Article 16(4) permits reservation even in the matter of promotion, is not sustainable in principle and ought to be departed from. However, taking into consideration all the circumstances, we direct that our decision on this question shall operate only prospectively and shall not affect promotions already made, whether on temporary, officiating or regular/permanent basis. It is further directed that wherever reservations are already provided in the matter of promotion – be it Central Services or State Services, or for that matter services under any corporation, authority or body falling under the definition of ’State’ in Article 12-such reservations shall continue in operation for a period of five years from this day. Within this period, it would be open to the appropriate authorities to revise modify or re-issue the relevant Rules to ensure the achievement of the objective of Article 16(4). If any authority thinks that for ensuring adequate representation of ’backward class of citizens’ in any service, class or category, it is necessary to provide for direct recruitment therein, it shall be open to it do so. (emphasis supplied)

What are the outer boundaries of the amendment process in the context of Article 16 is the question which needs to be answered. Equality is the basic feature of the Constitution as held in Indra Sawhney5. The content of Article 14 was originally interpreted by this Court as a concept of equality confined to the aspects of discrimination and classification. It is only after the rulings of this Court in Maneka Gandhi11 and Ajay Hasia and others v. Khalid Mujib Sehravardi and others , that the content of Article 14 got expanded conceptually so as to comprehend the doctrine of promissory estoppel, non arbitrariness, compliance with rules of natural justice, eschewing irrationality etc. There is a difference between “formal equality” and “egalitarian equality”. At one point of time Article 16(4) was read by the Supreme Court as an exception to Article 16(1). That controversy got settled in Indra Sawhney5. The words “nothing in this Article” in Article 16(4) represents a legal device allowing positive discrimination in favour of a class. Therefore, Article 16(4) relates to “a class apart”. Article 16(4), therefore, creates a field which enables a State to provide for reservation provided there exists backwardness of a class and inadequacy of representation in employment. These are compelling reasons. They do not exist in Article 16(1). It is only when these reasons are satisfied that a State gets the power to provide for reservation in matters of employment. Therefore, Article 16(1) and Article 16(4) operate in different fields. Backwardness and inadequacy of representation, therefore, operate as justifications in the sense that the State gets the power to make reservation only if backwardness and inadequacy of representation exist. These factors are not obliterated by the impugned amendments.

The question still remains as to whether any of the constitutional limitations are obliterated by way of the impugned constitutional amendments. By way of the impugned amendments Articles 16(4A) and 16(4B) have been introduced.

In Indra Sawhney5 the equality which was protected by the rule of 50%, was by balancing the rights of the general category vis-‘-vis the rights of BC en bloc consisting of OBC, SC and ST. On the other hand, in the present case the question which we are required to answer is: whether within the egalitarian equality, indicated by Article 16(4), the sub-classification in favour of SC and ST is in principle constitutionally valid. Article 16(4A) is inspired by the observations in Indra Sawhney5 vide para 802 and 803 in which this Court has unequivocally observed that in order to avoid lumping of OBC, SC and ST which would make OBC take away all the vacancies leaving SC and ST high and dry, the concerned State was entitled to categorise and subclassify SCs and STs on one hand vis-‘-vis OBC on the other hand. We quote hereinbelow paragraphs 802 and 803 of the judgment in Indra Sawhney5 : “802. We are of the opinion that there is no constitutional or legal bar to a State categorizing the backward classes as backward and more backward. We are not saying that it ought to be done. We are concerned with the question if a State makes such a categorisation, whether it would be invalid? We think not. Let us take the criteria evolved by Mandal Commission. Any caste, group or class which scored eleven or more points was treated as a backward class. Now, it is not as if all the several thousands of castes/groups/classes scored identical points. There may be some castes/groups/classes which have scored points between 20 to 22 and there may be some who have scored points between eleven and thirteen. It cannot reasonably be denied that there is no difference between these two sets of castes/groups/classes. To give an illustration, take two occupational groups viz., gold-smiths and vaddes (traditional stone-cutters in Andhra Pradesh) both included within Other Backward Classes. None can deny that goldsmiths are far less backward than vaddes. If both of them are grouped together and reservation provided, the inevitably result would be that gold-smiths would take away all the reserved posts leaving none for vaddes. In such a situation, a State may think it advisable to make a categorisation even among other backward classes so as to ensure that the more backward among the backward classes obtain the benefits intended for them. Where to draw the line and how to effect the sub-classification is, however, a matter for the Commission and the State – and so long as it is reasonably done, the Court may not intervene. In this connection, reference may be made to the categorisation obtaining in Andhra Pradesh. The Backward Classes have been divided into four categories. Group-A comprises “Aboriginal tribes, Vimukta jatis, Nomadic and semi-nomadic tribes etc.”. Group-B comprises professional group like tappers, weavers, carpenters, ironsmiths, goldsmiths, kamsalins etc. Group-C pertains to “Scheduled Castes converts to Christianity and their progeny”, while Group-D comprises all other classes/communities/groups, which are not included in groups A, B and C. The 25% vacancies reserved for backward classes are sub-divided between them in proportion to their respective population. This categorisation was justified in Balram [1972] 3 S.C.R. 247 at 286. This is merely to show that even among backward classes, there can be a subclassification on a reasonable basis. (emphasis supplied)

“803. There is another way of looking at this issue. Article 16(4) recognises only one class viz., “backward class of citizens”. It does not speak separately of Scheduled Castes and Scheduled Tribes, as does Article 15(4). Even so, it is beyond controversy that Scheduled Castes and Scheduled Tribes are also included in the expression “backward class of citizens”and that separate reservations can be provided in their favour. It is a well-accepted phenomenon throughout the country. What is the logic behind it? It is that if Scheduled Tribes, Scheduled Castes and Other Backward Classes are lumped together, O.B.Cs. will take away all the vacancies leaving Scheduled Castes and Scheduled Tribes high and dry. The same logic also warrants categorisation as between more backward and backward. We do not mean to say – we may reiterate – that this should be done. We are only saying that if a State chooses to do it, it is not impermissible in law.”
(emphasis supplied)

Therefore, while judging the width and the ambit of Article 16(4A) we must ascertain whether such subclassification is permissible under the Constitution. The sub-classification between “OBC” on one hand and “SC and ST” on the other hand is held to be constitutionally permissible in Indra Sawhney5. In the said judgment it has been held that the State could make such subclassification between SCs and STs vis-‘-vis OBC. It refers to sub-classification within the egalitarian equality (vide paras 802 and 803). Therefore, Article 16(4A) follows the line suggested by this Court in Indra Sawhney5 . In Indra Sawhney5 on the other hand vide para 829 this Court has struck a balance between formal equality and egalitarian equality by laying down the rule of 50% (ceiling-limit) for the entire BC as “a class apart”vis-‘-vis GC. Therefore, in our view, equality as a concept is retained even under Article 16(4A) which is carved out of Article 16(4).

As stated above, Article 14 enables classification. A classification must be founded on intelligible differential which distinguishes those that are grouped together from others. The differential must have a rational relation to the object sought to be achieved by the law under challenge. In Indra Sawhney5 an opinion was expressed by this Court vide para 802 that there is no constitutional or legal bar to making of classification. Article 16(4B) is also an enabling provision. It seeks to make classification on the basis of the differential between current vacancies and carry-forward vacancies. In the case of Article 16(4B) we must keep in mind that following the judgment in R.K. Sabharwal8 the concept of post-based roster is introduced. Consequently, specific slots for OBC, SC and ST as well as GC have to be maintained in the roster. For want of candidate in a particular category the post may remain unfilled. Nonetheless, that slot has to be filled only by the specified category. Therefore, by Article 16(4B) a classification is made between current vacancies on one hand and carry-forward/backlog vacancies on the other hand. Article 16(4B) is a direct consequence of the judgment of this court in R.K. Sabharwal8 by which the concept of post-based roster is introduced. Therefore, in our view Articles 16(4A) and 16(4B) form a composite part of the scheme envisaged. Therefore, in our view Articles 16(4), 16(4A) and 16(4B) together form part of the same scheme. As stated above, Articles 16(4A) and 16(4B) are both inspired by observations of the Supreme Court in Indra Sawhney5 and R.K. Sabharwal8. They have nexus with Articles 17 and 46 of the Constitution. Therefore, we uphold the classification envisaged by Articles 16(4A) and 16(4B). The impugned constitutional amendments, therefore, do not obliterate equality. The test for judging the width of the power and the test for adjudicating the exercise of power by the concerned State are two different tests which warrant two different judicial approaches. In the present case, as stated above, we are required to test the width of the power under the impugned amendments. Therefore, we have to apply “the width test”. In applying “the width test” we have to see whether the impugned amendments obliterate the constitutional limitations mentioned in Article 16(4), namely, backwardness and inadequacy of representation. As stated above, these limitations are not obliterated by the impugned amendments. However, the question still remains whether the concerned State has identified and valued the circumstances justifying it to make reservation. This question has to be decided casewise. There are numerous petitions pending in this Court in which reservations made under State enactments have been challenged as excessive. The extent of reservation has to be decided on facts of each case. The judgment in Indra Sawhney5 does not deal with constitutional amendments. In our present judgment, we are upholding the validity of the constitutional amendments subject to the limitations. Therefore, in each case the Court has got to be satisfied that the State has exercised its opinion in making reservations in promotions for SCs and STs and for which the concerned State will have to place before the Court the requisite quantifiable data in each case and satisfy the Court that such reservations became necessary on account of inadequacy of representation of SCs/ STs in a particular class or classes of posts without affecting general efficiency of service as mandated under Article 335 of the Constitution.

The constitutional principle of equality is inherent in the Rule of Law. However, its reach is limited because its primary concern is not with the content of the law but with its enforcement and application. The Rule of Law is satisfied when laws are applied or enforced equally, that is, evenhandedly, free of bias and without irrational distinction. The concept of equality allows differential treatment but it prevents distinctions that are not properly justified. Justification needs each case to be decided on case to case basis.

Existence of power cannot be denied on the ground that it is likely to be abused. As against this, it has been held vide para 650 of Kesavananda Bharati13 that where the nature of the power granted by the Constitution is in doubt then the Court has to take into account the consequences that might ensue by interpreting the same as an unlimited power. However, in the present case there is neither any dispute about the existence of the power nor is there any dispute about the nature of the power of amendment. The issue involved in the present case is concerning the width of the power. The power to amend is an enumerated power in the Constitution and, therefore, its limitations, if any, must be found in the Constitution itself. The concept of reservation in Article 16(4) is hedged by three constitutional requirements, namely, backwardness of a class, inadequacy of representation in public employment of that class and overall efficiency of the administration. These requirements are not obliterated by the impugned constitutional amendments. Reservation is not in issue. What is in issue is the extent of reservation. If the extent of reservation is excessive then it makes an inroad into the principle of equality in Article 16(1). Extent of reservation, as stated above, will depend on the facts of each case. Backwardness and inadequacy of representation are compelling reasons for the State Governments to provide representation in public employment. Therefore, if in a given case the court finds excessive reservation under the State enactment then such an enactment would be liable to be struck down since it would amount to derogation of the above constitutional requirements.

At this stage, one aspect needs to be mentioned. Social justice is concerned with the distribution of benefits and burdens. The basis of distribution is the area of conflict between rights, needs and means. These three criteria can be put under two concepts of equality, namely, “formal equality” and “proportional equality”. Formal equality means that law treats everyone equal. Concept of egalitarian equality is the concept of proportional equality and it expects the States to take affirmative action in favour of disadvantaged sections of society within the framework of democratic polity. In Indra Sawhney5 all the judges except Pandian, J. held that the “means test” should be adopted to exclude the creamy layer from the protected group earmarked for reservation. In Indra Sawhney5 this Court has, therefore, accepted caste as determinant of backwardness and yet it has struck a balance with the principle of secularism which is the basic feature of the Constitution by bringing in the concept of creamy layer. Views have often been expressed in this Court that caste should not be the determinant of backwardness and that the economic criteria alone should be the determinant of backwardness. As stated above, we are bound by the decision in Indra Sawhney5. The question as to the “determinant” of backwardness cannot be gone into by us in view of the binding decision. In addition to the above requirements this Court in Indra Sawhney5 has evolved numerical benckmarks like ceiling-limit of 50% based on post-specific roster coupled with the concept of replacement to provide immunity against the charge of discrimination.

CONCLUSION:
The impugned constitutional amendments by which Articles 16(4A) and 16(4B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling-limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBC on one hand and SCs and STs on the other hand as held in Indra Sawhney5 , the concept of post-based Roster with in-built concept of replacement as held in R.K. Sabharwal8.

We reiterate that the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.

However, in this case, as stated, the main issue concerns the “extent of reservation”. In this regard the concerned State will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SC/ST in matter of promotions. However if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.

Subject to above, we uphold the constitutional validity of the Constitution (Seventy-Seventh Amendment) Act, 1995, the Constitution (Eighty-First Amendment) Act, 2000, the Constitution (Eighty-Second Amendment) Act, 2000 and the Constitution (Eighty-Fifth Amendment) Act, 2001.

We have not examined the validity of individual enactments of appropriate States and that question will be gone into in individual writ petition by the appropriate bench in accordance with law laid down by us in the present case.

Reference is answered accordingly.

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IN THE SUPREME COURT OF INDIA
CASE NO.: Appeal (crl.) 454 of 2006
Swamy Shraddananda @ Murali Manohar Mishra …PETITIONER
Vs
State of Karnataka …RESPONDENT
DATE OF JUDGMENT: 18/05/2007
BENCH: S.B. Sinha

J U D G M E N T

S.B. SINHA, J :

1. Appellant herein was convicted and sentenced to death for committing murder of his wife on or about 28.05.1991 at their residential house situate at 81, Richmond Road, Bangalore. The deceased was earlier married to one Akbar Khaleeli who was in the diplomatic service in the Government of India. She had four daughters. The deceased along with her children in the year 1983 visited the Maharaja of Rampur. There she was introduced to the appellant. Appellant at the relevant time was assisting the Rampur royal family. In regard to the management of her landed properties, the deceased sought for his assistance. She had inherited huge properties including House No. 81, Richmond Road, Bangalore from her mother. She had inherited some other properties during her marriage. Some litigations in respect of the said properties had been going on.

2. Mr. Khaleeli on his assignment as diplomat of Iran went to the said country. The deceased together with her daughters started living at Bangalore. Appellant came there. He was also staying in the same house.

The deceased desired for a son and she was made to believe by the appellant that he was capable of blessing her with a son. Akbar Khaleeli and the deceased separated in the year 1985. The deceased thereafter married the appellant on 17.04.1986. They started living together at the said house. She had executed a General Power of Attorney and a Will in his favour.

However, despite her marriage with the appellant, the deceased was maintaining her relationship with her parents and daughters. Mrs. Sabah Khaleeli, second daughter of the deceased (PW-5) had all along been in touch with her.

3. It is not in dispute that from 28.05.1991, the deceased was not seen.

PW-5 had been trying to contact her on phone. She was informed by the appellant that the deceased had gone to Hyderabad. In June 1991, when contacted, she was informed that her mother had gone to Kutch to attend a wedding. A week thereafter it was informed to her that the deceased had been lying low owing to some income tax problems. She, being exasperated with the said explanations, came down to Bangalore. She did not find her mother there. She was told that the deceased being pregnant had gone to United States of America for delivery of the child. She was told to have been admitted in Roosevelt Hospital. She made verifications thereabout through her acquaintances and came to know that no such woman had ever been admitted to the said hospital. Appellant being confronted thereto, informed her that the deceased had gone to London as she had wanted to keep it as a secret. However, in 1992, when she met the accused at Mumbai, noticed the passport of her mother lying in the room of the hotel which confirmed that the deceased had not visited USA or London as represented to her by the appellant on earlier occasions.

4. She ultimately informed the Ashok Nagar Police Station by giving a written complaint about missing of her mother. A missing complaint was registered on 10.06.1992. No serious effort, however, was made to find out the whereabouts of the deceased. PW-5 approached the higher authorities resulting in the investigation of the matter being entrusted to the Central Crime Branch. Apprehending arrest, Appellant obtained anticipatory bail with a condition that he would attend the police between 6 p.m. to 8 p.m. on every Monday and shall also make him available to the police. He applied for relaxation of the said condition and by an order dated 3.12.1993, it was directed that the appellant shall appear before the police authorities on every Monday once in three months.

5. The investigation was entrusted to one C. Veeraiaha (PW-37). He suspected the appellant herein. He was interrogated on 28.03.1994, whereupon he made a voluntary statement which was marked as Ex. P-175.

He stated in great details as to the manner in which he had killed his wife and disposed of her dead body. He also disclosed as to how a wooden box of size 2 x 7 x 2 was made, a pit was dug and how the dead body was buried there. He narrated that how with the help of Raju he had put the box into the pit covered with mud and on the next day with the help of some masons brought by the said Raju kadapa stone slabs were put on the pit and the adjacent land and cemented the place.

6. In the said statement, he stated:

“If I am taken I will show the place where the wooden box was prepared and the person who prepared it, the persons who transported the box and the people who helped in digging out the pit and the crow bar, spade, pan used for digging pit, the cement bags and the spot where Shakerah is buried and I exhume the dead body of the deceased and show you. The statement what all I had earlier given to Ashoknagar Police was a false statement given intentionally just to escape myself.”

7. An Executive Magistrate Syed Ejaj Ahmad (PW-3) was called for exhumation of the dead body. He asked a doctor to conduct exhumation proceeding. On 30.03.1994, Dr. Nissar Ahmed (PW-14) came to the place of occurrence for the said purpose. Appellant was asked as to whether he was ready to show the spot as per his earlier statement. The entire proceeding of exhumation of the dead body was video-graphed. It took place at about 10.30 a.m. on the said day. Appellant with a chalk piece marked the spot. Coolies accompanying the party as per instructions of the appellant himself, dug the earth of the said place whereupon a box was noticed. The plank of the lid of the wooden box was removed. A bed, a nighty, pillow and bed sheets were recovered. Channaiah who had come along with Dr. Nissar Ahmed removed the scalp, skull and hairs of the head which were detached from the skull and other bone pieces. He also removed the pieces of the bones. Another Doctor Shri Thiruvanakkarasu also came there. They joined the bones and fixed the skull and mandible in orderly manner. It was found to be that of a human skeleton. The mother of the deceased Smt. Gauhar Taj Namazie identified a ring which was embedded with red stone and two other black rings as belonging to the deceased. The nighty which was recovered was identified to be belonging to the deceased by the maid servant who had been working in the house.

8. The post mortem examination commenced at 4.45 p.m. on 30.03.1994 which ended at about 6 p.m.

9. Appellant was, thereafter, charged for commission of murder of his wife. Before the learned Trial Judge, 39 prosecution witnesses were examined. There was no eye-witness to the occurrence. The prosecution was based on circumstantial evidence.

10. The learned Trial Judge, as noticed hereinbefore, found the appellant guilty of commission of offence under Sections 302 and 201 of the Indian Penal Code and sentenced him to death.

11. Appellant preferred an appeal before the High Court. A reference was also made by the learned Judge in terms of Section 366 of the Code of Criminal Procedure.

12. The circumstances which were found to be existing by the High Court for proving commission of the offence are said to be :

“(a) Motive Murder for gain (b) The deceased Shakereh was last seen alive in May 1991 when she was residing at No. 81, Richmond Road, Bangalore along with accused and his wife.

(c) Strange conduct of the accused after 28-5-91 (d) A wooden box (MO.5) was got prepared and brought to the house by the accused.

(e) Discovery of the wooden box containing a skeleton and feminine articles buried in the backyard of the said house of the accused and the deceased in furtherance of information furnished by the accused.

(f) Fixing the identity of the skeleton as that of the deceased with the help of skull and the admitted undisputed photograph of Mrs. Shakereh by photo Super-imposition method.

(g) Fixing the identity of the skeleton as that of the deceased on the basis of DNA finger printing.

(h) Identifying some of the articles like MOs. 5, 6, 8, 11 to 17 along with the skeleton in the box as belonging to the deceased.

(i) The last circumstance put forth i.e., the attempt of the accused to mislead or to give false explanation.”

13. Before the High Court, a contention was raised that before imposition of sentence, the appellant had not been granted adequate opportunity to make a representation as was mandatorily required under Sub-section (2) of Section 235 of the Code of Criminal Procedure, 1973. The High Court gave the appellant an opportunity of being heard. Before the High Court, the appellant accepted that he was instrumental in burying the dead body stating:

“The accused submitted that he is innocent and has been illegally convicted. He submitted that as the family members of the deceased (parents and daughters) had filed number of cases against the deceased, she was mentally depressed and was taking number of sedative pills/ drugs; that she died naturally in May 1991 and as he feared adverse consequences, especially repercussions from her family members and community people, he buried her body in the backyard of his house without informing anybody. He submitted that though this fact was not stated by him in the trial court, as he could not bear it any more and after thinking over the matter for the last few years, he has decided to come out with this truth. He submitted that as he is innocent, his conviction be set aside and he be acquitted. So far as the sentence is concerned, he submitted that as now he is 61 years old and suffering from serious ailments like diabetes, hypertension and hernia and as he is in custody for the last 11 years, mercy be shown to him by reducing the capital punishment, if ever the court decides to convict him.”

14. The High Court, however, affirmed the judgment of conviction and sentence.

15. Mr. Alok Vagrecha, learned counsel appearing on behalf of the appellant raised the following contentions in support of this appeal:

(i) A First Information Report having been already lodged by PW-5, a second report by the Investigating Officer PW-37 lodged on 28.03.1994 (Ex. P-171) was illegal.

(ii) The purported recovery of the wooden box containing some articles and the bones which were not admissible in evidence under Section 27 of the Indian Evidence Act as the location of the dead body was already known, the purported statement made by the appellant (Ex. P 175) being wholly inadmissible in evidence, consequent recovery of the dead body would also be inadmissible.

In this connection our attention has been drawn to the fact that the appellant was given an opportunity to have the services of a lawyer during interrogation.

(iii) If the prosecution case is true that the appellant had administered sedative to the deceased on 28.05.1991 in the afternoon, the courts below should have also taken into consideration that in view of the statement of the investigating officer that the appellant at about the same time on 28.05.1991 was found to be in the company of one Rekha Handa, a former Miss India, the prosecution case must be held to have not been proved as against the appellant.

(iv) A Will and General Power of Attorney having already been executed by the deceased, the appellant could not have any motive to kill her.

(v) The purported circumstances on the basis whereof the judgment of conviction and sentence have been rendered does not complete all the links in the chain as there had been (a) no recovery of drug; (b) motive had not been proved; and (c) there was no proof that she died of poisoning.

(vi) The purported recovery of drug on 31.03.1994 by the Investigating Officer was wholly inadmissible in evidence.

(vii) The High Court having recorded that the deceased did not meet any violent death, the impugned judgment cannot be sustained and in any event the death sentence should not have been imposed.

(viii) The High Court committed a serious illegality in relying upon the statement made by the appellant before it as being confession of his guilt although the same was meant to be used for the purpose of hearing on the question of sentence only.

16. Mr. Sanjay R. Hegde, learned counsel appearing on behalf of the State, on the other hand, supported the judgment. The learned counsel would contend that the court while analyzing the evidences brought on records should keep in mind the following facts:

(a) The deceased was a beautiful woman. She had a husband and four daughter (b) She was an owner of huge property (c) She met her death at the age of 40 years.

(d) Appellant although could enjoy all the luxuries of life, he had greed for more money and, therefore, hatched a plan to murder the deceased wherefor he got prepared a wooden box, took advantage of temporary absence of the two old servants and at the opportune moment administered sedative to the deceased.

(f) Despite her death, he had been operating the bank account which was a joint account and had been acting on the basis of the General Power of Attorney.

(g) He kept to PW-5 at dark although she had been constantly making enquiry in regard to the whereabouts of the deceased for one and half years.

(h) The manner in which the dead body was found categorically shows the vicious mind of the appellant as the bed-sheet was found on her face, her jewelery was found on the top of the body, the deceased had nighty on her person and, thus, it was essentially principally a planned murder.

17. We have not doubt that the death of the deceased was homicidal in nature. The identity of the dead body has also been established. The circumstances in which the deceased married the appellant have also not been disputed. Their marriage was proved by PW-8 T.H.

Lokeshminarayana. Appellant also did not deny or dispute that he had been living with the deceased at all material times at 81, Richmond Road, Bangalore. It has furthermore not been disputed that she had not been seen on and from 28.05.1991.

18. We have noticed hereinbefore the circumstances which are said to have been found by the courts below. The law in this behalf is now no longer res integra.

19. In Sharad Birdhichand Sarda v. State of Maharashtra [1984] INSC 118; [AIR 1984 SC 1622], this Court held:

“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] “Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.”

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

20. In regard to the circumstantial evidence in a case of death by poisoning, this Court opined:

“So far as this matter is concerned, in such cases the court must carefully scan the evidence and determine the four important circumstances which alone can justify a conviction:

(1) there is a clear motive for an accused to administer poison to the deceased, (2) that the deceased died of poison said to have been administered, (3) that the accused had the poison in his possession, (4) that he had an opportunity to administer the poison to the deceased.”

[See also Aloke Nath Dutta & Ors. v. State of West Bengal 2006 (13) SCALE 467]

21. We may proceed to consider the matter keeping in view the aforementioned legal principle in mind.

22. Dr. Nissar Ahamed who examined himself as PW-14 in his evidence proved the exhumation of the dead body. It, as noticed hereinbefore, was conducted by the Taluka Magistrate PW-3. Upon removal of the detached skull, mandible, carpal and tarsal, palm and bones from the pit of feet, all the said bones were assembled on plastic paper. A Human skeleton was formed.

There was a foul smell. According to him, all the bones were intact. The skeleton was that of a human body. In the post mortem examination, it was found:

“Decomposed and Skeletanised body removed from the wooden box described. The body was removed in piece meal from the box as the bones were easily coming out from the joints and body was assembled in anatomical position which consists of skull with black hair measuring 25″

long.”

It was further noticed:

“The bones one below the other are: Skull bone with mandible, two clavicles, two scapulae, bones of upper limbs and lower limbs, vertebral column, pelvis and carple and tarsal bones. The decomposed tissue were greish white in colour emitting foul smell. All bones were intact skull shows female characteristic feature, articulate well with were each other. Skull suture completely obliterated endocrenaly, partially obliterated exocreinaly. All teeth erupted showed attrition.

The stature was calculated from long bones and average taken from the bones.

Right Femur 46 cms.

Right Tibia 39 cms.

Left Humorus 32.5 cms and estimated stature is 5’4″ to 5’6″

Four Pieces of body of sternum fused.”

23. All the internal organs were found to be decomposed and liquefied.

He, however, reserved his opinion in regard to the cause of death pending chemical analysis. The doctor preserved skull and mandible for super imposition and visera and hair for chemical analysis report and bone marrow hair and soft tissues for DNA Fingerprinting.

24. PW-14 on the basis of the said FSL report formed his opinion that the cause of death cannot be furnished as the percentage/ amount of Chlodiazepoxide consumed had not been furnished. In regard to the effect of Chlordizaepoxide on human body, however, his opinion was as under:

“The effect of Chlordiazopoxide on human body depends upon the dosage. They are weight gain, as a result of increase appetite, anxiety, nausea, vertigo, impaired sexual function, menstrual irregularities, skin rashes, agramlocytosis etc.”

In regard to the effect of over dose of the said medicine, it was stated:

“Effects of over dose are rare, as the drug has got remarkable safety margins. A few deaths have been reported at doses greater than 700 mgs as per the literature. The symptoms are respiratory and cardiovascular, dis-function due to the suppression of higher centers in the brain.”

25. PW-14 in his cross-examination opined that the death of the deceased was homicidal. According to him, if the deceased had consumed only one or two tablets of Equibrom and her body was put in a box and lid was closed suddenly, an unexpected death may occur due to natural causes also. It is not a case where the dead body was not identified to that of the deceased.

Blood sample of PW-5 was taken. Blood samples of Mirza Gulam Hussain Namazie and Gauhar Taj Begum Namazie had also been taken. PW-20 Srimannarayan, Chief Medical Officer of Bowring Hospital, in his evidence, spoke about the result of the DNA analysis in regard to taking of the blood samples.

26. The bones were sent for DNA test to Hyderabad Forensic Science Laboratory through Forensic Science Laboratory, Bangalore. The test was conducted by Dr. Laljit Singh, Scientist, who was examined as PW-24.

According to him, he and Dr. G.V. Rao (PW-17), another scientist in Hyderabad together carried the process of DNA isolation and testing from Exs. A to D, i.e., from blood of the father, teeth of the deceased, hair of the deceased and blood of the mother in two tests being Polymerase Chain Reaction (PCR) and HLA DQ typing both the tests confirmed that the deceased was the offspring of the said Mirza Gulam Hussain Namazie and Gauhar Taj Begum Namazie.

27. PW-17 Dr. G.V. Rao categorically stated that in carrying out DNA fingerprinting they followed the same procedure as in the case of blood samples received earlier which were examined. He proved the report prepared by him and Dr. Laljit Singh on 4.10.1995 which was marked as Ex.

P-155.

28. PW-1 Dr. T.R. Kumari was an Assistant Director of Forensic Science Laboratory. She gave her opinion on 15.09.1994 which was marked as Ex.

P-125 stating:

“1. Presence of Clonazepam was detected in article no. I(a) & I(b).

2. Presence of Alprazolam was detected in article No. I(b) & I(f).

3. Presence of Diazepam was detected in article No. I(c).

4. Presence of Chlodizepoxide was detected in No.

I(e), III & IV.

5. No poison was detected in article No. I(h).”

29. Dr. T.R. Kumari (PW-1) conducted the Photo Superimposition Method Test on the skull, which was marked as MO-1 along with the admitted photograph of the deceased, which was marked as MO-3.

According to the said witness, anthropometric characters or land marks of the skull and the superimposed admitted photographs matched. She prepared a report, which was marked as Ex.P-2. Her qualification as an expert to conduct the said test is not in doubt. Even otherwise, she holds a Ph.D. degree in Forensic Science. She has been awarded a medal for her research work by the Madras Forensic Society of India. She has also undergone special training in photo superimposition and has submitted a number of papers thereon. Her report as also the report of PW-17 are relevant evidences.

30. The qualification of the expert has not been questioned before us. The learned counsel appearing on behalf of the appellant has not raised any contention which would point out that the methodology conducted by the experts in carrying out the study was in any manner unscientific or raised any suspicion as regards the correctness thereof.

31. It is borne out from the records that even the photographs were brought by PW-1 before the trial court. Identify of the skull vis-`-vis the other parts of the body, thus, categorically goes to show that the same was that of the deceased, Smt. Shakereh.

32. It has also not been seriously disputed that the deceased was last seen in the company of the company of the appellant. The fact that she had not been seen alive from May, 1991 also stands fully established.

33. We will hereinafter notice the circumstances which existed in establishing the commission of the crime.

34. PW-5 Sabah Khaleeli, was the daughter of the deceased through her first husband. She in her deposition categorically stated that she had spoken to her mother on 19.04.1991. She was not available on phone from May, 1991 onwards. Gauhar Namazee (PW-25) was the mother of the deceased.

She in her deposition stated that she had last seen the deceased on 13.04.1991. She had not been cross-examined on the said point. It is also not disputed that PW-18 and PW-19, who were husband and wife, were engaged by the deceased. They saw the deceased in the company of the appellant in the morning of 28.05.1991, for the last time. The said witnesses were staying in a servant quarter in the said premises. PW-18 was working as gardener-cum-handyman; whereas PW-19 was working as maid servant, since 1988. They stated in unison that they had seen the deceased at about 07.30 A.M. on that day. According to PW-19, she went to the kitchen to prepare tea for the couple and kept the tea cups on the dining table. She in no uncertain terms stated that the cups of tea were taken by the appellant to the bed-room where the deceased was reading a newspaper. PW-19 while sweeping the house was called by the deceased and was instructed to clean the articles kept in the showcase instead of sweeping. They, however, received a telegram at about 10.00 a.m. whereby they were informed that the sister-in-law of PW-19 was sick at Gudisuvarapally in the State of Andhra Pradesh. They sought for leave and some money. They were permitted to leave Bangalore and were asked to collect the requisite amount after some time. They came back to their quarters and started packing their goods. At about 1.30 p.m. they went back to the house. PW-18, however, was said to have been asked by the appellant herein to shift a wooden box kept in the guest house to the bed room before leaving. They together with some others took a large wooden box from the guest house and kept the same inside the bed room, where they found the deceased sleeping on the bed. They were thereafter paid a sum of Rs.1,200/- towards their salary and additional sum of Rs.500/- towards travelling expenses. They left for their home. They came back after a couple of days, but did not find the deceased. The said two witnesses in their depositions corroborated each other.

35. We have noticed hereinbefore that the appellant had applied for grant of anticipatory bail in July, 1992 i.e. after the missing complaint was filed by PW-5. In the said application for bail, the appellant himself disclosed that the deceased had left for unknown destination in the month of May, 1991, allegedly because of her agitated mental condition.

36. If it is proved that the deceased died in an unnatural circumstance in her bed room, which was occupied only by her and her husband, law requires the husband to offer an explanation in this behalf. We, however, do not intend to lay down a general law in this behalf as much would depend upon the facts and circumstances of each case. Absence of any explanation by the husband would lead to an inference which would lead to a circumstance against the accused.

37. We may, however, notice that recently in Raj Kumar Prasad Tamarkar v. State of Bihar & Anr. [1990] INSC 169; [2007 (1) SCALE 19 : JT 2007 (1) SC 239], this Court opined :

“Once the prosecution has been able to show that at the relevant time, the room and terrace were in exclusive occupation of the couple, the burden of proof lay upon the respondent to show under what circumstances death was caused to his wife. The onus was on him. He failed to discharge the same.”

This legal position would appear from a decision of this court in Nika Ram v. The State of Himachal Pradesh [AIR 1972 SC 2077] wherein it was held:

“It is in the evidence of Girju PW that only the accused and Churi deceased resided in the house of the accused. To similar effect are the statements of Mani Ram (PW 8), who is the uncle of the accused, and Bhagat Ram school teacher (PW 16).

According to Bhagat Ram, he saw the accused and the deceased together at their house on the day of occurrence. Mani Ram (PW 8) saw the accused at his house at 3 p.m., while Poshu Ram, (PW 7) saw the accused and the deceased at their house on the evening of the day of occurrence. The accused also does not deny that he was with the deceased at his house on the day of occurrence. The house of the accused, according to plan PM, consists of one residential room one other small room and a varandah. The correctness of that plan is proved by A. R. Verma overseer (PW 5). The fact that the accused alone was with Churi deceased in the house when she was murdered there with the Khokhri and the fact that the relations of the accused with the deceased, as would be shown hereafter, were strained would, in the absence of any cogent explanation by him, point to his guilt.”

In Trimukh Maroti Kirkan v. State of Maharashtra [JT 2006 (9) SC 50], the law is stated in the following terms:

“Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence took place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime”

38. We have noticed hereinbefore as to why the investigation was taken over by the Central Crime Branch. As the interrogation of the appellant, while in custody of the police, revealed the possibility of the deceased having been buried in the backyard of her residential house, the Investigating Officer requested the Sub-Divisional Magistrate to conduct exhumation proceedings, who in turn, authorized the Taluka Executive Magistrate (PW-3) to do so. Confession of the accused was not admissible in evidence. What was admissible only was that part of the confession leading to the discovery of fact in terms of Section 27 of the Indian Evidence Act. The proceedings were conducted in the presence of the accused, which were videographed and marked as MO-18. The learned Trial Judge as also the learned Judges of the High Court had the benefit of watching the said videograph. The High Court in its impugned judgment recorded :

“The videograph and the inquest proceeding disclose that a large wooden box was found buried in the backyard of the house of the accused and the deceased and contained a skeleton. The videograph recording which is not disputed by the accused, clearly discloses and shows that it was the accused who was pointing out the exact spot to be dug up in the big backyard and in fact marked the area with a chalk. The videograph further showed that the backyard flooring was of well laid Cuddapah stones property cemented. In such a situation, in our view, nobody except the person who buried the box could have the knowledge of its burial.”

39. Discovery of the last remains of the deceased was a relevant fact, which was, thus, admissible in evidence. Appellant had pinpointed the exact place which was to be dug up. He marked the exact area. He also made an oral statement that the box was buried beneath the area so marked, location whereof showed that it was a big area, flooring of which had been well plastered with cement having Cuddapah stone slabs. The video showed that the slabs had been laid there much earlier and were not of recent origin.

40. In Aloke Nath Dutta (supra), in regard to applicability of Section 26 and Section 27 of the Indian Evidence Act, it was stated :

“The policy underlying behind Sections 25 and 26 is to make it a substantive rule of law that confessions whenever and wherever made to the police, or while in the custody of the police to any person whomsoever unless made in the immediate presence of a magistrate, shall be presumed to have been obtained under the circumstances mentioned in Section 24 and, therefore, inadmissible, except so far as is provided by Section 27 of the Act.”

41. Pulukuri Kottayya v. King Emperor [AIR 1947 PC 67] is an authority for the proposition that “fact discovered” envisaged under Section 27 of the Indian Evidence Act, 1872, embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given in that behalf must relate distinctly to that effect, stating :

“The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police Officer must be deposed to, and thereupon so much of the information as related distinctly to the fact thereby discovered may be proved.”

It was further observed :

“In their Lordships’ view it is fallacious to treat the “fact discovered” within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact.”

“Information supplied by a person in custody that “I will produce a knife concealed in the roof of my house” does not lead to the discovery of a knife, knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant.”

42. An attempt was made by the Bombay High Court to take a different view in Shri Shankar Gopal Patil & Others v. The State of Maharashtra [2000 (5) Bom. CR 360].

43. The legal proposition propounded in Pullukuri Kottaya (supra) has been considered by this Court in Jaffar Hussain Dastagir v. State of Maharashtra [(1969) 2 SCC 872], Shamshuk Kanwar v. State of U.P.

[(1995) 4 SCC 430] and State of Maharasthra v. Damu [(2000) 6 SCC 269], wherein this Court reiterated it with approval.

44. The learned counsel appearing on behalf of the appellant, in our opinion, was not correct to contend that only because the investigating team having regard to the purported confession made by the appellant had already known that a dead body had been buried in the house, Section 27 of the Evidence Act would not be attracted. In his statements before the investigating officer, he made a confession; but what was admissible in evidence his only that part which would come within the purview of Section 27 of the Evidence Act and not the rest. The court while analyzing the evidence and appreciating the same cannot take note of confession made before the police.

45. The prosecution case must rest on the other materials brought before the court. It is also not permissible to start with the confession and find corroborative evidence thereof and come back to the confession again for the purpose of arriving at a conclusion of guilt.

46. What was, therefore, relevant for the purpose of Section 27 of the Evidence Act was that at the instance of the appellant himself a particular place which had been pin pointed by him had been dug and remains of a body and other articles were recovered.

47. The various circumstances leading to the pointing out the guilt of the appellant and appellant alone have been enumerated by us hereinbefore.

From our discussions, it is evident that each of the circumstances had been established, the cumulative effect whereof would show that all the links in the chain are complete and the conclusion of the guilt is fully established.

48. We are not oblivious of the fact that there is a material difference distance between ‘may be’ and ‘must be’ and furthermore in a case of this nature the evidence must be considered with more than ordinary care lest the shocking nature of crime induce an instinctive reaction against a dispassionate judicial scrutiny of the facts and law. [See Kashmira Singh v.

State of Madhya Pradesh – [1952] INSC 12; AIR 1952 SC 159].

49. The question, however, is as to whether in a case of this nature death sentence should be imposed. In Aloke Nath Dutta (supra), this Court had an occasion to consider a large number of decisions taking different views in regard to the interpretation of the words “rarest of rare cases” as adumbrated in Bachan Singh v. State of Punjab [(1980) 2 SCC 684].

50. This Court had also the occasion therein to notice the growing demand in the international fora and in particular the second Optional Protocol to the International Covenants on Civil and Political Rights and the Protocol to the American Constitution on Human Rights abolished that death penalty should be abolished.

51. Recently, the Privy Council in Reyes v. R. [(2002) UKPC 11 : [2002] UKPC 11; 12 BHRC 219] and Hughes, R. v. (Saint Lucia) [(2002) UKPC 12], noticing the decision of this Court in Mithu v. State of Punjab [(1983) 2 SCR 6903], opined that the mandatory death punishment is unconstitutional. [See also Fox v. The Queen [2002] UKPC 13; (2002) 2 AC 284, Bowe v. The Queen [2006] EWHC 3166; (2006) 1 WLR 1623 and Coard & Ors. v. The Attorney General (Grenada), (2007) UKPC 7].

52. Abolition of death penalty is not being and, in fact, cannot be advocated; but what requires serious consideration is as to whether the jurisdiction should not be invoked unless there exists an extra-ordinary situation to find that it comes within the purview of “rarest of rare” cases.

The approach of the courts should not be to confine its thought process to the identification of a “rare” case. The expression “rarest of rare” case has been evolved by a Constitution Bench of this Court and, thus, demands a meaningful application.

53. It is interesting to note that Bhagwati, J. in Bachan Singh v. State of Punjab [(1982) 3 SCC 24], while expressing his dissenting opinion, noticed as under :

“This arbitrariness in the imposition of death penalty is considerably accentuated by the fragmented Bench structure of our courts where Benches are inevitably formed with different permutations and combinations from time to time and cases relating to the offence of murder come up for hearing sometimes before one Bench, sometimes before another sometimes before a third and so on. Professor Blackshield has in his article on Capital Punishment in India published in Volume 21 ot the Journal of the Indian Law Institute pointed out how the practice of Bench formation contributes to arbitrariness in the imposition of death penalty. It is well known that so far as the Supreme Court is concerned, while the number of Judges has increased over the years, the number of Judges on Benches which hear capital punishment cases has actually decreased. Most cases are now heard by two-Judge Benches. Professor Blackshield has abstracted 70 cases in which the Supreme Court had to choose between life and death while sentencing an accused for the offence of murder and analysing these 70 cases he has pointed out that during the period April 28, 1972 to March 8, 1976 only 11 Judges of the Supreme Court participated in 10 per cent or more of the cases. He has listed these 11 Judges in an ascending order of leniency based on the proportion for each Judge of plus votes (i.e. votes for the death sentence) to total votes and pointed out that these statistics show how the judicial response to the question of life and death varies from judge to judge. It is significant to note that out of 70 cases analysed by Professor Blackshield, 37 related to the period subsequent to the coming into force of Section 354, sub-section (3) of the Code of Criminal Procedure, 1973. If a similar exercise is performed with reference to cases decided by the Supreme Court after March 8, 1976, that being the date up to which the survey carried out by Professor Blackshield was limited, the analysis will reveal the same pattern of incoherence and arbitrariness, the decision to kill or not to kill being guided to a large extent by the composition of the Bench. Take for example Rajendra Prasad case decided on February 9, 1979. In this case, the death sentence imposed on Rajendra Prasad was commuted to life imprisonment by a majority consisting of Krishna Iyer, J. and Desai, J., A.P. Sen, J. dissented and was of the view that the death sentence should be confirmed. Similarly in one of the cases before us, namely, Bachan Singh v. State of Punjab, when it was first heard by a Bench consisting of Kailasam and Sarkaria, JJ., Kailasam, J. was definitely of the view that the majority decision in Rajendra Prasad case9 was wrong and that is why he referred that case to the Constitution Bench. So also in Dalbir Singh v. State of Punjab, the majority consisting of Krishna Iyer, J. and Desai, J. took the view that the death sentence imposed on Dalbir Singh should be commuted to life imprisonment while A.P. Sen, J. stuck to the original view taken by him in Rajendra Prasad case9 and was inclined to confirm the death sentence, It will thus be seen that the exercise of discretion whether to inflict death penalty or not depends to a considerable extent on the value system and social philosophy of the Judges constituting the Bench”

54. We are not oblivious of a line of decisions of this Court where the doctrine of proportionality has been applied, even in the matter of awarding death penalty. [See State of Rajasthan v. Kheraj Ram, (2003) 8 SCC 224, Bablu @ Mubarik Hussain v. State of Rajasthan, 2006 (14) SCALE 15 and Shivu and Anr. v. R.G. High Court of Karnataka and Anr. 2007 (3) SCALE 157]

55. In this case we need not go into the correctness or otherwise of the said view. Although it is also not necessary to do so, we may notice some development of law in this regard.

56. Criminal Justice Act 1991 of England famously hailed doctrine of proportionality as the guiding principle. But since the 1991 legislation, field of sentencing has seen much reform and Criminal Justice Act of 2003 presents a fresh set of sentencing objectives. Section 142 of the Act delineates the following as the purposes of sentencing:

“142 Purposes of sentencing (1) Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing- (a) the punishment of offenders, (b) the reduction of crime (including its reduction by deterrence), (c) the reform and rehabilitation of offenders, (d) the protection of the public, and (e) the making of reparation by offenders to persons affected by their offences.”

57. In this context it, a reference should also be made of the Halliday Report of 2001 (Making Puncishments Work) which has some interesting insights to offer on the sentencing structure in England and Wales. In the same vein, a White Paper in 2002 has made a case of reforms and suggested a shift from the proportionality principle.

58. In fine, scholarship on sentencing which has been quite diverse in its prescriptions certainly has consensus on the point that any decision on sentencing aspect would require assessing more than one variables and single minded pursuit of any one sentencing ideal would be discounting on other equally urgent parameters and objectives.

59. We do not have a sentencing policy, unlike some other countries.

England has the concept of “guideline judgments” which is considered as a judge managed sentencing model rather than a statute induced one. Section 354 (3) suggests that Indian law furthers statute induced sentencing guidance in part. Therefore it has to be given full colour.

60. We have no practice of referring such matters to superior courts for laying down the guidelines relating to imposition of sentence under various situations. [See The Queen v. Julie McGinley and Michael Monaghan, (2003) NICC 1]

61. In our country, therefore, each case may have to be considered on its own merit.

62. It may be of some interest to note that Furman v. Georgia [408 U.S.

238 (1972)] ruled on the requirement for a degree of consistency in the application of the death penalty.

Justice Stewart held that:

“The penalty of death differs from all other forms of criminal punishment, not in degree, but in kind.

It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.

*** *** *** These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed.”

63. Justice Brennan while interpreting Eighth Amendment (Amendment VIII: (Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted) of US Constitution observes in Furman:

“In determining whether a punishment comports with human dignity, we are aided also by a second principle inherent in the Clause — that the State must not arbitrarily inflict a severe punishment.

This principle derives from the notion that the State does not respect human dignity when, without reason, it inflicts upon some people a severe punishment that it does not inflict upon others. Indeed, the very words “cruel and unusual punishments” imply condemnation of the arbitrary infliction of severe punishments.”

64. It is important to refer to Harbans Singh v. Union of India [1982] INSC 19; [AIR 1982 SC 849] at this juncture. In that case three people were sentenced to death by the trial court for playing an equal part in jointly murdering a family of four persons. The sentence of all the three was confirmed by the High Court.

Each of them moved to the Supreme Court by different Special Leave Petitions before three separate benches. One of the accused’s petition was dismissed and he was actually executed. Another’s petition was allowed and his death sentence was commuted to life imprisonment. And the petition of the third one was also dismissed. He filed a review petition, which was also dismissed, and the Executive refused clemency. He then moved another petition before the Supreme Court bringing to light this arbitrariness. The Supreme Court recommended the President to commute his sentence.

Chandrachud J. while lamenting the death of dead accused said:

“The fate of Jeeta Singh has a posthumous moral to tell. He cannot profit by the direction which we propose to give because he is now beyond the process of human tribunals.”

65. Bentham’s discourse on determination of minimum punishment and maximum punishment serves as a yardstick in this context. Bentham in his landmark treatise Principles of Penal Law propose to establish a proportion between crimes and punishments. But he cautions against an oracular understanding than an instructive one. We here further go in the details of what doctrine of proportionality holds in the realm of sentencing. The first rule of proportionality mandates:

“The value of the punishment must not be less in any case than what is sufficient to outweigh that of the profit of the offence.”

While talking of minimum punishment Bentham observes:

“Punishments may be too small or too great; and there are reasons for not making them too small, as well as not making them too great. The terms minimum and maximum may serve to mark the two extremes of this question, which require equal attention.

With a view of marking out the limits of punishment on the side of the first of these extremes, we may lay it down as a rule: That the value of the punishment must not be less in any case than what is sufficient to outweigh that of the profit of the offence.

By the profit of the crime, must be understood not only pecuniary profit, but every advantage real or apparent, which has operated as a motive to the commission of the crime.”

66. It is to be appreciated here that statutorily decided minimum sentence takes into account the basic value of the crime and suffice to outweigh the profit of the offence. The moot question relates to parameters to decide the maximum punishment. Setting the trail of caution on the side of determination of maximum punishment Bentham posits:

“Punishment, whatever shape it may assume, is an evil…

The minimum of punishment is more clearly marked than its maximum. What is too little is more clearly observed than what is too much.

What is not sufficient is easily seen, but it is not possible so exactly to distinguish an excess. An approximation only can be attained. The irregularities in the force of temptations, compel the legislator to increase his punishments till they are not merely sufficient to restrain the ordinary desires of men; but also the violence of their desires when unusually excited.

The greatest danger lies in an error on the minimum side, because in this case the punishment is inefficacious; but this error is least likely to occur, a slight degree of attention sufficing for its escape; and when it does exist, it is at the same time clear and manifest, and easy to be remedied.

An error on the maximum side, on the contrary, is that to which legislators and men in general are naturally inclinedantipathy, or a want of compassion for individuals who are represented as dangerous and vile, pushes them onward to an undue severity. It is on this side therefore, that we should take the most preparations, as on this side there has been shown the greatest disposition to err.”

67. On the same point Beccaria in his historic work Of Crimes and Punishments denounced retributive basis of punishment.

“The aim of punishment can only be to prevent the criminal committing new crimes against his countrymen, and to keep others from doing likewise. Punishments, therefore, and the method of inflicting them, should be chosen in due proportion to the crime so as to make the most efficacious and lasting impression on the minds of men, and the least painful impressions on the body of the criminal.

For a punishment to be efficacious, it is enough that the disadvantage of the punishment should exceed the advantage anticipated from the crime;

in which excess should be calculate the certainty of punishment and the loss of the expected benefit.

Everything beyond this, accordingly, is superfluous, and therefore tyrannical.”

68. There is a clear and discernible necessity of caution to set the maximum punishment in an offence. And also by implication there must be intensive and exhaustive inquiry into accused related parameters before employing the maximum sentence by a court of law. Therefore discretion to the judiciary in this respect (to declare the maximum punishment) is of utmost critical and seminal value. Reasons must be detailed setting clearly why any punishment other than the maximum punishment will not suffice.

This is a general and age-old rule of sentencing which has been statutorily recognized under section 354(3).

69. Reference to the decision of other jurisdictions and/or the recent trend in the international fora has not been referred to by way of precedents or even a persuasive value but the court in this age cannot afford to put down blinkers on its window to the outside world.

70. It is noteworthy to mention here the Law Commission in its Report of 1967 took the view that capital punishment acted as a deterrent to crime.

While it conceded that statistics did not prove these so-called deterrent effects. It also said that figures did not disprove them either.

71. Tracing the judicial view on Death Penalty, one can start with the Jagmohan Singh case (1973) where it agreed with the Law Commission that capital punishment should be retained. But subsequent cases such as those of Ediga Anamma (1974) and Rajendra Prasad (1979) saw dissenting voices being raised in this court. These led to a hearing of the Bachan Singh (1980) case by a Constitutional Bench.

72. In Rajendra Prasad v. State of U.P. [(1979) 3 SCR 646], it was held that the special reasons necessary for imposing a death penalty must relate not to the crime but to the criminal. It could be awarded only if the security of the state and society, public order in the interest of the general public compelled that course.

73. The death penalty was abolished in 1965 in the U.K. Member-states of the European Union cannot have the death penalty. In Canada, after the abolition of the death penalty in 1976, the homicide rate declined. In 2000, there were 542 homicides in Canada  16 fewer than in 1998 and 159 fewer than in 1975 (one year prior to the abolition of capital punishment). In 1997, the Attorney-General of Massachusetts said: “there is not a shred of credible evidence that the death penalty lowers the murder rate. In fact, without the death penalty the murder rate in Massachusetts is about half the national average.”

74. The South African Constitutional Court unanimously ruled in 1995 that the death penalty for murder violated the country’s Constitution. More than 118 countries have abolished the death penalty either in law or practice.

The second optional protocol to the International Civil Covenant, which came into force in 1991, mandates the abolition of the death penalty.

75. Whatever may be the “merits”, “demerits” or “criticism”, one cannot hope for unjustness in society. Deterring or preventive theory may not have any application at all in respect of imposition of death sentence. The law itself mandates that for imposing death sentence, special reasons are to be assigned. Imposition of death punishment is an exception in terms of sub- section (3) of Section 354 of the Code of Criminal Procedure. Whereas for commission of other offences, one or other theory, justly or otherwise may be taken recourse to, a large number of factors are required to be borne in mind for awarding death penalty.

76. In Renuka Bai alias Rinku alias Ratan and Another v. State of Maharashtra [(2006) 7 SCC 442], Balakrishnan, J. (as the learned Chief Justice then was) while imposing a death sentence in a case where the appellants had kidnapped seven children and committed their murder in a most dastardly manner also noticed:

“36We have carefully considered the whole aspect of the case and are also alive to the new trends in the sentencing system in criminology”

(Emphasis supplied)

77. Similarly in Bhimashya and Ors. v. Smt. Janabi @ Janawwa [2006 (14) SCALE 27], Dr. Pasayat, J. took into consideration the overall global view imparting death penalty.

78. This new trend, thus, must be taken into consideration only for awarding appropriate punishment.

79. We may also note that in Ram Singh v. Sonia & Ors. [2007 (3) SCALE 106] imposition of a death penalty has been upheld in the case where the accused had not only put an end to the life of her step brother and his whole family which included three tiny tots of 45 days, 2 = years and 4 years but also her own father, mother and sister in a very diabolic manner so as to deprive her father from giving the property to her step brother and his family. It was, in the aforementioned extraordinary situation, held:

“The fact that murders in question were committed in such a diabolic manner while the victims were sleeping, without any provocation whatsoever from the victims’ side indicates the cold-blooded and premeditated approach of the accused to cause death of the victims. The brutality of the act is amplified by the grotesque and revolting manner in which the helpless victims have been murdered which is indicative of the fact that the act was diabolic of most superlative degree in conception and cruel in execution and that both the accused persons are not possessed of the basic humanness and completely lack the psyche or mind set which can be amenable for any reformation”

(Emphasis supplies)

80. Yet again, another Division Bench of this Court in Shivu (supra) has upheld the death penalty where the accused was charged with Sections 302 and 376 read with Section 34 of the Indian Penal Code. In that case, the repeated attempts were made by two accused aged 20 and 22 years to commit rape on Lakkamma, daughter of one Puttegowda (PW-7). They were caught but only had been admonished. Yet again, they attempted to commit rape on PW-10 who was the daughter of Jayamma (PW-1). The accused persons, however, escaped any punishment even then at the instance of village elders and their family members and instead Panchayat of village elders was called on each occasion and accused were directed to mend their ways. The court found that emboldened by the escapes from punishment in those two incidents, the accused committed rape on the deceased a young girl of hardly 18 years and to avoid detection committed heinous and brutal act of her murder.

81. It would, therefore, appear that cases where death penalty is upheld are those where murder was committed of a large number of persons or by more than one person in a brutal or systematic manner.

82. Bhagwati, J. in his dissenting opinion in Bachan Singh (supra) pointed out one; Aloke Nath Dutta (supra) has also pointed out other instances.

83. With utmost respect, I am of the opinion that the doctrine of proportionality which is often referred to in the judicial pronouncements in regard to the sentencing policy required to be judicially adopted should not apply in a case of imposition of capital punishment. Precedent should not be contrary to Parliamentary law; far less the decision of a Constitution bench of this Court

84. We may, however, notice that the question in regard to the death penalty again came up for consideration before this Court in Acharaparambath Pradeepan & Anr. v. State of Kerala [2006 (13) SCALE 600] and Bishnu Prasad Sinha and Anr. v. State of Assam [2007 (2) SCALE 42] wherein Aloke Nath Dutta (supra) was reiterated.

85. In Bishnu Prasad Sinha (supra), it was observed :

“The question which remains is as to what punishment should be awarded. Ordinarily, this Court, having regard to the nature of the offence, would not have differed with the opinion of the learned Sessions Judge as also the High Court in this behalf, but it must be borne in mind that the appellants are convicted only on the basis of the circumstantial evidence. There are authorities for the proposition that if the evidence is proved by circumstantial evidence, ordinarily, death penalty would not be awarded. Moreover, the appellant No.1 showed his remorse and repentance even in his statement under Section 313 of the Code of Criminal Procedure. He accepted his guilt.”

(See also Amarjit Singh v. State of Punjab, AIR 2006 SCW 5712)

86. We may, however, hasten to add that no universal rule is meant to be laid down as even in Bishnu Prasad Sinha (supra), the word “ordinarily” has been used. There may be cases and cases where even on circumstantial evidence, a death penalty may be imposed.

87. In Sahdeo & Ors. vs. State of U.P. [(2004) 10 SCC 682], this Court opined :

“As regards the sentence of death imposed on five accused persons by the sessions court, which was confirmed by the appellate court, the counsel for the appellants, Shri Sushil Kumar submitted that in the absence of clear and convincing evidence regarding the complicity of the accused, these appellants could not be visited with the death penalty, while the counsel for the State submitted that this is a ghastly incident in which eight persons were done to death and the death penalty alone is the most appropriate punishment to be imposed. Though it is proved that there was an unlawful assembly and the common object of that unlawful assembly was to kill the deceased persons, there is another aspect of the matter inasmuch as there is no clear evidence by the use of whose fire-arm all the six deceased persons died as a result of firing in the bus. It is also pertinent to note that the investigating agency failed to produce clear and distinct evidence to prove the actual overt acts of each of the accused.

The failure to examine the driver and conductor of the bus, the failure to seize the bus and the absence of a proper ‘mahzar’, are all lapses on the part of investigating agency. Moreover, the doctor who gave evidence before the court was not properly cross-examined regarding the nature of the injuries. Some more details could have been collected as to how the incident might have happened inside the bus. These facts are pointed out to show that the firing may have been caused by the assailants even while they were still standing on the footboard of the bus and some of the appellants may not, in fact, have had an occasion to use the fire-arm, though they fully shared the common object of the unlawful assembly. Imposition of the death penalty on each of the five appellants may not be justified under such circumstances. We take this view in view of the peculiar circumstances of the case and it should not be understood to mean that the accused persons are not to be convicted under Section 302 read with Section 149 and the death penalty cannot be imposed in the absence of various overt acts by individual accused persons. In view of the nature and circumstances of the case, we commute the death sentence imposed on A-1 Sahdeo, A-4 Subhash, A-5 Chandraveer, A-7 Satyapal and A-10 Parvinder to imprisonment for life.”

88. In Raju vs. State of Haryana [(2001) 9 SCC 50], it has been opined by this Court :

“However, the next question is whether this would be a rarest of rare cases where extreme punishment of death is required to be imposed. In the present case, from the confessional statement made by the accused, it would appear that there was no intention on the part of the accused to commit the murder of the deceased child. He caused injury to the deceased by giving two brick blows as she stated that she would disclose the incident at her house. It is true that learned Sessions Judge committed error in recording the evidence of SI Shakuntala, PW 15 with regard to the confessional statement made to her, but in any set of circumstances, the evidence on record discloses that the accused was not having an intention to commit the murder of the girl who accompanied him. On the spur of the moment without there being any premeditation, he gave two brick blows which caused her death. There is nothing on record to indicate that the appellant was having any criminal record nor can he be said to be a grave danger to the society at large. In these circumstances, it would be difficult to hold that the case of the appellant would be rarest of rare case justifying imposition of death penalty.”

89. It has been a fundamental point in numerous studies in the field of Death Penalty jurisprudence that cases where the sole basis of conviction is circumstantial evidence, have far greater chances of turning out to be wrongful convictions, later on, in comparison to ones which are based on fitter sources of proof. Convictions based on seemingly conclusive circumstantial evidence should not be presumed as full proof incidences and the fact that the same are circumstantial evidence based must be a definite factor at the sentencing stage deliberations, considering that capital punishment is unique in its total irrevocability. Any characteristic of trial, such as conviction solely resting on circumstantial evidence, which contributes to the uncertainty in the culpability calculus, must attract negative attention while deciding maximum penalty for murder.

90. One of the older cases in this league dates back to 1874, Merritt v.

State, 52 Ga. 82, 85 (1874) where the Supreme Court of Georgia described the applicable law in Georgia as follows:

“By the penal code of this state the punishment of murder shall be death, except when the conviction is founded solely on circumstantial testimony.

When the conviction is had solely on circumstantial testimony, then it is discretionary with the presiding judge to impose the death penalty or to sentence the defendant to imprisonment in the penitentiary for life, unless the jury . . . shall recommend that the defendant be imprisoned in the penitentiary for life; in that case the presiding judge has no discretion, but is bound to commute the punishment from death to imprisonment for life in the penitentiary.”

91. Later case of Jackson v. State, 74 Ala. 26, 29-30 (1883) followed the aforementioned case. [Also see S.M. Phillipps, Famous Cases of Circumstantial Evidence with an Introduction on the Theory of Presumptive Proof 50-52 (1875)] 92. In United States v. Quinones, 205 F. Supp. 2d 256, 267 (S.D.N.Y.

2002) the court remarked:

“Many states that allow the death penalty permit a conviction based solely on circumstantial evidence only if such evidence excludes to a moral certainty every other reasonable inference except guilt.”

93. In the instant case, confession before police was taken as a gospel truth. It seems that the judicial mind has a role to play in that behalf in imposition of sentence.

94. Another aspect which needs to be considered as according to the Bachan Singh Rule (that sentencing should involve analysis about the nature of crime as well as the accused) which require consideration, is the effect of two pointers relating to the nature of crime. Firstly, the case does not seem to be an instance of what is called a diabolical murder. We come across cases of murdering wife by burning for non-fulfillment of dowry, preceded by continuous torture. Simon and Ors. v. State of Karnataka [(2004) 2 SCC 694] noting the “all murders are cruel” observation in Bachan Singh (supra) puts the law on death penalty in perspective as:

“The Constitution Bench said that though all murders are cruel but cruelty may vary in its degree of culpability and it is only then the culpability assumes the proportion of extreme depravity that “special reasons” can legitimately be said to exist.”

95. Second point relates to planning which went into committing the murder. It is agreed that accused deliberately came close to the beautiful and wealthy lady. He must have had his intentions and calculations in that regard. To that extent intention behind the marriage can be imputed. But to infer from that the murder was a pre-planned murder will be going a bit too far as he did not know the opportune date when the servant would be leaving the house. He could not have known the servants would receive a telegram and ask for leave. Without their leaving the place, the plan, if there was any, could not have been executed. This is one weak link in the hypothesis that the murder was meticulously planned.

96. In Kashmir Singh v. State of Himachal Pradesh, [1990 Supp (1) SCC 133] the Court held:

“There was no infirmity in appraisal of the facts and circumstances and the circumstantial evidence by the courts below in arriving at the conclusion that the accused-appellant has committed the crime under Section 302 IPC. But considering the fact that it was not a pre-meditated and cold-blooded murder, and also because the appellant appeared before the Sessions Judge and made a confessional statement, the sentence is converted from death to life imprisonment.”

97. Keeping the abovementioned other characteristics of the crime, we now delve into whether this instance can be categorized as a “rarest of rare”

murder. The question is whether murder of wife for the purpose of usurping property is a rarest of rare crime statistically. It is not to say that rarest of rare doctrine only has a statistical dimension i.e. incidence of particular type of murder in a given sample; rarest of rare benchmark can also be used in the context of other parameters such a brutality, planning, society’s reaction et al. Facets relating to nature of the crime have already been explained in terms of the few parameters mentioned just now. Therefore we attend to the incidence aspect. It can not be conclusively said that murder of wife for usurping property is a particularly rarest of rare incident. It could, of course, be a rare incident.

98. Also it is to be realized that in criminal cases character of accused is immaterial by the mandate of section 53 and 54 of Indian Evidence Act. The same should not factor in the discussions at the sentencing stage. If that be so, bad character of the accused by itself should not be a determinative factor.

99. In fact, Appellant should not have been heard at that stage. The stage of hearing an accused under Section 235(2) of the Code is after the judgment of conviction is pronounced and not prior thereto. Appellant herein made a confession before the High Court. The High Court took the same into consideration in the main judgment which could not be done. He had been brought before the High Court only for purpose of fulfilling the requirement of sub-section (2) of Section 235 of the Code of Criminal Procedure. His Statement was taken during midst of hearing. He knew the implications thereof. Despite the same, he made a categorical statement that he was responsible for burring the dead body. He gave an explanation, which might not have found favour with the High Court, but the fact that he had made a confession at least accepting a part of the offence could not have been ignored at least for the purpose of imposition of punishment. He is more than 64 years’ old. He is in custody for a period of 16 years. The death sentence was awarded to him by the trial court in terms of its judgment dated 20.05.2005. In a situation of this nature, we are of the opinion that imposition of a life imprisonment for commission of the crime under Section 302 shall serve the ends of justice.

100. However, while saying so, we direct that in a case of this nature ‘life sentence’ must be meant to be ‘life sentence’. Such a direction can be given, as would appear from some precedents. {See Subhash Chander v. Krishan Lal and Ors. [(2001) 4 SCC 458]}.

101. Yet again in Ram Anup Singh and Ors. v. State of Bihar [(2002) 6 SCC 686], this Court directed that the accused shall remain in jail for a period of not less than 20 years. [See Prakash Dhawal Khairnar (Patil) v.

State of Maharashtra, (2002) 2 SCC 35], Shri Bhagwan v. State of Rajasthan [(2001) 6 SCC 296] and Mohd. Munna etc. v. Union of India & Ors. etc.

[(2005) 7 SCC 417].

102. However, before parting with this case, we may notice that a prayer was made by Smt. Sabhah Khaleeli (daughter of the deceased) that the mortal remains of Smt. Shakereh (deceased) including skull are required by the family of the deceased for burial and obsequies ceremony. The High Court has issued such a direction. As the family of the deceased and in particular Smt. Sabah Khaleeli (PW-5) desires to perform burial and other obsequies ceremonies, we direct that the order of the High Court, in this behalf, may be implemented, as expeditiously as possible.

103. For the reasons aforementioned, the appeal is dismissed, subject to the modification in sentence, as directed hereinbefore.

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IN THE SUPREME COURT OF INDIA
CASE NO.: Writ Petition (civil) 257 of 2005
Rameshwar Prasad & Ors. …PETITIONER
Vs
Union of India & Anr. …RESPONDENT
DATE OF JUDGMENT: 24/01/2006
BENCH: Y.K. Sabharwal CJI & K.G. Balakrishnan & B.N. Agrawal & Ashok Bhan & Arijit Pasayat

J U D G M E N T

Delivered by
Y.K. Sabharwal, CJI
K.G. BALAKRISHNAN, J
ARIJIT PASAYAT J.

[With W.P. (C) No.255 of 2005, W.P. (C) No.258 of 2005 and W.P.(C) No.353 of 2005

Y.K. Sabharwal, CJI.

The challenge in these petitions is to the constitutional validity of Notification dated 23rd May, 2005 ordering dissolution of the Legislative Assembly of the State of Bihar. It is a unique case. Earlier cases that came up before this Court were those where the dissolutions of Assemblies were ordered on the ground that the parties in power had lost the confidence of the House. The present case is of its own kind where before even the first meeting of the Legislative Assembly, its dissolution has been ordered on the ground that attempts are being made to cobble a majority by illegal means and lay claim to form the Government in the State and if these attempts continue, it would amount to tampering with constitutional provisions.

One of the questions of far reaching consequence that arises is whether the dissolution of Assembly under Article 356(1) of the Constitution of India can be ordered to prevent the staking of claim by a political party on the ground that the majority has been obtained by illegal means. We would first note the circumstances which led to the issue of impugned notification.

Factual Background Election to the State of Bihar was notified by the Election Commission on 17th December, 2004. Polling for the said elections were held in three phases, i.e., 3rd February, 2005, 5th February, 2005 and 13th February, 2005. Counting of votes took place on 27th February, 2005. Results of the said elections were declared by the Election Commission. On 4th March, 2005, Notification was issued by the Election Commission in pursuance of Section 73 of Representation of People Act, 1951 (for short ‘the RP Act, 1951’) duly notifying the names of the members elected for all the constituencies along with party affiliation.

Bihar Legislative Assembly comprises of 243 members and to secure an absolute majority support of 122 Members of Legislative Assembly (in short ‘MLAs’), is required. National Democratic Alliance (for short ‘NDA’), a political coalition of parties comprising of the Bharatiya Janata Party (for short ‘BJP’) and the Janata Dal (United) (for short ‘JD(U)’) was the largest pre-poll combination having the support of 92 MLAs. The party-wise strength in the Assembly was as under:

“(1) NDA 92 (2) RJD 75 (3) LJP 29 (4) Congress (I) 10 (5) CPI (ML) 07 (6) Samajwadi Party 04 (7) NCP 03 (8) Bahujan Samaj Party02 (9) Independents 17 (10) Others 09” Report dated 6th March, 2005 was sent by the Governor to the President, recommending newly constituted Assembly to be kept in suspended animation for the present. It reads as under:

“Respected Rashtrapati Jee, The present Bihar Legislative Assembly has come to an end on 6th March, 2005. The Election Commission’s notification with reference to the recent elections in regard to constitution of the new Assembly issued vide No. 308/B.R.-L.A./2005 dated 4th March 2005 and 464/Bihar-LA/2005, dated the 4th March, 2005 is enclosed (Annexure-I)

2. Based on the results that have come up, the following is the party-wise position:

1. R.J.D. : 75

2. J.D.(U) : 55

3. B.J.P. : 37

4. Cong(I) : 10

5. B.S.P. : 02

6. L.J.P. : 29

7. C.P.I. : 03

8. C.P.I.(M) : 01

9. C.P.I.(M.L.): 07

10. N.C.P. : 03

11. S.P. : 04

12. Independent: 17 ————————————— 243 ________________________ The R.J.D. and its alliance position is as follows:

1. R.J.D. : 75

2. Cong.(I) : 10

3. C.P.I. : 03 (support letter not recd.)

4. C.P.I.(M) : 01

5. N.C.P. : 03 _________________________ 92 _________________________ The N.D.A. alliance position is as follows:

1. B.J.P. : 37

2. J.D.(U) : 55 92 _______________________

3. The present C.M., Bihar, Smt. Rabri Devi met me on 28.2.2005 and submitted her resignation along with her Council of Ministers. I have accepted the same and asked her to continue till an alternative arrangement is made.

4. A delegation of members of LJP met me in the afternoon of 28.2.2005 and they submitted a letter (Annexure II) signed by Shri Ram Vilas Paswan, President of the Party, stating therein that they will neither support the RJD nor the BJP in the formation of Government. The State President of Congress Party, Shri Ram Jatan Sinha, also met in the evening of 28.2.2005.

5. The State President of BJP, Shri Gopal Narayan Singh along with supporters met me on 1.3.2005. They have submitted a letter (Annexure III) stating that apart from combined alliance strength of 92 (BJP & JD(U) they have support of another 10 to 12 Independents. The request in the letter is not to allow the RJD to form a Government.

6. Shri Dadan Singh, State President of Samajwadi Party, has sent a letter (Annexure IV) indicating their decision not to support the RJD or NDA in the formation of the Govt. He also met me on 2.3.2005.

7. Shri Ram Naresh Ram, Leader of the CPI (ML-Lib.), Legislature Party along with 4 others met me and submitted a letter (AnnexureV) that they would not support any group in the formation of Government.

8. Shri Ram Vilas Paswan, National President of LJP, along with 15 others met me and submitted another letter (Annexure VI). They have reiterated their earlier stand.

9. The RJD met me on 5.3.2005 in the forenoon and they staked claim to form a Government indicating the support from the following parties :

1. Cong(I) : 10

2. NCP : 03

3. CPI(M) : 01

4. BSP : 02 (Copy enclosed as Ann.VII) The RJD with the above will have only 91.

They have further claimed that some of the Independent members may support the RJD. However, it has not been disclosed as to the number of Independent MLAs from whom they expect support nor their names.

Even if we assume the entire Independents totalling 17 to extend support to RJD alliance, which has a combined strength of 91, the total would be 108, which is still short of the minimum requirement of 122 in a House of 243.

10. The NDA delegation led by Shri Sushil Kumar Modi, MP, met me in the evening of 5.3.2005. They have not submitted any further letter. However, they stated that apart from their pre- election alliance of 92, another 10 Independents will also support them and they further stated that they would be submitting letters separately. This has not been received so far. Even assuming that they have support of 10 Independents, their strength will be only 102, which is short of the minimum requirement of 122.

11. Six Independent MLAs met me on 5.3.2005 and submitted a letter in which they have claimed that they may be called to form a Government and they will be able to get support of others (Annexure VIII). They have not submitted any authorization letter supporting their claim.

12. I have also consulted the Legal experts and the case laws particularly the case reported in [1994] INSC 173; AIR 1994 SC 1918 where the Supreme Court in para 365 of the report summarised the conclusion.

The relevant part is para 2, i.e., the recommendation of the Sarkaria Commission do merit serious consideration at the hands of all concerned. Sarkaria Commission in its report has said that Governor while going through the process of selection should select a leader who in his judgment is most likely to command a majority in the Assembly. The Book “Constitution of India” written by Shri V.N. Shukla (10th edition) while dealing with Article 75 and Article 164 of the Constitution of India has dealt with this subject wherein it has quoted the manner of selection by the Governor in the following words :

“In normal circumstances the Governor need have no doubt as to who is the proper person to be appointed; it is leader of majority party in the Legislative Assembly, but circumstances can arise when it may be doubtful who that leader is and the Governor may have to exercise his personal judgment in selecting the C.M. Under the Constitutional scheme which envisages that a person who enjoys the confidence of the Legislature should alone be appointed as C.M.” In Bommai’s case referred to above in para 153, S.C. has stated with regard to the position where, I quote :

“After the General Elections held, no political party or coalition of parties or group is able to secure absolute majority in the Legislative Assembly and despite the Governor’s exploring the alternatives, the situation has arisen in which no political party is able to form stable Government, it would be case of completely demonstrable inability of any political party to form a stable Government commanding the confidence of the majority members of the Legislature. It would be a case of failure of constitutional machinery.”

13. I explored all possibilities and from the facts stated above, I am fully satisfied that no political party or coalition of parties or groups is able to substantiate a claim of majority in the Legislative Assembly, and having explored the alternatives with all the political parties and groups and Independents MLAs, a situation has emerged in which no political party or groups appears to be able to form a Government commanding a majority in the House. Thus, it is a case of complete inability of any political party to form a stable Government commanding the confidence of the majority members. This is a case of failure of constitutional machinery.

14. I, as Governor of Bihar, am not able to form a popular Government in Bihar, because of the situation created by the election results mentioned above.

15. I, therefore, recommend that the present newly constituted Assembly be kept in suspended animation for the present, and the President of India is requested to take such appropriate action/decision, as required.” Since no political party was in a position to form a Government, a notification was issued on 7th March, 2005 under Article 356 of the Constitution imposing President’s rule over the State of Bihar and the Assembly was kept in suspended animation. Another notification of the same date was also issued, inter alia, stating that the powers exercisable by the President shall, subject to the superintendence, direction and control of the President be exercisable also by the Governor of Bihar.

The object of the proclamation imposing President’s rule was to give time and space to the political process to explore the possibility of forming a majority Government in the State through a process of political realignment as is reflected in the speech of Home Minister Shri Shivraj V.

Patil in the Rajya Sabha on 21st March, 2005 when the Bihar Appropriation (Vote on Account) Bill, 2005 was discussed. The Home Minister said :

“. But, I would like to make one point very clear. We are not very happy to impose President’s Rule on the State of Bihar. Let there be no doubt in the minds of any Members of the House; we are not happy. After the elections we would have been happy if Government would have been formed by the elected representatives. That was not possible and that is why, President’s Rule was imposed. But we cannot take pleasure in saying “Look we did this”. We are not happy about it. I would ensure that the President’s Rule is not continued for a long time. The sooner it disappear, the better it would be for Bihar, for democracy and for the system we are following in our country. But, who is to take steps in this regard? It is the elected representatives who have to take steps in this respect. The Governor can and, I would like to request in this House that elected representatives should talk to each other and create a situation in which it becomes possible for them to form a Government. Even if it is minority Government with a slight margin, there is no problem..” The Home Minister gave a solemn assurance to the nation that the imposition of President’s rule was temporary and transient and was intended to explore the possibility of forming a popular Government.

According to the petitioners, process of realignment of forces was set in motion and several political parties and independent MLAs re-considered their position in terms of their commitment to provide a majority Government in deference to the popular wishes of the people and announced support to the NDA led by Shri Nitish Kumar. First such announcement was made by the entire group of 17 independent MLAs on 8th April, 2005. The signed declaration was released by these MLAs to the media. With the support of 17 independent MLAs the support base of the NDA rose to 109 MLAs.

Later on, it rose to 115 MLAs with the declaration of support by the Samajwadi Party (SP), the Bahujan Samaj Party (BSP) and the Nationalist Congress Party (NCP).

Governor of Bihar sent a report on 27th April, 2005 to the President of India, inter alia, stating that the newspaper reports and other reports gathered through meeting with various party functionaries/leaders and also intelligence reports received, indicated a trend to gain over elected representatives of the people and various elements within the party and also outside the party being approached through various allurements like money, caste, posts etc., which was a disturbing feature.

According to the said report, the situation was fast approaching a scenario wherein if the trend is not arrested immediately the consequent political instability will further give rise to horse trading being practiced by various political parties/groups trying to allure elected MLAs. That it would not be possible to contain the situation without giving the people another opportunity to give their mandate through a fresh poll. The report is reproduced below in its entirety.

“Respected Rashtrapati Jee, I invite a reference to my D.O.

No.33/GB dated the 6th March, 2005 through which a detailed analysis of the results of the Assembly elections were made and a recommendation was also made to keep the newly constituted Assembly (constituted vide Election Commission’s notification No.308/BR- L.A./2005 dated the 4th March, 2005 and 464/Bihar-LA/2005, dated the 4th March, 2005) in a suspended animation and also to issue appropriate direction/decision. In the light of the same, the President was pleased to issue a proclamation under Article 356 of the Constitution of India vide notification NO.G.S.R. 162(E), dated 7th March, 2005, and the proclamation has been approved and assented by the Parliament.

2. As none of the parties either individually or with the then pre-election combination or with post-election alliance combination could stake a claim to form a popular Government wherein they could claim a support of a simple majority of 122 in a House of 243, I had no alternative but to send the above mentioned report with the said recommendation.

3. I am given to understand that serious attempts are being made by JD-U and BJP to cobble a majority and lay claim to form the Government in the State. Contacts in JD-U and BJP have informed that 16-17 LJP MLAs have been won over by various means and attempt is being made to win over others. The JD-U is also targetting Congress for creating a split. It is felt in JD-U circle that in case LJP does not split then it can still form the Government with the support of Independent, NCP, BSP and SP MLAs and two-third of Congress MLAs after it splits from the main Congress party. The JD-U and BJP MLAs are quite convinced that by the end of this month or latest by the first week of May JD-U will be in a position to form the Government. The high pressure moves of JD-U/BJP is also affecting the RJD MLAs who have become restive.

According to a report there is a lot of pressure by the RJD MLAs on Lalu Pd.

Yadav to either form the Government in Bihar on UPA pattern in the centre, with the support of Congress, LJP and others or he should at least ensure the continuance of President’s rule in the State.

4. The National Commission to review the working of the Constitution has also noticed that the reasons for increasing instability of elected Governments was attributable to unprincipled and opportunistic political realignment from time to time. A reasonable degree of stability of Government and a strong Government is important. It has also noticed that the changing alignment of the members of political parties so openly really makes a mockery of our democracy.

Under the Constitutional Scheme a political party goes before the electorate with a particular programme and it sets up candidates at the election on the basis of such programmes. The 10th Schedule of the Constitution was introduced on the premise that political propriety and morality demands that if such persons after the elections changes his affiliation, that should be discouraged. This is on the basis that the loyalty to a party is a norm, being based on shared beliefs. A divided party is looked on with suspicion by the electorate.

5. Newspaper reports in the recent time and other reports gathered through meeting with various party functionaries/leaders and also intelligence reports received by me, indicate a trend to gain over elected representatives of the people and various elements within the party and also outside the party being approached through various allurements like money, caste, posts etc., which is a disturbing feature. This would affect the constitutional provisions and safeguards built therein. Any such move may also distort the verdict of the people as shown by results of the recent elections. If these attempts are allowed to continue then it would be amounting to tampering with constitutional provisions.

6. Keeping in view the above mentioned circumstances the present situation is fast approaching a scenario wherein if the trend is not arrested immediately, the consequent political instability will further give rise to horse trading being practiced by various political parties/groups trying to allure elected MLAs. Consequently it may not be possible to contain the situation without giving the people another opportunity to give their mandate through a fresh poll.

7. I am submitting these facts before the Hon’ble President for taking such action as deemed appropriate.” According to the petitioners, Lok Janashakti Party (LJP) had contested elections on the plank of opposing the then Government led by Rashtriya Janata Dal (RJD), which again is a constituent of United Progressive Alliance (UPA) in the Centre. It had a strength of 29 MLAs in the new assembly. The leader of LJP Shri Ram Vilas Paswan had taken the stand that he was opposed to RJD as well as NDA led by the BJP. MLAs belonging to LJP were in a rebellious mood. About 22 MLAs belonging to the LJP assembled on or around 21st May, 2005 and started working towards a major political realignment in the stand of the said party. According to them, 22 LJP members of the Legislative wing supported by members of the original political party reached a consensus subsequently to merge their party with the JD(U). That, with this the repolarisation of political forces was complete. According to them the proposed merger between two political formations was in consonance with the principles enumerated in para 4 of the Tenth Schedule to the Constitution. It provides that on a merger of the political party, all the members of the new political party with which the merger has taken place if and only if not less than two-third of the members of the said party have agreed to the said merger. It is their allegation that in order to thwart the formation of a Government led by JD(U) the Governor of Bihar sent another report from its Camp Office in Delhi on 21st May, 2005 to the President of India. It was reiterated in the report that from the information gathered through reports from media, meeting with various political functionaries, as also intelligence reports, a trend was indicated to win over elected representatives of the people. In his view a situation had arisen in the State wherein it would be desirable in the interest of State that assembly which has been kept in suspended animation be dissolved so that the people/electorate could be provided with one more opportunity to seek the mandate of the people at an appropriate time to be decided in due course. The report dated 21st May, 2005 is reproduced in its entirety as follows :

“Respected Rashtrapati Jee, I invite a reference to my D.O.

letter No.52/GB dated 27th April, 2005 through which I had given a detailed account of the attempts made by some of the parties notably the JD-U and BJP to cobble a majority and lay a claim to form a Government in the State. I had informed that around 16-17 MLAs belonging to LJP were being wooed by various means so that a split could be effected in the LJP. Attention was also drawn to the fact that the RJD MLAs had also become restive in the light of the above moves made by the JD-U.

As you are aware after the Assembly Elections in February this year, none of the political parties either individually or with the then pre-election combination or with post-election alliance combination could stake a claim to form a popular Government since they could not claim a support of a simple majority of 122 in a House of 243 and hence the President was pleased to issue a proclamation under Article 356 of the Constitution vide notification No. GSR 162 (E) dated 7th March, 2005 and the Assembly was kept in suspended animation.

The reports received by me in the recent past through the media and also through meeting with various political functionaries, as also intelligence reports, indicate a trend to win over elected representatives of the people.

Report has also been received of one of the LJP MLA, who is General Secretary of the party having resigned today and also 17-18 more perhaps are moving towards the JD-U clearly indicating that various allurements have been offered which is very disturbing and alarming feature.

Any move by the break away faction to align with any other party to cobble a majority and stake claim to form a Government would positively affect the Constitutional provisions and safeguards built therein and distort the verdict of the people as shown by the results in the recent Elections. If these attempts are allowed it would be amounting to tampering with Constitutional provisions.

Keeping the above mentioned circumstances, I am of the considered view that if the trend is not arrested immediately, it may not be possible to contain the situation. Hence in my view a situation has arisen in the State wherein it would be desirable in the interest of the State that the Assembly presently kept in suspended animation is dissolved, so that the people/electorate can be provided with one more opportunity to seek the mandate of the people at an appropriate time to be decided in due course.” The report of the Governor was received by Union of India on 22nd May, 2005 and on the same day, the Union cabinet met at about 11.00 P.M. and decided to accept the report of the Governor and sent the fax message to the President of India, who had already left for Moscow, recommending the dissolution of the Legislative Assembly of Bihar. This message was received by the President of India at his Camp office in Moscow at 0152 hrs. (IST).

President of India accorded his approval and sent the same through the fax message which was received at 0350 hrs. (IST) on 23rd May, 2005. After due process the notification was issued formally at 1430 hrs. (IST) on 23rd May, 2005 dissolving the Bihar Assembly which has been impugned in these writ petitions.

Challenging proclamation dated 23rd May, 2005 issued under Article 356 of the Constitution ordering dissolution of Bihar Legislative Assembly, petitioners have also prayed for restoration of Election Commission notification dated 4th May, 2005 issued under Section 73 of the RP Act of 1951.

According to the petitioners, the condition precedent for dissolving the assembly is that there must be satisfaction of the President that a situation has arisen in which the Government of a State cannot be carried on in accordance with the provisions of the Constitution. That this satisfaction has to be based on cogent material.

Power of dissolution cannot be used to prevent the staking of claim for the formation of a Government by a political party with support of others. That the assembly was placed under suspended animation with the intention of providing time and space to political parties to explore the possibility of providing a majority Government in the State. No sooner the process of realignment was complete ensuring that the NDA led by Shri Nitish Kumar had the support of over 135 MLAs, report was sent by the Governor. The midnight meeting of the Cabinet was hurriedly called in order to prevent the formation of a Government. It was incumbent upon the Governor to make a meaningful and real effort for securing the possibility of a majority Government in the State. According to them the intention of the Governor was to prevent the formation of a Government led by Shri Nitish Kumar. That there was no material available or in existence to indicate that any political defection was being attempted through the use of money or muscle power. In the absence of any such material the exercise of power under Article 356 was a clear fraud on the exercise of power.

That allegations in the Governor’s report of horse trading was factually incorrect and fictional. It was incumbent upon the Governor to verify the facts personally from the MLAs. That under the scheme of the Constitution the decision with regard to mergers and disqualifications on the ground of defection or horse trading is vested in the Speaker. The Governor could not have attempted to act on that basis and arrogated to himself such an authority. Relying heavily on the Nine Judge Bench judgment of this Court in S.R.Bommai & Ors. v. Union of India & Ors. [(1994) 3 SCC 1], it was contended that action of the Governor is mala fide in law; irrational, without any cogent material to support the conclusion arrived at and is based on mere ipse dixit and, thus, was not sustainable in law. It was contended that in exercise of judicial review this Court should quash the impugned notification and as a consequence restore the legislative assembly constituted by the Election Commission notification dated 4th March, 2005.

Mr.Soli Sorabjee led the arguments in support of the challenge to the validity of the impugned notification contending that the dissolution of the Assembly when examined in the light of law laid down in Bommai’s case (supra) is clearly unconstitutional and deserves to be set aside and the status quo ante at least as on 7th March, 2005 may be directed.

Mr.Viplav Sharma, advocate, appearing in person in writ petition No.258 of 2005 adopting the arguments of Mr.Sorabjee further contended that before even elected candidates making and subscribing oath or affirmation, as contemplated by Article 188 of the Constitution, even the Assembly could not be placed under suspended animation and status quo as on the date of issue of notification under Section 73 of the RP Act of 1951 deserves to be directed.

Mr. Narasimha, appearing in Writ Petition (C) No.353 for the petitioner, also adopted the arguments of Mr.Sorabjee but at the same time further contended that it is not legally permissible to order the dissolution of Assembly before its meeting even once and the MLAs being administered the oath as contemplated by the Constitution. This was also the submission of Mr. Viplav Sharma. Arguments on behalf of respondent Union of India were led by learned Attorney General, Mr. Milon Banerjee, followed by learned Solicitor General and Additional Solicitor General, Mr. Gulam Vahanavati and Mr. Gopal Subramaniam respectively. Mr. P.P. Rao, learned senior advocate argued for State of Bihar. We place on record our appreciation for excellent and very able assistance rendered by all the advocates.

After hearing arguments on the question of the Governor not being answerable to any Court in view of immunity granted by Article 361(1) of the Constitution, we accepted the submission of the Government in terms of our order dated 8th September, 2005 that notice may not be issued to the Governor, giving brief reason in order to be followed by detailed reasons later. The said order reads as under :

“On the question whether the Governor could be impleaded in his capacity as the Governor and whether notice could be issued to him on the writ petitions in the context of averments made and the prayers contained in the petitions and other aspects highlighted in the order dated 31st August, 2005, we have heard Mr. Soli J. Sorabjee, learned senior counsel appearing in Writ Petition (C) No.257 of 2005, and Mr. Viplav Sharma, petitioner-in-person in Writ Petition (C) No.258 of 2005. We have also heard the submissions made by Mr. Milon K.

Banerji, Attorney General for India, and Mr. Gopal Subramaniam, learned Additional Solicitor General.

The Constitution of India grants immunity to the Governor as provided in Article 361. Article 361(1), inter alia, provides that the Governor shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in exercise and performance of those powers and duties. It is submitted by learned Attorney General and Additional Solicitor General that in view of Article 361(1), this Court may not issue notice to the Governor. While we accept the submission but, at the same time, it is also necessary to note that the immunity granted to the Governor does not affect the power of the Court to judicially scrutinize the attack made to the proclamation issued under Article 356(1) of the Constitution of India on the ground of mala fides or it being ultra vires. It would be for the Government to satisfy the court and adequately meet such ground of challenge. A mala fide act is wholly outside the scope of the power and has no existence in the eyes of law. Even, the expression “purporting to be done” in Article 361 does not cover acts which are mala fide or ultra vires and, thus, the Government supporting the proclamation under Article 356(1) shall have to meet the challenge. The immunity granted under Article 361 does not mean that in the absence of Governor, the ground of mala fides or proclamation being ultra vires would not be examined by the Court. At this stage, we have not examined the question whether the exercise of power by the Governor was mala fide or ultra vires or not. That is a question still to be argued.

These are our brief reasons. We will give detailed reason later.” Under the aforesaid factual background, the points that fall for our determination are :

(1) Is it permissible to dissolve the Legislative Assembly under Article 174(2)(b) of the Constitution without its first meeting taking place? (2) Whether the proclamation dated 23rd May, 2005 dissolving the Assembly of Bihar is illegal and unconstitutional? (3) If the answer to the aforesaid question is in affirmative, is it necessary to direct status quo ante as on 7th March, 2005 or 4th March, 2005? (4) What is the scope of Article 361 granting immunity to the Governor? After hearing elaborate arguments, by a brief order dated 7th October, 2005, the notification dated 23rd May, 2005 was held to be unconstitutional but having regard to the facts and circumstances of the case, relief directing status quo ante to restore the Legislative Assembly as it stood on 7th March, 2005, was declined. The Order dated 7th October reads as under :

“The General Elections to the Legislative Assembly of Bihar were held in the month of February 2005. The Election Commission of India, in pursuance of Section 73 of the Representation of the People Act, 1951 in terms of Notification dated 4th March, 2005 notified the names of the elected members.

As no party or coalition of the parties was in a position to secure 122 seats so as to have majority in the Assembly, the Governor of Bihar made a report dated 6th March, 2005 to the President of India, whereupon in terms of Notification G.S.R.162(E) dated 7th March, 2005, issued in exercise of powers under Article 356 of the Constitution of India, the State was brought under President’s Rule and the Assembly was kept in suspended animation. By another Notification G.S.R.163(E) of the same date, 7th March, 2005, it was notified that all powers which have been assumed by the President of India, shall, subject to the superintendence direction and control of the President, be exercisable also by the Governor of the State. The Home Minister in a speech made on 21st March, 2005 when the Bihar Appropriation (Vote on Account) Bill, 2005 was being discussed in the Rajya Sabha said that the Government was not happy to impose President’s Rule in Bihar and would have been happy if Government would have been formed by the elected representatives after the election. That was, however, not possible and, therefore, President’s Rule was imposed.

It was also said that the Government would not like to see that President’s Rule is continued for a long time but it is for elected representatives to take steps in this respect; the Governor can ask them and request them and he would also request that the elected representatives should talk to each other and create a situation in which it becomes possible for them to form a Government. The Presidential Proclamation dated 7th March, 2005 was approved by the Lok Sabha at its sitting held on 19th March, 2005 and Rajya Sabha at its sitting held on 21st March, 2005.

The Governor of Bihar made two reports to the President of India, one dated 27th April, 2005 and the other dated 21st May, 2005. On consideration of these reports, Notification dated 23rd May, 2005 was issued in exercise of the powers conferred by sub-clause (b) of Clause (2) of Article 174 of the Constitution, read with clause (a) of the Notification G.S.R.162(E) dated 7th March, 2005 issued under Article 356 of the Constitution and the Legislative Assembly of the State of Bihar was dissolved with immediate effect.

These writ petitions have been filed challenging constitutional validity of the aforesaid Proclamation dated 23rd May, 2005. Mr. Soli J. Sorabjee, Senior Advocate and Mr. P.S. Narasimha, Advocate and Mr. Viplav Sharma, advocate appearing-in-person have made elaborate submissions in support of the challenge to the impugned action of dismissing the assembly.

On the other hand, Mr. Milon K.

Banerjee, Attorney-General for India, Mr.

Goolam E. Vahanavati, Solicitor General and Mr. Gopal Subramaniam, Additional Solicitor General appearing for Union of India and Mr. P.P. Rao, Senior Advocate appearing for the State of Bihar also made elaborate submissions supporting the impugned Proclamation dated 23rd May, 2005.

Many intricate and important questions of law having far reaching impact have been addressed from both sides. After the conclusion of the hearing of oral arguments, written submissions have also been filed by learned counsel.

Fresh elections in State of Bihar have been notified. As per press note dated 3rd September, 2005 issued by Election Commission of India, the schedule for general elections to the Legislative Assembly of Bihar has been announced. According to it, the polling is to take place in four phases commencing from 18th October, 2005 and ending with the fourth phase voting on 19th November, 2005. As per the said press note, the date of Notification for first and second phase of poll was 23rd September and 28th September, 2005, date of poll being 18th October, 2005 and 26th October, 2005 respectively.

Notifications for third and fourth phases of poll are to be issued on 19th and 26th October, 2005 respectively.

Keeping in view the questions involved, the pronouncement of judgment with detailed reasons is likely to take some time and, therefore, at this stage, we are pronouncing this brief order as the order of the court to be followed by detailed reasons later.

Accordingly, as per majority opinion, this court orders as under:

1. The Proclamation dated 23rd May, 2005 dissolving the Legislative Assembly of the State of Bihar is unconstitutional.

2. Despite unconstitutionality of the impugned Proclamation, but having regard to the facts and circumstances of the case, the present is not a case where in exercise of discretionary jurisdiction the status quo ante deserves to be ordered to restore the Legislative Assembly as it stood on the date of Proclamation dated 7th March, 2005 whereunder it was kept under suspended animation.” POINT NO.1 – Is it permissible to dissolve the Legislative Assembly under Article 174(2) (b) of the Constitution without its first meeting taking place? Article 174 of the Constitution deals with the power of the Governor to summon the House, prorogue the House and dissolve the Legislative Assembly. This Court never had the occasion to consider the question of legality of dissolution of a Legislative Assembly even before its first meeting contemplated under Article 172 of the Constitution. It has been contended on behalf of the petitioners by Mr. Narsimha and Mr. Viplav Sharma, appearing-in-person, that a Legislative Assembly can be dissolved under Article 174(2)(b) only after its first meeting is held as postulated by Article 172 of the Constitution. The argument is that there cannot be any dissolution without even members taking oath and the Legislative Assembly coming into existence. What does not exist, cannot be dissolved, is the submission. In this regard, the question to be considered also is whether the date for first meeting of the Legislative Assembly can be fixed without anyone being in a position to form the Government.

Let us first examine the relevant constitutional and statutory provisions.

Part VI of the Constitution dealing with the States has six chapters but relevant for our purpose are Chapter II and Chapter III. Chapter II comprising Article 153 to Article 167 relates to the executive, Chapter III comprising Article 168 to Article 212 relates to the State Legislature.

The federal structure under our Constitution contemplates that there shall be a Legislature for every State which shall consist of a Governor and one or two Houses, as provided in Article 168. Article 170 prescribes that the Legislative Assembly of each State shall consist of members chosen by direct election from territorial constituencies in the States. Article 170, therefore, brings in the democratic process of election.

Article 164 puts into place an executive Government. It enjoins upon the Governor to appoint the Chief Minister and other ministers on the advice of the Chief Minister. The Council of Ministers (Article 163) exercises the executive power of the State as provided under Article 154. Article 164(2) provides that the Council of ministers shall be collectively responsible to the Legislative Assembly of the State.

As provided in Article 172, every Legislative Assembly of every State, unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period of five years shall operate as a dissolution of the Assembly. Article 174(1) provides that the Governor shall from time to time summon the House to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.

Article 174(2) (b) provides that the Governor may from time to time dissolve the Legislative Assembly.

Every member of the Legislative Assembly of the State shall, before taking his seat, make and subscribe before the Governor, an oath or affirmation, as provided in Article 188 of the Constitution.

The contention urged is that the function of the Governor in summoning the House and administering the oath or affirmation to the members of the Legislative Assembly are not the matters of privilege, prerogative or discretion of the Governor but are his primary and fundamental constitutional obligations on which the principles of parliamentary democracy, federalism and even ‘separation of power’ are dependent. Further contention is that another constitutional obligation of the Governor is to constitute the executive Government.

According to Mr. Narasimha, the Governor failed to fulfill these constitutional obligations. Neither the executive Government nor the Legislative Assembly has been constituted by the Governor. On the other hand, the Governor has frustrated the very object of exercise of his constitutional obligation by dissolving the Legislative Assembly under Article 174(2)(b) without the Legislative Assembly being even constituted. When the Legislative Assembly is not even constituted, where is the question of its dissolution, is the contention urged. The submission is that under the scheme of Indian Constitution, it is impermissible to dissolve a Legislative Assembly before its first meeting and members making oath or affirmation as required by Article 188. According to the petitioners, under Indian Constitution, the Legislative Assembly is duly constituted only upon the House being summoned and from the date appointed for its first meeting. Article 172 which provides for duration of State Legislatures reads as under:

“172. Duration of State Legislatures – (1) Every Legislative Assembly of every State, unless sooner dissolved shall continue for (five years) from the date appointed for its first meeting and no longer and the expiration of the said period of (five years) shall operate as a dissolution of the Assembly:

Provided that the said period, may while a proclamation of Emergency is in operation, be extended by Parliament by law for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the Proclamation has ceased to operate.

(2) The Legislative Council of a State shall not be subject to dissolution, but as nearly as possible one third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law.

The aforesaid constitutional provision stipulates that five years term of a Legislative Assembly shall be reckoned from the date appointed for its first meeting and on the expiry of five years commencing from the date of the first meeting, the Assembly automatically stands dissolved by afflux of time. The duration of the Legislative Assembly beyond five years is impermissible in view of the mandate of the aforesaid provision that the Legislative Assembly shall continue for five years and ‘no longer’. Relying upon these provisions, it is contended that the due constitution of the Legislative Assembly can only be after its first meeting when the members subscribe oath or affirmation under Article 188. The statutory deemed constitution of the Assembly under Section 73 of the R.P. Act, 1951, according to the petitioners, has no relevance for determining due constitution of Legislative Assembly for the purpose of Constitution of India.

Reference on behalf of the petitioners has also been made to law existing prior to the enforcement of the Constitution of India contemplating the commencement of the Council of State and Legislative Assembly from the date of its first meeting. It was pointed out that Section 63(d) in the Government of India Act, 1915 which dealt with Indian Legislature provided that every Council of State shall continue for five years and every Legislative Assembly for three years from the date of its first meeting. Likewise, Section 72(b) provided that every Governor’s Legislative Council shall continue for three years from its first meeting. The Government of India Act, 1919, repealing 1915 Act, provided in Section 8(1) that every Governor’s Legislative Council shall continue for three years from its first meeting and in Section 21 provided that every Council of State shall continue for five years and every Legislative Assembly for three years from its first meeting. Likewise, the Government of India Act, 1935 repealing 1919 Act, had provision identical to Article 172 of the Constitution.

Section 73 of the R.P. Act 1951, in so far as relevant for our purposes, is as under:

“73. Publication of results of general elections to the House of the People and the State Legislative Assemblies.  Where a general election is held for the purpose of constituting a new House of the People or a new State Legislative Assembly, there shall be notified by [the Election Commission] in the Official Gazette, as soon as may be after [the results of the elections in all the constituencies] [other than these in which the poll could not be taken for any reason on the date originally fixed under clause (d) of section 30 or for which the time for completion of the election has been extended under the provisions of section 153] have been declared by the returning officer under the provisions of section 53 or, as the case may be section 66, the names of the members elected for those constituencies] and upon the issue of such notification that House or Assembly shall be deemed to be duly constituted.” In the present case, Notification under Section 73 of the RP Act, 1951 was issued on 4th March, 2005. The deemed constitution of the Legislative Assembly took place under Section 73 on the issue of the said notification. The question is whether this deemed constitution of Legislative Assembly is only for the purpose of the RP Act, 1951 and not for the constitutional provisions so as to invoke power of dissolution under Article 174(2)(b). The stand of the Government is that in view of aforesaid legal fiction, the constitution of the Legislative Assembly takes place for all purposes and, thus, the Legislative Assembly is deemed to have been ‘duly constituted’ on 4th March, 2005 and, therefore, the Governor could exercise the power of dissolution under Article 174(2)(b).

Section 73 of the RP Act, 1951 enjoins upon the Election Commission to issue notification after declaration of results of the elections in all the constituencies. The superintendence, direction and control of elections to Parliament and to the Legislature of every State vests in Election Commission under Article 324 of the Constitution. Article 327 provides that Parliament may make provision with respect to all matters relating to, or in connection with, elections to the Legislative Assembly of a State and all other matters necessary for securing the ‘due constitution’ of the House of the Legislature. Article 329 bars the interference by courts in electoral matters except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature. Article 327 read with Section 73 of the RP Act, 1951 provide for as to when the House or Assembly shall be ‘duly constituted’. No provision, constitutional or statutory, stipulates that the ‘due constitution’ is only for the purposes of Articles 324, 327 and 329 and not for the purpose of enabling the Governor to exercise power under Article 174(2)(b) of the Constitution. In so far as the argument based on Article 172 is concerned, it seems clear that the due constitution of the Legislative Assembly is different than its duration which is five years to be computed from the date appointed for its first meeting and no longer. There is no restriction under Article 174(2)(b) stipulating that the power to dissolve the Legislative Assembly can be exercised only after its first meeting. Clause (b) of proviso to Section 73 of the RP Act, 1951 also does not limit the deemed constitution of the Assembly for only specific purpose of the said Act or Articles 324, 327 and 329 of the Constitution. The said clause provides that the issue of notification under Section 73 shall not be deemed to affect the duration of the State Legislative Assembly, if any, functioning immediately before the issue of the said notification. In fact, clause (b) further fortifies the conclusion that the duration of the Legislative Assembly is different than the due constitution thereof. In the present case, we are not concerned with the question of duration of the Assembly but with the question whether the Assembly had been duly constituted or not so as to enable the Governor to exercise the power of dissolution under Article 174(2)(b). The Constitution of India does not postulate one ‘due constitution’ for the purposes of elections under Part XV and another for the purposes of the executive and the State Legislature under Chapter II and III of Part VI. The aforenoted provisions existing prior to the enforcement of Constitution of India are also of no relevance for determining the effect of deemed constitution of Assembly under Section 73 of the RP Act, 1951 to exercise power of dissolution under Article 274 (2)(b).

In K.K. Abu v. Union of India and Ors. [(AIR 1965 Kerala 229], a learned Single Judge of the High Court rightly came to the conclusion that neither Article 172 nor Article 174 prescribe that dissolution of a State Legislature can only be after commencement of its term or after the date fixed for its first meeting. Once the Assembly is constituted, it becomes capable of dissolution. This decision has been referred to by one of us (Arijit Pasayat, J.) in Special Reference No.1 of 2002 (popularly known as Gujarat Assembly Election matter) [(2002) 8 SCC 237]. No provision of the Constitution stipulates that the dissolution can only be after the first meeting of the State Legislature.

The acceptance of the contention of the petitioners can also lead to a breakdown of the Constitution. In a given case, none may come forth to stake claim to form the Government, for want of requisite strength to provide a stable Government. If petitioners’ contention is accepted, in such an eventuality, the Governor will neither be able to appoint Executive Government nor would he be able to exercise power of dissolution under Article 174(2)(b). The Constitution does not postulate a live Assembly without the Executive Government.

On behalf of the petitioners, reliance has, however, been placed upon a decision of a Division Bench of Allahabad High Court in the case of Udai Narain Sinha v. State of U.P. and Ors. [AIR 1987 All.203].

Disagreeing with the Kerala High Court, it was held that in the absence of the appointment of a date for the first meeting of the Assembly in accordance with Article 172(1), its life did not commence for the purposes of that article, even though it might have been constituted by virtue of notification under Section 73 of the RP Act, 1951 so as to entitle the Governor to dissolve it by exercising power under Article 174(2). It was held by the Division Bench that Section 73 of the RP Act, 1951 only created a fiction for limited purpose for paving the way for the Governor to appoint a date for first meeting of either House or the Assembly so as to enable them to function after being summoned to meet under Article 174 of the Constitution. We are unable to read any such limitation.

In our view, the Assembly, for all intends and purposes, is deemed to be duly constituted on issue of notification under Section 73 and the duration thereof is distinct from its due constitution. The interpretation which may lead to a situation of constitutional breakdown deserves to be avoided, unless the provisions are so clear as not to call for any other interpretation. This case does not fall in the later category.

In Gujarat Assembly Election Matter, the issue before the Constitution Bench was whether six months’ period contemplated by Article 174(1) applies to a dissolved Legislative Assembly. While dealing with that question and holding that the said provision applies only to subsisting Legislative Assembly and not to a dissolved Legislative Assembly, it was held that the constitution of any Assembly can only be under Section 73 of the RP Act, 1951 and the requirement of Article 188 of Constitution suggests that the Assembly comes into existence even before its first sitting commences. (Emphasis supplied by us).

In view of the above, the first point is answered against the petitioners.

POINT NO.2: Whether the proclamation dated 23rd May, 2005 dissolving the Assembly of Bihar is illegal and unconstitutional? This point is the heart of the matter. The answer to the constitutional validity of the impugned notification depends upon the scope and extent of judicial review in such matters as determined by a Nine Judge Bench decision in Bommai’s case. Learned counsel appearing for both sides have made elaborate submissions on the question as to what is the ratio decidendi of Bommai’s case.

According to the petitioners, the notification dissolving the Assembly is illegal as it is based on the reports of the Governor which suffered from serious legal and factual infirmities and are tainted with pervasive mala fides which is evident from the record. It is contended that the object of the reports of the Governor was to prevent political party led by Mr. Nitish Kumar to form the Government. The submission is that such being the object, the consequent notification of dissolution accepting the recommendation deserves to be annulled.

Under Article 356 of the Constitution, the dissolution of an Assembly can be ordered on the satisfaction that a situation has arisen in which the Government of the State cannot be carried on in accordance with the Constitution. Such a satisfaction can be reached by the President on receipt of report from the Governor of a State or otherwise. It is permissible to arrive at the satisfaction on receipt of the report from Governor and on other material. Such a satisfaction can also be reached only on the report of the Governor. It is also permissible to reach such a conclusion even without the report of the Governor in case the President has other relevant material for reaching the satisfaction contemplated by Article 356. The expression ‘or otherwise’ is of wide amplitude.

In the present case, it is not in dispute that the satisfaction that a situation has arisen in which the Government of State cannot be carried on in accordance with the provisions of the Constitution has been arrived at only on the basis of the reports of the Governor. It is not the case of the Union of India that it has relied upon any material other than the reports of the Governor which have been earlier reproduced in extenso.

The Governor in the report dated 6th March, 2005 has referred to Bommai’s case as also to the recommendations of Sarkaria Commission. Sarkaria Commission Report in Chapter IV deals extensively with the role of the Governors. Since in this case, the dissolution of the Assembly is based solely on the reports of the Governor and the issue also is as to the role played by the Governor and submissions also having been made on role which is expected from a high constitutional functionary like Governor, it would be useful to first examine that aspect.

Role of Governor The role of the Governor has been a key issue in the matters of Central-State relations. The Constitution of India envisages three tiers of Government the Union, State and the Local Self-Government. From the functional standpoint, it is stated that such a Constitution “is not a static format, but a dynamic process” [Report of the Sarkaria Commission on Centre-State Relations (1988)].

In the context of Union-State relations it has been noted that “the very dynamism of the system with all its checks and balances brings in its wake problems and conflicts in the working of Union-State relations.” In the light of a volatile system prevailing today, it is pertinent to recognize the crucial role played by the Governors in the working of the democratic framework.

Addressing the Conference of Governors in June 2005, the President of India Dr. A.P.J. Abdul Kalam stressed the relevance of recommendations of the Sarkaria Commission and observed that “While there are many checks and balances provided by the Constitution, the office of the Governor has been bestowed with the independence to rise above the day-to-day politics and override compulsions either emanating from the central system or the state system.” The Prime Minister Dr.

Manmohan Singh on the same occasion noted that “you are the representatives of the center in states and hence, you bring a national perspective to state level actions and activities.” In Hargovind Pant v. Dr. Raghukul Tilak & Ors.

[(1979) 3 SCC 458], observing on the issue as to whether a Governor could be considered as an “employee” of the Government of India, this Court said “it is no doubt true that the Governor is appointed by the President which means in effect and substance the Government of India, but that is only a mode of appointment and it does not make the Governor an employee or servant of the Government of India.” Referring to Article 356 of the Constitution, the Court reasoned that “one highly significant role which he (Governor) has to play under the Constitution is of making a report where he finds that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution” and further added that the Governor “is not amenable to the directions of the Government of India, nor is he accountable to them for the manner in which he carries out his functions and duties. He is an independent constitutional office which is not subject to the control of the Government of India.” Fortifying the same, Justice V.R. Krishna Iyer has observed that the mode of appointment can never legitimize any form of interference in the working of the Governor, else the concept of “judicial independence” would not be tenable, as even the judges of the High Courts and the Supreme Court are appointed by the President. (V.R. Krisnha Iyer, A Constitutional Miscellany (Second Edition, Lucknow:Eastern Book Co., 2003) at p.44).

The then Vice-President of India, Shri G.S. Pathak, had remarked in 1970 that “in the sphere which is bound by the advice of the Council of Ministers, for obvious reasons, the Governor must be independent of the Centre” as there may be cases “where the advice of the Centre may clash with advice of the State Council of Ministers” and that “in such cases the Governor must ignore the Centre’s “advice” and act on the advice of his Council of Ministers.” Relevant for the present controversy, very significant observations were made in Bommai’s case, when it was said “He (Governor) is as much bound to exercise this power in a situation contemplated by Article 356 as he is bound not to use it where such a situation has not really arisen” (para 272 Jeevan Reddy, J. Emphasis supplied by us) The role of the Governor has come in for considerable criticism on the ground that some Governors have failed to display the qualities of impartiality expected of them. The Sarkaria Commission Report has noted that “many have traced this mainly to the fact that the Governor is appointed by, and holds office during the pleasure of the President, i.e., in effect, the Union Council of Ministers.” Rejecting the suggestion of an elected Governor, the Constituent Assembly repeatedly stressed on consultation with the Provincial/State Government prior to the appointment of the Governor. Sir Alladi Krishnaswamy Ayyar is quoted to have stated that “a convention of consulting the provincial cabinet might easily grow up” as was said to be the case in Canada (White Paper on the Office of the Governor, Government of Karnataka (22nd September, 1983) c.f. V.R. Krishna Iyer, A Constitutional Miscellany (Second Edition, Lucknow:

Eastern Book Co., 2003) at p.45). Shri Jawaharlal Nehru had also observed in the debate on the appointment of Governor in the Constituent Assembly that a Governor “must be acceptable to the Province, he must be acceptable to the Government of the Province and yet he must not be known to be a part of the party machine of that province.” He was of the opinion that a nominated Governor shall have “far fewer common links with the Centre.” Querying as to what could be an objective and representative body which will fit into our Constitutional framework to facilitate the appointment of Governors on meritorious basis, the Sarkaria Commission has observed that “There is no gainsaying that a procedure must be devised which can ensure objectivity in selection and adherence to the criteria for selection and insulate the system from political pressures. Also, the new procedure must not only be fair but should be seen to be fair.” (Chapter IV “Role of the Governor”, Report of the Sarkaria Commission on Centre-State Relations (1988) at para 4.6.30). Recommending that the Vice-President of India and the Speaker of the Lok Sabha should be consulted by the Prime Minister in selecting a Governor, the Sarkaria Commission has noted that “such consultation will greatly enhance the credibility of the selection process.” The other related issue of debate was regarding the extent of discretionary powers to be allowed to the Governor. Following the decision to have a nominated Governor, references in the various articles of the Draft Constitution relating to the exercise of specified functions by the Governor ‘in his discretion’ were deleted. (Chapter IV “Role of the Governor”, Report of the Sarkaria Commission on Centre-State Relations (1988) at para 4.2.07). Article 163 of the Constitution (then Draft Article 143) generated considerable discussion, and Dr.

Ambedkar is stated to have “maintained that vesting the Governor with certain discretionary powers was not contrary to responsible Government.” (Constituent Assembly Debates (Volume VIII, Revised Edition) at pp.00-502).

The expression “required” found in Article 163(1) is stated to signify that the Governor can exercise his discretionary powers only if there is a compelling necessity to do so. It has been reasoned that the expression “by or under the Constitution” means that the necessity to exercise such powers may arise from any express provision of the Constitution or by necessary implication. The Sarkaria Commission Report further adds that such necessity may arise even from rules and orders made “under” the Constitution.

Observing that the Governor needs to discharge “dual responsibility” to the Union and the State the Sarkaria Commission has sought to evaluate the role of the Governors in certain controversial circumstances, such as, in appointing the Chief Minister, in ascertaining the majority, in dismissal of the Chief Minister, in dissolving the Legislative Assembly, in recommending President’s Rule and in reserving Bills for President’s consideration.

Finding that the position of the Governor is indispensable for the successful working of the Constitutional scheme of governance, the Sarkaria Commission has noted that “most of the safeguards will be such as cannot be reduced to a set of precise rules of procedure or practice. This is so because of the very nature of the office and the role of the Governor. The safeguards have mostly to be in the nature of conventions and practices, to be understood in their proper pers- pective and faithfully adhered to, not only by the Union and the State Governments but also by the political parties.” (Chapter IV “Role of the Governor”, Report of the Sarkaria Commission on Centre-State Relations (1988) at para 4.5.07). It was further added that “the fact that it will be impossible to lay down a concrete set of standards and norms for the functioning of a Governor will make it difficult for a Parliamentary Committee or the Supreme Court to inquire into a specific charge against a Governor.” Instrument of Instructions:

The Constituent Assembly, pursuant to the Report of the Provincial Constitution Committee, had decided to insert an Instrument of Instructions to the Governors in the form of a Schedule to the Constitution. Such an instrument was found to be necessary, “because of the mode of appointment and the injunction to act upon the advice of Ministers were not contained in the Constitution itself.” (The framing of India India’s Constitution Select Documents (Volume IV, B. Shiva Rao (ed.), New Delhi:

Universal Law Publishing Cp, 2004) at p. 86. The complete test of the suggested Instructions is reprroduced in pp.88-90). In the Government of India Act, 1935, the Instrument of Instructions appeared as instructions from the Sovereign.

The suggested list of instructions considered by the Constituent Assembly included value based standards that are expected of a Governor in discharging his duties vis-`-vis appointment of the Chief Minister after ascertaining a “stable majority”; appointments of Council of Ministers who “will best be in a position collectively to command the confidence of the Legislature”; to constitute an Advisory Board comprising of duly elected members of the Legislature, including the Leader of the Opposition, “to aid the Governor in the matter of making appointments under the Constitution” such as that of the Auditor-in-Chief for the State, Chairman of the State Public Services Commission; and mandating the Governor to do “all that in him lies to maintain standards of good administration, to promote all measures making for moral, social and economic welfare and tending to fit all classes of the population to take their due share in the public life and government of the State, and to secure amongst all classes and creeds co-operation, goodwill and mutual respect for religious beliefs and sentiments.” The instructions were proposed as a Schedule to the Constitution as the Assembly felt that “it is preferable not to put them into the body of the Constitution, because they are conventions rather than legal rules.” However, the same was not appended to the Constitution and lamenting about it, Shri A.G. Noorani has stated that the Instrument of Instructions could have codified conventions between the President and the Governors if allowed to exist. (A.G. Noorani, Constitutional Questions in India The President, Parliament and the States (New Delhi: Oxford University Press, 2000) at p.11) The P.V. Rajamannar Committee (1969), Inquiry Committee constituted by the Government of Tamil Nadu to report on the Centre-State relations, and the Study Team of the Administrative Reforms Commission (1967) headed by Shri M.C. Setalvad, have been quoted to have opined that “a specific provision should be inserted in the Constitution enabling the President to issue Instruments of Instructions to the Governors. The Instruments of Instructions should lay down guidelines indicating the matters in respect of which the Governor should consult the Central Government or in relation to which the Central Government could issue directions to him.” (White Paper on the Office of the Governor, Government of Karnataka (22nd September, 1983) c.f. V.R. Krishna Iyer, A Constitutional Miscellany (Second Edition, Lucknow:

Eastern Book Co., 2003) at p.47). Justice Krishna Iyer has stated that a “Handbook” setting out the guidelines for Governors must be prepared officially by the Law Commission and approved by the Parliament to be kept as a reference in the same status as that of an Instrument of Instructions. However, the Sarkaria Commission has observed that “considering the multi- faceted role of the Governor and the nature of his functions and duties, we are of the view that it would be neither feasible nor desirable to formulate a comprehensive set of guidelines for the exercise by him of his discretionary powers. No two situations which may require a Governor to use his discretion, are likely to be identical.” Discretionary Powers of the Governor:

Expounding in detail on the exercise of discretionary powers by the Governor, the Sarkaria Commission has mainly recommended the following:

? Appointment of the Chief Minister It is clear that the leader of the party which has an absolute majority in the Legislative Assembly should invariably be called upon by the Governor to form a Government. However, if there is a fractured mandate, then the Commission recommends an elaborate step-by-step approach and has further emphasized that “the Governor, while going through the process of selection as described, should select a leader who, in his (Governor’s) judgement, is most likely to command a majority in the Assembly. The Governor’s subjective judgement will play an important role.” Upon being faced by several contesting claims, the Commission suggests that the most prudent measure on part of the Governor would be to test the claims on the floor of the House.

? Dismissal of the Chief Minister Recommending a test of majority on the floor of the House to ascertain whether an incumbent Chief Minister continues to enjoy the majority, the Commission clearly dissuades the Governor from dismissing the Ministry based only on his “subjective satisfaction”.

? Dissolution of the Assembly Despite best efforts, if ultimately a viable Ministry fails to emerge, a Governor is faced with two alternatives he may either dissolve the Assembly or recommend President’s rule under Article 356, leaving it to the Union Government to decide the question of dissolution. The Commission expressed its firm view that the proper course would be “to allow the people of the State to settle matters themselves”. The Commission recommended that “the Governor should first consider dissolving the Assembly and arranging for a fresh election and before taking a decision, he should consult the leaders of the political parties concerned and the Chief Election Commissioner.” Para 4.11.04 of Sarkaria Commission Report specifically deals with the situation where no single party obtains absolute majority and provides the order of preference the Governor should follow in selecting a Chief Minister. The order of preference suggested is :

1. An alliance of parties that was formed prior to the Elections.

2. The largest single party staking a claim to form the Government with the support of others, including “independents”.

3. A post-electoral coalition of parties, with all the partners in the coalition joining the Government.

4. A post-electoral alliance of parties, with some of the parties in the alliance forming a Government and the remaining parties, including “independents” supporting the Government from outside.

The Sarkaria Commission has noticed that in a number of situations of political instability in States, the Governors recommended President’s Rule under Article 356 without exhausting all possible steps under the Constitution to induct or maintain a stable Government.

The Governors concerned neither gave a fair chance to contending parties to form a Ministry, nor allowed a fresh appeal to the electorate after dissolving the Legislative Assembly. Almost all these cases have been criticized on the ground that the Governors, while making their recommendations to the President behaved in a partisan manner. The report further states that there has been no uniformity of approach in such situations and that these aspects have been dealt with in Chapter VI ‘Emergency Provisions’.

In Chapter VI, Sarkaria Commission dealt with the emergency provisions noting the concern of framers of the Constitution of need for such provision in a country of our dimensions, diversities, disparities and “multitudinous people, with possibly divided loyalties”.

They took care to provide that, in a situation of such emergency, the Union shall have overriding powers to control and direct all aspects of administration and legislation throughout the country. They realised that a failure or breakdown of the constitutional machinery in a State could not be ruled out as an impossibility and a situation may arise in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution.

The common thread in all the emergency provisions is that the resort to such provision has to be in exceptional circumstances when there be the real and grave situation calling for the drastic action.

Sarkaria Commission as also this Court has noted the persistent criticism in ever-mounting intensity, both in regard to the frequency and the manner of the use of the power under Article 356. The Sarkaria Commission has noticed that gravemen of the criticism is that, more often than not, these provisions have been misused, to promote the political interests of the party in power at the Centre. Some examples have been noted of situations in which the power of Article 356 was invoked improperly if not illegally. It is noted that the constitutional framers did not intend that this power should be exercised for the purpose of securing good Government. It also notices that this power cannot be invoked, merely on the ground that there are serious allegations of corruption against the Ministry.

Whether it is a case of existing Government losing the majority support or of installation of new Government after fresh elections, the act of the Governor in recommending dissolution of Assembly should be only with sole object of preservation of the Constitution and not promotion of political interest of one or the other party.

In the present context of fractured verdicts in elections, the aforesaid discussion assumes great importance and relevance. The criteria suggested in Sarkaria Commission Report for appointment of a person as a Governor is :

(i) He should be eminent in some walk of life;

(ii) He should be a person from outside the State;

(iii) He should be a detached figure and not too intimately connected with the local politics of the State; and (iv) He should be a person who has not taken too great a part in politics generally and particularly in the recent past.

It has not been seriously disputed by learned counsel appearing for the parties that, unfortunately, the criteria has been observed in almost total breach by all political parties. It is seen that one day a person is in active politics in as much as he holds the office of the Chief Minister or Minister or a party post and almost on the following day or, in any case, soon thereafter, the same person is appointed as the Governor in another State with hardly any cooling period. Ordinarily, it is difficult to expect detachment from party politics from such a person while performing the constitutional functions as Governor.

On this issue, we would like to say no more and leave this aspect to the wisdom of the political parties and their leaders to discuss and debate and arrive at, if possible, a national policy with some common minimum parameters applicable and acceptable to all major political parties.

Defections At this stage, we may consider another side issue, namely, defections being a great evil.

Undoubtedly, defection is a great evil. It was contended for the Government that the unprincipled defections induced by allurements of office, monetary consideration, pressure, etc. were destroying the democratic fabric. With a view to control this evil, Tenth Schedule was added by the Constitution (Fifty-Second Amendment) Act, 1985. Since the desired goal to check defection by the legislative measure could not be achieved, law was further strengthened by the Constitution (Ninety-first Amendment) Act, 2003. The contention is that the Governor’s action was directed to check this evil, so that a Government based on such defections is not formed.

Reliance has been placed on the decision in the case of Kihoto Hollohan v. Zachillhu & Ors. [1992 Supp.

(2) SCC 651] to bring home the point that defections undermine the cherished values of democracy and Tenth Schedule was added to the Constitution to combat this evil. It is also correct that to further strengthen the law in this direction, as the existing provisions of the Tenth Schedule were not able to achieve the desired goal of checking defection, by 91st Amendment, defection was made more difficult by deleting provision which did not treat mass shifting of loyalty by 1/3 as defection and by making the defection, altogether impermissible and only permitting merger of the parties in the manner provided in the Tenth Schedule as amended by 91st Amendment.

In Kihoto’s case, the challenge was to validity of the Tenth Schedule, as it stood then. Argument was that this law was destructive of the basic structure of the Constitution as it is violative of the fundamental principle of Parliamentary democracy, a basic feature of the Indian Constitutionalism and is destructive of the freedom of speech, right to dissent and freedom of conscience as the provisions seek to penalize and disqualify elected representatives for the exercise of these rights and freedoms which are essential to the sustenance of the system of parliamentary democracy. It was also urged that unprincipled political defections may be an evil, but it will be the beginning of much greater evils if the remedies, graver than the decease itself, are adopted. It was said that the Tenth Schedule seeks to throw away the baby with the bath water.

Dealing with aforesaid submissions, the Court noted that, in fact, the real question was whether under the Indian Constitutional Scheme, is there any immunity from constitutional correctives against a legislatively perceived political evil of unprincipled defections induced by the lure of office and monetary inducements. It was noted that the points raised in the petition are, indeed, far reaching and of no small importance-invoking the ‘sense of relevance and constitutionally stated principles of unfamiliar settings’. On the one hand there was the real and imminent threat to the very fabric of Indian democracy posed by certain level of political behaviour conspicuous by their utter and total disregard of well recognised political proprieties and morality. These trends tend to degrade the tone of political life and, in their wider propensities, are dangerous to and undermine the very survival of the cherished values of democracy.

There is the legislative determination through experimental constitutional processes to combat that evil.

On the other hand, there may be certain side-effects and fall-out which might affect and hurt even honest dissenters and conscientious objectors. While dealing with the argument that the constitutional remedy was violative of basic features of the Constitution, it was observed that the argument ignores the essential organic and evolutionary character of a Constitution and its flexibility as a living entity to provide for the demands and compulsions of the changing times and needs. The people of this country were not beguiled into believing that the menace of unethical and unprincipled changes of political affiliations is something which the law is helpless against and is to be endured as a necessary concomitant of freedom of conscience. The unethical political defections was described as a ‘canker’ eating into the vitals of those values that make democracy a living and worthwhile faith.

It was contended that the Governor was only trying to prevent members from crossing the floor as the concept of the freedom of its members to vote as they please independently of the political party’s declared policies will not only embarrass its public image and popularity but would also undermine public confidence in it which, in the ultimate analysis, is its source of sustenance – nay, indeed, its very survival. The contention is based on Para 144 of the judgment in Kihoto’s case which reads thus :

“But a political party functions on the strength of shared beliefs. Its own political stability and social utility depends on such shared beliefs and concerted action of its Members in furtherance of those commonly held principles. Any freedom of its Members to vote as they please independently of the political party’s declared policies will not only embarrass its public image and popularity but also undermine public confidence in it which, in the ultimate analysis, is its source of sustenance — nay, indeed, its very survival. Intra-party debates are of course a different thing. But a public image of disparate stands by Members of the same political party is not looked upon, in political tradition, as a desirable state of things. Griffith and Ryle on “Parliament, Functions, Practice & Procedure” (1989 Edn. page 119) say:

“Loyalty to party is the norm, being based on shared beliefs. A divided party is looked on with suspicion by the electorate. It is natural for members to accept the opinion of their Leaders and Spokesmen on the wide variety of matters on which those Members have no specialist knowledge. Generally Members will accept majority decisions in the party even when they disagree. It is understandable therefore that a Member who rejects the party whip even on a single occasion will attract attention and more criticism than sympathy. To abstain from voting when required by party to vote is to suggest a degree of unreliability. To vote against party is disloyalty.

To join with others in abstention or voting with the other side smacks of conspiracy.” Clause (b) of sub-para (1) of Paragraph 2 of the Tenth Schedule gives effect to this principle and sentiment by imposing a disqualification on a Member who votes or abstains from voting contrary to “any directions” issued by the political party. The provision, however, recognises two exceptions :

one when the Member obtains from the political party prior permission to vote or abstain from voting and the other when the Member has voted without obtaining such permission but his action has been condoned by the political party. This provision itself accommodates the possibility that there may be occasions when a Member may vote or abstain from voting contrary to the direction of the party to which he belongs. This, in itself again, may provide a clue to the proper understanding and construction of the expression “Any Direction” in clause (b) of Paragraph 2(1) whether really all directions or whips from the party entail the statutory consequences or whether having regard to the extra-ordinary nature and sweep of the power and the very serious consequences that flow including the extreme penalty of disqualification the expression should be given a meaning confining its operation to the contexts indicated by the objects and purposes of the Tenth Schedule. We shall deal with this aspect separately.” Our attention was also drawn to the objects and reasons for the 91st Constitutional Amendment. It states that demands were made from time to time in certain quarters for strengthening and amending the Anti- defection law as contained in the Tenth Schedule to the Constitution of India, on the ground that these provisions had not been able to achieve the desired goals of checking defections. The Tenth Schedule was also criticized on the ground that it allowed bulk defections while declaring individual defections as illegal. The provision for exemption from disqualification in case of splits as provided in paragraph 3 of the Tenth Schedule to the Constitution of India had, in particular, come under severe criticism on account of its destabilising effect on the Government.

Reliance has also been placed to the exposition of Lord Diplock in a decision of House of Lords in the case of Council of Civil Service Unions v. Minister for the Civil Service [1983] UKHL 6; [1984 (3) All.ER 935] on the aspect of irrationality to the effect that “it applies to a decision may be so outrageous or in defiance of logic or of accepted moral standards that no sensible person who had applied his ‘mind to the question to be decided, could have arrived at it”. It is contended that the Governor has many sources information wherefrom led him to conclude that the process that was going on in the State of Bihar was destroying the very fabric of democracy and, therefore, such approach cannot be described as outrageous or in defiance of logic, particularly, when proof in such cases is difficult if not impossible as bribery takes place in the cover of darkness and deals are made in secrecy. It is, thus, contended that Governor’s view is permissible and legitimate view.

Almost similar contention has been rejected in Bommai’s case.

The other decision of House of Lords in Puhlhofer v. Hillingdon, London Borough Council [(1986) 1 All.ER 467 at 474] relied upon by the respondents, has been considered by Justice Sawant in Bommai’s case.

The reliance was to the proposition that where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the ‘obvious’ to the ‘debatable’ to the ‘just conceivable’, it is the duty of the Court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.

But in the present case, the inference sought to be drawn by the Governor without any relevant material, cannot fall in the category of ‘debatable’ or ‘just conceivable’, it would fall in the category of ‘obviously perverse’. On facts, the inescapable inference is that the sole object of the Governor was to prevent the claim being made to form the Government and the case would fall under the category of ‘bad faith’.

The question in the present case is not about MLAs voting in violation of provisions of Tenth Schedule as amended by the Constitution (91st Amendment), as we would presently show.

Certainly, there can be no quarrel with the principles laid in Kihoto’s case about evil effects of defections but the same have no relevance for determination of point in issue. The stage of preventing members to vote against declared policies of the political party to which they belonged had not reached. If MLAs vote in a manner so as to run the risk of getting disqualified, it is for them to face the legal consequences.

That stage had not reached. In fact, the reports of the Governor intended to forestall any voting and staking of claim to form the Government.

Undisputedly, a Governor is charged with the duty to preserve, protect and defend the Constitution and the laws, has a concomitant duty and obligation to preserve democracy and not to permit the ‘canker’ of political defections to tear into the vitals of the Indian democracy.

But on facts of the present case, we are unable to accept that the Governor by reports dated 27th April and 21st May, 2005 sought to achieve the aforesaid objective.

There was no material, let alone relevant, with the Governor to assume that there were no legitimate realignment of political parties and there was blatant distortion of democracy by induced defections through unfair, illegal, unethical and unconstitutional means.

The report dated 27th April, 2005 refers to (1) serious attempt to cobble a majority; (2) winning over MLAs by various means; (3) targeting parties for a split;

(4) high pressure moves; (5) offering various allurements like castes, posts, money etc.; and (6) Horse-trading.

Almost similar report was sent by the Governors of Karnataka and Nagaland leading to the dissolution of the Assembly of Karnataka and Nagaland, invalidated in Bommai’s case. Further, the contention that the Central Government did not act upon the report dated 27th April, 2005 is of no relevance and cannot be considered in isolation since the question is about the manner in which the Governor moved, very swiftly and with undue haste, finding that one political party may be close to getting majority and the situation had reached where claim may be staked to form the Government which led to the report dated 21st May, 2005. It is in this context that the Governor says that instead of installing a Government based on a majority achieved by a distortion of the system, it would be preferable that the people/electorate could be provided with one more opportunity to seek the mandate of the people. This approach makes it evident that the object was to prevent a particular political party from staking a claim and not the professed object of anxiety not to permit the distortion of the political system, as sought to be urged. Such a course is nothing but wholly illegal and irregular and has to be described as mala fide. The recommendation for dissolution of the Assembly to prevent the staking of claim to form the Government purportedly on the ground that the majority was achieved by distortion of system by allurement, corruption and bribery was based on such general assumptions without any material which are quite easy to be made if any political party not gaining absolute majority is to be kept out of governance. No assumption without any basis whatever could be drawn that the reason for a group to support the claim to form the Government by Nitish Kumar, was only the aforesaid distortions. That stage had not reached. It was not allowed to be reached. If such majority had been presented and the Governor forms a legitimate opinion that the party staking claim would not be able to provide stable Government to the State, that may be a different situation. Under no circumstances, the action of Governor can be held to be bona fide when it is intended to prevent a political party to stake claim for formation of the Government. After elections, every genuine attempt is to be made which helps in installation of a popular Government, whichever be the political party.

Interpretation of a Constitution and Importance of Political Parties For principles relevant for interpretation of a Constitution, our attention was drawn to what Justice Aharon Barak, President of Supreme Court of Israel says in Harvard Law Review, Vol.116 (2002-2003) dealing particularly with the aspect of purposive interpretation of Constitution. Learned Judge has noticed as under :

“The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or Charter of rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind.” It is further said that the political question doctrine, in particular, remits entire areas of public life to Congress and the President, on the grounds that the Constitution assigns responsibility for these areas to the other branches, or that their resolution will involve discretionary, polycentric decisions that lack discrete criteria for adjudication and thus are better handled by the more democratic branches.

In fact, the scope of judicial review as enunciated in Bommai’s case is in tune with the principles sought to be relied upon.

In support of the proposition that in Parliament Democracy there is importance of political parties and that interpretation of the constitutional provisions should advance the said basic structure based on political parties, our attention was drawn to write up Designing Federalism A Theory of Self-Sustainable Federal Institution and what is said about political parties in a Federal State which is as under:

“Political parties created democracy and  modern democracy is unthinkable save in terms of parties.

Schattschneider 1942 : I Here is a factor in the organisation of federal Government which is of primary importance but which cannot be ensured or provided for in a constitution a good party system Wheare 1953: 86 Whatever the general social conditions, if any, that sustain the federal bargain, there is one institutional condition that controls the nature of the bargain in all instances with which I am familiar.

This is the structure of the party system, which may be regarded as the main variable intervening between the background social conditions and the specific nature of the federal bargain.

Riker 1964 : 136 In a country which was always to be in need of the cohesive force of institutions, the national parties, for all their faults, were to become at an early hour primary and necessary parts of the machinery of Government, essential vehicles to convey men’s loyalties to the state.

Hofstadter 1969: 70-I It is contended that the political parties are the main means not only whereby provincial grievances are aired but also whereby centralised and decentralised trends are legitimised. This contention is made in connection with the alleged stand of two-third MLAs of LJP against the professed stand of that political party.

We are afraid that on facts of present case, the aforesaid concept and relevance of political parties is not quite relevant for our purpose to decide why and how the members of political parties had allegedly decided to adopt the course which they did, to allegedly support the claim for formation of the Government.

Morality We may also deal with the aspect of morality sought to be urged. The question of morality is of course very serious and important matter. It has been engaging the attention of many constitutional experts, legal luminaries, jurists and political leaders. The concept of morality has also been changing from time to time also having regard to the ground realities and the compulsion of the situation including the aspect and relevance of coalition governance as opposed to a single party Government. Even in the economic field, the concept of morality has been a matter of policy and priorities of the Government. The Government may give incentive, which ideally may be considered unethical and immoral, but in so far as Government is concerned, it may become necessary to give incentive to unearth black money.

{R.K. Garg & Ors. v. Union of India & Ors. [1981(4) SCC 675, paras 18 and 31]}. It may be difficult to leave such aspects to be determined by high constitutional functionaries, on case to case basis, depending upon the facts of the case, and personal mould of the constitutional functionaries. With all these imponderables, the constitution does not contemplate the dissolution of Assemblies based on the assumption of such immoralities for formation of the satisfaction that situation has arisen in which the Government cannot be of the Constitution of India.

Article 356 and Bommai’s case Article 356(1) of the Constitution is as follows :

“356.(1) Provisions in case of failure of constitutional machinery in State.– (1) If the President, on receipt of report from the Governor of the State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may by Proclamation (a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or any body or authority in the State other than the Legislature of the State;

(b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament;

(c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to any body or authority in the State:

Provided that nothing in this clause shall authorise the President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts.” Power under Article 356(1) is an emergency power but it is not an absolute power. Emergency means a situation which is not normal, a situation which calls for urgent remedial action. Article 356 confers a power to be exercised by the President in exceptional circumstances to discharge the obligation cast upon him by Article 355.

It is a measure to protect and preserve the Constitution.

The Governor takes the oath, prescribed by Article 159 to preserve, protect and defend the Constitution and the laws to the best of his ability. Power under Article 356 is conditional, condition being formation of satisfaction of the President as contemplated by Article 356(1). The satisfaction of the President is the satisfaction of Council of Ministers. As provided in Article 74(1), the President acts on the aid and advice of Council of Ministers. The plain reading of Article 74(2) stating that the question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any Court, may seem to convey that the Court is debarred from inquiring into such advice but Bommai has held that Article 74(2) is not a bar against scrutiny of the material on the basis of which the President has issued the proclamation under Article 356. Justice Sawant, in Para 86 states that :

“What is further, although Article 74(2) bars judicial review so far as the advice given by the Ministers is concerned, it does not bar scrutiny of the material on the basis of which the advice is given.

The Courts are not interested in either the advice given by the Ministers to the President or the reasons for such advice.

The Courts are, however, justified in probing as to whether there was any material on the basis of which the advice was given, and whether it was relevant for such advice and the President could have acted on it. Hence when the Courts undertake an enquiry into the existence of such material, the prohibition contained in Article 74(2) does not negate their right to know about the factual existence of any such material.” It was further said that the Parliament would be entitled to go into the material on basis of what the Council of Ministers tendered the advice and, therefore, secrecy in respect of material cannot remain inviolable.

It was said that :

“When the Proclamation is challenged by making out a prima facie case with regard to its invalidity, the burden would be on the Union Government to satisfy that there exists material which showed that the Government could not be carried on in accordance with the provisions of the Constitution. Since such material would be exclusively within the knowledge of the Union Government, in view of the provisions of Section 106 of the Evidence Act, the burden of proving the existence of such material would be on the Union Government.” On the similar lines, is the opinion of Jeevan Reddy, J. :

“Clause (2) of Art. 74, understood in its proper perspective, is thus confined to a limited aspect. It protects and preserves the secrecy of the deliberations between the President and his Council of Ministers. In fact, CI. (2) is a reproduction of sub-sec. (4) of S. 10 of the Government of India Act, 1935. (The Government of India Act did not contain a provision corresponding to An. 74(1) as it stood before or after the Amendments aforementioned). The scope of CI. (2) should not be extended beyond its legitimate fields. In any event, it cannot be read or understood as conferring an immunity upon the council of ministers or the Minister/ Ministry concerned to explain, defend and justify the orders and acts of the President done in exercise of his functions. The limited provision contained in Art. 74(2) cannot override the basic provisions in the Constitution relating to judicial review. If and when any action taken by the President in exercise of his functions is questioned in a Court of Law, it is for the Council of Ministers to justify the same, since the action or order of the President is presumed Jo have been taken in accordance with Art. 74(1). As to which Minister or which official of which Ministry comes forward to defend the order/ action is for them to decide and for the Court to be satisfied about it.

Where, of course, the act/order questioned is one pertaining to the executive power of the Government of India, the position is much simpler. It does not represent the act/order of the President done/taken in exercise of his functions and hence there is no occasion for any aid or advice by the Ministers to him. It is the act/order of Government of India, though expressed in the name of the President. It is for the concerned Minister or Ministry, to whom the function is allocated under the Rules of Business to defend and justify such action/ order.

In our respectful opinion, the above obligation cannot be evaded by seeking refuge under Art. 74(2). The argument that the advice tendered to the President comprises material as well and, therefore, calling upon the Union of India to disclose the material would amount to compelling the disclosure of the advice is, if we can say so respectfully, to indulge in sophistry. The material placed before the President by the Minister/Council of Ministers does not thereby become part of advice. Advice is what is based upon the said material. Material is not advice.

The material may be placed before the President to acquaint him — and if need be to satisfy him — that the advice being tendered to him is the proper one. But it cannot mean that such material, by dint of being placed before the President in support of the advice, becomes advice itself. One can understand if the advice is tendered in writing; in such a case that writing is the advice and is covered by the protection provided by Art. 74(2). But it is difficult to appreciate how does the supporting material, becomes part of advice. The respondents cannot .say that whatever the President sees — or whatever is placed before the President becomes prohibited material and cannot be seen or summoned by the Court. Art.

74(2) must be interpreted and understood in the context of entire constitutional system. Undue emphasis and expansion of its parameters would engulf valuable constitutional guarantees. For these reasons, we find if difficult to agree with the reasoning in State of Rajasthan on this score, insofar as it runs contrary to our holding.” The scope of judicial review has been expanded by Bommai and dissent has been expressed from the view taken in State of Rajasthan’s case.

The above approach shows objectivity even in subjectivity. The constitutionalism or constitutional system of Government abhors absolutism it is premised on the Rule of Law in which subjective satisfaction is substituted by objectivity provided by the provisions of the Constitution itself. This line is clear also from Maru Ram v. Union of India & Ors. [(1981) 1 SCC 107]. It would also be clear on in depth examination of Bommai that declared the dissolution of three Assemblies illegal but before we further revert to that decision, a brief historical background including the apprehension of its abuse expressed by our founding fathers may be noted.

Articles 355 and 356 of the Constitution set the tenor for the precedence of the Union over the States. It has been explained that the rationale for introducing Article 355 was to distinctly demarcate the functioning of the State and Union governments and to prevent any form of unprincipled invasions by the Union into the affairs of the State. It was felt that through the unambiguous language of Articles 355 and 356, the Union shall be constitutionally obliged to interfere only under certain limited circumstances as laid down in the provisions.

Referring to what is now Article 355, Dr. Ambedkar had reasoned that “in view of the fact that we are endowing the Provinces with plenary powers and making them sovereign within their own fields it is necessary to provide that if any invasion of the provincial field is done, it is in virtue of this obligation.” (T.K. Thope, Dr.

Ambedkar and Article 356 of the Constitution [(1993) 4 SCC (Jour) 1]. Pursuant to this reasoning, Dr.

Ambedkar further explained that before resorting to Article 356 “the first thing the President will do would be to issue warning to a province that has erred, that things were not happening in the way in which they were intended to happen in the Constitution. If the warning fails the second thing for him to do will be to order an election allowing the people of the province to settle matters by themselves. It is only when those two remedies fail that he would resort to this Article.” Dr.

Ambedkar admitted that these articles were “liable to be abused” and that he cannot “altogether deny that there is a possibility of these articles being employed for political purposes.” But he reasoned that such an “objection applies to every part of the Constitution which gives power to the Centre to override the Provinces” and added that the “proper thing we ought to expect is that such articles will never be called into operation and they would remain a dead letter.” (Constituent Assembly Debates (Volume IX, Revised Edition) at pp.175-177).

Scope of Judicial Review under Article 356 State of Rajasthan v. Union of India :

In State of Rajasthan’s case, there was a broad consensus among five of the seven Judges that the Court can interfere if it is satisfied that the power has been exercised mala fide or on “wholly extraneous or irrelevant grounds”. Some learned Judges have stated the rule in narrow terms and some others in a little less narrow terms but not a single learned Judge held that the proclamation is immune from judicial scrutiny. It must be remembered that at that time clause (5) was there barring judicial review of the proclamation and yet they said that Court can interfere on the ground of mala fides.

Surely, the deletion of clause (5) has not restricted the scope of judicial review but has widened it.

Justice Reddy in Bommai’s case has noticed, in so far as it was relevant, the ratio underlying each of the six opinions delivered by Seven Judge Bench in the case of State of Rajasthan (supra) as under :

“Beg, C. J. The opinion of Beg, C. J.

contains several strands of thought. They may be stated briefly thus:

(i) The language of Article 356 and the practice since 1950 shows that the Central Government can enforce its will against the State Governments with respect to the question how the State Governments should function and who should hold reins of power.

(ii) By virtue of Article 365(5) and Article 74(2), it is impossible for the Court to question the satisfaction of the President.

It has to decide the case on the basis of only those facts as may have been admitted by or placed by the President before the Court.

(iii) The language of Article 356(1) is very wide. It is desirable that conventions are developed channelising the exercise of this power. The Court can interfere only when the power is used in a grossly perverse and unreasonable manner so as to constitute patent misuse of the provisions or to an abuse of power. The same idea is expressed at another place saying that if “a constitutionally or legally prohibited or extraneous or collateral purpose is sought to be achieved” by the proclamation, it would be liable to be struck down. The question whether the majority party in the Legislative Assembly of a State has become totally estranged from the electorate is not a matter for the Court to determine.

(iv) The assessment of the Central Government that a fresh chance should be given to the electorate in certain States as well as the question when to dissolve the Legislative Assemblies are not matters alien to Article 356. It cannot be said that the reasons assigned by the Central Government for the steps taken by them are not relevant to the purposes underlying Article 356.

We may say at once that we are in respectful disagreement with propositions (i), (ii) and (iv) altogether. So far as proposition (iii) is concerned, it is not far off the mark and in substance accords with our view, as we shall presently show.

Y. V. Chandrachud, J. On the scope of judicial review, the learned Judge held that where the reasons disclosed by the Union of India are wholly extraneous, the Court can interfere on the ground of mala fides. Judicial scrutiny, said the learned Judge, is available “for the limited purpose of seeing whether the reasons bear any rational nexus with the action proposed”. The Court cannot sit in judgment over the satisfaction of the President for determining whether any other view of the situation is reasonably possible, opined the learned Judge.

Turning to the facts of the case before him, the learned Judge observed that the grounds assigned by the Central Government in its counter-affidavit cannot be said to be irrelevant to Article 356. The Court cannot go deeper into the matter nor shall the Court enquire whether there were any other reasons besides those disclosed in the counter-affidavit.

P. N. Bhagwati and A. C. Gupta, JJ. The learned Judges enunciated the following propositions in their opinion:

The action under Article 356 has to be taken on the subjective satisfaction of the President. The satisfaction is not objective. There are no judicially discoverable and manageable standards by which the Court can examine the correctness of the satisfaction of the President. The satisfaction to be arrived at is largely political in nature, based on an assessment of various and varied facts and factors besides several imponderables and fast changing situations. The Court is not a fit body to enquire into or determine the correctness of the said satisfaction or assessment, as it may be called. However, if the power is exercised mala fide or is based upon wholly extraneous or irrelevant grounds, the Court would have jurisdiction to examine it. Even clause (5) is not a bar when the contention is that there was no satisfaction at all.

The scope of judicial review of the action under Article 356, — the learned Judges held — is confined to a “narrow minimal area: May be that in most cases, it would be difficult, if not impossible, to challenge the exercise of power under Article 356(1) on the aforesaid limited ground, because the facts and circumstances on which the satisfaction is based, would not be known. However, where it is possible, the existence of satisfaction can always be challenged on the ground that it is mala fide or based on wholly extraneous and irrelevant grounds.” We may say with great respect that we find it difficult to agree with the above formulations in toto. We agree only with the statements regarding the permissible grounds of interference by Court and the effect of clause (5), as it then obtained.

We also agree broadly with the first proposition, though not in the absolute terms indicated therein.

Goswami and Untwalia, JJ. The separate opinions of Goswami and Untwalia, JJ.

emphasise one single fact, namely, that inasmuch as the facts stated in the counter-affidavit filed by the Home Minister cannot be said to be “mala fide, extraneous or irrelevant”, the action impugned cannot be assailed in the Court.

Fazal Ali, J. The learned Judge held that:

(i) the action under Article 356 is immune from judicial scrutiny unless the action is “guided by extraneous consideration” or “personal considerations”.

(ii) the inference drawn by the Central Government following the 1977 elections to the Lok Sabha cannot be said to be unreasonable. It cannot be said that the inference drawn had no nexus with Article 356.” Bommai’s case The Nine Judge Bench considered the validity of dissolution of Legislative Assembly of States of Karnataka, Meghalaya, Nagaland, Madhya Pradesh, Himachal Pradesh and Rajasthan. Out of six States, the majority held as unconstitutional the dissolution of Assemblies of Karnataka, Nagaland and Meghalaya as well. Six opinions have been expressed. There is unanimity on some issues, likewise there is diversity amongst several opinions on various issues.

Karnataka Facts In the case of Karnataka, the facts were that the Janta Party being the majority party in the State Legislature had formed the Government under the leadership of Shri S.R. Bommai on August 30, 1988 following the resignation on August 1, 1988 of the earlier Chief Minister Shri Hegde who headed the ministry from March 1985 till his resignation. On 17th April, 1989 one legislator presented a letter to the Governor withdrawing his support to the Ministry. On the next day he presented to the Governor 19 letters allegedly written by 17 Janta Dal legislators, one independent but associate legislator and one legislator belonging to the BJP which was supporting the ministry, withdrawing their support to the ministry. On receipt of these letters, the Governor is said to have called the Secretary of the Legislature Department and got the authenticity of the signatures on the said letters verified. On April 19, 1989, the Governor sent a report to the President stating therein that there were dissensions in the Janta Party which had led to the resignation of Shri Hegde and even after the formation of the new party viz. Janta Dal, there were dissensions and defections. In support, the Governor referred to the 19 letters received by him. He further stated that in view of the withdrawal of the support by the said legislators, the Chief Minister Shri Bommai did not command a majority in the Assembly and hence it was inappropriate under the Constitution, to have the State administered by an Executive consisting of Council of Ministers which did not command the majority in the House. He also added that no other political party was in a position to form the Government. He, therefore, recommended to the President that he should exercise power under Article 356(1). The Governor did not ascertain the view of Shri Bommai either after the receipt of the 19 letters or before making his report to the President. On the next day i.e.

April 20, 1989, 7 out of the 19 legislators who had allegedly sent the letters to the Governor complained that their signatures were obtained on the earlier letters by misrepresentation and affirmed their support to the Ministry. The State Cabinet met on the same day and decided to convene the Session of the Assembly within a week i.e. on April 27, 1989. The Chief Minister and his Law Minister met the Governor on the same day and informed him about the decision to summon the Assembly Session. The Chief Minister offered to prove his majority on the floor of the House, even by pre-poning the Assembly Session, if needed. To the same effect, the Governor however sent yet another report to the President on the same day i.e. April 20, 1989, in particular, referring to the letters of seven Members pledging their support to the Ministry and withdrawing their earlier letters. He however opined in the report that the letters from the 7 legislators were obtained by the Chief Minister by pressurising them and added that horse-trading was going on and atmosphere was getting vitiated. In the end, he reiterated his opinion that the Chief Minister had lost the confidence of the majority in the House and repeated his earlier request for action under Article 356(1) of the Constitution. On that very day, the President issued the Proclamation in dissolving the House. The Proclamation was thereafter approved by the Parliament as required by Article 356(3).

A writ petition filed in the High Court challenging the validity of dissolution was dismissed by a three Judge Bench inter alia holding that the facts stated in the Governors report cannot be held to be irrelevant and that the Governor’s satisfaction that no other party was in a position to form the Government had to be accepted since his personal bona fides were not questioned and his satisfaction was based upon reasonable assessment of all the relevant facts. The High Court relied upon the test laid down in the State of Rajasthan case and held that on the basis of materials disclosed, the satisfaction arrived at by the President could not be faulted.

Nagaland Facts In the case of Nagaland, the Presidential Proclamation dated August 7, 1988 was issued under Article 356(1) imposing President’s rule. At the relevant time in the Nagaland Assembly there were 60 legislators, 34 belonging to Congress (I), 18 to Naga National Democratic Party and 1 to Naga Peoples’ Party and seven were independent legislators. On July 28, 1988, 13 out of the 34 MLAs of the ruling Congress (I) party informed the Speaker of the Assembly that they have formed a separate party and requested him for allotment of separate seats for them in the House. The Session was to commence on August 28, 1988. By decision dated July 30, 1988 the Speaker held that there was a split in the party within the meaning of the Tenth Schedule of the Constitution. On July 31, 1988, Shri Vamuzo, one of the 13 defecting MLAs who had formed a separate party, informed the Governor that he commanded the support of 35 out of the then 59 Members in the Assembly and was in a position to form the Government. On August 3, 1988, the Chief Secretary of the State wrote to Shri Vamuzo that according to his information, Shri Vamuzo had wrongfully confined the MLAs who had formed the new party. The allegations were denied by Shri Vamuzo and he asked the Chief Secretary to verify the truth from the Members themselves. On verification, the Members told the Chief Secretary that none of them was confined as alleged. On August 6, 1988 the Governor sent a report to the President of India about the formation of a new party by the 13 MLAs. He also stated that the said MLAs were allured by money. He further stated that the said MLAs were kept in forcible confinement by Mr. Vamuzo and one other person, and that the story of split in the ruling party was not true. He added that the Speaker was hasty in according recognition to the new group of the 13 members and commented that horse-trading was going on in the State. He made a special reference to the insurgency in Nagaland and also stated that some of the Members of the Assembly were having contacts with the insurgents. He expressed the apprehension that if the affairs were allowed to continue as they were, it would affect the stability of the State. In the meantime the Chief Minister submitted his resignation to the Governor and recommended the imposition of the President’s rule.

The President thereafter issued the impugned Proclamation and dismissed the Government and dissolved the Assembly. Shri Vamuzo, the leader of the new group challenged the validity of the Proclamation in the Gauhati High Court. The Petition was heard by a Division Bench. The Bench differed on the effective operation of Article 74(2) and hence the matter was referred to the third Judge. But before the third learned Judge could hear the matter, the Union of India moved this Court for grant of Special Leave which was granted and the proceedings in the High Court were stayed.

Dealing with the implications of Article 74(2) of the Constitution Justice Sawant speaking for himself and Justice Kuldip Singh came to the conclusion that although the advice given by the Council of Ministers is free from the gaze of the Court, the material on the basis of which the advice is given cannot be kept away from it and is open to judicial scrutiny. On the facts, Justice Sawant expressed the view that the Governor should have allowed Shri Vamuzo to test his strength on the floor of the House notwithstanding the fact that the Governor in his report has stated that during the preceding 25 years, no less than 11 Governments had been formed and according to his information, the Congress (I) MLAs were allured by the monetary benefits and that amounted to incredible lack of political morality and complete disregard of the wishes of the electorate.

Meghalaya Insofar as the Proclamation in respect of the Meghalaya is concerned, that was also held to be invalid.

The ground on which dissolution was invalidated was the constitutional functionary had failed to realize the binding legal consequences of the orders of this Court and the constitutional obligation to give effect to the said order.

Facts of Madhya Pradesh, Rajasthan and Himachal Pradesh Insofar as the cases of States of Madhya Pradesh, Rajasthan and Himachal Pradesh are concerned the dismissal of the Governments was a consequence of violent reactions in India and abroad as well as in the neighbouring countries where some temples were destroyed, as a result of demolition of Babri Masjid structure on 6th December, 1992. The Union of India is said to have tried to cope up the situation by taking several steps including banning of some organizations which had along with BJP given a call for Kar sevaks to march towards Ayodhya on December 6, 1992. The Proclamation in respect of these States was issued on January 15, 1993. The Proclamations dissolving the assemblies were issued on arriving at satisfaction as contemplated by Article 356(1) on the basis of Governor’s report. It was held that the Governor’s reports are based on relevant materials and are made bona fide and after due verification.

The Conclusion Nos. I, II, IV, VI, VII, IX and X in the opinion of Justice Sawant are as under:

“I. The validity of the Proclamation issued by the President under Article 356(1) is judicially reviewable to the extent of examining whether it was issued on the basis of any material at all or whether the material was relevant or whether the Proclamation was issued in the mala fide exercise of the power. When a prima facie case is made out in the challenge to the Proclamation, the burden is on the Union Government to prove that the relevant material did in fact exist. Such material may be cither the report of the Governor or other than the report.

II. Article 74(2) is not a bar against the scrutiny of the material on the basis of which the President had arrived at his satisfaction.

IV. Since the provisions contained in cl.

(3) of Article 356 are intended to be a, check on the powers of the President under clause (1) thereof, it will not be permissible for the President to exercise powers under sub-clauses (a), (b) and (c) of the latter clause, to take irreversible actions till at least both the Houses of Parliament have approved of the Proclamation. It is for this reason that the President will not be justified in dissolving the Legislative Assembly by using the powers of the Governor under Article 174(2)(b) read with Article 356(1)(a) till at least both the Houses of Parliament approve of the Proclamation.

VI. In appropriate cases, the Court will have power by an interim injunction, to restrain the holding of fresh elections to the Legislative Assembly pending the final disposal of the challenge to the validity of the Proclamation to avoid the fait accompli and the remedy of judicial review being rendered fruitless. However, the Court will not interdict the issuance of the Proclamation or the exercise of any other power under the Proclamation.

VII. While restoring the status quo ante, it will be open for the Court to mould the relief suitably and declare as valid actions taken by the President till that date. It will also be open for the Parliament and the Legislature of the State to validate the said actions of the President.

IX. The Proclamations dated April 21, 1989 and October 11, 1991 and the action taken by the President in removing the respective Ministries and the Legislative Assemblies of the State of Karnataka and the State of Meghalaya challenged in Civil Appeal No. 3645 of 1989 and Transfer Case Nos. 5 and 7 of 1992 respectively are unconstitutional.

The Proclamation dated August 7, 1988 in respect of State of Nagaland is also held unconstitutional. However, in view of the fact that fresh elections have since taken place and the new Legislative Assemblies and Ministries have been constituted in all the three States, no relief is granted consequent upon the above declarations. However, it is declared that all actions which might have been taken during the period the Proclamation operated, are valid. The Civil Appeal No. 3645 of 1989 and Transfer case Nos. 5 and 7 of 1992 are allowed accordingly with no order as to costs. Civil Appeal Nos. 193-194 of 1989 are disposed of by allowing the writ petitions filed in the Gauhati High Court accordingly but without costs.

X. The Proclamations dated 15th December, 1992 and the actions taken by the President removing the Ministries and dissolving the Legislative Assemblies in the States of Madhya Pradesh, Rajasthan and Himachal Pradesh pursuant to the said proclamations are not unconstitutional. Civil Appeals Nos. 1692, 1692A-1692C, 4627-30 of 1993 are accordingly allowed and Transfer case Nos. 8 and 9 of 1993 are dismissed with no order as to costs.” Justice Jeevan Reddy has expressed opinion for himself and Justice Agrawal. The conclusions Nos. 2, 3, 7, 8 and 12 in paragraph 434 are relevant for our purpose and the same read as under:

“(2) The power conferred by Art. 356 upon the President is a conditioned power. It is not an absolute power. The existence of material — which may comprise of or include the report(s) of the Governor — is a pre-condition. The satisfaction must be formed on relevant material. The recommendations of the Sarkaria Commission with respect to the exercise of power under Art. 356 do merit serious consideration at the hands of all concerned.

(3) Though the power of dissolving of the Legislative Assembly can be said to be implicit in clause (1) of Art. 356, it must be held, having regard to the overall constitutional scheme that the President shall exercise it only after the proclamation is approved by both Houses of Parliament under clause (3) and not before. Until such approval, the President can only suspend the Legislative Assembly by suspending the provisions of Constitution relating to the Legislative Assembly under sub-clause (c) of clause (1). The dissolution of Legislative Assembly is not a matter of course. It should be resorted to only where it is found necessary for achieving the purposes of the proclamation.

(7) The proclamation under Article 356(I) is not immune from judicial review. The Supreme Court or the High Court can strike down the proclamation if it is found to be mala fide or based on wholly irrelevant or extraneous grounds. The deletion of clause (5) (which was introduced by 38th (Amendment) Act) by the 44th (Amendment) Act, removes the cloud on the reviewability of the action.

When called upon, the Union of India has to produce the material on the basis of which action was taken. It cannot refuse to do so. if it seeks to defend the action.

The court will not go into the correctness of the material or its adequacy. Its enquiry is limited to see whether the material was relevant to the action. Even if part of the material is irrelevant, the court cannot interfere so long as, there is some material which is relevant to the action taken.

(8) If the court strikes down the proclamation, it has the power to restore the dismissed Government to office and revive and reactivate the Legislative Assembly wherever it may have been dissolved or kept under suspension. In such a case, the court has the power to declare that acts done, orders passed and laws made during the period the proclamation was in force shall remain unaffected and be treated as valid. Such declaration, however, shall not preclude the Government/ Legislative Assembly or other competent authority to review, repeal or modify such act orders and laws.

(12) The proclamations dated January 15, 1993 in respect of Madhya Pradesh, Rajasthan and Himachal Pradesh concerned in Civil Appeals Nos. 1692, I692A-I692C of 1993, 4627-4630 of 1990, Transferred Case (C) No. 9 of 1993 and Transferred Case No. 8 of 1993 respectively are not unconstitutional. The Civil Appeals are allowed and the judgment of the High Court of Madhya Pradesh in M.P.(C) No. 237 of 1993 is set aside. The Transferred Cases are dismissed.” Justice Jeevan Reddy has also expressed agreement with the conclusions I, II and IV to VII in the Judgment of Justice Sawant delivered on behalf of himself and Justice Kuldip Singh.

Justice Pandian has expressed agreement with the opinion of Justice P.B. Sawant on his conclusions I, II and IV to VIII but so far as the reasoning and other conclusions are concerned, the learned Judge has agreed with the Judgment of Justice Reddy.

For determining the scope of judicial review in terms of law enunciated by Bommai, it is vital to keep in view that majority opinion in that case declared as illegal the dissolution of assemblies of Karnataka and Nagaland. At an appropriate place later, we will note the reason that led to this declaration.

Some observations made in the minority opinion of Justice K. Ramaswamy are also very significant. Learned Judge has said that the motivating factor for action under Article 356(1) should never be for political gain to the party in power at the Centre, rather it must be only when it is satisfied that the constitutional machinery has failed.

It has been further observed that the frequent elections would belie the people’s belief and faith in parliamentary form of Government, apart from enormous election expenditure to the State and the candidates. The Court, if upon the material placed before it, finds that satisfaction reached by the President is unconstitutional, highly irrational or without any nexus, then the Court would consider the contents of the Proclamation or reasons disclosed therein and in extreme cases the material produced pursuant to discovery order nisi to find the action is wholly irrelevant or bears no nexus between purpose of the action and the satisfaction reached by the President or does not bear any rationale to the proximate purpose of the Proclamation. In that event, the Court may declare that the satisfaction reached by the President was either on wholly irrelevant grounds or colourable exercise of power and consequently, Proclamation issued under Article 356 would be declared unconstitutional.

It is apparent that Justice Ahmadi and Justice Ramaswamy though in minority, yet learned Judges have frowned upon the highly irrational action.

Now, let us see the opinion of Justice Sawant, who spoke for himself and Justice Kuldip Singh and with whom Justice Pandian, Justice Jeevan Reddy and Justice Agrawal agreed, to reach the conclusion as to the invalidity of Proclamation dissolving assemblies of Karnataka and Nagaland.

Learned Judge has opined that the President’s satisfaction has to be based on objective material. That material may be available in the report sent to the President by the Governor or otherwise or both from the report and other sources. Further opines Justice Sawant that the objective material, so available must indicate that the Government of State cannot be carried on in accordance with the provisions of the Constitution. The existence of the objective material showing that the Government of the State cannot be carried on in accordance with the provisions of the Constitution is a condition precedent before the issue of the Proclamation.

Reference has been made to a decision of the Supreme Court of Pakistan on the same subject, although the language of the provisions of the relevant Articles of Pakistan Constitution is not couched in the same terms. In Muhammad Sharif v. Federation of Pakistan, PLD 1988 (LAH) 725, the question was whether the order of the President dissolving the National Assembly on 29th May, 1988 was in accordance with the powers conferred on him under Article 58(2)(b) of the Pakistan Constitution. It was held in that case that it is not quite right to contend that since it was the discretion of the President, on the basis of his opinion, the President could dissolve the National Assembly but he has to have the reasons which are justifiable in the eyes of the people and supportable by law in a court of justice.

He could not rely upon the reasons which have no nexus to the action, are bald, vague, general or such as can always be given and have been given with disastrous effects (Emphasis supplied by us). It would be instructive to note as to what was stated by the learned Chief Justice and Justice R.S. Sidhwa, as reproduced in the opinion of Justice Sawant:

“Whether it is ‘subjective’ or ‘objective’ satisfaction of the President or it is his ‘discretion’ or ‘opinion’, this much is quite clear that the President cannot exercise his powers under the Constitution on wish or whim. He has to have facts, circumstances which can lead a person of his status to form an intelligent opinion requiring exercise of discretion of such a grave nature that the representative of the people who are primarily entrusted with the duty of running the affairs of the State are removed with a stroke of the pen. His action must appear to be called for and justifiable under the Constitution if challenged in a Court of Law. No doubt, the Courts will be chary to interfere in his ‘discretion’ or formation of the ‘opinion’ about the ‘situation’ but if there be no basis or justification for the order under the Constitution, the Courts will have to perform their duty cast on them under the Constitution. While doing so, they will not be entering in the political arena for which appeal to electorate is provided for.” Dealing with the second argument, the learned Chief Justice held:

“If the argument be correct then the provision ‘Notwithstanding anything contained in clause (2) of Article 48’ would be rendered redundant as if it was no part of the Constitution. It is obvious and patent that no letter or part of a provision of the Constitution can be said to be redundant or non-existent under any principle of construction of Constitutions. The argument may be correct in exercise of other discretionary powers but it cannot be employed with reference to the dissolution of National Assembly. Blanket coverage of validity and unquestionability of discretion under Article 48(2) was given up when it was provided under Article 58(2) that ‘Notwithstanding clause (2) of Article 48  the discretion can be exercised in the given circumstances. Specific provision will govern the situation. This will also avoid expressly stated; otherwise it is presumed to be there in Courts of record.Therefore, it is not quite right to contend that since it was in his ‘discretion’, on the basis of his ‘opinion’ the President could dissolve the National Assembly. He has to have reasons which are justifiable in the eyes of the people and supportable by law in a Court of Justice….. It is understandable that if the President has any justifiable reason to exercise his ‘discretion’ in his ‘opinion’ but does not wish to disclose, he may say so and may be believed or if called upon to explain the reason he may take the Court in confidence without disclosing the reason in public, may be for reason of security of State. After all patriotism is not confined to the office holder for the time being. He cannot simply say like Caesar it is my will, opinion or discretion.

Nor give reasons which have no nexus to the action, are bald, vague, general or such as can always be given and have been given with disastrous effects……”.

Dealing with the same arguments, R.S.

Sidhwa, J. stated as follows :

“…..I have no doubt that both the Governments are not compelled to disclose all the reasons they may have when dissolving the Assemblies under Arts. 58(2)(b) and 112(2) (b). If they do not choose to disclose all the material, but only some, it is their pigeon, for the case will be decided on a judicial scrutiny of the limited material placed before the Court and if it happens to be totally irrelevant or extraneous, they must suffer.” It is well settled that if the satisfaction is mala fide or is based on wholly extraneous or irrelevant grounds, the court would have the jurisdiction to examine it because in that case there would be no satisfaction of the President in regard to the matter on which he is required to be satisfied. On consideration of these observations made in the case of State of Rajasthan as also the other decisions {Kehar Singh & Anr. v. Union of India & Anr. [(1989) 1 SCC 204] and Maru Ram v. Union of India [(1981) 1 SCC 107]}, Justice Sawant concluded that the exercise of power to issue proclamation under Article 356(1) is subject to judicial review at least to the extent of examining whether the conditions precedent to the issue of Proclamation have been satisfied or not. This examination will necessarily involve the scrutiny as to whether there existed material for the satisfaction of the President that the situation had arisen in which the Government of the State could not be carried on in accordance with the provisions of the Constitution.

While considering the question of material, it was held that it is not the personal whim, wish, view or opinion or the ipse dixit of the President de hors the material but a legitimate inference drawn from the material placed before him which is relevant for the purpose. In other words, the President has to be convinced of or has to have sufficient proof of information with regard to or has to be free from doubt or uncertainty about the state of things indicating that the situation in question has arisen. (Emphasis supplied by us). Although, therefore, the sufficiency or otherwise of the material cannot be questioned, the legitimacy of inference drawn from material is certainly open to judicial review.

It has been further held that when the Proclamation is challenged by making a prima facie case with regard to its invalidity, the burden would be on the Union Government to satisfy that there exists material which showed that the Government could not be carried on in accordance with the provisions of the Constitution. Since such material would be exclusively within the knowledge of the Union Government in view of the provisions of Section 106 of the Evidence Act, the burden of proof would be on the Union Government.

Thus having reached the aforesaid conclusions as to the parameters of the judicial review that the satisfaction cannot be based on the personal whim, wish, view, opinion or ipse dixit de hors the legitimate inference from the relevant material and that the legitimacy of the inference drawn was open to judicial review, the report on basis whereof Proclamation dissolving the Assembly of Karnataka had been issued was subjected to a close scrutiny, as is evident from paragraphs 118, 119 and 120 of the opinion of Justice Sawant which read as under:

“118. In view of the conclusions that we have reached with regard to the parameters of the judicial review, it is clear that the High Court had committed an error in ignoring the most relevant fact that in view of the conflicting letters of the seven legislators, it was improper on the part of the Governor to have arrogated to himself the task of holding, firstly, that the earlier nineteen letters were genuine and were written by the said legislators of their free will and volition. He had not even cared to interview the said legislators, but had merely got the authenticity of the signatures verified through the Legislature Secretariat. Secondly, he also took upon himself the task of deciding that the seven out of the nineteen legislators had written the subsequent letters on account of the pressure from the Chief Minister and not out of their free will. Again he had not cared even to interview the said legislators. Thirdly, it is not known from where the Governor got the information that there was horse- trading going on between the legislators.

Even assuming that it was so, the correct and the proper course for him to adopt was to await the test on the floor of the House which test the Chief Minister had willingly undertaken to go through on any day that the Governor chose. In fact, the State Cabinet had itself taken an initiative to convene the meeting of the Assembly on April 27, 1989, i.e., only a week ahead of the date on which the Governor chose to send his report to the President. Lastly, what is important to note in connection with this episode is that the Governor at no time asked the Chief Minister even to produce the legislators before him who were supporting the Chief Minister, if the Governor thought that the situation posed such grave threat to the governance of the State that he could not await the result of the floor-test in the House. We are of the view that this is a case where all canons of propriety were thrown to wind and the undue haste made by the Governor in inviting the President to issue the Proclamation under Article 356(1) clearly smacked of mala fides. The Proclamation issued by the President on the basis of the said report of the Governor and in the circumstances so obtaining, therefore, equally suffered from mala fides. A duly constituted Ministry was dismissed on the basis of material which was neither tested nor allowed to be tested and was no more than the ipse dixit of the Governor. The action of the Governor was more objectionable since as a high constitutional functionary, he was expected to conduct himself more firmly, cautiously and circumspectly. Instead, it appears that the Governor was in a hurry to dismiss the Ministry and dissolve the Assembly. The Proclamation having been based on the said report and so-called other information which is not disclosed was, therefore, liable to be struck down.

(Emphasis supplied by us) 119. In this connection, it is necessary to stress that in all cases where the support to the Ministry is claimed to have been withdrawn by some Legislators, the proper course for testing the strength of the Ministry is holding the test on the floor of the House. That alone is the constitutionally ordained forum for seeking openly and objectively the claims and counter-claims in that behalf. The assessment of the strength of the Ministry is not a matter of private opinion of any individual, be he the Governor or the President. It is capable of being demonstrated and ascertained publicly in the House. Hence when such demonstration is possible, it is not open to bypass it and instead depend upon the subjective satisfaction of the Governor or the President. Such private assessment is an anathema to the democratic principle, apart from being open to serious objections of personal mala fides.

It is possible that on some rare occasions, the floor-test may be impossible, although it is difficult to envisage such situation. Even assuming that there arises one, it should be obligatory on the Governor in such circumstances, to state in writing, the reasons for not holding the floor-test. The High Court was, therefore, wrong in holding that the floor test was neither compulsory nor obligatory or that it was not a pre-requisite to sending the report to the President recommending action under Article 356(1). Since we have already referred to the recommendations of the Sarkaria Commission in this connection, it is not necessary to repeat them here.

(Emphasis supplied by us) 120. The High Court was further wrong in taking the view that the facts stated in the Governor’s report were not irrelevant when the Governor without ascertaining either from the Chief Minister or from the seven MLAs whether their retraction was genuine or not, proceeded to give his unverified opinion in the matter. What was further forgotten by the High Court was that assuming that the support was withdrawn to the Ministry by the 19 MLAs, it was incumbent upon the Governor to ascertain whether any other Ministry could be formed. The question of personal bona fides of the Governor is irrelevant in such matters. What is to be ascertained is whether the Governor had proceeded legally and explored all possibilities of ensuring a constitutional Government in the State before reporting that the constitutional machinery had broken down. Even if this meant installing the Government belonging to a minority party, the Governor was duty bound to opt for it so long as the Government could enjoy the confidence of the House. That is also the recommendation of the Five-member Committee of the Governors appointed by the President pursuant to the decision taken at the Conference of Governors held in New Delhi in November 1970, and of the Sarkaria Commission quoted above. It is also obvious that beyond the report of the Governor, there was no other material before the President before he issued the Proclamation. Since the “facts” stated by the Governor in his report, as pointed out above contained his own opinion based on unascertained material, in the circumstances, they could hardly be said to form an objective material on which the President could have acted. The Proclamation issued was, therefore, invalid.” (Emphasis supplied by us) The view of the High Court that the facts stated in the Governor’s report had to be accepted was not upheld despite the fact that the Governor had got the authenticity of the signatures of 19 MLAs on letters verified from the Legislature Secretariat, on the ground that he had not cared to interview the legislators and that there were conflicting letters from the seven legislators.

The conclusion drawn by the Governor that those seven legislators had written the subsequent letters on account of the pressure from the Chief Minister and not out of their own free will was frowned upon, particularly when they had not been interviewed by the Governor. It was further observed that it is not known from where the Governor got the information about the horse-trading going on between the legislators. Further conclusion reached was that the Governor had thrown all cannons of propriety to the winds and showed undue haste in inviting the President to issue Proclamation under Article 356(1) which clearly smacked of mala fides. It was noticed that the facts stated by the Governor in his report were his own opinion based on unascertained material and in the circumstances they could hardly be said to form the objective material on which the President could have acted.

When the facts of the present case are examined in light of the scope of the judicial review as is clear from the aforesaid which represents ratio decidendi of majority opinion of Bommai’s case, it becomes evident that the challenge to the impugned Proclamation must succeed.

The case in hand is squarely covered against the Government by the dicta laid down in Bommai’s case.

There cannot be any presumption of allurement or horse- trading only for the reason that some MLAs, expressed the view which was opposed to the public posture of their leader and decided to support the formation of the Government by the leader of another political party. The minority Governments are not unknown. It is also not unknown that the Governor, in a given circumstance, may not accept the claim to form the Government, if satisfied that the party or the group staking claim would not be able to provide to the State a stable Government.

It is also not unknown that despite various differences of perception, the party, group or MLAs may still not opt to take a step which may lead to the fall of the Government for various reasons including their being not prepared to face the elections. These and many other imponderables can result in MLAs belonging to even different political parties to come together. It does not necessarily lead to assumption of allurement and horse-trading.

As opposed to the cases of dissolution of Karnataka and Nagaland, while considering the cases of dissolution of assemblies of Madhya Pradesh, Rajasthan and Himachal Pradesh, it was held in Bommai that the reports of the Governors disclosed that the State Governments had miserably failed to protect the citizens and property of the State against internal disturbances, it was found that the Governor’s reports are based on relevant material and are made bona fide and after due verification. It is in the light of these findings that the validity of the Proclamation was unanimously upheld in respect of these three States.

Now, let us revert to the reasoning given in the opinion of Justice B.P. Jeevan Reddy, speaking for himself and Justice Agrawal.

As already noticed, Justice Reddy to the extent stated in para 324 expressed his dissent with the reasoning of State of Rajasthan case.

Before we examine paragraph 389, wherein Justice Reddy has noticed, in brief, eight reasons given by the Special Bench of the High Court in dismissing the writ petition and the opinion of learned Judge as contained in para 391, we feel that to fully appreciate Bommai’s case which reversed Full Bench decision of Karnataka High Court, it would be quite useful to note what exactly was stated by the High Court in Paragraphs 28 to 34 of its judgment reported in S.R. Bommai & Ors. v. Union of India & Ors. [AIR 1990 Karnataka 5]. The said paragraphs read as under :

“28. Coming to the second facet of the contention of Mr. Soli Sorabjee, we find that the criticism levelled is that the inference drawn by the Governor that there is no other party which is in a position to form the Government, is not only vague but factually incorrect and hence the President had no relevant material to arrive at his satisfaction for proclamation issued by him.

The aforesaid contention again is without any merit for the reasons: (i) that the Governor formed the said satisfaction which can necessarily be the result of his own impressions. Narration of events in no way advances the case of satisfaction because the very satisfaction of the Governor is an integral part of the material relevant fact. It may also be that the Governor would have met several MLAs and enquired of them. But what transpired between them cannot be a matter of record. In the context where the Governor’s personal bona fides are not in question, his satisfaction expressed is to be assumed as part of the relevant material facts in the sense that the very satisfaction stated therein comprehends within itself the idea of all the other necessary factors, (ii) the report of 19th April, 1989 has to be read with the second report of 20th April, 1989 wherein “atmosphere getting vitiated” and “horse-trading” were referred.

“Pressurisation of MLAs”, “Horse-trading” and “vitiating atmosphere” referred to in the report necessarily indicate the existence of facts for the satisfaction that no other party was in a position to form the Government in accordance with the Constitution: The report could have been more explicit and, not adopting such a course by itself cannot nullify the essence of the report. If the President had any reason to doubt the veracity of those statements it was for him to seek a clarification or further report. However, if the President chose to accept the statement of the Governor as to the satisfaction that none else was in a position to form the Government it is because the President found it to be a sufficient arid acceptable statement as to the existence of factual situation. This statement in para 3 of the first report may also be weighed and understood in the background of the principle that in case the existing Ministry was found to have lost the majority in the House, it is left to the discretion of the Governor to call upon someone else to form the Ministry, whom he thinks is in a position to command majority in the House.

Further, absolutely no material has been placed before us to show that any other party or individual staked his or her claim to form a stable Ministry; rather, throughout, the petitioners’ case has been that the existing Ministry headed by Sri S. R. Bommai continued to enjoy the support of the majority in the House.

This premise was held to be not correct for which material facts were given in both the reports made by the Governor.

29. It may be emphasised that a person holding majority does not require time to prove that majority. Instead of telling the Governor that he would prove majority on the floor of the House, the Chief Minister could have as well obtained the signatures of 113 MLAs and placed before the Governor to demonstrate his strength. Moreover, the second report of the Governor also conveys certain material facts; some of the ML As who withdrew their support to Sri S. R.

Bommai wrote again withdrawing the earlier letters with oscillation and ficklemindedness. Fluctuating loyalties leading to unhealthy practice are pointed out in the report. The democratic culture was being vulgarised. Vitiation of the atmosphere was felt by the Governor. In the context of the prevailing situation the Governor was certainly entitled to report to the President the aforesaid facts. We, are therefore, of the firm view that the two reports of the Governor conveyed to the President the essential and relevant facts from which the President could assess the situation for an action under Art. 356 of the Constitution.

30. Another major attack levelled against the reports of the Governor by Mr. Soli Sorabjee was that nowhere in the report’s it is stated that the State Government cannot be carried on in accordance with the Constitution. In other words, there is no material on the record to show that there has been Constitutional breakdown of the machinery in the State. In support of his argument the learned counsel drew our attention to the statement in the report which reads:

“It is not appropriate under the circumstances to have the State administered by an Executive consisting of Council of Ministers who do not command the majority in the House.” What was sought to be argued by the learned counsel was to say that it is not appropriate is quite different from saying that there is a constitutional breakdown, and as the Governor only feels that it is not appropriate, there was no legal justification for taking the impugned action.

Again we find ourselves unable to agree with Mr. Soli Sorabjee. The words “it is not appropriate under the circumstances” have to be understood in the context of the report, especially the next sentence, so as to convey the meaning that the Executive which does not command the support of the majority in the House cannot administer the.

State in accordance with the Constitution. ‘Inapp-ropriateness’ stated here is referable to the meaning ‘is not in accordance with law’. Reference to any dictionary would show that ‘appropriateness’ and ‘compatibility’ are interchangeable and, therefore, when something is said to be not appropriate it conveys the meaning that it is not compatible or not in accordance with law. Hence the statement of the Governor in this sentence clearly asserts his understanding of the true principle that ah Executive having no majority support in the Legislature, if carries on the Government, will be administering the State not in accordance with the Constitution.

31. In view of the aforesaid discussion, we find no escape from the conclusion that the grounds stated and material supplied in the reports of the Governor are neither irrelevant nor vague, that the reasons disclosed bear a reasonable nexus with the exercise of the particular power and hence the satisfaction of the President must be treated as conclusive, and that there is no scope at all for a finding that the action of the President is in flagrant violation of the very words of Art. 356(1).

32. Mr. Soli Sorabjee also contended that the factors like the alleged ‘unethical methods adopted during the formation of Janata Dal’ ‘expansion of cabinet’, ‘horse-trading’ and ‘atmosphere getting vitiated’ are not only vague but have no nexus at all with the question of failure of Constitutional machinery. The learned counsel also laid great stress by contending that the Governor by acting upon the letters given by 19 legislators had circumvented the Anti Defection legislation, the primary aim of which is to discourage the toppling game by legislators by changing their loyalties, and by acting upon those letters the legislators were permitted, in substance, to play the game of toppling the ruling Ministry without incurring the consequences of Anti-Defection law because, if these legislators had withdrawn their support in the House and voted against the Ministry, they would have incurred disqualification under Anti-Defection Law. Reliance upon these letters is contrary to the underlying purpose and the essence of Anti- Defection legislation and therefore illegitimate and prohibited. The learned counsel buttressed his arguments by contending that if the floor test had been held the legislators who had written letters might have changed their mind for several valid reasons e.g. (i) change in the style of functioning of leadership, (ii) change in the leadership, (iii) realisation for maintaining party unity, (iv) unwillingness to incur disqualification under Anti-Defection legislation and (v) not giving a pretext for imposition of President’s Rule. In support of the contention that the floor test has always been recognised as the legitimate and relevant method, Sri Soli Sorabjee relied on the judgment of the Orissa High Court in Bijayananda v. President of India, Sarkaria Commission Report page 173 para6.5.01, the judgment of Gauhati High Court in Vamuzov. Union of India, (1988) 2 Gauh LJ 468 at p. 483, Report of the Committee of Governors dated 1- 10-1971, pages 208, 209, 210, 217-219, 221-219, 221- 223 and 234, and Address by Speaker of Lok Sabha on the occasion of Speakers’ Conference on 16-7-1970 paras 13 and 14.

33. In our view, the aforesaid contentions/ points urged by the learned counsel do not in any way destroy the effect of the two material grounds on the basis of which the subjective satisfaction was arrived at by the President. The Governor honestly and truly has stated all the facts. They are not vague at all and are narrative in nature. What was happening in the State, the Governor has disclosed in the report. The Governor was assessing whether the first petitioner was commanding majority and he (Governor) was entitled to take into consideration the behaviour of the MLAs one way or the other.

It is expected that a Government to be effective should not only command a majority in the House but should also be backed by the majority members outside the house so that the Government would not be under a perennial pressure of being dislodged whenever the House meets again.

We have gone through the judgments of the Orissa and Gauhati High Courts mentioned above and find that the same are distinguishable. In Bijayanand’s case the main fact was that the Leader of the Opposition who had shown his majority in the House was not tailed upon to form the Ministry not because he had no majority but because the Governor expected that the majority might fall at any moment and there may be no stable Ministry, and on this aspect G. K. Misra, C.J. observed that the Governor is not concerned whether the Ministry could be stable in future. If the Ministry which would have been formed by the Leader of the Opposition would have fallen afterwards, the Governor would have been justified to recommend for the President’s Rule if at that time no other person was in a position to from an alternative Ministry by having majority support. But, in the instant case, the position is entirely different as at the initial stage itself the Governor has in unequivocal terms stated in his report that he is also satisfied that there is no other party which is in a position to form the Government.

Coming to the case of Vamuzo, (1988(2) Gauh LJ 468) the facts are :

“Hokishe Sema formed the Government in 1987. Chishi attempted to bring down and destabilise the Government. To achieve that end he offered money and lured the separated group of 13 to step out from the ruling party. The Governor called the episode ‘incredible lack of political morality and complete disregard of the wishes of the electorates on the part of the breakway congressmen’. That none of them therefore had ever expressed any grievances to the Chief Minister at any time in the past. The 13 persons are kept under forcible confinement by K. L. Chishi and Vamuzo. The split of the party is not true. It is obvious that what may be called a political group of the darkest hue has been stated in his absence contrary to the, noble Naga character and democratic traditions’. The recognition by the Speaker was done in haste.

The entire incident manifests political horse trading and machinations. He added there is proof that they are the group of 13 persons have not separated from the ruling party voluntarily …..” If we look at those facts, again we find that there is absolutely no similarity of the aforesaid facts to the two material facts in the case on hand. In the said case, as found on those facts, the Governor was held to have exceeded his jurisdiction and the facts stated therein were found to be irrelevant to the provisions of An. 356(1), by the Gauhati High Court.

So far as Sarkada Commission Report, the report of the Committee of Governors and the Address of the Speaker of Lok Sabha are concerned, the views expressed therein are really commendable and it is expected that wherever any such drastic action, like the exercise of power under Art. 356(1), is taken, it should be ensured that the subjective satisfaction of the President is not based on any irrelevant, irrational or perverse ground. But, in the view we have taken on the facts of this case, the views expressed in those reports are of no assistance to the petitioners.

Moreover these recommendations are to alter the exist-ing laws, which implies that till these recommendations are moulded into constitutionally enforceable norms the existing law would prevail.

34. Mr. Soli Sorabjee had made pointed reference to the Tenth Schedule i.e. Anti Defection Law, for bringing home his point that the factum of the withdrawal of the support by 19 legislators was wholly irrelevant. This argument was advanced to prove his point that in the context of Anti Defection Legislation, floor test was the most relevant, legitimate and surest method to determine whether the Council of Ministers headed by Sri S.R. Bommai commanded the majority in the House or not. We are afraid, we are unable to agree with this submission of the learned counsel. The introduction of Tenth Schedule in the Constitution has not in any way affected the exercise of power under Art. 356 nor has it amended Art.

356 in any manner. The amending body which inserted the Tenth Schedule to the Constitution had before it several decisions (specially the Rajasthan Case as to the scope of Art. 356. There is a presumption that the law-making body was aware of the existing interpretation given by the Supreme Court on a provision of law or of a Constitutional provision. If the said Constitutional provision (Art. 356) was untouched while adding a new schedule to the Constitution elsewhere without reference to the existing provision (Art. 356), we have to presume that the existing interpretation of the said provision continues to govern the situation. It is not possible to hold that the interpretation given to Art. 356 in Rajasthan Case, if continued to govern it, would destroy the efficacy of the Tenth Schedule. Tenth Schedule to the Constitution is applicable to the transaction of business inside the House of Legislature. The ami defection activity outside the House is not penalised in any manner by Tenth Schedule. Concept of the failure of the Constitutional machinery of the Government is not confined to the loss of majority by a ministry in the House; it may be due to several reasons. Therefore, if meeting of the Legislature, was contemplated as a mandatory requirement preceding a report of the Governor for an action under Art. 356 and floor test was impliedly made the sole and exclusive test to judge the stability of the Ministry (after the Tenth Schedule was added to the Constitution), the Tenth Schedule would have been suitably worded, or Art.

356 would have been altered.” In para 389, Justice Reddy states that the High Court has dismissed the writ petition giving following reasoning :

“(1) The proclamation under Article 356(1) is not immune from judicial scrutiny. The court can examine Whether the satisfaction has been formed on wholly extraneous material or whether there is a rational nexus between the material and the satisfaction.

(2) In Article 356, the President means the Union council of ministers. The satisfaction referred to therein is subjective satisfaction. This satisfaction has no doubt to be formed on a consideration of all the facts and circumstances.

(3) The two reports of the Governor conveyed to the President essential and relevant facts which were relevant for the purpose of Article 356. The facts stated in the Governor’s report cannot be stated to be irrelevant. They are perfectly relevant.

(4) Where the Governor’s “personal bona fides” are not questioned, his satisfaction that no other party is in a position to form the government has to be accepted as true and is based upon a reasonable assessment of all the relevant facts.

(5) Recourse to floor test was neither compulsory nor obligatory. It was not a prerequisite to sending up a report recommending action under Article 356(1), (6) The introduction of Xth Schedule to the Constitution has not affected in any manner the content of the power under Article 356.

(7) Since the proclamation has to be issued on the satisfaction of the Union council of ministers the Governor’s report cannot be faulted on the ground of legal mala fides.

(8) Applying the test indicated in the State of Rajasthan v. Union of India, the court must hold, on the basis of material disclosed, that the subjective satisfaction arrived at by the President is conclusive and cannot be faulted. The proclamation, therefore, is unobjectionable.” Except for aforesaid reasons 1 and 2, other reasons were not accepted by Justice Reddy. Learned Judge did not accept the reasoning of the High Court that where Governor’s personal bona fides are not questioned, his satisfaction that no party is in a position to form the Government has to be accepted as true as it is based on reasonable assessment of all the relevant facts. The Court also did not accept the reasoning that the Governor’s report cannot be faulted on the ground of mala fides. Learned Judge has stated that the question whether government has lost the confidence of the House is not a matter to be determined by the Governor or for that matter anywhere else except the floor of the House.

The House is the place where the democracy is in action.

It is not a question of subjective satisfaction of the Governor. It would be useful to note what has been observed in paragraph 391 which reads thus:

“391. We must also say that the observation under point (7) is equally misplaced. It is true that action under Article 356 is taken on the basis of satisfaction of the Union Council of Ministers but on that score it cannot be said that ‘legal mala fides’ of the Governor is irrelevant. When the Article speaks of the satisfaction being formed on the basis of the Governor’s report, the legal mala fides, if any, of the Governor cannot be said to be irrelevant. The Governor’s report may not be conclusive but its relevance is undeniable. Action under Article 356 can be based only and exclusively upon such report. Governor is a very high constitutional functionary.

He is supposed to act fairly and honestly consistent with his oath. He is actually reporting against his own Government. It is for this reason that Article 356 places such implicit faith on his report. If, however, in a given case his report is vitiated by legal mala fides, it is bound to vitiate the President’s action as well.

Regarding the other points made in the judgment of the High Court, we must say that the High Court went wrong in law in approving and upholding the Governor’s report and the action of the President under Article 356. The Governor’s report is vitiated by more than one assumption totally unsustainable in law. The Constitution does not create an obligation that the political party forming the ministry should necessarily have a majority in the Legislature. Minority Governments are not unknown. What is necessary is that that Government should enjoy the confidence of the House. This aspect does not appear to have been kept in mind by the Governor.

Secondly and more importantly whether the council of ministers have lost the confidence of the House is not a matter to be determined by the Governor or for that matter anywhere else except the floor of the House. The principle of democracy underlying our Constitution necessarily means that any such question should be decided on the floor of the House. The House is the place where the democracy is in action. It is not for the Governor to determine the said question on his own or on his own verification. This is not a matter within his subjective satisfaction. It is an objective fact capable of being established on the floor of the House. It is gratifying to note that Sri R.

Venkataraman, the former President of India has affirmed this view in his Rajaji Memorial Lecture (Hindustan Times dated February 24, 1994).

The substantial reasons given by the High Court in paragraphs 28 to 34 for dismissing the writ petition did not find favour with this Court. Dealing with the report of the Governor in respect of Karnataka, it was held that in the circumstances it cannot be said that the Governor’s report contained or was based upon relevant material. There could be no question of the Governor making an assumption of his own.

Clearly, Bommai’s case expanded the scope of judicial review. True, observations by Justice Reddy were made in the context of a situation where the incumbent Chief Minister is alleged to have lost the majority support or the confidence of the House and not in the context of a situation arisen after a general election in respect whereof no opinion was expressed, but, in our view the principles of scope of judicial review in such matters cannot be any different. By and large, same principles will apply when making recommendation for dissolution of a newly elected Assembly and again plunging the State to elections.

Justice Reddy, for upholding the dissolution of the State Legislatures of Madhya Pradesh, Rajasthan and Himachal Pradesh also came to the conclusion that the reports of the Governor disclosed that the State Government had miserably failed to protect the citizens and the property of the State against the internal disturbances and on the basis of the said report, the President formed the requisite satisfaction. Dealing with the circumstances in the State of Madhya Pradesh, it was held that ‘Governor’s reports are based upon relevant material and are made bona fide and after due verification’. (Emphasis supplied by us) Thus, it is open to the Court, in exercise of judicial review, to examine the question whether the Governor’s report is based upon relevant material or not; whether it is made bona fide or not; and whether the facts have been duly verified or not. The absence of these factors resulted in the majority declaring the dissolution of State Legislatures of Karnataka and Nagaland as invalid.

In view of the above, we are unable to accept the contention urged by the ld. Attorney General for India, Solicitor General of India and Additional Solicitor General, appearing for the Government that the report of the Governor itself is the material and that it is not permissible within the scope of judicial review to go into the material on which the report of the Governor may be based and the question whether the same was duly verified by the Governor or not. In the present case, we have nothing except the reports of the Governor. In absence of the relevant material much less due verification, the report of the Governor has to be treated as the personal ipse dixit of the Governor. The drastic and extreme action under Article 356 cannot be justified on mere ipse dixit, suspicion, whims and fancies of the Governor. This Court cannot remain a silent spectator watching the subversion of the Constitution. It is to be remembered that this Court is the sentinel on the qui vive. In the facts and circumstances of this case, the Governor may be main player, but Council of Ministers should have verified facts stated in the report of the Governor before hurriedly accepting it as a gospel truth as to what Governor stated. Clearly, the Governor has mislead the Council of Ministers which lead to aid and advice being given by the Council of Ministers to the President leading to the issue of the impugned Proclamation.

Regarding the argument urged on behalf of the Government of lack of judicially manageable standards and, therefore, the court should leave such complex questions to be determined by the President, Union Council of Ministers and the Governor, as the situation like the one in Bihar, is full of many imponderables, nuances, implications and intricacies and there are too many ifs and buts not susceptible of judicial scrutiny, the untenability of the argument becomes evident when it is examined in the light of decision in Bommai’ case upholding the challenge made to dissolution of the Assemblies of Karnataka and Nagaland. Similar argument defending the dissolution of these two assemblies having not found favour before a Nine Judge Bench, cannot be accepted by us. There too, argument was that there were no judicially manageable standards for judging Horse-trading, Pressure, Atmosphere being vitiated, wrongful confinement, Allurement by money, contacts with insurgents in Nagaland. The argument was rejected.

The position was different when Court considered validity of dissolution of Assemblies of Madhya Pradesh, Rajasthan and Himachal Pradesh.

In paragraphs 432 and 433 of the opinion of Justice Jeevan Reddy in Bommai’s case, after noticing the events that led to demolition of Babri Masjid on 6th December, 1992, the assurances that had been given prior to the said date, the extraordinary situation that had arisen after demolition, the prevailing tense communal situation, the learned Judge came to the conclusion that on material placed before the Court including the reports of the Governors, it was not possible to say that the President had no relevant material before him on the basis of which he could form satisfaction that BJP Governments of Madhya Pradesh, Rajasthan and Himachal Pradesh cannot disassociate themselves from the action and its consequences and that these Governments, controlled by one and the same party, whose leading lights were actively campaigning for the demolition of structure, cannot be disassociated from the acts and deeds of the leaders of BJP. It was further held that if the President was satisfied that the faith of these BJP Governments in the concept of secularism was suspected in view of the acts and conduct of the party controlling these Governments and that in the volatile situation that developed pursuant to the demolition, the Government of these States cannot be carried on in accordance with the provisions of the Constitution, the Court is not able to say that there was no relevant material upon which he could be so satisfied. Under these circumstances, it was observed that the Court cannot question the correctness of the material produced and that even if part of it is not relevant to the action.

The Court cannot interfere so long as there is some relevant material to sustain the action. For appreciating this line of reasoning, it has to be borne in mind that the same learned Judge, while examining the validity of dissolution of Karnataka and Nagaland Assemblies, agreeing with the reasoning and conclusions given in the opinion of Justice Sawant which held that the material relied upon by the Governor was nothing but his ipse dixit came to the conclusion that the said dissolution were illegal. The majority opinion and the correct ratio thereof can only be appreciated if it is kept in view that the majority has declared invalid the dissolution of Assemblies of Karnataka and Nagaland and held as valid the dissolution of the Assemblies of Madhya Pradesh, Rajasthan and Himachal Pradesh. Once this factor is kept in full focus, it becomes absolutely clear that the plea of perception of the same facts or the argument of lack of any judicially manageable standards would have no legs to stand.

In the present case, like in Bommai’s case, there is no material whatsoever except the ipse dixit of the Governor. The action which results in preventing a political party from staking claim to form a Government after election, on such fanciful assumptions, if allowed to stand, would be destructive of the democratic fabric. It is one thing to come to the conclusion that the majority staking claim to form the Government, would not be able to provide stable Government to the State but it is altogether different thing to say that they have garnered majority by illegal means and, therefore, their claim to form the Government cannot be accepted. In the latter case, the matter may have to be left to the wisdom and will of the people, either in the same House it being taken up by the opposition or left to be determined by the people in the elections to follow. Without highly cogent material, it would be wholly irrational for constitutional authority to deny the claim made by a majority to form the Government only on the ground that the majority has been obtained by offering allurements and bribe which deals have taken place in the cover of darkness but his undisclosed sources have confirmed such deals. The extra-ordinary emergency power of recommending dissolution of a Legislative Assembly is not a matter of course to be resorted to for good governance or cleansing of the politics for the stated reasons without any authentic material. These are the matters better left to the wisdom of others including opposition and electorate.

It was also contended that the present is not a case of undue haste. The Governor was concerned to see the trend and could legitimately come to the conclusion that ultimately, people would decide whether there was an ‘ideological realignment”, then there verdict will prevail and the such realigned group would win elections, to be held as a consequence of dissolution. It is urged that given a choice between going back to the electorate and accepting a majority obtained improperly, only the former is the real alternative. The proposition is too broad and wide to merit acceptance. Acceptance of such a proposition as a relevant consideration to invoke exceptional power under Article 356 may open a floodgate of dissolutions and has far reaching alarming and dangerous consequences. It may also be a handle to reject post-election alignments and realignments on the ground of same being unethical, plunging the country or the State to another election. This aspect assumes great significance in situation of fractured verdicts and in the formation of coalition Governments. If, after polls two or more parties come together, it may be difficult to deny their claim of majority on the stated ground of such illegality. These are the aspects better left to be determined by the political parties which, of course, must set healthy and ethical standards for themselves, but, in any case, the ultimate judgment has to be left to the electorate and the legislature comprising also of members of opposition.

To illustrate the aforesaid point, we may give two examples in a situation where none of the political party was able to secure majority on its own :

1. After polls, two or more political parties come together to form the majority and stake claim on that basis for formation of the Government. There may be reports in the media about bribe having been offered to the elected members of one of the political parties for its consenting to become part of majority.

If the contention of the respondents is to be accepted, then the constitutional functionary can decline the formation of the Government by such majority or dissolve the House or recommend its dissolution on the ground that such a group has to be prevented to stake claim to form the Government and, therefore, a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution.

2. A political party stakes claim to form the Government with the support of independent elected candidates so as to make the deficient number for getting majority. According to the media reports, under cover of darkness, large sums of bribe were paid by the particular party to independent elected candidates to get their support for formation of Government. The acceptance of the contention of the respondents would mean that without any cogent material the constitutional functionary can decline the formation of the Government or recommend its dissolution even before such a claim is made so as to prevent staking of claim to form the Government.

We are afraid that resort to action under Article 356(1) under the aforesaid or similar eventualities would be clearly impermissible. These are not the matters of perception or of the inference being drawn and assumptions being made on the basis whereof it could be argued that there are no judicial manageable standards and, therefore, the Court must keep its hands off from examining these matters in its power of judicial review.

In fact, these matters, particularly without very cogent material, are outside the purview of the constitutional functionary for coming to the conclusion that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution.

The contention that the installation of the Government is different than removal of an existing Government as a consequence of dissolution as was the factual situation before the Nine Judge Bench in Bommai’s case and, therefore, same parameters cannot be applied in these different situations, has already been dealt with hereinbefore. Further, it is to be remembered that a political party prima facie having majority has to be permitted to continue with the Government or permitted to form the Government, as the case may be.

In both categories, ultimately the majority shall have to be proved on the floor of the House. The contention also overlooks the basic issue. It being that a party even, prima facie, having majority can be prevented to continue to run the Government or claim to form the Government declined on the purported assumption of the said majority having been obtained by illegal means. There is no question of such basic issues allegedly falling in the category of “political thicket” being closed on the ground that there are many imponderables for which there is no judicially manageable standards and, thus, outside the scope of judicial review.

The further contention that the expression ‘situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution’ in Article 356 shows that the power is both preventive and/or curative and, therefore, a constitutional functionary would be well within his rights to deny formation of the Government to a group of parties or elected candidates on the ground of purity of political process is of no avail on the facts and circumstances of this case, in view of what we have already stated. Even if preventive, power cannot be abused.

Another contention urged is that the power under Article 356 is legislative in character and, therefore, the parameters relevant for examining the validity of a legislative action alone are required to be considered and in that light of the expressions such as ‘mala fide’ or ‘irrational’ or ‘extraneous’ have to be seen with a view to ultimately find out whether the action is ultra vires or not. The contention is that the concept of malafides as generally understood in the context of executive action is unavailable while deciding the validity of legislative action. The submission is that that the malafides or extraneous consideration cannot be attributed to a legislative act which when challenged the scope of inquiry is very limited.

For more than one reason, we are unable to accept the contention of the proclamation of the nature in question being a legislative act. Firstly, if the contention was to be accepted, Bommai’s case would not have held the proclamation in case of Karnataka and Nagaland as illegal and invalid. Secondly, the contention was specifically rejected in the majority opinion of Justice Jeevan Reddy in paragraph 377. The contention was that the proclamation of the present nature assumes the character of legislation and that it can be struck down only on the ground on which a legislation can be struck down. Rejecting the contention, it was held that every act of Parliament does not amount to and does not result in legislation and that the Parliament performs many other functions. One of such functions is the approval of the proclamation under clause (3) of Article 356. Such approval can, by no stretch of imagination, be called ‘legislation’. Its legal character is wholly different. It is a constitutional function, a check upon the exercise of power under clause (1) of Article 356. It is a safeguard conceived in the interest of ensuring proper exercise of power under clause (1). It is certainly not legislation nor legislative in character.

Mr. Subramaniam, learned Additional Solicitor General, however, contended that Bommai’s case proceeded on the assumption that the proclamation under Article 356(1) is not legislative but when that issue is examined in depth with reference to earlier decisions in the cases of In Re: The Delhi Laws Act, 1912, the Ajmer-Merwara (Extension of Laws) Act, 1947 and the Part C States (Laws) Act, 1950 [1951] INSC 35; [1951 SCR 747 at page 970-971]; Jayantilal Amrit Lal Shodhan v. F.N.

Rana and Ors. [(1964) 5 SCR 294 at 205-206];

Rameshchandra Kachardas Porwal & Ors. State of Maharashtra & Ors. [(1981) 2 SCC 722], A.K. Roy v.

Union of India & Ors. [(1982) 1 SCC 271], it would be clear that the conclusion of Justice Reddy in para 377 requires re-look in the light of these decisions. We are unable to accept the contention. The decision of Nine Judge Bench is binding on us.

Though Bommai has widened the scope of judicial review, but going even by principles laid in State of Rajasthan’s case, the existence of the satisfaction can always be challenged on the ground that it is mala fide or based on wholly extraneous and irrelevant grounds.

Apart from the fact that the narrow minimal area of judicial review as advocated in State of Rajasthan’s case is no longer the law of the land in view of its extension in Bommai’s case but the present case even when considered by applying limited judicial review, cannot stand judicial scrutiny as the satisfaction herein is based on wholly extraneous and irrelevant ground.

The main ground being to prevent a party to stake claim to form the Government.

In State of Rajasthan’s case, in para 185, Justice Untwalia observed that this Court is not powerless to interfere with such an order which is ultra vires, wholly illegal or mala fide as in such a situation it will tantamount in law to be no order at all. Further observing that it is incompetent and hazardous for the Court to draw conclusions by investigation of facts by entering into the prohibited area but at the same time it would be equally untenable to say that the Court would be powerless to strike down the order, if on its face, or, by going round the circumference of the prohibited area, the Court finds the order as a mere pretence or colourable exercise of the extraordinary powers given under certain Articles of the Constitution and thus in a given case it may be possible to conclude that it is a fraud on the exercise of the power. In the present case, we have reached the conclusion that the action of the Governor was a mere pretence, the real object being to keep away a political party from staking a claim to form the Government.

Referring to the opinion of Justice Reddy, in Bommai’s case, it was contended for the respondents that the approach adopted in Barium Chemicals Ltd.

and Anr. v. Company Law Board and Ors. [(1966) Supl. SCR 311] and other cases where action under challenge is taken by statutory or administrative authorities, is not applicable when testing the validity of the constitutional action like the present one. For proper appreciation of the contention, it may be useful to reproduce in full paragraphs 372 and 373 from which certain observations were relied upon. The same read as under:

“372. Having noticed various decisions projecting different points of view, we may now proceed to examine what should be the scope and reach of judicial review when a proclamation under Article 356(1) is questioned. While answering this question, we should be, and we are, aware that the power conferred by Article 356(1) upon the President is of an exceptional character designed to ensure that the Government of the States is carried on in accordance with the Constitution. We are equally aware that any misuse or abuse of this power is bound to play havoc with our constitutional system. Having regard to the form of Government we have adopted, the power is really that of the Union Council of Ministers with the Prime Minister at its head. In a sense, it is not really a power but an obligation cast upon the President in the interest of preservation of constitutional Government in the States. It is not a power conceived to preserve or promote the interests of the political party in power at the centre for the time being nor is it supposed to be a weapon with which to strike your political opponent. The very enormity of this power –undoing the will of the people of a State by dismissing the duly constituted Government and dissolving the duly elected Legislative Assembly — must itself act as a warning against its frequent use or misuse, as the case may be. Every misuse of this power has its consequences which may not be evident immediately but surface in a vicious form a few years later.

Sow a wind and you will reap the whirlwind. Wisdom lies in moderation and not in excess.” (Emphasis supplied by us) Further, learned Judge states that :

“373. Whenever a proclamation under Article 356 is questioned, the court will no doubt start with the presumption that it was validly issued but it will not and it should not hesitate to interfere if the invalidity or unconstitutionality of the proclamation is clearly made out. Refusal to interfere in such a case would amount to abdication of the duty cast upon the court — Supreme Court and High Courts — by the Constitution. Now, what are the grounds upon which the court can interfere and strike down the proclamation? While discussing the decisions herein-above, we have indicated the unacceptability of the approach adopted by the Privy Council in Bhagat Singh v. Emperor (AIR 1931 PC 111) and King Emperor v. Bengari Lal Sarma (AIR 1945 PC 48). That was in the years 1931 and 1944, long before the concept of judicial review had acquired its present efficacy. As stated by the Pakistan Supreme Court, that view is totally unsuited to a democratic polity.

Even the Privy Council has not stuck to that view, as is evident from its decision in the case from Malaysia Stephen Kalong Ningkan v. Government of Malaysia (1970 AC 379). In this case, the Privy Council proceeded on the assumption that such a proclamation is amenable to judicial review. On facts and circumstances of this case, it found the action justified. Now, coming to the approach adopted by the Pakistan Supreme Court, it must be said — as indicated hereinbefore –that it is coloured by the nature of the power conferred upon the President by Section 58(2)(b) of the Pakistani Constitution.

The power to dismiss the federal Government and the National Assembly is vested in the President and President alone. He has to exercise that power in his personal discretion and judgment.

One man against the entire system, so to speak –even though that man too is elected by the representatives of the people. That is not true of our Constitution. Here the President acts on the aid and advice of the Union Council of Ministers and not in his personal capacity. Moreover, there is the check of approval by Parliament which contains members from that State (against the Government/Legislative Assembly of which State, action is taken) as well. So far as the approach adopted by this Court in Barium Chemicals is concerned, it is a decision concerning subjective satisfaction of an authority created by a statute. The principles evolved then cannot ipso facto be extended to the exercise of a constitutional power under Article 356. Having regard to the fact that this is a high constitutional power exercised by the highest constitutional functionary of the Nation, it may not be appropriate to adopt the tests applicable in the case of action taken by statutory or administrative authorities — nor at any rate, in their entirety. We would rather adopt the formulation evolved by this court in State of Rajasthan as we shall presently elaborate. We also recognise, as did the House of Lords in C.C.S.U. v. Minister for the Civil Service (1985 AC 374) that there are certain areas including those elaborated therein where the court would leave the matter almost entirely to the President/Union Government. The court would desist from entering those arenas, because of the very nature of those functions. They are not the matters which the court is equipped to deal with. The court has never interfered in those matters because they do not admit of judicial review by their very nature. Matters concerning foreign policy, relations with other countries, defence policy, power to enter into treaties with foreign powers, issues relating to war and peace are some of the matters where the court would decline to entertain any petition for judicial review.

But the same cannot be said of the power under Article 356. It is another matter that in a given case the court may not interfere. It is necessary to affirm that the proclamation under Article 356(1) is not immune from judicial review, though the parameters thereof may vary from an ordinary case of subjective satisfaction.” The aforesaid paragraphs cannot be read in isolation and have to be seen while bearing in mind that learned Judge invalidated dissolution of Assembly of Karnataka and Nagaland. Be that as it may, in the present case, the validity of the impugned notification is not being judged on application of principles available for judging the validity of administrative actions.

Further, para 376 of the opinion of Justice Jeevan Reddy is very instructive and it may be reproduced as under :

“We recognise that judicial process has certain inherent limitations. It is suited more for adjudication of disputes rather than for administering the country. The task of governance is the job of the Executive. The Executive is supposed to know how to administer the country, while the function of the judiciary is limited to ensure that the Government is carried on in accordance with the Constitution and the Laws. Judiciary accords, as it should, due weight to the opinion of the Executive in such matters but that is not to say, it defers to the opinion of Executive altogether. What ultimately determines the scope of judicial review is the facts and circumstances of the given case. A case may be a clear one — like Meghalaya and Karnataka cases — where the court can find unhesitatingly that the proclamation is bad. There may also be cases — like those relating to Madhya Pradesh, Rajasthan and Himachal Pradesh — where the situation is so complex, full of imponderables and a fast-evolving one that the court finds it not a matter which admits of judicial prognosis, that it is a matter which should be left to the judgment of and to be handled by the Executive and may be in the ultimate analysis by the people themselves. The best way of demonstrating what we say is by dealing with the concrete cases before us.

(Emphasis supplied by us) It is evident from the above that what ultimately determines the scope of judicial review is the facts and circumstances of the given case and it is for this reason that the Proclamations in respect of Karnataka and Nagaland were held to be bad and not those relating to Madhya Pradesh, Rajasthan and Himachal Pradesh.

We are not impressed with the argument based on a possible disqualification under Tenth Schedule if the MLAs belonging to LJP party had supported the claim of Nitish Kumar to form the Government. At that stage, it was a wholly extraneous to take into consideration that some of the members would incur the disqualification if they supported a particular party against the professed stand of the political party to which they belong. The intricate question as to whether the case would fall within the permissible category of merger or not could not be taken into consideration. Assuming it did not fall in the permissible arena of merger and the MLAs would earn the risk of disqualification, it is for the MLAs or the appropriate functionary to decide and not for the Governor to assume disqualification and thereby prevent staking of claim by recommending dissolution. It is not necessary for us to examine, for the present purpose, para 4 of the Tenth Schedule dealing with merger and/or deemed merger. In this view the question sought to be raised that there cannot be merger of legislative party without the first merger of the original party is not necessary to be examined. The contention sought to be raised was that even if two-third legislators of LJP legislative party had agreed to merge, in law there cannot be any merger without merger of original party and even in that situation those two-third MLAs would have earned disqualification. Presently, it is not necessary to decide this question. It could not have been gone into by the Governor for recommending dissolution.

The provision of the Tenth Schedule dealing with defections, those of RP Act of 1951 dealing with corrupt practice, electoral offences and disqualification and the provisions of Prevention of Corruption Act, 1988 are legal safeguards available for ensuring purity of public life in a democracy. But, in so far as the present case is concerned, these had no relevance at the stage when the dissolution of the Assembly was recommended without existence of any material whatsoever. There was no material for the assumption that claim may be staked based not on democratic principles and based on manipulation by breaking political parties.

There cannot be any doubt that the oath prescribed under Article 159 requires the Governor to faithfully perform duties of his office and to the best of his ability preserve, protect and defend the Constitution and the laws. The Governor cannot, in the exercise of his discretion or otherwise, do anything what is prohibited to be done. The Constitution enjoins upon the Governor that after the conclusion of elections, every possible attempt is made for formation of a popular Government representing the will of the people expressed through the electoral process. If the Governor acts to the contrary by creating a situation whereby a party is prevented even to stake a claim and recommends dissolution to achieve that object, the only inescapable inference to be drawn is that the exercise of jurisdiction is wholly illegal and unconstitutional. We have already referred to the Governor report dated 21st May, 2005, inter alia, stating that 17 18 MLAs belonging to LJP party are moving towards JDU which would mean JDU may be in a position to stake claim to form the Government. The further assumption that the move of the said members was itself indicative of various allurements having been offered to them and on that basis drawing an assumption that the claim that may be staked to form a Government would affect the constitutional provisions and safeguards built therein and distort the verdict of the people would be arbitrary. This shows that the approach was to stall JDU from staking a claim to form the Government. At that stage, such a view cannot be said to be consistent with the provisions of Tenth Schedule. In fact, the provisions of the said Schedule at that stage had no relevance. It is not a case of ‘assumption’, or ‘perception’ as to the provisions of Constitution by the Governor. It is a clear case where attempt was to somehow or the other prevent the formation of a Government by a political party – an area wholly prohibited in so far as the functions, duties and obligations of the Governor are concerned. It was thus a wholly unconstitutional act.

It is true as has been repeatedly opined in various reports and by various constitutional experts that the defections have been a bane of the Indian Democracy but, at the same time, it is to be remembered that the defections have to be dealt with in the manner permissible in law.

If a political party with the support of other political party or other MLA’s stakes claim to form a Government and satisfies the Governor about its majority to form a stable Government, the Governor cannot refuse formation of Government and override the majority claim because of his subjective assessment that the majority was cobbled by illegal and unethical means. No such power has been vested with the Governor. Such a power would be against the democratic principles of majority rule.

Governor is not an autocratic political Ombudsman. If such a power is vested in the Governor and/or the President, the consequences can be horrendous. The ground of mal administration by a State Government enjoying majority is not available for invoking power under Article 356. The remedy for corruption or similar ills and evils lies elsewhere and not in Article 356(1). In the same vein, it has to be held that the power under Tenth Schedule for defection lies with the Speaker of the House and not with the Governor. The power exercised by the Speaker under the Tenth Schedule is of judicial nature. Dealing with the question whether power of disqualification of members of the House vests exclusively with the House to the exclusion of judiciary which in Britain was based on certain British legislature practices, as far as India is concerned, it was said in Kihoto’s case that :

“It is, therefore, inappropriate to claim that the determinative jurisdiction of the Speaker or the Chairman in the Tenth Schedule is not a judicial power and is within the non-justiciable legislative area.” The Governor cannot assume to himself aforesaid judicial power and based on that assumption come to the conclusion that there would be violation of Tenth Schedule and use it as a reason for recommending dissolution of assembly.

The Governor, a high Constitutional functionary is required to be kept out from the controversies like disqualification of members of a Legislative Assembly and, therefore, there are provisions like Article 192(2) in the Constitution providing for Governor obtaining the opinion of the Election Commission and acting according to such opinion, in the constitutional scheme of things.

Similar provision, in so far as, member of Parliament is concerned being in Article 103(2) of the Constitution {Brundaban Nayak v. Election Commission of India & Anr. [(1965) 3 SCR 53]; and Election Commission of India & Anr. v. Dr. Subramaniam Swamy & Anr.

[(1996) 4 SCC 104].

For all the aforesaid reasons, the Proclamation dated 23rd May, 2005 is held to be unconstitutional.

POINT NO.3 : If the answer to the aforesaid questions is in affirmative, is it necessary to direct status quo ante as on 7th March, 2005 or 4th March, 2005? As a consequence of the aforesaid view on point no.

2, we could have made an order of status quo ante as prevailing before dissolution of Assembly. However, having regard to the facts and the circumstances of the case, in terms of order of this Court dated 7th October, 2005, such a relief was declined. Reasons are the larger public interest, keeping in view the ground realities and taking a pragmatic view. As a result of the impugned Proclamation, the Election Commission of India had not only made preparations for the four phase election to be conducted in the State of Bihar but had also issued Notification in regard to first two phases before conclusion of arguments. Further, in regard to these two phases, before 7th October, 2005, even the last date for making nominations and scrutiny thereof was also over.

In respect of 1st phase of election, even the last date for withdrawal of nominations also expired and polling was fixed for 18th October, 2005. The election process had been set in motion and was at an advanced stage.

Judicial notice could be taken of the fact that considerable amount must have been spent; enormous preparations made and ground works done in the process of election and that too for election in a State like the one under consideration. Having regard to these subsequent developments coupled with numbers belonging to different political parties, it was thought fit not to put the State in another spell of uncertainty. Having regard to the peculiar facts, despite unconstitutionality of the Proclamation, the relief was moulded by not directing status quo ante and consequently permitting the completion of the ongoing election process with the fond hope that the electorate may again not give fractured verdict and may give a clear majority to one or other political party the Indian electorate possessing utmost intelligence and having risen to the occasion on various such occasions in the past.

POINT NO.4 : What is the scope of Article 361 granting immunity to the Governor? By order dated 8th September, 2005, we held that the Constitution of India grants immunity to the Governor as provided in Article 361. Article 361(1), inter alia, provides that the Governor shall not be answerable to any Court for the exercise and performance of the powers and duties of his office or for any act done or purported to be done by him in the exercise and performance of those powers and duties. We accepted the submissions made on behalf of the respondents that in view of this Article notice could not be issued to the Governor, at the same time, further noticing that the immunity granted does not affect the power of this Court to judicial scrutinise attack made on the Proclamation issued under Article 356(1) of the Constitution of India on the ground of malafides or it being ultra vires and that it would be for the Government to satisfy the Court and adequately meet such ground of challenge. A mala fide act is wholly outside the scope of the power and has no existence in the eyes of the law.

We, further held that the expression ‘purported to be done’ in Article 361 does not cover acts which are mala fide or ultra vires and thus, the Government supporting the Proclamation under Article 356(1) shall have to meet the challenge. The immunity granted under Article 361 does not mean that in the absence of Governor, the grounds of mala fide or being ultra vires would not be examined by the Court. This order was made at the stage when we had not examined the question whether the exercise of power by the Governor was mala fide or ultra vires or not. This question was argued later.

In our order dated 8th September, 2005 while giving the brief reasons we stated that detailed reasons will be given later.

Article 361(1) which grants protection to the President and the Governor reads as under :

“361.Protection of President and Governors and Rajpramukhs.–(1) The President, or the Governor or Rajpramukh of a State, shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties :

Provided that the conduct of the President may be brought under review by any court, tribunal or body appointed or designated by either House of Parliament for the investigation of a charge under article 61: Provided further that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Government of India or the Government of a State.

(2) No criminal proceedings whatsoever shall be instituted or continued against the President, or the Governor of a State, in any court during his term of office.

(3) No process for the arrest or imprisonment of the President, or the Governor of a State, shall issue from any court during his term of office.

(4) No civil proceedings in which relief is claimed against the President, or the Governor of a Slate, shall be instituted during his term of office in any court in respect of any act done or purporting to be done by him in his personal capacity, whether before or after he entered upon his office as President, or as Governor of such Stale, until the expiration of two months next after notice in writing has been delivered to the President or the Governor, as the case may be, or left at his office stating the nature of the proceedings, the cause of action therefor, the name, description and place of residence of the party by whom such proceedings are to be instituted and the relief which he claims.” A plain reading of the aforesaid Article shows that there is a complete bar to the impleading and issue of notice to the President or the Governor inasmuch as they are not answerable to any Court for the exercise and performance of their powers and duties. Most of the actions are taken on aid and advice of Council of Ministers. The personal immunity from answerability provided in Article 361 does not bar the challenge that may be made to their actions. Under law, such actions including those actions where the challenge may be based on the allegations of malafides are required to be defended by Union of India or the State, as the case may be. Even in cases where the personal malafides are alleged and established, it would not be open to the Governments to urge that the same cannot be satisfactorily answered because of the immunity granted.

In such an eventuality, it is for the respondent defending the action to satisfy the Court either on the basis of the material on record or even filing the affidavit of the person against whom such allegation of personal malafides are made. Article 361 does not bar filing of an affidavit if one wants to file on his own. The bar is only against the power of the Court to issue notice or making the President or the Governor answerable. In view of the bar, the Court cannot issue direction to President or Governor for even filing of affidavit to assist the Court.

Filing of an affidavit on one’s own volition is one thing than issue of direction by the Court to file an affidavit.

The personal immunity under Article 361(1) is complete and, therefore, there is no question of the President or the Governor being made answerable to the Court in respect of even charges of malafides.

In Union Carbide Corporation, etc., etc. v. Union of India, etc. etc. [(1991) 4 SCC 584], dealing with Article 361(2) of the Constitution, Justice Venkatahalliah referred to the famous case of Richard Nixon [(1982) [1982] USSC 140; 457 US 731] about theoretical basis for the need for such immunity. It was said “Article 361(2) of the Constitution confers on the President and the Governors immunity even in respect of their personal acts and enjoins that no criminal proceedings shall be instituted against them during their term of office.

As to the theoretical basis for the need for such immunity, the Supreme Court of the United States in a case concerning immunity from civil liability (Richard Nixon v. Ernest Fitzgerald, [1982] USSC 140; 457 US 731 :

73 Law Ed 2d 349) said:

“…..This Court necessarily also has weighed concerns of public policy, especially as illuminated by our history and the structure of our Government…..” “…..In the case of the President the inquiries into history and policy though mandated independently by our case, tend to converge. Because the Presidency did not exist through most of the development of common law, any historical analysis must draw its evidence primarily from our constitutional heritage and structure. Historical inquiry thus merges almost at its inception with the kind of “public policy” analysis appropriately undertaken by a federal court. This inquiry involves policies and principles that may be considered implicit in the nature of the President’s office in a system structured to achieve effective Government under, a constitutionally mandated separation” of powers.” (L Ed p.367) “…..In view of the special nature of the President’s constitutional office and functions, we think it appropriate to recognise absolute Presidential immunity from damages liability for acts within the “outer perimeter” of his official responsibility.

Under the Constitution and laws of the United States the President has discretionary responsibilities in a broad variety of areas, many of them highly sensitive. In many cases it would be difficult to determine which of the President’s innumerable “functions” encompassed a particular action…..” A division Bench of the Bombay High Court in the case of Shri Pratapsing Raojirao Rane & others v.

The Governor of Goa & others [AIR 1999 Bombay 53] has correctly held that in respect of his official acts, the Governor is not answerable to the Court even in respect of charge of mala fide and that in such an eventuality the Governor cannot be said to be under the duty to deal with the allegations of mala fide. The Constitutional Law of India, 4th Edn. by H.M.Seervai has been rightly relied upon in the said judgment. The observations made by full Bench of the Madras High Court in K.A.

Mathialagan & Ors. v. The Governor of Tamil Nadu & Ors. [AIR 1973 Madras 198] that the Governor would be under duty to deal with allegations of mala fide in order to assist the Court has been rightly described in Seervai’s commentary being in direct conflict with the complete personal immunity of the Governor.

The words ‘purported to be done’ are of wide amplitude. In Biman Chandra v. Governor, West Bengal [AIR 1952 Calcutta 799] it was held that Article 361 affords immunity in respect of its exercise and performance of the power and duties of the office and any act done or purported to be done by him in exercise and performance of those powers and duties.

In G.D.Karkare v. T.L.Shevde [AIR 1952 Nagpur 330] construing the expression ‘purporting to be done’ it was held that any act, though not done in pursuance of the Constitution, may nevertheless be accorded this protection if the act professes or purports to be done in pursuance of the Constitution. It was further explained that though the Governor is not amenable to the process of the Court but it cannot be said that the High Court cannot examine his action and grant relief in the absence of authority making the decision.

In State v. Kawas Manekshaw Nanavati [AIR 1960 Bombay 502] full Bench of the High Court held that Article 361 only gives personal protection to the Governor. It is not necessary that the Governor should be a party to the proceeding. Validity of actions can be considered and decided in the absence of the Governor.

In The State of West Bengal and Ors. v. Sallendra Nath Bose [AIR 1964 Calcutta 184] it was held that a citizen is not without redress even though he cannot implead the Governor as a party but can be given relief.

The position in law, therefore, is that the Governor enjoys complete immunity. Governor is not answerable to any Court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties. The immunity granted by Article 361(1) does not, however, take away the power of the Court to examine the validity of the action including on the ground of malafides.

In view of the above, while holding the impugned Proclamation dated 23rd May, 2005 unconstitutional, we have moulded the relief and declined to grant status quo ante and consequentially permitted the completion of ongoing election process.

All petitions are disposed of accordingly.

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IN THE SUPREME COURT OF INDIA
CASE NO.: Appeal (civil) 648 of 2002

Tulsa & Ors. …PETITIONER
Vs
Durghatiya & Ors. …RESPONDENT

DATE OF JUDGMENT: 15/01/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment rendered by a learned Single Judge of the Madhya Pradesh High Court at Jabalpur. The appeal under Section 100 of the Code of Civil Procedure, 1908 (in short the ‘Code’) was directed against the judgment and decree dated 29.10.1988 passed by learned IInd Additional District Judge, Satna in Civil appeal No. 138-A of 1987. The appeal before the First appellate court was directed against the judgment and decree dated 26.4.1985 passed by learned Second Civil Judge Class I, Satna in Civil Suit No. 52- A of 1982. The suit was filed by the respondents herein for nullifying and setting aside sale deed dated 10.9.1980 and also for permanent injunction of land at Sl. Nos. 4009, 4010, 4011 and 4014. The sale deed dated 10.9.1980 was in respect of lands at Sl. Nos. 3853, 3993, 4002, 4003, 4004, 4009. 4010, 4014, 4015 and 4021 of Mauza Nayagaon, Tehsil Raghurajnagar, District Satna. According to them the disputed property is the joint ancestral property of Radhika Singh, Sunder Singh and the husband of plaintiff No.1, Dadau Singh who was the father of the other two plaintiffs – Smt. Rani and Smt. Butan. Vansh Gopal had three sons, Radhika Singh, Sunder Singh and Dadau Singh. Sunder died without any legal heir. No partition had taken place between Radhika and Sunder and Radhika, Sunder and Dadau all used to do cultivation jointly. As Radhika and Sunder died without leaving legal heirs, the plaintiffs became the sole owners of the property. Loli, the original defendant No.1 is the wife of Mangal Kachhi and his daughter Tulsa Bai, the present appellant was born to Loli and Mangal Kachhi. After the birth of her daughter Tulsabai, deceased Radhika Singh, kept defendant No.1 as a mistress in his house and left for somewhere else taking her along and came back after many years. She gave birth to three daughters namely Vidya, Badaniya and Rajaniya. Defendant No.1 was a Kachhia by caste and was also the cognitive of deceased Radhika, so she had no legal rights in the property. After the death of Radhika, Defendant No.1 was residing with Badri Prasad Pandey. Badri Prasad got sale deed executed in favour of defendant No.1 of disputed property with intention to usurping the land. Plaintiffs are in possession. They came to know about the transaction when defendant Nos.2 to 4 submitted an application for transfer of land in their names and then it came to light that defendant No.1 had no title over the land and the land was in possession of plaintiffs 1 to 3. On 17.12.1984 plaintiffs got the information that the defendant Nos.2 and 3 have got their names mutated in respect of certain lands, therefore the suit was filed. In the written statement filed the defendants took the stand that the family tree indicated by the plaintiff was correct. Out of the land 12 acres owned by the family of Durghatiya, the plaintiff No.1 had sold her share of land. About 30 years back partition has taken place between Dadau and Sunder. Dadau had separated after taking his share. He got the land in certain villages. Radhika and Sunder used to live jointly and used to do cultivation over the land which they got in partition. They died while living jointly in the year 1970. Plaintiff-Durghatia and Radhika had sold their land in the capacity of owners during their lifetime. Sunder did not marry and had no issue. Defendant No.1 is the widow of Radhika. They were blessed with five daughters and one son, out of which one son and one daughter died. The eldest daughter Tulsa and the younger daughter were given in marriage by Radhika. Plaintiff No.1 used to regard defendant No.1 as her jethani. Radhika and defendant No.1 lived together for thirty years as husband and wife and, therefore, she had legitimate claim over the property as his wife. It was also disputed that defendant No.1 was living with defendant Nos.2 to 5. Defendant No.1 had sold the lands to defendant Nos.2, 3 and 4 had also given possession. Defendant No.1 had taken a debt on the marriage of her son and for that purpose she sold the land. She claimed that she had right to sell the land and therefore no question of having any illegal possession. Four issues were framed by the trial court and the important and vital issue was framed as issue No.2 which read as follows : “Whether the defendant No.1 was the wife of Radhika Singh”? The question was answered in the affirmative. After referring to the evidence of the witnesses examined by the plaintiffs as well as the defendants, the trial court held that there was no merit in the suit and accordingly it was dismissed. The judgment and decree were questioned in appeal before the first appellate court.

2. As noted above, the first appellate court allowed the appeal. The trial court noted that there was a presumption of valid marriage, as for decades Radhika and plaintiff No.1 lived together, their daughters were given in marriage by Radhika. Loli the defendant No.1 was earlier married to Mangala Kochhi and after his death she married Radhika. It is to be noted that the stand of the plaintiffs was that Loli married Radhika during the lifetime of Mangal Katchhi. The trial court rejected this plea. The first appellate court observed that Loli started living with Radhika during the life time of Mangal Katchhi, so the presumption of valid marriage was not there. The judgment and decree of the first appellate court was challenged before the High Court. The High Court formulated the following questions for adjudication: “Whether in the facts and circumstances of the case, the first appellate Court erred in law in finding that Mst. Lollibai was not the legally married wife of Radhika Singh?”

3. After discussing the respective stand of the parties, the High Court came to a somewhat peculiar finding. It held that the findings recorded by the appellate court may be erroneous, but it does not appear to be perverse.

4. It is to be noted that the first appellate court without any evidence or material came to an abrupt conclusion that the defendant No.1 Loli started living with Radhika during the lifetime of her husband. There is no discussion with reference to any material as to the basis for such a conclusion.

5. Some of the conclusions of the trial court in this regard are relevant. In paragraph 16 of the judgment it was noted as follows:

“In the content of the aforesaid judgment, now we have to examine this that whether we have sufficient basis to make a presumption of legal marriage of Lolli and Radhika Singh. In this connection, plaintiff witness Visheshar had admitted in para 9 of his statement that there were four daughters and one son born of Lolli and Radhika Singh. The eldest daughter of Lolli is Tulsi. Rani was born to Lolli after 2- 3 years of her arriving in the village. Three of the daughters of Lolli was married off by Radhika Singh and she had also contributed.”

6. Again at para 18 it was observed as follows: “Witness Devdhari has also admitted in his statement that after 2-3 years of the birth of first born Bhaiyalal Mangal Kachhi had died. Lolli used to work as a labourer. She also used to be labourer with Radhika Singh. Radhika Singh had retained Lolli as his wife. The daughters of Lolli were married off by Radhika Singh. Ram Milan Singh had admitted in his statement that all these four daughters were alive. They were born of Radhika and Lolli. The daughters which were born of Radhika Singh, their Kanyadan was also performed by Radhika Singh. He has also admitted this in his statement that Radhika Singh had married off his daughters as Vaishyas and Thakurs married off their daughters. He had attended the marriage.”

7. In para 24 it was observed as follows: “This has also been argued by learned counsel of the plaintiff that even if this is accepted that Lolli and Radhika Singh stayed as husband and wife for many days and they were blessed with children even then it cannot be presumed that Lolli is legitimate wife of Radhika Singh. Because Lolli moved in with Radhika Singh then her husband had been alive. His former husband Mangal Kachhi had been alive, till she got divorce by Mangal Kachhi till then Lolli could not have entered in second marriage with Radhika Singh. I am no in agreement with this argument of the learned counsel of the plaintiff because the evidence, which has been adduced from the side of the plaintiff and defendants, from that it becomes clear, that after Bhaiyalal was born to Lolli from mangal, mangal had thrown Lolli out of the house. Then Lolli worked as a casual labourer for some time and meanwhile Mangal had died. Thereafter Radhika Singh adopted her as his wife. This fact has been admitted by Devdhari in para 4 of his statement that Lolli used to frequent village Bointa from Bandhi to work as a labourer, thereafter she was adopted.”

8. In contrast, the first appellate court held that Bhaiyalal (DW2) who was born to Lolli and Mangal, had stated that he was very young when his father died and when he was young his mother had left. From that it was inferred that during the lifetime of Mangal Katchhi, Lolli left the Mangal and was living with Radhika. This conclusion is clearly contrary to the evidence on record. A bare reading of the evidence of DW 2 shows that he had clearly stated that Mangal was not alive when Lolli came and stayed with Radhika.

9. At this juncture reference may be made to the Section 114 of the Indian Evidence Act, 1872 (in short the ‘Evidence Act’). The provision refers to common course of natural events, human conduct and private business. The court may presume the existence of any fact which it thinks likely to have occurred. Reading the provisions of Sections 50 and 114 of the Evidence Act together, it is clear that the act of marriage can be presumed from the common course of natural events and the conduct of parties as they are borne out by the facts of a particular case.

10. A number of judicial pronouncements have been made on this aspect of the matter. The Privy Council, on two occasions, considered the scope of the presumption that could be drawn as to the relationship of marriage between two persons living together. In first of them i.e. A. Dinohamy v. W.L. Blahamy [AIR 1927 P.C. 185] their Lordships of the Privy Council laid down the general proposition that: “Where a man and woman are proved to have lived together as man and wife, the law will presume, unless, the contrary be clearly proved that they were living together in consequence of a valid marriage, and not in a state of concubinage.”

11. In Mohabhat Ali v. Md. Ibrahim Khan [AIR 1929 PC 135] their Lordships of the Privy Council once again laid down that: “The law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for number of years.”

12. It was held that such a presumption could be drawn under Section 114 of the Evidence Act.
13. Where the partners lived together for long spell as husband and wife there would be presumption in favour of wedlock. The presumption was rebuttable, but a heavy burden lies on the person who seeks to deprive the relationship of legal origin to prove that no marriage took place. Law leans in favour of legitimacy and frowns upon bastardy. (See: Badri Prasad v. Dy. Director of Consolidation and Ors. [AIR 1978 SC 1557].

14. This court in Gokal Chand v. Parvin Kumari [AIR 1952 SC 231] observed that continuous co-habitation of woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage, but the presumption which maybe drawn from long co-habitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them.

15. As noted above, the continuous living together of Lolli and Radhika has been established. In fact the evidence of the witnesses examined by the plaintiff also established this fact. The conclusion of the first appellate court that they were living together when Mangal was alive has not been established. The evidence on record clearly shows that Lolli and Radhika were living together after the death of Mangal.

16. Above being the position, the appeal deserves to be allowed which we direct. The judgment and decree of the first appellate court and the High Court are set aside and those of the trial court stand restored.

17. Appeal is allowed but with no order as to costs.

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IN THE SUPREME COURT OF INDIA
CASE NO.: Appeal (crl.) 1081 of 2005

P. MANI …PETITIONER
Vs
State of Tamil Nadu …RESPONDENT

DATE OF JUDGMENT: 24/02/2006
BENCH: S.B. Sinha & P.P. Naolekar

JUDGMENT

S.B. SINHA, J.

1. The appellant was convicted on a charge of commission of an offence under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life as also a fine of Rs. 5000 by a judgment and order dated 10-01-2001 passed by Additional Sessions Court Kanyakumari District at Nagercoil in S.C. No. 183 of 1999.

2. The deceased was the wife of the Appellant. They were not in good terms. The deceased nurtured grudge against him in the belief that the Appellant was having affairs with another woman (PW-12) who is wife of his elder brother (PW-11). On 4-10-1998 at 10.45 a.m. some children had been witnessing television in the house of the Appellant. They came out therefrom stating that the deceased had asked them to go out of the house and bolted the door from inside, upon hearing the same PWs 1, 2 and the Appellant herein went back and broke open the door. Allegedly, the Appellant had poured kerosene on her and set fire to the deceased.

3. It is not in dispute that the door of the room was broken open. The said witnesses as also PWs 3 to 6 saw the deceased in flames. The fire was extinguished and she was taken to the government hospital. It is moreover not in dispute that the Appellant took her to the hospital along with other witnesses. They reached hospital at about 11.15 a.m. A dying declaration was recorded by a judicial Magistrate between the period 12.25 p.m. and 12.45 p.m. in the presence of a doctor (PW-15). A Head Constable (PW-23), in-change of Kulachal Police Station in the meantime received information about the said incident whereupon he arrived at the hospital recorded the statement of the deceased again from 14.15 p.m. to 14.45 p.m. on the basis whereof the First Information Report was lodged. A case under Section 307 of the Indian Penal Code (Code) was registered against the Appellant. In Column No. 7 of the said First Information Report the name of the Appellant was shown as accused. The Investigating Officer (PW-24) on 5-10-1998 made seizure of kerosene can, matchstick, iron bolt etc. She died in the government hospital at about 11.15 a.m. on 9-10-1998, whereafter the charge in the F.I.R. was altered to Section 302 of the Code. The Appellant was arrested in connection with the said case on 21-10-1998.

4. The Appellant was put on trial, a charge-sheet having been filed for commission of an offence under Section 302 of the Code. It is not in dispute that before the learned Sessions Judge, Kanyakumari District at Nagercoil in whose court the case was transferred for disposal, all the material witnesses turned hostile. The defence case was that she committed suicide as after undergoing a Histectomy operation, she suffered hormonal unbalance leading to mental stress and strain. She was said to have been not only suffering from mental illness and unsoundness of mind but also from depression. The son and daughter of the deceased categorically stated that the deceased had been suffering from mental illness and had made attempts to commit suicide by pouring kerosene and setting fire on her person on an earlier occasion but the same was prevented by PW-9.

5. The learned Sessions Judge convicted the Appellant relying only upon the dying declaration made by the deceased. The High Court on appeal preferred by the Appellant herein from the said judgment and order of conviction and sentence upheld the same inter alia holding that the dying declaration made by the deceased is reliable. The High Court moreover took into consideration also the circumstances that the Appellant had absconded from the place of occurrence from 4-10-1998 to 21.10.98. The learned court opined that it was for the Appellant herein to offer some explanation in terms of Section 106 of the Evidence Act as the occurrence took place inside a room and the Appellant was present therein. Only because the deceased had undergone Histectomy operation, the court was of the view, the same would not mean that she would lose her mental balance.

6. Mr. V.J. Francis, learned counsel appearing on behalf of the Appellant, would, inter alia, submit that the dying declarations were not reliable in view of the fact that the deceased died five days thereafter. The learned counsel also pointed out certain discrepancies in the two dying declarations. It was argued that in view of the fact that the witnesses did not support the prosecution case, the learned Sessions judge as also the High Court acted illegally in passing the judgment and order of conviction and sentence.

7. Mr. Subramonium Prasad, learned counsel appearing on behalf of the State, on the other hand, would argue that keeping in view of the fact that the dying declaration was made by the deceased shortly after she was brought to the hospital before the Magistrate, the High Court cannot be said to have committed an error in placing reliance thereupon. It was also submitted that although motive for commission of the offence could not be proved, the conviction and sentence can be upheld on the basis of the said dying declarations alone. Our attention has also ben drawn to the conduct of the Appellant.

8. There are certain striking features in this case. All the prosecution witnesses in unison stated that the children who were witnessing television came out the room saying that the deceased had bolted the same from inside. PW-1 Kumaradas and PW-2 Saravanadas have been engaged in the work of soaking coconut husk. They categorically stated that they together with the Appellant forced open the door and doused fire. Their neighbours, PWs 3 to 6, also made identical statements. It is furthermore not in doubt or dispute that the room had two doors and both were found to have ben locked from inside. The Investigating Officer admittedly stated that at the place of occurrence neither a gas stove nor a kerosene stove nor firewood was found. He had seized the bolt from inside the house in a molten condition. There were only two entrances in the front and back of the house.

9. The High Court, however, did not pay much credence to the said statements of the Investigating Officer and other witnesses inter alia on the ground that the burden of proof thereof lies upon the Appellant in terms of Section 106 of the Evidence Act as also, in view of the fact that the Appellant did not suffer any burn injury.

10. We do not agree with the High Court. In a criminal case, it was for the prosecution to prove the involvement of an accused beyond all reasonable doubt. It was not a case where both, husband and wife, were last seen together inside a room. The incident might have taken place in a room but the prosecution itself has brought out evidences to the effect that the children who had been witnessing television were asked to go out by the deceased and then she bolted the room from inside. As they saw smoke coming out from the room, they rushed towards the same and broke open the door. Section 106 of the Evidence Act, to which reference was made by the High Court in the aforementioned situation, cannot be said to have any application whatsoever.

11. The High Court furthermore commented upon the conduct of the Appellant in evading arrest from 4.10.1998 to 21.10.1998. The Investigating Officer did not say so. He did not place any material to show that the Appellant had ben adsconding during the said record. He furthermore did not place any material on records that the Appellant could not be arrested despite attempts having ben made therefore. Why despite the fact, the Appellant who had been shown to be an accused in the First Information Report recorded by himself was not arrested is a matter which was required to be explained by the Investigating Officer. He admittedly visited the place of occurrence and seized certain material objects. The Investigating Officer did not say that he made any attempt to arrest the Appellant or for that matter he had ben evading the same. He also failed and/or neglected to make any statement or bring on record any material to show as to what attempts had been made by him to arrest the Appellant. No evidence furthermore has been brought by the prosecution to show as to since when the Appellant made himself unavailable for arrest and/or absconding.

12. Absence of injury on the person of accused had been found by the High Court to be one of the grounds for believing the prosecution case. All the prosecution witnesses categorically stated that the fire was doused by pouring water. In that situation, no wonder, the Appellant did not suffer any burn injury. It is not the case of the prosecution that in fact any other person had suffered any burn injury in the process of putting out the fire. The incident admittedly took place inside a small room. It had two doors. The prosecution witnesses knocked both the doors. Their call to the deceased to open the door remained unanswered and only then they took recourse to breaking open the door. According to them, not only the Appellant herein was with them at that point of time, but also he took part in dousing the flames. Indisputably, he took the deceased to the hospital. If the version of the deceased in her dying declaration is accepted as correct, the witnesses and in particular the neighbours would have lodged a First Information Report and in any event, would not have permitted the Appellant to take her to the hospital.

13. The question is as to whether in the aforementioned situation reliance should be placed on the dying declaration. The son and daughter of the deceased categorically stated that she had ben suffering from depression and she had made an attempt to commit suicide a week prior to the date of occurrence. It is the positive case of the prosecution itself that she was not keeping good relation with the Appellant on the belief that he had an affair with another lady. The same admittedly has not been proved. If she had ben labouring under a false belief and if in fact she has ben suffering from depression for whatever reasons, the possibility of her making wrong statement before the Magistrate cannot be ruled out. In any event, the materials brought on records do not support the prosecution case, but support the defence.

14. Indisputably conviction can be recorded on the basis of dying declaration alone but therefore the same must be wholly reliable. In a case where suspicion can be raised as regard the correctness of the dying declaration, the court before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion, it is trite, is no substitute for proof. If evidence brought on records suggests that such dying declaration does not reveal the entire truth, it may be considered only as a piece of evidence in which event conviction may not be rested only on the basis thereof. The question as to whether a dying declaration is of impeceable character would depend upon several factors; physical and mental condition of the deceased is one of them. In this case the circumstances which have ben brought on records clearly point out that what might have been stated in the dying declaration may not be correct. If the deceased had ben nurturing a grudge against her husband for a long time, she while committing suicide herself may try to implicate him so as to make his life miserable. In the present case where the Appellant has ben charged under Section 302 of the Indian Penal Code, the presumption in terms of Section 113A of the Evidence Act is not available. In absence of such a presumption, the conviction and sentence of the accused must be based on cogent and reliable evidence brought on record by the prosecution. In this case, we find that the evidences are not such which point out only to the guilt of the accused.

15. We are, therefore, of the opinion that it is a fit case where the
‘‘Appellant is entitled to the benefit of doubt.’’ He shall be released to with if not required in any other case. ‘‘The impugned judgments are set aside. The appeal is accordingly allowed.’’

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SUPREME COURT OF INDIA
CASE NO.: Appeal (civil) 2275 of 2002

Standard Chartered Bank …PETITIONER
Vs
Andhra Bank Financial Services Ltd. & Ors. …RESPONDENT

DATE OF JUDGMENT: 05/05/2006
BENCH: Y.K. Sabharwal, B. N. Srikrishna & P.P. Naolekar

J U D G M E N T

with Civil Appeal No. 2276 of 2002

SRIKRISHNA, J.

These two appeals under Section 10 of the Special Courts (Trial of Offences Relating to Transactions in Securities) Act, 1992 (hereinafter referred to as “the Act”) are against the judgments of the Special Court constituted under Section 5 of the Act, by which judgments the Special Court dismissed Special Court Suit No. 11/96 and allowed Misc. Petition No. 81/95, which had been transferred to it. As a result of the said two judgments of the Special Court, the claim made by the appellant-Standard Chartered Bank (hereinafter referred to as “SCB”) was negatived in dismissed Suit No. 11/96, and the application made by Canara Bank as principal trustee of Canbank Mutual Fund (hereinafter referred to as “CMF”) for a direction to Nuclear Power Corporation of India Ltd. (hereinafter referred to as “NPCL”) to register CMF as the owner of certain bonds and to pay the interest payable thereon was allowed.

FACTS:

Sometime in December 1991, NPCL issued bonds of two series – 9% tax free bonds and 17% taxable bonds. These bonds were permitted by the Controller of Capital Issues to be sold to banks and financial institutions for private placement. On 24.2.1992 Andhra Bank Financial Services Ltd.

(hereinafter referred to as “ABFSL”) made an offer to NPCL for placing Rs.100 crores Rs. 50 crores in 9% tax free bonds and Rs. 50 crores in 17% taxable bonds. On 26.2.1992 NPCL wrote to ABFSL confirming the allotment of the 9% tax free bonds and the 17% taxable bonds, as requested.

On 26.2.1992, NPCL issued a letter of allotment (hereinafter referred to as the “LOA”) confirming the allotment of 9% tax free bonds of the nominal value of Rs. 50 crores (hereinafter referred to as the “suit bonds”). NPCL also said that intimation would be given in due course as to when the allotment letter duly discharged may be exchanged for bond certificates, and that the interest payable on the suit bonds would accrue from the date of allotment, payable on half yearly basis. On the same day ABFSL sold the suit bonds to SCB and in connection with the said sale issued its Cost Memo No. 057 dated 26.2.1992 indicating the particulars of the suit bonds and the cost at which they were being sold i.e. @ 85.05 at the total cost of Rs. 42,52,50,000/-. Against the receipt of the said Cost Memo No. 057 from ABFSL, SCB issued a Pay Order No. 246408 dated 26.2.1992 for the sum of Rs. 42,52,50,000/-. ABFSL, in turn, issued a Banker’s Receipt (hereinafter referred to as “BR”) No. 23728 acknowledging receipt of the sum of Rs. 42,52,50,000/- from SCB towards the cost of the suit bonds and undertook to deliver the suit bonds of the value of Rs. 50 crores, when ready, in exchange for the said BR duly discharged, and assured that, in the meantime, the suit bonds would be held on account of SCB. On 26/27.2.1992, ABFSL addressed a letter to SCB requiring SCB to hand over its BR No. 23728 in lieu of the original LOA in respect of the suit bonds as well as the 17% NPCL taxable bonds, which were said to have been enclosed with the said letter.

According to SCB, in April/May 1992, when the securities scam broke out, the officers of SCB made an investigation of its records and found that SCB did not have in its possession the original LOA, but only a photocopy.

On 20.5.1992, SCB wrote to NPCL alleging that though in ABFSL’s letter dated 26.2.1992, it was stated that the original LOA was forwarded, SCB had found that only a photocopy of the LOA had been enclosed. A copy of ABFSL’s concerned letter was also enclosed. SCB further stated that the original LOA purportedly sent by ABFSL was not available, that a note may be made in NPCL’s records that the original LOA was missing and, therefore, due caution should be exercised by NPCL. SCB also requested for issue of a duplicate allotment letter on the undertaking to return the original, if received by it, and keeping NPCL indemnified against claims, if any, arising out of issue of the duplicate. On 29.5.1992, SCB requested ABFSL to confirm to NPCL the fact of having sold the suit bonds to SCB. On the same date, ABFSL addressed a letter to NPCL (with a copy endorsed to SCB), confirming having sold the suit bonds to SCB on 26.2.1992. They also confirmed that they had no objection to NPCL issuing a duplicate LOA to SCB.

On 8.6.1992 one Hiten P. Dalal (hereinafter referred to as “HPD”), who was acting as a broker in a large number of securities transactions of banks and financial institutions, was declared a ‘notified person’ under the provisions of Section 3 of the Act. On 20.6.1992 SCB filed a First Information Report (“FIR”) against HPD and its own employees alleging that, as a result of a conspiracy between HPD and its own employees, several securities and monies had been misappropriated by HPD.

On 14.7.1992 CMF filled up a Transfer Deed dated 13.7.1992 and lodged it along with the original LOA with NPCL seeking transfer and registration of the suit bonds in its name. On 3.8.1992, NPCL wrote to SCB that the matter with regard to issuance of duplicate LOA of the suit bonds was being considered in consultation with its solicitors. On 17.8.1992, CMF wrote to NPCL claiming that the suit bonds had been bought on 27.2.1992 from ABFSL through a broker, HPD, and that the consideration therefor had been paid by certain adjustments between itself and ABFSL. CMF claimed that it was the legitimate holder of the suit bonds as it had received them against valid consideration. On 8.9.1992, NPCL informed CMF that they had received a request for issue of a duplicate LOA pertaining to the suit bonds from SCB, which was also claiming purchase of the suit bonds from ABFSL. On 8.9.1992 by another letter, NPCL informed SCB that CMF had lodged the original LOA for registration claiming to have purchased the suit bonds from ABFSL on 27.2.1992. On 30.9.1992 NPCL asked ABFSL to confirm if it had sold the suit bonds to SCB as NPCL had received the LOA and the transfer deed in relation to the suit bonds duly endorsed by ABFSL in favour of CMF. On 30.9.1992 NPCL informed CMF that as early as on 20.5.1992 it had received a letter from SCB conveying that the suit bonds had been transferred in SCB’s favour by ABFSL and enclosing a letter of ABFSL to evidence the transaction. They also referred to another letter of 29.5.1992 by ABFSL confirming that ABFSL had sold the suit bonds to SCB on 26.2.1992 and that it had no objection to issuing/transferring the LOA/bonds to SCB. On 9.10.1992 SCB wrote to NPCL stating that as the suit bonds had been issued to ABFSL, who had confirmed selling the same to SCB, the LOA from CMF may be disregarded. By another letter of 15.10.1992 from ABFSL to NPCL, ABFSL once again confirmed the selling of the suit bonds to SCB and stated that as per market practice the suit bonds had been sold with blank transfer deeds to SCB. On 6.11.1992 NPCL informed SCB that, since there was a dispute over the ownership of the suit bonds between SCB and CMF, the matter should be resolved between SCB and CMF, only after which necessary action would be taken by it.

On 27.11.1992 SCB filed Suit No. 3808/92 on the Original Side of the Bombay High Court against ABFSL, CMF and NPCL for a declaration that it was entitled to the suit bonds and for an order directing NPCL to register the suit bonds in the name of SCB and to hand over the same to SCB. A further declaration was sought that CMF had no right, title and interest in the suit bonds; in the alternative, SCB sought refund from ABFSL. The said suit came to be transferred to the Special Court on 25.9.1996 and was re- numbered as Special Court Suit No. 11 of 1996.

On 27.11.1992 CMF filed a petition before the Company Law Board (hereinafter referred to as “CLB”) under Section 111 of the Companies Act, 1956 seeking registration of the suit bonds in its name. The original respondents to the petition were NPCL, ABFSL and HPD. SCB was subsequently joined as a party respondent. In this petition, CMF alleged that it had purchased the suit bonds from ABFSL on 27.2.1992 through HPD, who, according to CMF, had acted as a broker/authorised agent of ABFSL in the transaction and that the payment of the price of the suit bonds to ABFSL was made by netting of the amounts of three other transactions between CMF and ABFSL made on the same day (i.e. 27.2.1992).

On 27.2.1993 NPCL contested the petition by denying the so called transaction alleged by CMF and stating that the matter was sub judice since a suit was already filed in the Bombay High Court with regard to the alleged suit bonds. ABFSL also filed a reply to the petition denying that it had sold the suit bonds to CMF and affirming their sale to SCB on 26.2.1992. SCB in its reply to the petition pointed out that it had purchased the suit bonds from ABFSL after paying consideration and that ABFSL had also confirmed that there had been no sale or delivery of the suit bonds to CMF. SCB alleged that HPD had wrongly and fraudulently diverted the suit bonds to CMF. On 16.3.1993 the CLB made an order directing all the parties to disclose the role of HPD in the transaction.

On 6.3.1995 the petition by CMF before the CLB was transferred to the Special Court and re-numbered as Misc. Petition No. 81/95. HPD had filed no affidavit in reply to the petition when the matter was before the CLB.

On 14.6.1996, after the transfer of the petition to the Special Court, HPD filed an affidavit in reply in Misc. Petition No. 81/95 stipulating that the contents thereof and the documents referred to could not and ought not to be referred to and relied upon or used against HPD in any proceedings as he could not be compelled to be a witness against himself in any court of law, whether civil or criminal. According to HPD’s version, SCB had ‘lent’ the suit bonds and the 17% NPCL bonds to him on 27.2.1992; that he had agreed to return the same with interest; that on 9.5.1992 he had purchased the suit bonds from SCB and adjusted the price payable by him to SCB against a sale by him of Cantriple Units and further that, he had sold and delivered the suit bonds to CMF on 27.2.1992.

On 25.6.1996, SCB replied to HPD’s affidavit and denied that it had any transaction with HPD in respect of the suit bonds on 27.2.1992 and denied that the suit bonds were sold by SCB to HPD on 9.5.1992, or that it had purchased Cantriple Units from HPD. SCB also pointed out several inconsistencies and contradictions in the stand taken by HPD in his affidavit.

On 27.11.1996, the Special Court dismissed Misc. Petition No. 81/95 by holding that CMF had admitted through its counsel that it was not in a position to show that it had paid any consideration for the suit bonds to ABFSL, and, as no consideration was paid by CMF either to ABFSL or to SCB, CMF could claim no title to the suit bonds, even assuming that HPD had acted as a mercantile agent and appeared to have obtained possession of the LOA through/from SCB. In view of this, the Special Court concluded that CMF could claim no right, title and interest in the suit bonds. However, in view of the fact that SCB had already filed Suit No. 11/96, it was held that SCB’s title to the suit bonds could be decided in that suit.

On 23.12.1996, CMF preferred an appeal to this Court but failed to obtain any interim relief except a direction from this Court that the Officer on Special Duty, who was in possession of the suit bonds, would not part with the suit bonds without notice to CMF and that the decision in Suit No.11/96 would be subject to the decision in the appeal.

On 10.1.1997, HPD took out Chamber Summons 1/97 in Suit No.11/96 for being joined as a party. The said Chamber Summons was opposed by SCB and by an order dated 20.3.1997, the Chamber Summons was dismissed by the Special Court taking the view that HPD was at liberty to adopt appropriate substantive proceedings regarding his alleged claim of having purchased the suit bonds from SCB on 9.5.1992. On 30.9.1997, SCB applied for withdrawal of the Suit against CMF.

This application was allowed. However, the Special Court took the view that CMF was a necessary party to the Suit in spite of its earlier order holding that CMF could claim no right, title or interest in the suit bonds and by an order made on 30.9.1997/ 1.10.1997 the Suit was dismissed on the ground of non-joinder of CMF which was a necessary party. SCB appealed therefrom to this Court.

Thus, both SCB and CMF, came in appeal to this Court against the orders made by the Special Court in Misc. Petition No. 81/95 as also of dismissal of Suit No. 11/96. By the judgment and order dated 21.4.1998 made in Civil Appeal No. 7 of 1997 etc., this Court allowed both the appeals filed by SCB and CMF and remitted the matter to the Special Court for being tried de novo. Accordingly, both, the Suit and the Misc. Petition came to be tried again by the Special Court. By the judgment dated 17.1.2002, Special Court Suit No. 11/96 was dismissed and Misc. Petition No. 81/95 was allowed. Being aggrieved, SCB is in appeal against both the judgments.

Since the impugned judgments arise out of interconnected facts, it would be convenient to dispose of both the appeals by a common judgment.

Since the judgment in Misc. Petition No. 81/95 merely follows the judgment in Special Court Suit No. 11/96, it would be sufficient to deal with the judgment in Special Court Suit No. 11/96, calling it the ‘impugned judgment’ hereinafter.

Issues:

The Special Court raised the following issues in the impugned judgment and answered them as under:

Issues Answers

1. Does the Plaint not disclose any cause of action against the Defendant No.2 ? In the affirmative i.e. in favour of CMF and against SCB 2.Whether the plaintiffs were entitled to and continue to be entitled to the suit bonds as alleged in para 8 of the Plaint ? In the negative i.e. in favour of CMF and against SCB 2A. Whether the Plaintiffs prove the circumstances in which Original BR was taken away from them as alleged in para (8) of the Plaint ? In the negative i.e. against SCB and in favour of CMF.

3. Whether the alleged transaction dated 26/2/92 was a transaction of Hiten P. Dalal as alleged in para 1(d) and 8 of the Written Statement ? In the affirmative i.e. in favour of CMF and against SCB

4. Whether the alleged transaction dated 26/2/1992 was under an arrangement with the Plaintiffs as alleged in paras 1(d) ,7, 8 and 9 of the Written Statement ? In the affirmative i.e. in favour of CMF and against SCB.

5. Whether the Plaintiffs are estopped from making any claim as alleged in para 1 read with para 22 and 29 of the Written Statement? In the affirmative i.e. in favour of CMF and against SCB.

6. Whether on 9th May 1992 the Plaintiffs purchased Cantriple Units of the face value of Rs.45.50 crores for Rs.266.18 crores (approx.) and against which the Plaintiffs sold and adjusted various securities including the suit bonds of the face value of Rs. 50 crores and whether the Plaintiffs have applied for and got the said Cantriple units of face value of Rs.45.50 crores transferred in their name in January, 1993 disclosing a sale consideration of about Rs.266.18 crores as stated in para 14 and 15 of the Written Statement ? This issue is divisible in to three parts (i) CMF has proved that SCB has purchased cantriple units of the face value of Rs. 45.50 crores on 9/5/1992. To that extent, issue is answered in the affirmative (ii) However, CMF has not proved that the said purchase was against sale of the suit bonds on 9/5/1992.

To that extent the sub-issue is answered in the negative, (iii) CMF has proved that in January, 1993 SCB applied for and have got the said cantriple units of the face value of Rs. 45.50 crores transferred in their name.

Therefore, to that extent, the sub- issue is answered in the affirmative.

7. Whether the Defendant No.2 purchased the bonds and received delivery thereof along with Transfer Deed as alleged in para 22 and 29 of the Written Statement ? In the affirmative i.e. in favour of CMF and against SCB.

8. Whether the plaintiffs deliberately by their act and or omission or negligence put Defendant No.1 or Hitel P. Dalal in a position to deal with the LOA and the Transfer Deed as they liked as alleged in para 21 and 29 of the Written Statement ? In the affirmative i.e. in favour of CMF and against SCB.

9.Whether Hiten P. Dalal was authorised to deal with and/or deemed to be authorised to deal with the Bonds as alleged in paras 22 and 29 of the Written Statement ? In the affirmative i.e. in favour of CMF and against SCB.

10. Whether the Plaintiff is entitled to any reliefs and if so what As per final Order.

ISSUES BETWEEN PLAINTIFF (SCB) AND DEFENDANT NO. 3 (NPCL) ISSUES ANSWERS

1. Whether this Court has jurisdiction to entertain and try this Suit ? In the affirmative.

2. Whether the Plaintiffs are entitled to and/or are the owners of the said securities without having received the original Letter of Allotment ?

3. Whether these Defendants are entitled to a lien on the said Bonds for securing the repayment of the deposit placed by them with the 1st Defnednats (sic) ? Answer for Issue No. 2 and 3.

Issues between SCB & NPCL were framed on 2/7/1997 i.e. after Judgment and Order of Variava, J.

(as he then was) dismissing Misc.

Petition No. 81 of 1995 on 27/11/1996 (which judgment has been subsequently overruled by the Apex Court). As stated above, at one point of time, there were disputes between plaintiff and NPCL which disputes do not survive in view of the subsequent stand taken by SCB before this Court. Therefore issues nos. 2 and 3 do not arise for determination.

4. Whether the Plaintiffs prove that these Defendants are bound to register any Bonds in the name of the Plaintiffs or to issue the said Bonds and relevant interest warrants to the Plaintiffs ? In the negative.

5. What Order ? As per final Order.

The issues framed in Misc. Petition No. 81/95 with the answers are as follows:

ISSUES FINDINGS

1. Whether the Petitioners are bonafide purchasers of value without notice of 9% NPCL Bonds from Respondent No. 3 for consideration paid to Respondent No. 3 as set out in the affidavit of S. Ramaraj dated July 12, 1993 ? In the affirmative as answered in the Judgment in suit No. 11 of 1996 i.e. in favour of the Petitioners and against SCB.

2. Whether Respondent No. 4 are entitled to object to registering transfer of 9% NPCL Bonds in favour of the Petitioners ? In the negative i.e. against SCB and in favour of the Petitioners.

3. Whether the Petitioners are entitled to have the suit LOA (for 9% NPCL Bonds f.v. 50 Crs.) transferred to their name ? In the affirmative i.e. in favour of the Petitioners and against SCB.

4. Whether there was collusion between Respondents Nos. 2, 3 and/or 4 as alleged by the Petitioners in the affidavit of M. Nayak dated April 10, 1993 ? Does not arise.

5. What Orders on the Petition? As per final order.

The core issue in both proceedings pertains to 9% NPCL Tax Free bonds and whether SCB or CMF is the owner of such bonds and entitled to be registered as such.

The Special Court held that SCB had proved that it had purchased the suit bonds from ABFSL against payment of Rs. 42,52,50,000, but it dismissed SCB’s suit and allowed CMF’s petition for the following reasons:

(1) that under the existing ‘15% Arrangment’ between SCB and HPD, SCB had purchased the suit bonds on behalf of HPD;

(2) that HPD was accordingly entitled to deal with the bonds, and (3) that HPD had delivered and sold the bonds to CMF; and thus, CMF is actually the owner.

Whether these findings are justified on facts and in law has been argued before us by learned senior counsel appearing for the parties with great perseverance, ingenuity and erudition.

I. Nature of the Suit and the Proceedings in the Misc. Petition:

The Special Court has taken the view that the suit filed by SCB is basically a title suit. Originally in the suit, a money decree in the alternative had been prayed for against ABFSL, but the monetary relief was subsequently given up. Following upon this, the Special Court held that even if CMF failed to prove the payment of consideration, SCB could not succeed in its suit as it was a title suit. In the same vein, the Special Court held that the Suit had to fail because it was a title suit and HPD was entitled to deal with the suit bonds in his own title. And since the title suit failed, SCB could not prevent NPCL from transferring the bonds in favour of CMF.

Finally, the Special Court concluded on this issue, that non-payment of consideration by CMF, as submitted by SCB, could only be questioned by HPD and not by SCB. The Special Court also held that as the Suit was a title suit, SCB was required to prove its title and could not succeed on the basis of the faults in the evidence of the defendant-CMF.

Mr. Jethmalani, learned counsel for the appellant, contended that the Special Court erred in taking the view that Suit No. 11/96 was a title suit in which SCB failed to have its title established. He submitted that on proper analysis, the suit of SCB was in the nature of a declaratory suit falling within the ambit of Section 34 of the Specific Relief Act, 1963, which corresponds to Section 42 of the Specific Relief Act, 1877 (hereinafter referred to as the “old Act”). He placed particular emphasis on illustration (c) appended to Section 42 of the old Act and contended that a declaratory suit under Section 42 of the old Act, or Section 34 of the present Specific Relief Act, need not be one for declaring the title of the plaintiff, but may be one for declaring any other legal character of the plaintiff. It is difficult to accept this contention of Mr. Jethmalani. As rightly pointed out by Mr. Kapadia, learned counsel for CMF, SCB appears to have all along claimed that its suit was a title suit. In the first place, the prayer clauses in Special Court Suit No. 11/96 read as under:

“a) For a declaration that the plaintiffs are fully entitled to 9% NPCL Tax free ‘F’ series Bonds (fifth Issue) of the Third Defendants more particularly described in Exhibit ‘G’ hereto and that the Third Defendant are bound and liable to register and (sic) said Bonds in the Plaintiffs’ name and to issue and deliver the said Bonds to the Plaintiffs along with interest warrants in respect thereto.

b) For a declaration that the second defendants have no right, title and interest whatsoever, in relation to the said Bonds, more particularly described in Exhibit ‘G’ hereto and that the Second defendants are not bonafide purchasers of the said Bonds for value.” The substantive prayers are for a declaration that the plaintiffs “are fully entitled” to the suit bonds and certain reliefs which are founded upon this declaration. A suit for such a declaration would certainly be a title suit so far as the suit bonds are concerned.

Further, even Grounds A28 and A30 of the present Civil Appeal No.2275/02 by SCB read:

“A28) The learned Judge erred in failing to appreciate that SCB having proved its title on 26th February, 1992 its said title would prevail against the whole world until a superior title of any party was established.

 A30) The learned Judge erred in failing to appreciate that thereby SCB had established its prior title to the Suit Bonds and had a better title thereto then (sic) CMF.” Thus, it is clear that the appeal has been brought on the footing that SCB had fully proved its title to the suit bonds and that the Special Court had erroneously held against SCB. Looked at from any point of view, we are not satisfied that the Suit was a mere declaratory suit, it must be regarded as a title suit.

We shall now turn to the nature of the proceedings in Misc. Petition No. 81/95. This petition was presented under Section 111 of the Companies Act, 1956. Section 111(1) provides for the power of refusal by a company to register the transfer of debentures to a transferee. The transferor or the transferee has a right of appeal to the Tribunal (then, the CLB) under sub- section (2) of Section 111. The nature of proceedings under Section 111 are slightly different from a title suit, although, sub-section (7) of Section 111 gives to the Tribunal the jurisdiction to decide any question relating to the title of any person who is a party to the application, to have his name entered in or omitted from the register and also the general jurisdiction to decide any question which it is necessary or expedient to decide in connection with such an application. It has been held in M/s Ammonia Supplies Corporation (P) Ltd. v. M/s Modern Plastic Containers Pvt. Ltd. and Ors. that the jurisdiction exercised by the Company Court under Section 155 of the Companies Act, 1956 (corresponding to Section 111 of the present Act, before its amendment by Act 31 of 1988) was somewhat summary in nature and that if a seriously disputed question of title arose, the Company Court should relegate the parties to a suit, which was the more appropriate remedy for investigation and adjudication of such seriously disputed question of title.

Mr. Kapadia, learned counsel for CMF, contended that as far as the petition of CMF was concerned, it merely invoked the summary remedy under Section 111 of the Companies Act. The only prayer made by CMF before the CLB was that it had purchased the suit bonds from ABFSL and, therefore, it was entitled to be registered as the owner of the suit bonds in the register of NPCL. Relying on Mannalal Khetan v. Kedar Nath Khetan and Ors. he contended that the provisions of Section 108 of the Companies Act, 1956 were mandatory and unless they were fulfilled, a registration of the transfer of the bonds could not be done. Further, he relied on the exemption granted from certain provisions of Section 108(1) in respect of bonds issued by a Government company. He placed reliance on Notification G.S.R. 1294 (E) dated 17.12.1986 issued by the Central Government in exercise of its powers under Section 620(1)(a) of the Companies Act, 1956.

The said Notification reads as under:

“In exercise of the powers conferred by clause (a) of sub- section (1) of section 620 of the Companies Act, 1956 ( 1 of 1956), the Central Government hereby directs that the provisions of sub-section (1) of section 108 of the said Act, in so far as it requires a proper instrument of transfer to be duly stamped and executed by or on behalf of the transferor and by or on behalf of the transferee, shall not apply with respect to bonds issued by a Government company, provided that an intimation by the transferee specifying his name, address and occupation, if any, has been delivered to the company along with the certificate relating to the bond, and if no such certificate is in existence, along with the letter of allotment of the bond, a copy of this notification having been laid in draft before both the Houses of Parliament as required by sub-section (2) of section 620 of the said Act.” It is the contention of Mr. Kapadia that the provisions of Section 108(1) of the Companies Act, 1956 are conditionally excluded by reason of this Notification as the suit bonds were issued by NPCL, which is admittedly a Government company. Thus, according to him, the suit bonds would be transferable by endorsement and delivery as long as the transferee gave intimation as contemplated under the Notification. According to him, the terms of Section 108(1) as amended by the aforesaid Notification had been fulfilled, and, therefore, there was an obligation on the part of NPCL to register CMF as the registered holder of the suit bonds. Emphasising that the intention of the legislature is to enable transferability of bonds issued by Government companies with greater facility and lesser formality, he referred to provisions of the Companies Act, 1956 and the Transfer of Property Act, 1882 (hereinafter referred to as the “TP Act”). Section 2(12) of the Companies Act, 1956 defines ‘debenture’ as including debenture stock bonds and any other securities of a company, whether constituting a charge on the assets of the company or not. Chapter VIII of the TP Act deals with transfers of actionable claims. Section 137 of the TP Act, however, provides that the provisions in Chapter VIII (Sections 130 to 136) would not apply to stocks, shares or debentures. The argument is that the mode of transfer of actionable claims specified in the TP Act (Sections 130 to 136) has been specifically done away with. Even the mode of transfer under Section 108 of the Companies Act has been considerably relaxed insofar as bonds issued by Government companies are concerned. So far as the nature of the proceedings in the Misc. Petition are concerned, it is the submission of Mr.

Kapadia that the only issue to be considered is whether CMF is a transferee of the bonds, and whether CMF has complied with Section 108 read with the Notification G.S.R. 1294(E) dated 17.12.1986 so as to be eligible for registration as the holder of the bonds.

Even if the petition filed under Section 111 of the Companies Act, 1956 was only for this limited relief of registering the petitioner-CMF as the holder of the suit bonds, we cannot accept the contention of Mr. Kapadia for two reasons. In the first place, whatever might have been the limited jurisdiction of the CLB under Section 111 of the Companies Act, 1956, while entertaining the petition, the fact that the said petition was transferred to the Special Court by an order of this Court needs to be reckoned with. The order of this Court is specific and requires the trial of Special Court Suit No.

11/96 along with Misc. Petition No. 81/95. The limitation of the jurisdiction of the CLB, if any, does not apply to the Special Court, which is clothed with all the jurisdiction of a civil court. Secondly, merely by filing a petition under Section 111 of the Companies Act, 1956 and by placing reliance on Section 108 of the Companies Act, 1956 the petitioner-CMF cannot succeed.

It would have to go further and prove that it is validly a transferee of the suit bonds, if that question is put in issue. Thus, in our view, each of the two contesting parties, i.e. SCB and CMF, would have to prove their rights and show how they are entitled to the suit bonds before any relief could be granted either in the Suit or in the Misc. Petition.

II. Nature and Effect of 15% Arrangement:

The Special Court has laid great emphasis on what it has called the ‘15% arrangement’ and concluded that because of this 15% arrangement HPD became owner of the suit bonds, which he rightfully transferred to CMF for consideration. The learned counsel for the appellant has severely criticised this conclusion as totally contrary to the evidence on record.

Under the instructions of the Reserve Bank of India (hereinafter referred to as “RBI”), banks and financial institutions were required to maintain a certain liquidity ratio of debt to equity. They could have ready forward transactions in securities only with other banks and only in respect of government and other approved securities. The statutory liquidity ratio was maintained by sale and purchase of securities, issued by Government companies and public sector institutions.

An unhealthy practice had developed among all the banks and financial institutions affected by the securities scandal, under which some securities were repeatedly shown as bought and sold in order to advance finances to certain brokers. HPD was one of them. The so called ‘15% arrangement’ was an informal arrangement with HPD under which SCB bought securities from other counter-parties, as directed by HPD, and also sold them to such parties at such rates as designated by HPD. A desired sale price was arrived at so as to ensure that SCB obtained a return of 15% of the transaction. The evidence on record consisting of the Janakiraman Committee Report (the report of a High Powered Committee appointed by RBI to investigate into the irregularities in the funds management in commercial banks and financial institutions, in particular in relation to the dealings in Government securities) has examined this arrangement and reported upon it in Paragraphs 8.1 to 8.7 of its Fourth Interim Report (March 1993), particularly with regard to the way in which the arrangement operated in SCB. The Joint Parliamentary Committee Report (hereinafter referred to as the “JPC Report”) (Exhibit-26) vide Paragraphs 8.49-8.51 has also explained this arrangement. There is also the evidence tendered on record in the form of replies to interrogatories in which SCB has explained the details of the scheme and how the 15% arrangement worked. The agreement between HPD and SCB was that, if SCB followed the instructions of HPD in the matter of which securities are to be bought or sold, from or to which parties, at what rates and when; SCB was assured of a net return of 15% of the outlay in the purchase of the securities concerned. If the return was less than 15%, HPD would bear the difference; if the return happened to be higher than 15%, HPD would be paid the difference. The evidence on record clearly bears out that this is how the 15% arrangement worked between SCB and HPD.

A. Public Policy and Res Judiciata:

Mr. Jethmalani invited our attention to an earlier judgment of this Court in Canara Bank and Ors. v. Standard Chartered Bank where the nature of the 15% arrangement was carefully considered by this Court.

Incidentally, the said judgment was delivered in a dispute between the same parties and after analysing the nature of the 15% arrangement, this Court categorically rejected the argument that it was opposed to public policy. This Court upheld the judgment of the Special Court rejecting the contention that the 15% arrangement was contrary to public policy. While rejecting the contention that the 15% arrangement was opposed to public policy, the Special Court had made the following findings:

“The object and consideration of the suit contracts are purchase/sale of the securities and payment of price.

Such securities contracts are normally entered into by banks. These may be for SLR purposes or in the normal course of business of the bank. It is the business of the bank to try and make profit. Thus even if these were part of the 15% arrangement, provided there was such an arrangement, would not make them against public policy if it was a genuine security transaction. None of the circulars relied upon by Mr. Salve prohibit such transactions. In my opinion none of the circulars have any bearing on the point under consideration. The suit transactions or transactions under the alleged 15% arrangement are not against the subject matter of these circulars. They are also not even against any policy laid down therein. I thus see no illegality.” These were expressly approved by this Court in the judgment. It appears to us that much of the controversy about the nature of the 15% arrangement could have been avoided if the judgment in the Canara Bank case (supra) had been kept in mind. We notice from the impugned judgment that the decision of this Court in Canara Bank (supra) was specifically brought to the notice of the Special Court, but it appears to have been brushed aside on the grounds, first, that the doctrine of res judicata would not apply as Section 13 of the Act had an overriding effect; second, the exact scope of the 15% arrangement was not determined by evidence in the previous suit; and third, that an arrangement by which banks and public financial institutions are enabled to earn a return higher than what is stipulated by the government/RBI, would cause inflation and the government would not be able to control its deficit, hence it was opposed to public policy. The Special Court said: “In the economic sense, they are not legitimate. On this point also, therefore, there is no merit in the arguments advanced on behalf of SCB.” We are afraid that the Special Court was wrong on all the counts. On the question of res judicata, the Special Court failed to notice that the doctrine of res judicata is not merely a matter of procedure but a doctrine evolved by the courts in larger public interest. What is enacted in Section 11 of the Civil Procedure Code (“CPC”) is not the fountain-head of the doctrine, but merely the statutory recognition of the doctrine, which rests on public policy. (See in this connection Daryao and Ors. v. The State of U.P. and Ors. , Guda Vijayalakshmi v. Guda Ramachandra Sekhara Sastry and Hope Plantations Ltd. v. Taluk Land Board, Peermade and Anr. ) In the previous suit to which both SCB and Canara Bank were parties, the same issue with regard to ‘15% arrangement’ with HPD was urged by CMF as a non-suiting factor, but was negatived both by the Special Court and by this Court. Issue No. 10 in the previous suit was the relevant issue dealing with 15% arrangement, which was as follows:

“Whether the suit transactions entered into by the Plaintiffs with the Canbank Mutual Fund were in fact entered into by the plaintiffs on behalf of Hiten Dalal as alleged in Para 5(d) of the Written Statement of Defendant No. 1?” This was an issue raised by CMF which was defendant no. 1 in that suit (Special Court Suit No. 13/94). The burden of proving this issue was on the defendant and the Special Court answered the issue in the negative and observed that the counsel for defendant no. 1 had admitted that there was no evidence to support this issue. Consequently, the Special Court held that the issue was answered in the negative i.e. against defendant no. 1. Since the Special Court findings were finally upheld by this Court in the judgment reported in Canara Bank (supra) and a review petition thereagainst was also dismissed, we are of the view that it is not open for this Court to again raise the issue and take a view contrary to what had already been decided in the previous suit, particularly in view of the fact that there has been no new revelatory evidence on this issue.

We are not in agreement with the view taken by the Special Court that Section 13 of the Act overrides the doctrine of res judicata. Section 13 of the Act provides: “The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law, other than this Act, or in any decree or order of any Court, tribunal or other authority”.

This was certainly not intended to abrogate all the established principles of law, unless they were directly in conflict with the express provisions of the Act itself. There is nothing in the Act which is inconsistent with the doctrine of res judicata, per se, as seems to have been assumed by the Special Court.

We are also unable to appreciate the thinking of the Special Court that there was something morally or economically reprehensible in the arrangement which was brought about between HPD and SCB as a result of which SCB was able to earn higher return.

B. Evidence on Record:

The evidence as to the nature of the 15% arrangement was SCB’s replies to interrogatories in previous suits, tendered by CMF as Exhibits 5, 6, 8 and 9 as evidence in the present suit, the Janakiraman Committee Report and the JPC Report, which recognise and explain the 15% arrangement.

There is nothing in all the said evidence to suggest that by entering into such a contractual transaction with HPD, HPD became the owner of the bonds.

The evidence, on the other hand, clearly brings out that at all times the securities transactions would be between SCB and the counter-party-banks, the legal relationship always being between the said two parties. In our view, therefore, the Special Court grossly erred in drawing a conclusion based on no evidence and attributing to the said arrangement a legal character, which was not proved on record. It also erred in ignoring the finding on the issue given in the previous Special Court Suit No. 13/94 as upheld by the judgment of this Court in Canara Bank (supra). The Special Court has also observed that under the 15% arrangement SCB was “maintaining broker’s position”. While this may be appropriate jargon in a stock exchange, what exactly is the legal implication, if any, of such an expression is unclear. We find no evidence on record to suggest that merely because of the 15% arrangement the legal ownership of the securities was transferred to HPD in any manner, since all the transactions appear to be between SCB and counter-party-banks. This would be evident from the fact that if the counter- party-banks failed to deliver the securities or failed to pay for the securities delivered, the legal action could only be between SCB and the counter- party-banks with which the transaction took place and not by or against HPD.

We are unable to accept the conclusions drawn by the Special Court with regard to some of the documents produced by CMF as defendant, about which no evidence by way of explanation was led by either party.

In the absence of proper explanation, it was not open to the Special Court to make inferences or assumptions with regard to terms used in the documents, for example, SCB’s securities ledger in relation to the suit bonds (Exhibit-11), which pertains to the sale and purchase of the suit bonds with different counter-parties. This document as such does not contain the description ‘portfolio’, but the said appellation has been given to it by the Special Court on its own. The Special Court has observed thereupon:

“Therefore, all such transactions were entered into by the bank on behalf of HPD. Therefore, they were transactions of HPD. This is amply illustrated by Exhibit-11. A portfolio represents stock held by SCB on behalf of HPD.

HPD was entitled to enter into buy transactions and sale transactions in respect of securities coming under that portfolio. The portfolio was built up by SCB by purchasing securities at the instance of HPD. This is also called as building up of position. The suit contract comes under Exhibit-11. By the suit contract, the LoA came within the portfolio of HPD. He was allowed to deal with the LoA under the portfolio.” We are afraid that this inference is not readily available ex facie from the document; nor was there any other evidence given by any witness explaining the document, suggesting it.

Further, the word ‘loan’ used in the Security Ledger (Exhibit-11) was seized upon by the Special Court to draw an unwarranted inference. The Special Court has held that this term shows “lending of scrip to HPD” and has then gone on to hold as follows: “this word has to be read while construing the entries in Exhibit-11 beginning from 27.2.1992. The word “loan” must be read with the column “Book Value” and the column “Profit and Loss” and “Balance”. That, last column “Balance” represents HPD’s outstanding to SCB.” There is no warrant, whatsoever, for such an explanation to this document as no witness has said so. Further, the word ‘loan’ also appears to have been used in the BR issued by AB to SCB in respect of the suit bonds (BR no. 23728 dated 27.2.1992). There was no justification for giving an interpretation to the word ‘loan’ used in any of the documents without any explanation by a witness.

The Special Court also makes a finding that the word ‘Direct’ used in SCB’s ledger showing transaction details of SCB from April 1991 to May 1992 (Exhibit-7) suggests that such transactions were all under the 15% arrangement. This again appears to be an inference which has been drawn by the Special Court without any supporting evidence thereto. In the replies to the interrogatories as well as the evidence of the witnesses no one has asserted that all transactions described as ‘direct’ were necessarily covered by the 15% arrangement. Although, the reply to Question no. 43 of the interrogatories, in Suit No. 14/94, did suggest to the contrary, the said reply not having been tendered in evidence and taken on record, does not form part of the evidence before the Special Court. The Special Court is, therefore, not justified in drawing this conclusion for which there was no acceptable evidence.

Mr. Jethmalani contended that the chargesheet (Exhibit-4), FIR (Exhibit-3), SCB’s answers to interrogatories (Exhibits 5, 6, 8 and 9), details of SCB’s securities transactions during April 1991  May 1992 (Exhibit-7), security ledger of SCB in relation to the suit bonds (Exhibit-11), SCB’s deal slips dated 9/5/92 (Exhibit-10), SCB’s vouchers (Exhibit-12), and the Janakiraman Committee Report (Exhibit-18) were all produced by CMF;

and relying on the judgments of this Court in P.C. Purushothama Reddiar v. S. Perumal and R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Anr. he urged that the contents of these documents would be binding on CMF. The Special Court has relied on these documents to arrive at a conclusion which does not arise from them.

While it may be true that the Special Court has been given a certain amount of latitude in the matter of procedure, it surely cannot fly away from established legal principles while deciding the cases before it. As to what inference arises from a document, is always a matter of evidence unless the document is self-explanatory. We do not think that any of the documents placed on record during the trial were self-explanatory; nor were they explained by any competent witness on either side. In the absence of any such explanation, it was not open to the Special Court to come up with its own explanations and decide the fate of the Suit on the basis of its inference based on such assumed explanations. In fact, these inferences run contrary to the oral evidence given by Kalyana Raman (PW-1) in relation to the transaction of 26.2.1992.

The Special Court has also adversely commented on the conduct of SCB in not leading evidence to prove what the 15% arrangement was. We fail to see how a party could be called upon to lead evidence with regard to an issue which was no part of its case. The 15% arrangement was brought on record at the instance of CMF and the burden, if any, of proving its details lay on CMF. Although, a number of documents were produced on record as called for by CMF, there was no obligation on SCB to explain any of them.

Learned counsel for CMF also contended that SCB failed to produce relevant documents that would have established what the 15% arrangement was. For this failure, he contended that an adverse inference should be drawn against SCB. For this proposition, he relies on the judgments of this court in Hiralal & Ors. v. Badkulal & Ors. , Gopal Krishnaji Ketkar v. Mohamed Haji Latif & Ors. , S. P. Chengalvaraya Naidu (dead) by L.R’s. v. Jagannath (dead) by L.R’s. & Ors. and CitiBank N. A. v. Standard Chartered Bank & Ors. .

This argument is met by learned counsel for SCB. An adverse inference is a presumption which the court is entitled to draw under Section 114 of the Indian Evidence Act, 1872 read with illustration (g) thereto. Mr.

Jethmanlani contended that the weight of the authorities would show that unless there are some special circumstances making it obligatory for a party to produce evidence, no adverse inference can be drawn unless a party has been called upon to or ordered to produce evidence and fails to do so. Mr. Jethmalani relies on Mt. Bilas Kunwar v. Desraj Ranjit Singh and Ors. , Ramrati Kuer v. Dwarika Prasad Singh and Ors. and Smt. Indira Kaur and Ors. v. Shri Sheo Lal Kapoor . In Hiralal’s case (supra), this court reiterated the observations of the Privy Council in Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi where the Privy Council laid down the general rule of procedure that instead of relying on the abstract doctrine of onus of proof a party to the suit “desiring to rely upon a certain state of facts” ought not to withold from the court the written evidence in his possession. In Gopal Krishnaji Ketkar’s case (supra) the observation in Murugesam Pillai (supra) was reiterated and it was observed: “Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof.” S. P. Chengalvaraya Naidu (supra), was a situation of a fraudulent litigant basing his case on falsehood and witholding vital documents. Citibank (supra) merely relies on the observations made in Murugesam Pillai (supra) and Gopal Krishnaji Ketkar (supra), both of which say that it is not a sound practice for those “desiring to rely upon a certain state of facts to withold from the court” the best evidence which is in their possession.

On the other hand, the three authorities on which Mr. Jethmalani relied independently take the view that unless a party is called upon to produce evidence or ordered to do so by the court and fails to do so, no adverse inference can be drawn against such party. Mr. Jethmalani distinguished the two apparently contradictory lines of authorities by pointing out that in the authorities relied on by Mr. Kapadia the facts showed that there was a special obligation upon the party concerned to produce the relevant documents even without being called upon or ordered to do so and that the party had failed to produce them. Further he pointed out that the observations of the Privy Council originating from Murugesam Pillai (supra) which have been reiterated in the subsequent cases including Citibank (supra) would apply only if the party is “desiring to rely upon a certain state of facts”. He rightly contends that the 15% arrrangement was neither any part of SCB’s case, nor was SCB desiring to rely on the said state of facts. In the circumstances there was no obligation upon SCB to produce any documents to prove the case put forward by CMF; there was no situation in which adverse inference could be drawn against SCB. Finally, Mr. Jethmalani also urged that irrespective of what the parties did, the Special Court could have, if it was so minded, invoked its power under Section 165 of the Indian Evidence Act, 1872 and directed production of all documents it considered relevant instead of relying on adverse inference which was doubtful in the circumstances. This is particularly so with regard to the argument of CMF that the computer spread sheets had not been produced, as paragraph 7 of the written statement of CMF indicates that CMF was aware of the existence of such sheets and yet failed to call upon SCB to produce it or seek an order for production thereof from the Special Court.

The whole thrust of the impugned judgment is that the transactions between SCB and the counter-party-banks, which were covered by the 15% arrangement were sham transactions, making HPD the owner of the suit bonds. Where a transaction results in rights and obligations, it can never be treated as a sham transaction. (See in this connection Chow Yoong Hong v.

Choong Fah Rubber Manufactory .) It was nobody’s case that in any of the transactions under the 15% arrangement, HPD could have been sued for enforcement of any right arising therefrom between SCB and ABFSL.

C. Estoppel:

Issue No. 5 framed by the Special Court was whether SCB was estopped from making any claim to the suit bonds by denying the authority of HPD to deal in the suit bonds, as SCB had actually, ostensibly or negligently permitted HPD to deal with the suit bonds. Although, the Special Court answered the issue in the affirmative i.e. in favour of CMF and against SCB, there does not seem to be any specific discussion on this issue nor any reason supporting the said finding. It is however true that the Special Court took the view that the direct fallout of the 15% arrangement was that HPD became the owner of the suit bonds and had the right to deal with the suit bonds as he pleased; and since this was done to the knowledge of and by acquiescence of SCB, SCB was estopped from denying that HPD had acquired any such right to deal with the suit bonds or to transfer them to any other person.

The Special Court has taken the view that the transactions reflected in the Security Ledger (Exhibit-11), indicated funding of the broker by SCB and that it was something like a ‘running account’ of HPD in the books of SCB, which had opened with an entry of 26.2.1992 and was settled on 9.5.1992. It then observed: “Under Exhibit-11, the suit scrip of 9% NPCL bonds was made available to HPD for raising finances either by sale, pledge or Ready Forward. It was bought for HPD as he had assured a fixed return to SCB. The (sic) HPD was entitled to trade. He was entitled to take position in the market on the suit bonds bought for him as he has assured a fixed return.

He was entitled to take a position on suit bonds. He took that position through SCB. Therefore, SCB had taken his position under Exhibit-11.

Under the above arrangement, SCB could claim return of the security or equivalent money value only from HPD as the transactions in Exhibit-11 are under 15% Arrangement. Therefore, SCB cannot claim any relief against CMF. They can only claim relief against HPD. SCB is estopped from claiming any relief against CMF. SCB, therefore, has no right to object to the transfer of bonds by NPCL in favour of CMF.” Learned counsel for SCB however criticised the impugned judgment of the Special Court on the ground that this finding, though not made specifically, but diffusedly over the impugned judgment arises from a misapprehension as to the exact nature of the doctrine of estoppel. Learned counsel contended that estoppel would require a representation by SCB, by acting upon which CMF should have altered its position to its prejudice.

Since the burden of proving the issue was on CMF, CMF had to show what the representation was, to whom it was made, how CMF had altered its position as a result of such representation and what prejudice it had suffered.

It was contended that no evidence was led by CMF on any of these aspects and, therefore, the Special Court had no material whatsoever before it to make any finding on the issue of estoppel other than pure conjecture and speculation based upon its understanding of the 15% arrangement. Further, learned counsel contended that if HPD had obtained the suit bonds by theft or by committing any other offence, then there would be no question of estoppel of SCB from denying the title of HPD or of any one else who claimed to have obtained title to the suit bonds from HPD. In Mercantile Bank of India Ltd. v. Central Bank of India Ltd. , it was observed:

“though estoppel has been described as a mere rule of evidence, it may have the effect of creating substantive rights as against the person estopped. Of the many forms which estoppel may take, it is here only necessary to refer to that type of estoppel which enables a party as against another party to claim a right of property which in fact he does not possess. Such estoppel is described as estoppel by negligence or by conduct or by representation or by a holding out of ostensible authority.” “that it must be the neglect of some duty that is owing to the person led into that belief, or, what comes to the same thing, to the general public of whom the person is one, and not merely neglect of what would be prudent in respect to the party himself, or even of some duty owing to third persons, with whom those seeking to set up the estoppel are not privy.” “There is a breach of the duty if the party estopped has not used due precautions to avert the risk. The detriment may entitle the innocent third person either to prosecute or to defend a claim. His identity may be ascertainable only by the event, in the sense that he has turned out to be the member of the general public actually reached and affected by the conduct, negligence, representation or ostensible authority.” It was thus held that a plea of estoppel could not be availed of if there was no duty owed by the person sought to be estopped, nor any representation made by such person. In New Marine Coal Co. (Bengal) Pvt. Ltd. v. The Union of India, this Court had occasion to examine the doctrine of estoppel and cited with approval the following observations in Halsbury’s Law of England : “before any one can be estopped by a representation inferred from negligent conduct, there must be a duty to use due care towards the party misled, or towards the general public of which he is one”, that, it was required that “the negligence on which it is based should not be indirectly or remotely connected with the misleading effect assigned to it, but must be the proximate or real cause of that result .” The judgment of the Privy Council (supra) was approvingly cited by this Court, which also observed, “before invoking a plea of estoppel on the ground of negligence, some duty must be shown to exist between the parties and negligence must be proved in relation to such duty.” Mr. Jethmalani, therefore, is justified in his submission that there was no such duty owed by SCB to CMF. At any rate, none was shown to have existed. Hence, there is no substance in the plea of estoppel raised by CMF.

D. The Benami Transactions (Prohibition) Act, 1988:

One of the arguments canvassed before us by Mr. Jethmalani was on the effect of Section 4(2) of the Benami Transactions (Prohibition) Act, 1988 on the defence of CMF in the Suit. The argument was that CMF has contended, though not in precise terms, that the suit bonds did not belong to SCB at any point of time because the 15% arrangement was only a funding transaction under which the real owner was HPD, though the suit bonds were ostensibly held by SCB. Mr. Jethmalani contends that this contention of CMF is specifically barred by Section 4(2) of the Benami Transactions (Prohibition) Act, 1988. The learned counsel for CMF, however, relies on Section 3(3) of the Act, which reads thus:

“Notwithstanding anything contained in the Code and any other law for the time being in force, on and from that date of notification under sub-section (2), any property, movable or immovable, or both, belonging to any person notified under that sub-section shall stand attached simultaneously with the issue of the notification.” The force of the words “belonging to any person notified” used in sub-section (3) of Section 3 of the Act are wide enough to result in attachment of the property which belongs to the notified person irrespective of in whose name the property stands. The provisions of Section 13 of the Act give an overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Even assuming that the argument of Mr. Jethmalani based on Section 4(2) of The Benami Transactions (Prohibition) Act, 1988 is a plausible one, we are of the view that the combined effect of Sections 3(3) and 13 of the Act would give an overriding effect to the provisions of the Act. It is rightly urged by Mr. Kapadia, learned counsel for CMF, that, if that were not so, then the whole purpose of the Act would be defeated since the objective of the Act was to reach out and attach the property in whichever hands it was, irrespective of in whose names the property stood, as long it was property belonging to a notified person. Thus, the contention based on Section 4(2) of the Benami Transactions (Prohibition) Act, 1988 has been rightly rejected by the Special Court.

Much was said by the learned counsel for CMF about the manner in which SCB has hedged its replies. The learned counsel criticised the attempt of SCB to hide the true facts and contended that SCB kept on changing its stand from time to time. He highlighted that the stand taken by SCB in the Suit, the stand taken by it in the reply to the Petition and the stand taken by it before this Court was wholly inconsistent and, therefore, urged that the claims of SCB should fail. We think that this is a classic case of the pot calling the kettle black. When we look at the defence taken by CMF, the same criticism can be validly levied against it. CMF started by saying that it had bought the suit bonds from ABFSL. When it found that the evidence was against it, it shifted its stand and said it had bought them from HPD with HPD acting on behalf of ABFSL or SCB as the broker, or on his own behalf.

We do not think that on the question of bona fides and consistency, there is anything to choose between SCB and CMF. Since both parties are tarred by the same brush, the issue will have to be resolved purely on the basis of what the legal evidence demonstrates.

III. Did SCB get any title to the suit bonds:

It is the case of SCB that it had the title to the suit bonds as it obtained the suit bonds under a contractual agreement by paying consideration for the suit bonds. This transaction is based on documentary evidence on record.

The Cost Memo (Exhibit-B) dated 26.2.1992 issued by ABFSL evidences that the suit bonds were offered to SCB at the consideration indicated in the document. The Cost Memo indicates the details of the transactions such as the description of the bonds, the number of bonds sold, the rate at which they were sold and the total consideration payable. This is accompanied by a BR. Against this, there is a pay order dated 26.2.1992 issued by SCB in favour of ABFSL in the sum of Rs.42,52,50,000/- evidencing that such consideration had been paid. The BR No. 23728 dated 26.2.1992 evidences that upon receipt of the agreed consideration, being the cost of the suit bonds sold to SCB, the BR was issued to undertake that bonds of the face value of Rs. 50 crores would be delivered when ready, in exchange for the BR duly discharged and that in the meantime the suit bonds would be held on account of SCB. The letter dated 26.2.1992 from ABFSL to SCB shows that the LOA of the suit bonds was forwarded to SCB inter alia with a request for discharging the corresponding BR No. 23728 on receipt of the LOA. The register of SCB shows that with reference to BR No. 23728, the bonds had been received, although, the word ‘photocopies’ appears to have been inserted therein. It is the case of SCB that one of its employees, Mulgaonkar, had acted fraudulently by inserting this word and causing misappropriation of the suit bonds. We find that this part of the case was not part of the pleadings of SCB either in its plaint or in the written statement filed in reply to CMF’s petition. There was also no reference to it at any time when evidence was led by the parties. The first time this part of the case appears is in the copy of the chargesheet filed by CBI against certain employees of SCB and HPD for several criminal offences. Mr. Jethmalani contended that since this chargesheet was produced on record at the instance of CMF, the averments in the chargesheet must be taken to have been proved before the court. Even assuming Mr. Jethmalani is right in characterising the charge sheet as a public document within the meaning of Section 35 of the Indian Evidence Act, 1872, we cannot accept all that is stated in the charge sheet as having been proved. All that we can say is that it is proved that the police had laid a chargesheet in which such allegations have been made against the accused. We need not delve further into it since the criminal proceedings against HPD and others are still pending and it will be up to the appropriate court to decide the correctness or otherwise of the charges in the chargesheet. All that can be said at this stage is that there were serious allegations that the original LOA went out of the possession of SCB by some nefarious means.

Learned counsel for CMF contended that even as on 26.2.1992 SCB had no title to the suit bonds since the suit bonds were under the 15% arrangement and that under the 15% arrangement the transaction was one merely of funding; in other words, that there was no real buyer or seller and it was mere paper work intended as a cover for lending money to HPD. We are unable to accept this argument for more than one reason. The documents which we have referred to above clearly evidence a transaction of sale and purchase of the suit bonds by SCB upon payment of consideration.

Secondly, ABFSL, who was the other party to the transaction, has come forward and accepted the transaction unhesitatingly. There is no reason why all this evidence should be discarded by choosing the chimera of the 15% arrangement theory. We, therefore, hold that SCB validly acquired title to the suit bonds as a result of the transaction entered into between itself and ABFSL on 26.2.1992. And that the suit bonds were in fact handed over to SCB although, it is not evident as to how the suit bonds went out of the possession of SCB. Therefore, the contention of CMF that SCB never acquired title to the suit bonds cannot be accepted. Even the Special Court finds that the contract of 26.2.1992 with regard to the suit bonds had been proved by the evidence on record. However, the Special Court goes on to say that merely proving the suit contract was not sufficient because it had to be further proved that the suit bonds had been acquired by SCB, as, in its view, the mystique of the 15% arrangement made HPD the real owner of the bonds.

Mr. Jethmalani rightly urged that the title of any person acquiring property would depend upon the antecedent title of the person from whom the property is acquired. In the instant case, the suit bonds were validly acquired by ABFSL from the original issuer, namely, NPCL and as a result of the transaction dated 26.2.1992, SCB in its turn acquired them by payment of consideration, from ABFSL. He relied on the judgments in Vasudev Ramchandra Shelat v. Pranlal Jayanand Thaker and Ors.

and L.I.C. of India v. Escorts Ltd. and Ors. in support of this proposition. The title of SCB arises from antecedent ownership of ABFSL, and it is proved that the suit bonds transaction was in accordance with law.

Mr. Kapadia, learned counsel for CMF, contended that the evidence on record showed that SCB had acquired no title at all to the suit bonds even on the initial date of transaction i.e. 26/27.2.1992. He contended that the property in the suit bonds had never passed to SCB as there was no evidence of endorsement or delivery of the suit bonds. He extensively referred to the pleadings in the plaint in Suit No. 11/96 and highlighted the fact that what was pleaded in the plaint was non-delivery of the suit bonds. The only prayer made was for a decree against NPCL, which was holding the bonds as a bailee for CMF, since CMF had forwarded the original LOA to NPCL and sought registration of its name as holder of the suit bonds. He further highlighted the fact that a decree had been sought against only NPCL, as a bailee, though CMF was in constructive possession being holder of the receipt for lodging with NPCL. He also pointed out that the plaint sought the relief of refund of money from ABFSL as an alternative relief. It is his contention that, at the most, the frame of the Suit could have been as a suit for specific performance, but since it was framed as a suit on title, it must fail. Further, he urged that even the alternative prayer of money claimed against ABFSL was given up during the trial and, therefore, the Suit must necessarily fail in its entirety.

He also pointed out that both the 17% NPCL bonds and the 9% NPCL bonds (suit bonds) were bought in the same manner, on the same day, as part of the same transaction, and a suit is filed for 17% NPCL bonds also being Suit No. 3809/92 only against ABFSL and only for a money decree. In his submission, it is somewhat surprising that with respect to the two claims – in respect of 9% NPCL bonds and 17% NPCL bonds – which were transacted on the same date under the same circumstances, while the Special Court Suit No. 11/96 pertaining to the suit bonds seeks a declaration of title, the suit in respect of the 17% NPCL bonds being Special Court Suit No. 3809/92 is for a money claim for refund of the consideration paid. He also referred to the details of the evidence and pointed out that while SCB came to the court alleging that it had never received the original LOA, which was its consistent stand in its pleadings in the Suit and also in the Petition, after the CBI submitted the charge sheet, SCB came out with the story of conspiracy of Mulgaonkar with HPD. Even this contention was not argued in the trial court at all, nor was any evidence led that SCB had made any reasonable enquiry to find out how the original LOA went into the hands of HPD. There is also no pleading or evidence to show endorsement and delivery of the concerned bonds. Relying on the decisions of this Court in Nagindas Ramdas v. Dalpatram Iccharam alias Brijram and Ors. , Thiru John v. Subramhanyam v. The Returning Officer & Ors. and Bharat Singh and Ors. v. Mst. Bhagirathi, Mr. Kapadia contended that there were admissions galore by SCB both in the pleadings and thereafter in the evidence, and as such they could not be permitted to change their stand. He pointed out that on 2.7.1997 the money decree claim against ABFSL was specifically given up and on the next day the officer of ABFSL, Kalyana Raman (PW-1), gave evidence for the plaintiff-SCB and the stand that the original LOA was not received by SCB was conveniently given up by SCB.

He also contended that the documents on which reliance is placed by SCB were not proved. The evidence of the plaintiff’s witness, Kalyana Raman, employee of ABFSL, shows that only two persons, namely, himself and another officer of ABFSL, R.V. Shenoy, had dealt with such transactions. But neither officer claimed any personal knowledge of the suit bonds transaction. Further, that Kalyana Raman gave evidence that the dealers were mainly dealing with one Shiv Kumar, another officer of SCB, who might be in the know of the suit bonds transaction. Although, SCB took out a Chamber Summons for examining the said Shiv Kumar as he was posted at Singapore at the material point, the Chamber Summons was not pursued and Shiv Kumar was not examined. Thus, according to Mr.

Kapadia, there is no evidence worth reliance placed on record to show how the deal was struck and the contract of the purchase of the bonds was brought about, as the documents placed on record were hardly worth credence. That during the cross examination of Kalyana Raman, SCB was specifically called upon to produce on record the document showing HPD’s involvement in the transaction and the learned counsel for SCB stated that there were no such documents in existence at all. Mr. Kapadia, therefore, submitted that no evidence could be considered contrary to the pleadings of SCB, for which he strongly relied on Siddik Mohamed Shah v. Mt.

Saran & Ors. , Bhagatsingh & Ors. v. Jaswant Singh and Shri Venkataramana Devaru & Ors. v. State of Mysore. For all these reasons, Mr. Kapadia submitted that SCB had failed to prove that it had acquired title to the suit bonds even on 26/27.2.1992.

Learned counsel for SCB, however, laid emphasis on the principle that SCB’s title arises from the antecedent right of ownership of its transferor, namely, ABFSL, about whose title there is no dispute at all. The suit bonds are nothing but debentures within the meaning of Section 2(12) of the Companies Act, 1956. A debenture is an actionable claim. However, Section 137 of the Transfer of Property Act exempts debentures inter alia from the provisions of Sections 130 to 136 of the TP Act. Thus, with respect to debentures, there is no prescribed mode of transfer of property under the TP Act. According to Mr. Jethmalani, an act between the transferor and transferee is sufficient to convey all rights of ownership, except the right to have the bonds registered, for which the requirements of the Companies Act, 1956 have to be followed. In his submission, the Suit and the Misc.

Petition were nothing but rival claims made for being placed on the register of NPCL, and the party which had legitimately acquired the ownership rights by reason of transfer from the antecedent owner of the suit bonds, would be entitled to be placed on the register of NPCL as the registered holder of the bonds. His reliance on the judgment of Controller of Estate Duty v. Godavari Bai in support of the proposition is justified. Section 9 of the TP Act recognises even an oral transfer made in every case in which a writing is not expressly required by law. Mr. Jethmalani submitted that the transfer in the instant case would be valid even without execution of any kind of instrument in writing and without actual delivery of the suit bonds.

He is justified in relying on the Cost Memo, which is part of the evidence, as being sufficient to evidence the contract of transfer of the bonds, since it is signed by the transferor, names the transferee, indicates the details of the suit bonds, the amount of consideration, the mode of its payment and delivery of the BR as evidence of the holding of the bonds by ABFSL on behalf of SCB. Mr. Jethmalani is right in his submission that this transfer has been accepted even by the Special Court. Mr. Jethmalani went to the extent of contending that even formal delivery of the original LOA was not an essential requisite to complete the transaction so as to effectuate the transfer of property in the suit bonds to SCB and whether the BR was duly discharged would hardly be a material fact, since the BR does recognise SCB’s right and declares that the bonds were being held on behalf of SCB.

We are, therefore, satisfied that there was transfer of the property in the suit bonds to SCB and the evidence on record is sufficient to arrive at such a conclusion. It was wholly unnecessary for SCB to go further and prove how the BR was discharged and how the LOA went out of its possession, which were the facts emphasised on behalf of CMF. Nor was it necessary for SCB to lead evidence as to how HPD had intercepted the original LOA, when and in what manner.

Turning to the argument that SCB could not be permitted to make an argument inconsistent with the pleadings on record, we need to see an order dated 2.7.1997 made by the Special Court. On that day the learned counsel for SCB made a statement that he was not pressing for relief of monetary claim in terms of prayer (b) of its plaint. While settling the issues between SCB and CMF and SCB and NPCL, the learned counsel for SCB made a statement that he would not be pressing the contention that the original LOA had not been received by SCB. In view thereof, the Special Court did not permit the issue proposed to be raised by CMF on the said point. CMF proposed another issue as to whether SCB was not aware of the circumstances in which the original LOA was taken away from it. This issue was held by the Special Court to be irrelevant for the purposes of the Suit on the ground that, as the plaintiff was not pressing the contention that they have not received the original LOA; it was not necessary.

Mr. Jethmalani rightly contended, that when these admissions were placed on record formally, there was no objection by CMF to these admissions being taken on record, nor was there any challenge by CMF to the ruling given by the Special Court, overruling the framing of the aforesaid two issues. In the circumstances, he submits that it is not open to CMF to raise an objection at this stage. Apart therefrom, Mr. Jethmalani also relied on Order XII Rule 1 of the Civil Procedure Code to contend that it is open to a party at any time to give notice, by his pleading, or otherwise in writing, that he admits the truth of the whole or any part of the case of any other party. This was precisely what happened during the trial on 2.7.1997.

Merely because such a situation arises, the rest of the case does not get affected and has to be tried in accordance with law. In Bhagwati Prasad v.

Chandramaul, while dealing with the argument that it would not be open to a party to sustain a claim on a ground which is entirely new or not pleaded, this Court rejected the contention and held that it was a general doctrine which could not be applied irrespective of the facts of the case on hand and observed thus (vide paragraph 10):

“But in considering the application of this doctrine to the facts of the present case, it is necessary to bear in mind the other principle that considerations of form cannot over-ride the legitimate considerations of substance. If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another.” We respectfully concur with the said observations and reject the contention of Mr. Kapadia that SCB could not be permitted to rely on its changed stand.

There is one minor issue with regard to the date of the letter written by ABFSL, namely, whether it was 26.2.1992 or 27.2.1992. The evidence of Kalyana Raman makes it clear that mentioning the date of the letter as 26.2.1992 was a mistake and that the actual date of the letter was 27.2.1992.

IV. Did SCB lose title to the suit bonds at any time before the suit was filed? A large portion of the impugned judgment is devoted to an analysis of the Securities Ledger (Exhibit-11) and raising inferences thereupon. There is no doubt that Exhibit-11 is a securities ledger maintained by SCB in respect of the suit bonds. Ex facie, the Securities Ledger shows the date on which the transaction took place, the counterparty to the transaction, whether the transaction was a sale or purchase, face value of the transaction, rate of the transaction, book value, interest paid/received, profit/loss of the transaction and the balance. The document as such does not give rise to an inference that in any of the transactions HPD had become the owner of the suit bonds. The Special Court, on account of a misreading of the evidence pertaining to the 15% arrangement, drew a conclusion from this Exhibit-11 that HPD became the owner of the suit bonds right from 26.2.1992 and thereafter all the transactions were those of HPD, the losses or gains being credited to the account of HPD. We have already seen the evidence on record as to the 15% arrangement. No part of that evidence can legitimately give rise to the inference that in respect of securities transacted under the said arrangement, any person other than SCB or the counterparty become the owner of these securities. We have already seen that the suit bonds were purchased by SCB legitimately on 26.2.1992 by payment of consideration to ABFSL, which fact is even accepted by the Special Court. However, on analysis of certain documents on record, the Special Court has come to the conclusion that on 9.5.1992 the suit bonds were sold by SCB to HPD. The transaction dated 9.5.1992 thus becomes crucial and has to be scrutinised to see if this inference is correct.

The Special Court laid great emphasis on Exhibit-7 (details of SCB’s securities transactions during April 1991  May 1992), which purportedly shows that on 9.5.1992 the suit bonds were sold to Andhra Bank (hereinafter referred to as “AB”). There is also SCB’s deal slip no. 10729 showing that there was a sale of the suit bonds of the face value of Rs. 50 crores @ Rs.

91.00 to AB. According to SCB, entries in the deal slips from nos. 10727 to 10735 were sham entries made in order to account for a large amount of money which HPD admitted to be owed to SCB and paid up by transferring Cantriple Units worth about Rs. 205 crores. SCB’s explanation is that it had to show in its books, the receipt of this Rs. 205 crores and, therefore, a number of sham entries were recorded in deal slip Nos. 10727 to 10735 and were also indicated in Exhibit-7, AB being shown throughout as the counterparty and all such transactions being shown as ‘direct’. The learned counsel for SCB contended that these were sham entries in order to take into the books of SCB the large amount of Rs. 205 crores.

According to the FIR which is exhibited by CMF on record, by about 30.4.1992, the officers of SCB discovered that there had been a series of transactions in securities conducted through HPD, as a result of which, securities to the tune of about Rs. 300 crores remained unaccounted for, as neither securities nor BRs pertaining to them had been received by SCB.

One Ravi Iyer, Director, Local Currency Group of SCB made some preliminary inquiry and confronted HPD about this fact. HPD admitted on 10.5.1992 to Ravi Iyer that in respect of payments made by SCB for purchase of securities, there was a very substantial shortfall of securities, as the securities or BRs pertaining to them had not been handed over to SCB by HPD. HPD promised that he would hand over BRs/securities for the shortfall already identified and on 11.5.1992 he delivered a letter promising to deliver further securities to fill the gap that had been noticed. SCB had relied on the chargesheet and recital in the chargesheet as an admission on the part of CMF, since the charge sheet was produced as CMF’s evidence.

Further, there is evidence of M.Q. Askari (PW-3), an officer of AB in terms denying that there was any sale or purchase transaction between SCB and AB during the period 1.5.1992 to 10.5.1992. In fact, Askari produced the purchase register of AB in which there was no entry showing purchase of the suit bonds by AB from SCB on 9.5.1992. Mr. Jethmalani contended rightly that the evidence of Askari had remained totally unchallenged, particularly with reference to the absence of any purchase of the suit bonds by AB. Mr.

Jethmalani criticised the impugned judgment of the Special Court as having singularly failed to consider any part of this crucial evidence of the officer of AB. We think that this criticism is justified. While the Special Court’s inferences are based upon its understanding of what the 15% arrangement was and its analysis of Exhibit-11, it totally fails to give any reason as to why the evidence of a witness from AB about there being no such transaction on 9.5.1992, backed by the purchase register of AB, should be rejected. In our view, in the face of the positive evidence of AB that no such transactions were there, there was no justification for not accepting the stand of SCB that entry dated 9.5.1992 pertaining to the suit bonds was a sham entry intended to introduce the money into the books of SCB to cover a wide gap.

The Janakiraman Committee Report is also clinching on this issue of the so called sale of the suit bonds on 9.5.1992 to ABFSL. Both sides have relied on the Janakiraman Committee Report, which is admitted in evidence as Exhibit-18. In the Fourth Interim Report dated March 1993, in Paragraph 3.1(h) there is a discussion of this entry in the Report. The Janakiraman Report says:

“(h) On 9.5.1992, Stanchart as per deal slip purchased units of Cantriple of face value of Rs. 45.5 crores @ Rs.

58.50 per unit from Andhra Bank for an aggregate cost of Rs. 266.18 crores. There is no record of this transaction in the books of Andhra Bank nor are there any cost memos available and no securities were received from Andhra Bank. On the same day, Stanchart as per deal slips sold PSU bonds aggregating Rs. 266.12 crores to Andhra Bank. (Refer paragraph 3.4 below). There is no record of these transactions in the books of Andhra Bank and no securities were delivered. A pay order No. 257131 for the difference of Rs. 0.06 crore was prepared but not delivered to Andhra Bank. These transactions appear to have been put through merely to cover up a gap in respect of various earlier purchase deals for which neither securities nor BRs. were available. The details of these earlier transactions are explained in paragraphs 3.3 and 3.4 below.” Admittedly, the Janakiraman Committee was a committee of experts appointed by the RBI to investigate the securities scam. There is also no dispute that the Janakiraman Committee had full authority backed by the RBI order and did investigate by meticulously going into the account books of all the banks concerned, including AB. This report also supports the stand of SCB that the entries pertaining to the sale of the suit bonds on 9.5.1992 were sham entries and that there was really no transaction of sale of the suit bonds to AB on the said date. In the face of this evidence, it was not open to the Special Court to reject the story of bogus entries by merely indulging in speculative analysis of the entries in Exhibits 7 and 11 against the background of what it understood to be the 15% arrangement. One more fact, which the Special Court considered as proving the genuineness of the entries pertaining to 9.5.1992, is about the purchase of Cantriple Units deposed to in the evidence of Waseem Akhtar Saifi (Exhibit-14) in the previous Suit No. 17/94. Mr. Jethmalani criticised this finding as wholly erroneous. In the first place, according to him, Saifi was examined in the previous proceedings in Suit No. 17/94 only for the purpose of showing that a letter dated 11.5.1992 written by HPD to SCB was not under coercion as alleged in that suit. What was placed on record in the present suit by CMF was only the cross-examination from pages 45-53 after SCB had waived formal proof and accepted that Saifi did make such a statement. Mr.

Jethmalani submitted that not only was the said evidence irrelevant, but also had been misread by the Special Court to arrive at an erroneous conclusion.

Such evidence could be admissible only to show what fact was sought to be proved in the previous Suit No. 17/94 and secondly, such evidence is wholly hearsay with regard to the transaction of Cantriple Units on 9.5.1992. He also criticised the finding of the Special Court as self-contradictory on this issue.

The Special Court has laid emphasis on the failure of SCB to explain by cogent evidence how HPD got possession of the original LOA and transfer deed. In our view, this is an irrelevant issue, although according to the charge sheet, HPD had obtained possession of the original LOA and the signed transfer deed by misappropriation in conspiracy with some officers of SCB. Mr. Jethmalani also relied on the affidavit filed by HPD before the CLB in which he had stated that he had borrowed the suit bonds from SCB.

In our view, that affidavit has no meaning as the deponent refused to submit himself to cross-examination and the evidence given in the affidavit was not tested by cross-examination. We need not delve further into the issue as we have already stated that the issue is immaterial.

It is the stand of CMF that SCB lost its title to the suit bonds as a result of sale of the suit bonds on 9.5.1992 as consideration for its purchase of Cantriple Units worth Rs. 205 crores. While answering issue no. 6, the Special Court has clearly held that purchase of the Cantriple Units on 9.5.1992 had been proved but CMF had not been able to prove that the said purchase was against sale of the suit bonds on 9.5.1992. In the face of this finding, the argument of CMF that SCB lost title because it had sold the suit bonds in lieu of which it purchased Cantriple Units, has been rejected by the Special Court itself.

For these reasons, we are clearly of the view that whatever might have been the conjectures on the part of the Special Court, whatever might have been the suspicion generated on account of sham entries made by one or the other party, when it came to the crux of the issue, the Special Court has correctly answered it and negatived the case of CMF that SCB lost title of the suit bonds because the suit bonds were sold in consideration of purchase of Cantriple Units.

V. Did CMF get title to the Suit Bonds ? Finally, the question that needs to be considered is whether CMF as defendant acquired title to the suit bonds.

It is urged on behalf of CMF on this issue that CMF is in possession of the suit bonds, and by reason of Section 110 of the Indian Evidence Act, 1872, the presumption is that the possessor of the property is the owner unless SCB dislodges this presumption by showing a superior title. It is contended that only a person with a better title than the party in possession could succeed. Mr. Kapadia relied on the rule as to burden of proof as to ownership under Section 110 of the Indian Evidence Act, 1872 and contended that as far as the rule enunciated in Section 110 is concerned, it makes no exception with respect to incorporeal property like debts or bonds.

In his submission, while a debt may be a chose in action, the evidence of the debt may be by way of tangible property, namely, the paper evidencing it and, therefore, that paper would itself be a chattel to which the rule of burden of proof in Section 110 would apply, even on the assumption that the suit bonds were choses in action. He relied on passages in Halsbury’s Laws of England and the discussion thereunder to show that debentures of companies were also choses in action. Relying on the same authority, he also urged that the strictness of the common law rule against the assignment of choses or things in action had been relaxed by various statutes. He, therefore, contended that as far as transfer of the suit bonds was concerned, it was governed by the practice in the market, read with the provisions of Section 108 of the Companies Act, 1956 in the light of the Notification issued by the Central Government under Section 620 of the Companies Act, 1956, governing the transfer of the suit bonds. In the submission of Mr.

Kapadia, debentures strictly fall within the description of ‘chattel personal’, and by the applicable statute, namely, the Companies Act, 1956 they have been made capable of being dealt with as chattel. He relied on another passage in Halsbury’s Law of England in support thereto. Relying on Jagdish Narain v. Nawab Said Ahmed Khan he further contended that since the Suit is one on title, the plaintiffs could succeed only on the strength of their own title; the defendants were not obliged to plead any possible defects in the title and they were entitled to avail themselves of any defect that such title showed subsequently. To similar effect were cited the decisions of this Court in Moran Mar Basselios Catholicos and Anr. v. Most Rev. Mar Poulose Athanasius and Ors. , Brahma Nand Puri v. Mathra Puri and Anr. and L.J. Leach and Co. Ltd. and Anr. v. Messrs. Jardine Skinner and Co. Strong reliance was also placed on the observations of this Court in Chuharmal Takarmal Mohnani v. Commissioner of Income Tax in relation to Section 110 of the Indian Evidence Act, 1872.

Rebutting these arguments, Mr. Jethmalani contends that Section 110 is contained in Chapter VII of the Indian Evidence Act, 1872, which deals with the burden of proof. As a matter of fact, Section 110 merely enunciates the burden of proof as to ownership. He rightly submits that any rule of burden of proof is irrelevant when the parties have actually led evidence and that evidence has to be considered. Reliance is placed by him on Sita Ram Bhau Patil v. Ramchandra Nago Patil and Anr. for the proposition that when the entire evidence is before the court, the burden of proof becomes immaterial. Even assuming that the rule of burden of proof in Section 110 is relevant, Mr. Jethmalani contended that Section 110 would be applicable only to a ‘thing’, which is capable of being possessed. He rightly submits that a chose in action is not a ‘thing’, as, by definition, it is not in the possession of someone, but that possession has to be acquired by some action which is why it is called a chose in action. He rightly distinguished the judgment of this Court in Chuharmal Takarmal (supra) as wholly inapplicable to a situation of a chose in action. In the said judgment, the possession was with respect to certain wrist watches, which were obviously not choses in action. According to him, Section 137 of the TP Act makes Section 132 inapplicable to debentures but the principles of common law and equity must surely govern even such transactions of transfer of debentures.

Mr. Jethmalani further contended that although the suit bonds were excluded from the definition of ‘goods’ under Section 27 of the Sale of Goods Act, 1930 and Section 27 does not apply to the situation, the general rule of transfer of property, that a transferee acquired no better title than the transferor, holds good and applies even in the case of the suit bonds. Thus, according to Mr. Jethmalani, in a situation like this, where there is a defect in the title of the antecedent transferor, the transferee got no title. In his submission, the general principle of the legal maxim nemo dat quod non habet must govern all transactions. Relying on the judgment of the Chancery Division in France v. Clark, he contended that this rule is not derogated from under Section 108 of the Companies Act, 1956. The provisions of the Companies Act, 1956 for registration in the name of a transferee merely give complete effect, provided there is already a prior valid transferor. A mere registration cannot effectuate a document which was, as between the alleged transferor or transferee, inoperative and of no effect. Relying on the judgment of the Chancery Division (supra) he contended that even when a blank transfer form is signed, there is no notice that the transferor is the owner and if the circumstances are such that the transferee is put on enquiry as to the bona fides of the transfer or the circumstances are such that the transferee must be deemed to have been put on such enquiry, then the transferee would not be a purchaser for value without notice of defect in the title of the transferor. He contended that even assuming CMF came into possession of the original LOA of the suit bonds together with blank transfer deeds, there would be clear notice that the transfer deeds were signed by someone other than the original owner of the suit bonds; if CMF had made the slightest enquiry, it would have learnt that the original owner (SCB), was not intending to transfer them to CMF. Thus, in his submission, CMF cannot be said to be a purchaser for value without notice. At all points of time, it had notice that whoever was delivering the original LOA with the blank transfer deed was not a person with full title to the suit bonds. Referring to the defence of CMF, he contended that CMF initially took the stand that the suit bonds had been acquired by it from ABFSL through HPD, subsequently changed its stand and alleged that HPD must have acted as a broker either for ABFSL or for SCB or on his own behalf. According to Mr. Jethmalani, this is a situation where CMF is unable to say as to who was the person with the antecedent title who could have transferred the title to CMF for bona fide purchase for value without notice. He criticised the impugned judgment of the Special Court for brushing aside the principle in France v. Clark (supra) on the ground that HPD was the owner of the suit bonds. He pointed out that the principle in France v. Clark (supra) has been reiterated and applied in India also and has been followed in V.S. Venkata Subbiah Chetty v. A. Subha Naidu and Ors. and Govt. of the United States of Travancore and Cochin v. Bank of Cochin Ltd. . In his submission, a transferee of an actionable claim gets no better title than that of the transferor and he would take it subject to all the liabilities and equities to which the transferor was subject. On the basis of the pleadings of CMF, it acquired the right to the suit bonds from HPD. HPD could not confer a better title than he himself had to the suit bonds. It is the case of SCB that HPD had got the bonds by theft, misappropriation or some other offence and, hence, it could not pass any title to CMF. He, therefore, contended that even if the case of CMF is to be accepted, CMF got no title to the suit bonds.

The only exception would be the case of a bona fide purchaser for value without notice. He seriously questioned both the bona fides and lack of notice, on the part of CMF. He contended that the so called acquisition of the suit bonds by CMF was neither bona fide nor was CMF a purchaser for value, as no consideration had been paid by CMF and, in any event, CMF had or ought to have had notice of the lack of title on the part of its antecedent title holder.

Impugning the bona fides of the transaction by which CMF claimed to have acquired the suit bonds, Mr. Jethmalani points out that although CMF took up the initial stand that the suit bonds had been purchased from ABFSL, it later shifted its stand. In its petition before the CLB, CMF claimed that it had purchased the suit bonds from ABFSL by paying it consideration. In its written statement in the Suit, CMF took up the stand that it had purchased the suit bonds from HPD, who was acting on behalf of ABFSL or SCB. In its supplementary written statement, it contended that it bought the bonds from HPD acting for himself or ABFSL or SCB. Learned counsel contended that such a plea coming from a financial institution, which had entered into a transaction worth about Rs. 45 crores was utterly absurd and unbelievable. At no point of time did CMF state on record as to what was the representation made by HPD when he allegedly sold the suit bonds to CMF on 27.2.1992. It was not as if ABFSL was an unknown party, for the record shows that there were at least 23 transactions between CMF and ABFSL in November 1991 and 4 transactions even on 27.2.1992. Even after HPD filed his affidavit alleging that the suit bonds had been ‘lent’ by SCB, CMF did not care to deny the contents of HPD’s affidavit. As a banker, CMF knew that no transaction in securities could take place without a cost memo, or some other kind of documentation. This was a case where CMF has been unable to produce any credible documentation to support its plea that the suit bonds were purchased from/through HPD on 27.2.1992. A document relied upon as evidencing the alleged transaction is the letter dated 27.2.1992 issued by HPD to CMF in which he had asked for a bankers’ cheque in the sum of Rs. 46,01,23,287.67 in favour of AB. The deal slip pertaining to this transaction bearing date 27.2.1992 showing that the suit bonds of the value of Rs. 50 crores had been bought from ABFSL through HPD, was an internal document of CMF suggesting purchase of the suit bonds from ABFSL through HPD as broker. Thus, the evidence led by CMF was that it had bought the suit bonds from ABFSL with HPD as the broker.

At no point of time did it seek or obtain a cost memo for this transaction. R.V. Shenoy (PW-2), ABFSL’s employee, denies that any such transaction had taken place by which the suit bonds were sold by ABFSL to CMF with HPD as a broker or otherwise, and there is no cross-examination on this aspect. Interestingly, even the Special Court does not hold that there was any transaction on 27.2.1992 in which CMF had bought the suit bonds from ABFSL. The Special Court glossed over the matter by stating that the 15% arrangement made HPD the owner of the suit bonds and, therefore, it was a transaction between HPD and CMF.

No evidence was led by CMF as to which employee of CMF had transacted the deal in which the suit bonds were purchased from ABFSL ostensibly, through HPD as the broker, on 27.2.1992. Affidavit of one Satish was filed as a witness of CMF who claimed knowledge about the transaction, but the said Satish was not examined. The only witness of CMF, Nandita Rao, frankly admitted that she had no personal knowledge of the suit transaction whatsoever. No other documents were produced by CMF to show that such a transaction was entered into between itself and ABFSL with HPD as the broker, as a result of which it came into possession of the suit bonds as an owner. It is impossible to believe the story of CMF that, a financial institution could have entered into a deal of such magnitude without a scrap of document. That is the reason why even the Special Court does not hold that there is any evidence on record from which a conclusion can be drawn in favour of CMF acting bona fide. The evidence on record does not appear to support the story of CMF that it had entered into a contract under which it purchased the suit bonds from ABFSL on 27.2.1992 with HPD as the broker.

Mr. Kapadia, learned counsel for CMF, relied on the judgment of a learned Single Judge of the Bombay High Court in Fazal D. Allana v. Mangaldas M. Pakvasa in support of his contention that, it is common practice in the share market that shares are transferred by mere delivery with a transfer deed signed in blank and that in such a situation there was no question of CMF being put to notice that there was anything irregular in the LOA of the suit bonds delivered to CMF by a transfer deed signed in blank by ABFSL. He, therefore, contends that this was a bona fide transfer consistent with the market practice. As a result of the Bombay High Court judgment, the authority of France v. Clark (supra) was shaken, is the submission of the learned counsel. Relying on the judgment of this Court in Vasudev Ramchandra Shelat v. Pranlal Jayanand Thaker and Ors. it is pointed out that a transfer of property in securities, which is recognised by the TP Act, may be antecedent to the actual vesting of all or the full rights of ownership of shares and exercise of the rights of a shareholder in accordance with the provisions of company law. The antecedent transfer of title in the security results in the equitable right of the transferee to be registered by the company. Learned counsel contended that as a result of delivery of the original LOA accompanied by the blank transfer deed, CMF acquired ownership rights including the equitable right as against NPCL to have its name registered as the owner. Strongly refuting the argument of Mr. Jethmalani, Mr. Kapadia contended that since delivery of securities accompanied by a blank transfer deed was a common practice in the trade, there was no occasion for alarm bells ringing merely because the original LOA accompanied by blank transfer deed was delivered to CMF. In our view, notwithstanding the market practice of delivery of securities accompanied by a signed blank transfer deed, the property in the securities can only be transferred if there is bona fide purchase of the same for value.

The crucial question in the present case is: did CMF purchase the suit bonds for value from the antecedent title holder? This brings us to the last limb of the argument of Mr. Jethmalani that CMF can never be said to be a purchaser for value, as there is no evidence to show that any consideration was paid by CMF for acquisition of the suit bonds.

When the matter was first tried by Variava, J. as the Special Court, the learned counsel appearing for CMF categorically admitted that there was no evidence by which it could be established that CMF had paid consideration for acquisition of the bonds. It is true that this judgment was subsequently set aside by this Court and the matter was remanded for trial along with the Misc. Petition. But this is a significant fact which the Special Court could not have overlooked in appreciation of the evidence.

The stand taken by CMF is that on 27.2.1992 it purchased the suit bonds and the 17% NPCL bonds for a total sum of Rs. 46,01,23,287.67, of which, Rs. 46 crores was the purchase price and Rs. 1,23,287.67 was the accrued interest on the bonds for one day i.e. from 26.2.1992 to 27.2.1992.

CMF claimed that the consideration for acquisition of the suit bonds and 17% NPCL bonds was paid by two sales of 13% NLC bonds and 13% MTNL bonds. In other words, according to CMF, there were two purchases and two sales on 27.2.1992. CMF alleged that on 20.11.1991 there were 19 sales and four purchases. The four purchases included the 13% NLC bonds and 13% MTNL bonds, which formed part of the consideration for purchase of the suit bonds on 27.2.1992. The evidence in support of its alleged purchase of 13% NLC bonds and 13% MTNL bonds is again somewhat convoluted. The Special Court held that out of the so called 19 sales alleged on 20.11.1991, 10 had been proved by the evidence led by CMF and jumped to the conclusion that thereby all 19 must be taken to have been proved. The Special Court observes: “The important point which the Court has to bear in mind is whether the Court should reject all the 10 sales which stands proved because the remaining 9 sales could not be proved. The answer is in the negative. The evidence in the form of 7 BRs; the evidence in the form of Andhra Bank Purchase Register, the evidence in the form of Andhra Bank Sale Register, and the evidence in the form of Exhibit-H as well as the evidence of PW-2 cannot be thrown overboard as bogus. These 10 transactions, as proved, shows that CMF is right in saying that they had sales on 20.11.1991 with HPD who had received the securities from CMF. In the circumstances, I hold that payment of consideration for four purchases dated 20.11.1991 stands proved.” This finding, in our view, is wholly untenable.

There is no warrant for the conclusion that if some transactions are proved, all transactions on the same day are to be held to be proved.

Having erroneously held thus, the Special Court finds that after adjusting the transactions, there was a netted amount of Rs. 3,87,46,575.35 which was payable by HPD to CMF, which was paid to CMF as evidenced by HPD’s letter dated 26.2.1992 giving instructions to AB to pay the amount to CMF and debit the aforesaid amount to his account.

Mr. Jethmalani justifiably criticised these findings of the Special Court. In the first place, the transactions of 20.11.1991 and the transactions of 27.2.1992 appear to between CMF and HPD. Assuming they are proved, as held by the Special Court, and the netted amount of Rs. 3,87,46,575.35 was paid by HPD to CMF, it does not prove that the consideration of the suit bonds was paid to ABFSL/SCB, who alone could have been the antecedent owner of the suit bonds. It is the erroneous inference of the Special Court that HPD had become the owner of the suit bonds that has misdirected it into assuming that CMF had paid considerations for purchase of the suit bonds.

There is merit in this contention. One of the documents relied upon in support of the story of sales made on 20.11.1991 is a letter from HPD dated 20.11.1991 addressed to the Manager, AB advising him to issue a bankers’ cheque in favour of CMF for Rs. 2,75,18,571.04. CMF’s witness, Nandita Rao (DW-1), was specifically asked in cross-examination as to how much of the amount was payable by CMF to ABFSL as a result of the transactions dated 20.11.1991. She answered that it was an amount of Rs. 21,77,01,565.98 and claimed that it was the difference between the amount paid and received. She also stated that, in addition to the aforestated amount, an amount of Rs. 4,75,55,205.51 also became payable as sundry creditors.

She also stated that she had arrived at the figure after taking into account all the purchases and sales of 20.11.1991 and also from the RBI Cash Book. Thus, according to the evidence led by CMF, CMF had to pay to ABFSL on 20.11.1991 a large sum as a result of their deals which took place on 20.11.1991. Surprisingly, instead of CMF paying ABFSL the aforesaid amount, on the same day, two sums of Rs. 2,75,18,571.04 and Rs. 4,56,70,000.00 as evidenced by letter dated 20.11.1991 written by HPD to AB, came to be paid to CMF by HPD. It is evident that some of the existing documents with regard to various deals have been put together by CMF to patch up the story of consideration put forward by it.

Another strange document which shakes the credibility of the story of consideration set up by CMF is the letter dated 26.2.1992 from HPD to AB instructing AB to issue a bankers’ cheque in favour of CMF for a sum of Rs. 3,87,46,575.35 and debit his account. The actual number of the cheque is also shown on the document as 143941 dated 27.2.1992. There is also a statement of the RBI account of HPD with AB showing the debit of the aforesaid amount to the books of HPD in AB. The Special Court relies on this letter as evidencing the netting of the transactions between CMF and HPD on 27.2.1992. Mr. Jethmalani legitimately criticised the story of consideration put forward by CMF by urging that, if the aforesaid amount of Rs. 3,87,46,575.35 was the amount after netting, which had been arrived at on 27.2.1992, it was impossible to believe that HPD had the prescience on 26.2.1992 to know the exact amount that would be arrived at after netting of transactions including the purchase of the suit bonds on 27.2.1992.

Although, SCB raised this point in the arguments and pointed out that this letter belies the stand of CMF, the Special Court brushed it aside by saying that it did not find any merit in the argument and observing: “merely because letter is dated 26.2.1992 one cannot assume that HPD knew about the transactions one day prior to 27.2.1992. The remark indicating pay order number and the date of 27.2.1992 shows that the instructions were specifically given on 27.2.1992.” Moreover, if we accept the finding of the Special Court that the transaction of the suit bonds between HPD and CMF on 27.2.1992 did take place, then there is no explanation for the suit bonds being sold to and purchased from other parties during the period 27.2.1992 to 9.5.1992 as shown in Exhibit-11.

The pleadings of CMF on the issue of consideration appear to be most confusing and shifty. The exercise carried out by the Special Court of analysing several transactions and discharge of BRs, shows transactions of payments back and forth between CMF and HPD. The ledger folio produced by CMF in support of its stand is also hardly reliable. The ledger entry pertaining to the purchase of 13% NLC bonds discloses a very curious state of affairs. The entry pertaining to 20.11.1991 is hand written after the entry of 30.11.1991. When the witness of CMF, Nandita Rao (DW-1), was cross- examined as to how the entry of 20.11.1991 could have been written in the ledger folio after the entry of 30.11.1991, she had hardly any explanation for that except professing ignorance. The said witness was also asked as to whether she came across any document from ABFSL in support of the transactions of 20.11.1991 on the basis of which she had prepared the vouchers and ledger entries. She admitted that she had not seen any document from ABFSL on the basis of which such entries were made. Under cross-examination, the said witness also stated that she did not remember whether any documents were received from ABFSL in support of the four general vouchers dated 27.2.1992 and she further admitted that, irrespective of whether a cheque was received or not, it was a routine practice to write “RBI cheque received from ABFSL” in the transactions with ABFSL.

Considering the evidence as a whole, it appears that the initial stand taken by the learned counsel of CMF in the first round of the litigation, that there was no credible evidence on which payment of consideration by CMF could be proved, was fully justified. The attempt of CMF on picking up and putting forward some of the documents, out of the several transactions entered into by them to patch up the story of consideration, in our opinion, has miserably failed. There was no cause for being charitable to CMF by saying that they could prove only a part of the consideration, ergo, rest of the transactions must be deemed to have been proved. We are of the view that every one of the arguments put forward by SCB to impugn the story of CMF that it had paid consideration is justified and the Special Court was wrong in rejecting the arguments of SCB on this count. We, therefore, hold that CMF has utterly failed to prove its story that it had paid consideration for purchase of the suit bonds on 27.2.1992. Conclusion:

Finally, it appears that there is not much to choose between the two contending banks, namely, SCB and CMF. Both the banks have been tarred by the same brush by the Janakiraman Committee Report about fudging their accounts. However, it appears to us that the issue of the ownership of the suit bonds could not have been decided on any basis other than what the legal evidence showed. The situation is somewhat like a game of musical chairs; the one who is sitting on the chair when the music stops, wins.

Similarly, the situation before us. Once we eliminate the conjectural findings, we find that all the material evidence on record shows that SCB had purchased the suit bonds from NPCL by paying good money. The original LOA for purchase of the suit bonds along with the transfer deed was handed over to SCB. As to how it went out of its possession, it appears to be the subject matter of the FIR filed by SCB. SCB alleges that, it was pilfered or misappropriated by some officer in conspiracy with HPD, but that is a matter which will be tried by an appropriate criminal court.

Turning to the other side of the story, CMF claims acquisition of the suit bonds on 27.2.1992 by paying consideration for them. It is not shown as to who was the counter-party from whom the purchase was made, as CMF’s stand on its counter-party keeps changing from beginning to end. The documents produced on record do not bear out the stand of CMF. In spite of exercise of our imagination, we are not able to support the conclusion that CMF had paid consideration for acquisition of the suit bonds from HPD; or that HPD became the owner of the suit bonds merely because of the existence of the 15% arrangement, the details of which were thoroughly analysed by the Janakiraman Committee Report and the Joint Parliamentary Committee Report. That such an agreement was not against public policy was clearly held by the previous judgment of this Court in Civil Appeal No. 4456/95 .

In these circumstances, we are not satisfied that the evidence on record proves that HPD became the owner of the suit bonds or that CMF legitimately acquired the suit bonds from HPD or any other person by paying bona fide purchase value for them. Consequently, we must hold that CMF acquired no right, whatsoever, to the suit bonds. The suit bonds always remained the property of SCB irrespective of how they found their way into the hands of CMF.

In the result, we allow both the appeals and set aside the impugned judgments of the Special Court in Special Court Suit No. 11/96, and Special Court Misc. Petition No. 81/95 and hold that SCB as the owner of the suit bonds is entitled to be registered as such in the register of NPCL.

Consequently, the Suit is decreed in terms of the prayers in Civil Suit No. 3808/92 and Misc. Petition No. 81/95 is dismissed.

Considering that both parties are in pari delicto in the matter of fudging their accounts and indulging in transactions which have facilitated the securities’ scam, we do not think it fit that SCB should be awarded costs, although it has succeeded in the appeals.

The appeals are accordingly allowed with no order as to costs.

The post Standard Chartered Bank Vs. Andhra Bank Financial Services Ltd. & Ors appeared first on B&B Associates LLP.

IN THE SUPREME COURT OF INDIA
CASE NO.: Writ Petition (crl.) 237 of 1998

Sube Singh …PETITIONER
Vs
State of Haryana & Ors. …RESPONDENT

DATE OF JUDGMENT: 03/02/2006
BENCH: CJI, B. N. Srikrishna & R. V. Raveendran

J U D G M E N T

R.V. RAVEENDRAN, J.

An undated letter from the petitioner, received by this Court on 19.11.1998, alleging illegal detention, custodial torture and harassment to family members was registered as a writ petition under Article 32 of the Constitution of India. The State of Haryana and its Director General of Police, were arrayed as respondents 1 and 2 and the six Police Officers referred to in the letter-petition were arrayed as respondent Nos.3 to 8.

PROLOGUE (According to Police)

2. On 10.3.1998, at about 10 a.m. Dharam Singh ASI, Police Post Dhamtan Saheb (Narwana Tehsil, Jind District), along with Police constables (Ramesh Chand, Jaldhir Singh and Baljit Singh), while patrolling near Dhamtan Saheb Bus Stand, received information that one Joginder Singh (son of petitioner) and his associates were conspiring in his house, to apply pressure on some tender-bidders. When the police party proceeded towards Joginder Singh’s house, they saw two young men coming from the opposite side, on a motorcycle. On seeing the Police party, the motorcycle suddenly turned back. On suspicion, the Police party gave chase and stopped the motorcycle near a petrol-pump. The ASI asked the motorcyclist and the pillion-rider to identify themselves. The motorcyclist gave his name as Amrik Singh. The pillion-rider gave his name as Joginder Singh, a Palledar at Tohana. When the ASI asked Joginder Singh as to whether he was the same Joginder who had jumped parole in a case, Joginder Singh started running. When the Police party chased him, Joginder Singh turned back, whipped out a pistol and fired at them. Baljit Singh, one of the Constables, was hit and collapsed. In the ensuing confusion, both Amrik Singh and Joginder Singh escaped. The injured Constable succumbed to the bullet injuries. In this connection, FIR No.112 dated 10.3.1998 under Section 302/307/352/186 IPC was registered in P.S., Garhi, against Joginder Singh and Amrik Singh. On receiving information of the death of constable, the SP and the DSP rushed to the hospital and later, went to the Dhamtan Saheb Police Post. In the meantime, the Police party which had gone to the house of Joginder, in search of him, did not find him and brought his father Sube Singh (Petitioner) to the Police Station. According to police, the SDM and the Chairman of Zila Parishad, Jind, were also present at the Police Post at that time. The petitioner denied any knowledge of the whereabouts of his son Joginder. The SP made some enquiries with the petitioner and left. After inquiries, the petitioner was released.

2.1) The petitioner along with his brother-in-law Rattan Singh filed W.P. (Crl.) No.416/1998 in the Punjab & Haryana High Court on 24.3.1998 alleging harassment, torture and illegal detention for three days (from 10.3.1998 to 13.3.1998) and again for a day (15.3.1998 to 16.3.1998) and prayed for action against the concerned Police Officers and for a judicial enquiry. The High Court by order dated 27.4.1998 disposed of the petition with an observation that petitioners may file a criminal complaint in a competent court.

2.2) The petitioner went underground for a few months. Further enquiries by the police revealed that several cases had been registered against the petitioner and his son Joginder Singh.

Joginder was declared as ‘proclaimed offender’ by order dated 12.6.1998 of S.D.J.M., Narwana. The petitioner published a notice in ‘Dainik Tribune’ dated 6.8.1998 that he had disowned his son Joginder and was not responsible for his actions.

2.3) The Police continued with their inquiries and in July, 1998, ASI Satya Narayan and other Police Officers of Dhamtan Saheb Police Post again tried to ascertain his whereabouts by making enquiries with the petitioner and his relatives/friends.

The Letter (re : alleged torture and illegal detention)

3. The petitioner sent an undated letter to this Court (received on 19.11.1998) wherein he alleged that ASI Dharam Singh, In- charge of Dhamtan Saheb Police Post, along with some Police Officers, came to his house on 10.3.1998 at about 11 a.m, to enquire about the whereabouts of his son Joginder; and that when he informed them that he was not aware of it, they started beating him. Thereafter, the Police took him, his wife and two minor daughters forcibly to the Police Post, through the bazaar. He was beaten with sticks on the way. When they reached the Police Post, K.P. Singh, Superintendent of Police as also the Deputy Superintendent of Police, Narwana, were present. When ASI Dharam Singh informed them that the persons brought were the father, mother and sisters of Joginder, the S.P. directed that they may be brought to ‘correct mental attitude’. The ASI took him inside and beat him for about 10 minutes and brought him back before the SP again. By then, his wife and daughters were made to sit in an uncomfortable posture (as students are made to sit in schools by way of punishment). When the petitioner stated that he was not aware of his son’s whereabouts, the S.P. became furious and ordered his men to remove his moustache, whereupon Dharam Singh sat on his chest (with three policemen pressing his hands and feet) and plucked his moustache. Again, they started beating him, searched his pockets and took away Rs.2,350 which he was carrying. Then the police took him back to his house and ransacked the house. ASI Dharam Singh broke open the lock of his trunk and seized his licensed gun, some cartridges and Arms licence, as also some jewellery found in the trunk. Thereafter, the petitioner was taken back to the Police Post. Though his wife and daughters were sent back to the house, he was illegally detained in Police custody for a day and then taken to P.S. Garhi where he was kept for 10 days and during the first 5 days of such detention, he was regularly beaten. Because of such police harassment and torture, when he was released he and his younger son Gurmail Singh fled from his house.

3.1) On 8.7.1998, the petitioner returned to his house. Satya Narayan, ASI, (who had succeeded Dharam Singh) and Munshi (HC) of Dhamtan Police Post, came to his house, with four other policemen, handcuffed him and took him to the Police Post. He was tortured in the Police Post by the ASI and Head Constable Munshi by thrashing him thrice, each time continuously for 15 minutes.

When he requested for water, he was forced to drink hot water with salt. The Munshi, Dhamtan Police Post kept him in a wooden Shikanza for 5 days and he was not allowed to sleep. Then he was taken to Jind. He also alleged that the Police forced him to bring money for the vehicles to conduct raids (to catch his son, Joginder) and he was forced to accompany them on such raids and was put in wooden Shikanza at Tulvan Thana. When he begged that he should be released, he was informed that he was being taken for the raids on the instructions of Ranbir Sharma, S.P., Jind, and that without the permission of the S.P., he could not be released. After three days he was again taken back to Dhamtan Post and kept there for 2 days. Thereafter, he was released with a condition to visit the Police Post everyday in the morning and evening.

3.2) The Petitioner alleged that his friends and relatives who wanted to meet him, when he was being illegally detained, were not permitted to meet him and they were also tortured. He also alleged that Munshi (HC) of Dhamtan Police Post was demanding money from him.

3.3) He alleged that in view of such torture, he was forced to leave his house and remain outside. He prayed for a direction to the Police to stop the atrocities and torture. He sought compensation for himself and his wife and daughters for the social, physical and financial loss, and return of his licensed gun, gold ornaments and other belongings. He also prayed for a thorough inquiry into the atrocities and torture committed by the Police and imposition of punishment to those who were responsible.

3.4) The letter of the petitioner was registered as a writ petition and Rule was issued on 11.1.1999. On 13.9.2000, this Court appointed Mr. S. Muralidhar, Advocate, as Amicus Curiae, to assist the Court.

The alleged Second Round of Harassment :

4. Joginder was arrested in June, 1999 by Punjab Police. Before his arrest, he was allegedly involved in two robberies (registered on 19.3.1999 with PS, City Yamunanagar, and on 21.3.1999 with PS, Indri, Karnal District). On 25.1.2001, when he was being taken to Ferozepur Court from Ambala jail, Joginder escaped from police custody. It is further alleged by the police that on 13.2.2001, Joginder and his associates murdered two residents of Tohana.

4.1) According to Police, on 29.1.2001, the SHO, Police Station, Garhi along with other police officials visited the house of petitioner in search of Joginder who had escaped from custody. Again in February, 2001 after the double murder, the S.I. of Police Station, Tohana along with the ASI in charge of Dhamtan Saheb Police Post, and other Police officials visited petitioner’s house in search of Joginder. In that connection, petitioner and his brother were taken to Police Station Tohana on 14.2.2001 for inquiries and were released on the same day. They were again called for inquiries on the next day. On 22.6.2001, the Officer in Charge of Police Post, Patiala Chowk, Jind, searched the house of Minti Devi (sister of Joginder), to find out whether Joginder was hiding there. On 24.6.2001, petitioner’s younger son Gurmail Singh was arrested for possessing illegal arms.

4.2) The petitioner filed an affidavit dated 22.2.2001 before this Court on 3.3.2001 alleging interrogation by Police on 26.1.2001 and 29.1.2001 in regard to escape of his son Joginder from Police custody. He also alleged that on 14.2.2001 he and his brother Narsi were handcuffed and taken to Tohana Police Station and interrogated and released on 15.2.2001. The S.P. Jind filed a detailed reply affidavit dated 11.8.2001. A further affidavit was filed by the petitioner on 1.10.2001 wherein he alleged that his younger son Gurmail Singh was forcibly taken from his sister’s house on 22.6.2001 and tortured. This brought forth a further affidavit dated 20.11.2001 from the S.P., Jind, by way of reply denying the allegations.

PROCEEDINGS IN THIS COURT :

5. Not being satisfied with the reply-affidavit filed on behalf of the State, in regard to the letter-petition, this Court on 9.11.2000 directed the Chief Secretary of the State of Haryana to file a detailed affidavit in regard to the steps taken on the allegations made by the petitioner. In view of it, the State got the matter inquired into by Dr. John V. George, Inspector General of Police, (Law & Order), Haryana. He submitted a report dated 10.3.2001 stating that the allegations of the petitioner relating to police torture, illegal detention, harassment to wife and daughters, and removal of cash/licensed weapon/jewellery were not substantiated.

The said report, however, confirmed that petitioner and his brother were called to the Police Station couple of times for interrogation regarding the whereabouts of Joginder. Not being satisfied with the said report, this Court on 17.10.2001 directed the CBI to inquire into the matter with reference to the allegations made in the letter as also the subsequent affidavits filed by the petitioner and his relatives and the reply affidavits filed by the respondents.

5.1) The CBI held a preliminary inquiry and submitted the report of the Inquiry Officer (A.K. Ohri, ASP) under cover of its letter dated 22.7.2002. The findings in the said report are arrived at, on the basis of the allegations made in the affidavits filed before this Court, and the statements made by the petitioner, his family members and others (nearly 100 witnesses) before the Inquiry Officer. The CBI has concluded that some of the allegations of the petitioner were substantiated while several others were not substantiated.

5.2) On 16.9.2002, this Court directed that the State Government to take appropriate action on the report of the CBI. In pursuance of it, an FIR was lodged in Garhi Police Station, Jind District, (FIR No.152 dated 17.10.2002 under Sections 323, 342, 343, 365 and 384 IPC) on the basis of the CBI report, naming the following 10 officers :-

1. ASI Dharam Singh (by then S.I.)

2. ASI Satyanarain 238/Jind

3. HC Om Parkash No.102/Jind (by then ASI)

4. Const. Dilbag Singh, No.59/Jind

5. HC Balbir Singh No.450/Jind

6. Const. Sudarshan Kumar No.811/Jind

7. Const. Mukesh Kumar No.99/Jind

8. Const. Dhoop Singh No.704/Jind

9. Const. Dharam Pal No.4/Jind

10. Const. Mohinder Singh 825/Jind (by then HC) The Deputy Superintendent of Police, Narwana, filed an affidavit dated 1.11.2002 confirming that FIR was lodged and that he was investigating into the matter.

5.3) On 11.11.2002, this Court noted that the FIR was registered and an appropriate chargesheet would be filed by the State in due course, and that the officers concerned have been suspended/posted outside the district. This Court also took note of the submission of the amicus curiae that in such cases, apart from CBI inquiry and criminal prosecution, compensation has to be awarded to the victims, and the submission of the State that having regard to the facts of the case and having regard to the registration of the FIR, the matter may have to await the result of the prosecution. While adjourning the case, this Court observed that the question of awarding any compensation at that stage, did not arise.

5.4) The SP, Jind, by affidavit dated 9.6.2003 informed this Court that the charge-sheet was filed in the Court of Ilaka Magistrate, Narwana, and that the case was fixed for 18.7.2003 for framing of charge. Thereafter, when the matter came up on 4.8.2003, the amicus curiae again submitted that compensation should be awarded. This Court directed hearing on the limited question as to whether compensation should be awarded or not. The criminal court was also directed to expedite the trial. The criminal case against the Police officers, we are informed, is under progress.

5.5) Thereafter, arguments on the question as to whether compensation should be awarded or not were heard on 6.10.2005 and written arguments were submitted by the Amicus Curiae and the State on 19.10.2005 and 16.11.2005 respectively.

(Preliminary) Inquiry Report of CBI :

6. The findings contained in the report of CBI are summarized below :- Allegations by Petitioner (and his relatives) Finding by C.B.I.

1. Incident on 10.3.1998 1.1. Petitioner was tortured at Dhamtan Saheb Police Post on 10.3.1998 on the directions of Mr. K. P. Singh, Superintendent of Police, Jind and Mr. Praveen Kumar Mehta, DSP, Jind.

Not substantiated

1.2 On 10.3.1998 Dharam Singh ASI took cash of Rs.2,350/- from the pocket of the petitioner and Rs.4,700/- from the pocket of his friend Narender Singh.

Not substantiated

1.3 Dharam Singh, ASI, took away the licensed gun, cartridges and jewellery from the house of petitioner, on 10.3.1998.

Not substantiated by any independent witness.

1.4 Dharam Singh, ASI, Incharge of Dhamtan Saheb Police Post along with other Police officials picked up the Petitioner and his friend Sardar Narender Singh on 10.3.1998 and took them to the Police Post and beat them on the way.

Substantiated

1.5 Om Prakash (H.C., PS, Garhi) and Dilbag Singh, Sentry, beat petitioner on 11.3.1998.

Substantiated (But no injury report or medical report is available.) 2. Illegal detention.

2.1. Petitioner was arrested on 10.3.1998 and taken to Police Station Garhi on 11.3.1998 where he was illegally detained for 10 days and beaten during first 5 days.

Detention of petitioner at P.S. Garhi for some days was substantiated by an oral evidence of accused in an Excise Case (Amarinder Singh).

2.2. Rattan Singh alias Ratna (brother in law of petitioner) was picket up on 10.3.1998 and kept illegally at P.S. Garhi and tortured for 2 days. He was again arrested on 16.3.1998, tortured for 4 days and released on 20.3.1998.

Picking up of Rattan Singh a few days after 10.3.1998 is established. However, alleged torture and wrongful confinement is supported only by his self statement and not by any medical or other evidence.

[Note: However, in the writ petition filed by Rattan Singh and petitioner on 24.3.1998 in the Punjab & Haryana High Court, it is alleged that petitioner and Rattan Singh were kept in illegal confinement from 10.3.1998 to 13.3.1998 and again from 15.3.1998 to 16.3.1998. There is no allegation of any torture at all. They only alleged that they apprehended harassment and torture by Police.)

3. Incidents between 8.7.1998 and 7.11.1998

3.1 Munshi (HC), in-charge of Dhamtan Saheb Police Post handcuffed petitioner and took the petitioner to Police Post on 8.7.1998.

Substantiated

3.2 Satya Narayan, ASI, harassed petitioner between 8.7.1998 and 7.11.1998.

Substantiated

3.3 Satya Narayan, ASI, demanded money from the petitioner and took money from petitioner, for fuel for the vehicle used to conduct raids.

Not Substantiated

3.4 Satya Narayan ASI took 10 kg. of Desi Ghee from petitioner’s brother Narsi.

Not Substantiated

3.5 Satya Narayan, ASI, had detained Shamsher Singh in police custody.

Substantiated

3.6 Satya Narayan, ASI, tortured Shamsher Singh and took Rs.500/- to release him.

Not substantiated.

4. Re : Incidents in the year 2001

4.1 SHO, Police Station, Garhi along with other police officials raided the petitioner’s house in January, 2001 and intentionally flashed a torch light on the faces of his young daughters.

Not substantiated.

(What is established is that SHO, PS, Garhi raided the petitioner’s house on the night of 31.1.01 to check whether Joginder who had escaped from police custody was at the house. A torch light was used as there was no electricity.)

4.2 On 14.2.01, SHO, Police Station City, Tohana along with other police officials had handcuffed the petitioner and his brother Narsi and detained for a day.

Not substantiated.

(However, what is established is that the petitioner and his brother were taken to PS City Tohana on 14.2.01, for inquiries in connection with the report that petitioner’s son Joginder Singh and his associates had committed a double murder on 14.2.01. After a few hours of interrogation they were released).

4.3 On 22.6.01, Gurmel Singh, younger son of petitioner was picked up (by Constables Mukesh Kumar and Dhup Singh in a vehicle driven by Constable Dharampal). He was confined at PS City, Jind and tortured.

Substantiated only to the extent that Gurmel Singh was picked up on 22.6.01 by police party and wrongfully confined at PS City, Jind. (In regard to alleged torture, the statement of Gurmel Singh alone is available without corroboration).

4.4 Yad Ram, Inspector, when he was SHO, PS Alewa forcibly picked up one Ramphal on 26.7.01 and harassed him when Ramphal’s house was raided on 29.7.01.

Not substantiated.

(What is established is Yad Ram had taken Ramphal on the instructions of ASP, Jind and examined him for an hour).

7. The report further shows that petitioner was involved in several criminal cases from 1972 and his son Joginder was involved in more number of criminal cases from the year 1991, as detailed below :- Cases in respect of petitioner :

1. FIR No. 275 dt. 13.10.72 u/s 61/1/14 Excise Act P.S.

Sadar Kaithal.

2. FIR No.59 dt. 13.2.78 u/s 379 IPC PS Sadar Kaithal.

3. FIR No.231 dt. 22.7.85 u/s 25/54/59 Arms Act P.S.

Sadar Kaithal.

4. FIR No.141 dt. 20.7.86 u/s 61/1/14 Excise Act P.S.

Sadar Narwana.

5. FIR No.142 dt. 25.4.91 u/s 25/54/59 Arms Act read with section 5 TADA Act P.S. Sadar Kaithal.

6. FIR No.147 dt. 25.4.91 u/s 285/336 I.P.C. P.S. Sadar Kaithal.

7. FIR No.219 dt. 17.7.91 u/s 324/323/506/34 IPC PS Sadar Kaithal.

8. FIR No.367 dt. 23.11.94 u/s 323/324/148/149 IPC PS Garhi.

9. FIR No.277 dt. 25.6.2001 u/s 332/353/225/186/511 IPC PS City, Jind.

(Note: The petitioner was convicted only in the first case. He was acquitted in all other cases.) Cases in respect of Joginder Singh :

a) FIR No.219 dated 17.7.91 u/s 323/324/506/34 IPC PS Sadar, Kaithal.

b) FIR No.395 dated 5.7.97 u/s 324/34 IPC PS Civil Lines, Hissar.

c) FIR No.242 dated 7.9.96 u/s 307/120-B IPC & 25/54/59 Arms Act, PS City, Tohana.

d) FIR No.245 dated 8.9.96 u/s 25/54/59 Arms Act, PS City, Tohana.

e) FIR No.112 dated 10.3.98 u/s 302/307/353/86/34 IPC & 25/54/59 Arms Act, PS Garhi..

f) FIR No.57 dated 31.3.99 u/s 392/395 IPC & 25/54/59 Arms Act, PS Indri, Karnal.

g) FIR No.99 dated 19.3.99 u/s 393/394/397/307/452 IPC, PS City, Yamunanagar.

h) FIR No.94 dated 21.6.99 u/s 399/401 IPC, 25/54/59 Arms Act, PS Malanwala, Distt. Firozepur, Punjab.

i) FIR No.8 dated 26.1.2001 u/s 223/224 IPC, PS GRP, Ludhiana, Punjab.

j) FIR NO.48 dated 14.2.2001 u/s 302/307/34 IPC and 25/54/59 Arms Act, PS City, Tohana.

k) FIR No.100 dated 16.2.2001 u/s 307/332/353/216 IPC and 25/54/59 Arms Act, PS Sadar, Fatehabad.

l) FIR No.38 dated 21.2.2001 u/s399/307/402 IPC and 25/54/59 Arms Act, PS City, Narwana.

m) FIR No.29 dated 16.3.2001 u/s 307, 120-B IPC and 25/54/59 Arms Act, PS City, Firozepur, Punjab.

n) FIR NO.149 dated 23.8.2001 u/s 25/54/59 Arms Act, PS Sadar, Kapurthala, Punjab.

(Note : Joginder was convicted in regard to FIR 242/1996 and FIR No.245/1996. Sl. No. (c) and (d) above on 31.1.2002 and sentenced to undergo RI for six years and two years respectively) Position emerging from the records/CBI Report/arguments:

8. A careful examination of the facts, lead to the following inferences :

i) All allegations (relating to petitioner and his family members being taken to Police Stations/Police Posts and being questioned/beaten up/tortured) are in connection with the effort of Police to find the whereabouts of Joginder Singh, whenever he was involved in a serious incident, that is (a) incident on 10.3.1998 when Joginder was suspected of killing a Police constable, (b) incident on 25.1.2001 when Joginder escaped from Police custody when he was being taken to court, and (c) incident on 13/14.2.2001 when Joginder was suspected of killing two persons at Tohana.

ii) Though there is some evidence of illegal detention and beating of petitioner and his relatives, the allegations of custodial torture are exaggerated and to a certain extent false.

iii) There is no medical evidence nor any visible scars/ marks/disability resulting from the alleged torture, either in the case of petitioner or his family members/relatives.

iv) The complaints of petitioner and his relatives are against different police officers of different police stations (totally unconnected with each other) in regard to incidents at different points of time, in March, 1998, April, 1998, July, 1998, January, 2001, February, 2001 and June, 2001.

v) The case of Petitioner is that he and/or his relatives were harassed, illegally confined, or tortured, to find out the whereabouts of Joginder. The police contend that the allegations by petitioner and his relatives, are by way of a well conceived plot to prevent police investigation in regard to misdeeds by Joginder and his associates and to pre-empt any action by the police against Joginder or his family members.

9. We will next refer to the factors which indicate that petitioner and his relatives have made false and exaggerated claims in regard to illegal detention, torture etc., apart from suppressing material facts.

9.1) In his letter to this Court, petitioner has alleged that he was illegally confined by the Police for 11 days from 10.3.1998 (one day at Dhamtan Saheb Police Post and 10 days at Police Station, Garhi). Rattan Singh (brother in law of petitioner) in his affidavit dated 13.5.1999 alleges that he was illegally detained for 2 days and again for 4 days. But in the writ petition filed by petitioner and Rattan Singh in the Punjab and Haryana High Court on 24.3.1998, it is alleged that the petitioner and Rattan Singh were confined by Police between 10.3.1998 and 13.3.1998 (three days) and again for a day between 15.3.1998 and 16.3.1998.

9.2) Petitioner, in the letter to this Court, alleges beating and torture at Dhamtan Saheb Police Post on 10.3.1998 and at Police Station, Garhi for five days in Police custody between 11.3.1998 and 16.3.1998. Rattan Singh alleges torture for 2 days (from 10.3.1998 to 12.3.1998) and again for four days (from 16.3.1998 to 20.3.1998). But in the writ petition filed in Punjab & Haryana High Court on 24.3.1998 by petitioner and Rattan Singh, there is no allegation of beating or torture, but only expression of an apprehension that they may be arrested, harassed and tortured (Note : Petitioner blames his counsel for not mentioning the facts properly in the writ petition filed before the High Court).

9.3) In the letter petition, petitioner completely suppressed the fact that he (along with Rattan Singh) had filed a writ petition on 24.3.1998 in the Punjab & Haryana High Court in regard to the said incident (between 10.3.1998 to 21.3.1998) and the fact that the said writ petition was disposed of on 27.4.1998 by the High Court reserving liberty to file a criminal complaint.

9.4) In the letter petition, the petitioner has alleged four ‘misdeeds’ of police on 10.3.1998 : (a) His torture at the police post at the Dhamtan Saheb Police Post by Dharam Singh, ASI at the instance of Superintendent of Police and DSP, (b) Mistreatment of wife and daughters of the petitioner at the Dhamtan Saheb Police Post, (c) Rs.2,350/- being taken from his pocket by ASI Dharam Singh, and (d) Licensed gun, cartridges, arms licence and gold ornaments being illegally taken by ASI Dharam Singh on 10.3.1998. The CBI report finds that none of these four allegations is substantiated.

9.5) In the letter petition, the petitioner alleged that he had told police that he was not on good terms with his son Joginder Singh, that he had already disowned him and the family was having no connection with Joginder. He even published a notice in ‘Dainik Tribune’ in August, 1998 stating that he has no connection with his son Joginder. In his affidavit dated 31.8.2001 (filed in this case on 1.10.2001), petitioner reiterates that he has disowned his son Joginder and alleges that he did not have any contact with him;

and that in spite of it, the police were continuously harassing him and his family members seeking information about the whereabouts of Joginder and raiding his house and his relatives’ houses to find out whether Joginder was hiding there. But the CBI inquiry has categorically found that petitioner and his family members had not disowned Joginder. They were regularly meeting Joginder when he was in custody. Petitioner was traveling to meet his son Joginder whenever he was being produced in courts, in respect of different cases. In fact petitioner received money from the All India Food & Allied Workers Palledar Union, Tohana (Kacchi Union) of which he was a member, to meet the expenses of the travel (to meet his son) on 25.10.2000, 25.11.2000, 21.12.2000, 13.1.2001, 16.1.2001, 23.1.2001, 9.10.2001, 10.10.2001, 11.10.2001, 15.10.2001, 25.10.2001, 7.11.2001, 17.11.2001 and 20.11.2001. Further, the jail records showed that Joginder was met by petitioner’s wife on 26.8.1999, petitioner’s brother Narsi on 17.11.1999, 18.11.1999 and 1.3.2002, petitioner’s uncle Rama on 20.11.1999, and petitioner’s brother-in-law Rattan Singh on 5.3.2002.

10. There was thus reasonable cause for the Police to think that the family members of Joginder might know about his whereabouts. The repeated questioning of the family members of Joginder in the year 1998 and 2001, either at their houses or by calling them to the Police Station/Post was part of investigation process and cannot, per se, be considered as harassment or violation of Article 21. Whether the police exceeded their limits in questioning the petitioner or his relatives is of course a different aspect. The report of the CBI shows that there is prima facie evidence about petitioner and some of his relatives being illegally detained in Police Station/Post and subjected possibly to some third degree methods, to extract information regarding the whereabouts of Joginder Singh. At the same time, the report makes it clear that neither the illegal detention nor the alleged torture (if true) was of an extent, alleged by the petitioner and his relatives. The claims were clearly exaggerated and many a time false also. It is quite probable that the allegations against Police were levelled and/or exaggerated to avoid enquiries by the Police in regard to Joginder.

11. This leads us to the question whether, in addition to directing CBI inquiry and prosecution of the officers concerned, on the facts and circumstances of this case, compensation should be awarded to petitioner and his family members, as a public law remedy for the violation of their fundamental rights under Article 21 of the Constitution.

Compensation as a public law remedy :

12. Though illegal detention and custodial torture were recognized as violations of the fundamental rights of life and liberty guaranteed under Article 21, to begin with, only the following reliefs were being granted in writ petitions under Article 32 or 226 :

a) direction to set at liberty the person detained, if the complaint was one of illegal detention.

b) direction to the concerned Government to hold an inquiry and take action against the officers responsible for the violation.

c) If the enquiry or action taken by the concerned department was found to be not satisfactory, to direct an inquiry by an independent agency, usually the Central Bureau of Investigation.

Award of compensation as a public law remedy for violation of the fundamental rights enshrined in Article 21 of the Constitution, in addition to the private law remedy under the Law of Torts, was evolved in the last two and half decades.

13. In the Bhagalpur Blinding case, [Khatri (II) vs State of Bihar  [1980] INSC 239; 1981 (1) SCC 627], Bhagwati J., (as he then was), speaking for the Bench, posed the following question while considering the relief that could be given by a court for violation of constitutional rights guaranteed in Article 21 of the Constitution :- “… but if life or personal liberty is violated otherwise than in accordance with such procedure, is the Court helpless to grant relief to the person who has suffered such deprivation? Why should the court not be prepared to forge new tools and devise new remedies for the purpose of vindicating the most precious of the precious fundamental right to life and personal liberty.” The question was expanded in a subsequent order in Bhagalpur Blinding case [Khatri (IV) vs State of Bihar  [1981] INSC 61; 1981 (2) SCC 493), thus :- “If an officer of the State acting in his official capacity threatens to deprive a person of his life or personal liberty without the authority of law, can such person not approach the court for injuncting the State from acting through such officer in violation of his fundamental right under Article 21 ? Can the State urge in defence in such a case that it is not infringing the fundamental right of the petitioner under Article 21, because the officer who is threatening to do so is acting outside the law and therefore beyond the scope of his authority and hence the State is not responsible for his action ? Would this not make a mockery of Article 21 and reduce it to nullity, a mere rope of sand, for, on this view, if the officer is acting according to law there would ex concessionis be no breach of Article 21 and if he is acting without the authority of law, the State would be able to contend that it is not responsible for his action and therefore there is no violation of Article 21. So also if there is any threatened invasion by the State of the fundamental right guaranteed under Article 21, the petitioner who is aggrieved can move the court under Article 32 for a writ injuncting such threatened invasion and if there is any continuing action of the State which is violative of the fundamental right under Article 21, the petitioner can approach the court under Article 32and ask for a writ striking down the continuance of such action, but where the action taken by the State has already resulted in breach of the fundamental right under Article 21 by deprivation of some limb of the petitioner, would the petitioner have no remedy under Article 32 for breach of the fundamental right guaranteed to him ? Would the court permit itself to become helpless spectator of the violation of the fundamental right of the petitioner by the State and tell the petitioner that though the Constitution has guaranteed the fundamental right to him and has also given him the fundamental right of moving the court for enforcement of his fundamental right, the court cannot give him any relief.” Answering the said questions, it was held that when a court trying the writ petition proceeds to inquire into the violation of any right to life or personal liberty, while in police custody, it does so, not for the purpose of adjudicating upon the guilt of any particular officer with a view to punishing him but for the purpose of deciding whether the fundamental right of the petitioners under Article 21 has been violated and the State is liable to pay compensation to them for such violation. This Court clarified that the nature and object of the inquiry is altogether different from that in a criminal case and any decision arrived at in the writ petition on this issue cannot have any relevance much less any binding effect, in any criminal proceeding which may be taken against a particular police officer. This Court further clarified that in a given case, if the investigation is still proceeding, the Court may even defer the inquiry before it until the investigation is completed or if the Court considered it necessary in the interests of Justice, it may postpone its inquiry until after the prosecution was terminated, but that is a matter entirely for the exercise of the discretion of the Court and there is no bar precluding the Court from proceeding with the inquiry before it, even if the investigation or prosecution is pending.

14. In Rudul Sah vs. State of Bihar [1983] INSC 87; [1983 (4) SCC 141], the petitioner therein approached this Court under Article 32 of the Constitution alleging that though he was acquitted by the Sessions Court on 3.6.1968, he was released from jail only on 6.10.1982, after 14 years, and sought compensation for his illegal detention.

This Court while recognizing that Article 32 cannot be used as a substitute for the enforcement of rights and obligations which can be enforced efficaciously through the ordinary processes of courts, civil and criminal, raised for consideration the important question as to whether in the exercise of its jurisdiction under Article 32, this Court can pass an order for payment of money, as compensation for the deprivation of a fundamental right. This Court answered the question thus while awarding compensation:- “Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation.

Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. If civilisation is not to perish in this country as it has perished in some others too well-known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner’s rights. It may have recourse against those officers.” Rudul Sah was followed in Bhim Singh vs. State of J&K [1985 (4) SCC 677] and Peoples’ Union for Democratic Rights vs.

Police Commissioner, Delhi Police Headquarters [1989 (4) SCC 730].

15. The law was crystallized in Nilabati Behera vs. State of Orissa [1993] INSC 154; [1993 (2) SCC 746]. In that case, the deceased was arrested by the police, handcuffed and kept in a police custody. The next day, his dead-body was found on a railway track. This Court awarded compensation to the mother of the deceased. J.S. Verma J., (as he then was) spelt out the following principles :- “Award of compensation in a proceeding under Article 32 by this Court or by the High Court under Article 226 of the Constitution is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort.

Enforcement of the constitutional right and grant of redress embraces award of compensation as part of the legal consequences of its contravention.

A claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is ‘distinct from, and in addition to, the remedy in private law for damages for the tort’ resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution.” [Emphasis supplied] Dr. A.S. Anand J., (as he then was) in his concurring judgment elaborated the principle thus :- “… Convicts, prisoners or under-trials are not denuded of their fundamental rights under Article 21 and it is only such restrictions, as are permitted by law, which can be imposed on the enjoyment of the fundamental rights by such persons. It is an obligation of the State to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law, while the citizen is in its custody.

The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by the Supreme Court or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting ‘compensation’ in proceedings under Article 32 or 226 seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalizing the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making ‘monetary amends’ under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of ‘exemplary damages’ awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law. ”

16. In D. K. Basu v. State of West Bengal (1997 (1) SCC 416), this Court again considered exhaustively the question and held that monetary compensation should be awarded for established infringement of fundamental rights guaranteed under Article 21. This Court held :- “Custodial violence, including torture and death in the lock ups strikes a blow at the Rule of Law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law.

Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens. It is committed under the shield of uniform and authority in the four walls of a police station or lock-up, the victim being totally helpless. The protection of an individual from torture and abuse by the police and other law enforcing officers is a matter of deep concern in a free society.

Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law-breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchy. No civilized nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him ? Can the right to life of a citizen be put in abeyance on his arrest. … The answer, indeed, has to be an emphatic ‘No’.

Police is, no doubt, under a legal duty and has legitimate right to arrest a criminal and to interrogate him during the investigation of an offence but it must be remembered that the law does not permit use of third degree methods or torture of accused in custody during interrogation and investigation with a view to solve the crime. End cannot justify the means. The interrogation and investigation into a crime should be in true sense purposeful to make the investigation effective. By torturing a person and using third degree methods, the police would be accomplishing behind the closed doors what the demands of our legal order forbid. No society can permit it.”

17. It is thus now well settled that award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under Article 21, by a public servant. The quantum of compensation will, however, depend upon the facts and circumstances of each case.

Award of such compensation (by way of public law remedy) will not come in the way of the aggrieved person claiming additional compensation in a civil court, in enforcement of the private law remedy in tort, nor come in the way of the criminal court ordering compensation under section 357 of Code of Civil Procedure.

18. This takes us to the next question as to whether compensation should be awarded under Article 32/226, for every violation of Article 21 where illegal detention or custodial violence is alleged.

Whether compensation should be awarded for every violation of Article 21

19. In M.C. Mehta vs. Union of India [1986] INSC 282; [1987 (1) SCC 395], a Constitution Bench of this Court while considering the question whether compensation can be awarded in a petition under Article 32, observed thus :- “We must, therefore, hold that Article 32 is not powerless to assist a person when he finds that his fundamental right has been violated. He can in that event seek remedial assistance under Article 32. The power of the court to grant such remedial relief may include the power to award compensation in appropriate cases. We are deliberately using the words “in appropriate cases” because we must make it clear that it is not in every case where there is a breach of a fundamental right committed by the violator that compensation would be awarded by the court in a petition under Article 32. The infringement of the fundamental right must be gross and patent, that is, incontrovertible and ex facie glaring and either such infringement should be on a large scale affecting the fundamental rights of a large number of persons, or it should appear unjust or unduly harsh or oppressive on account of their poverty or disability or socially or economically disadvantaged position to require the person or persons affected by such infringement to initiate and pursue act in the civil courts. Ordinarily, of course, a petition under Article 32 should not be used as a substitute for enforcement of the right to claim compensation for infringement of a fundamental right through the ordinary process of civil court. It is only in exceptional cases of the nature indicated by us above, that compensation may be awarded in a petition under Article 32. ….

If we make a fact analysis of the cases where compensation has been awarded by this Court, we will find that in all the cases, the fact of infringement was patent and incontrovertible, the violation was gross and its magnitude was such as to shock the conscience of the court and it would have been gravely unjust to the person whose fundamental right was violated, to require him to go to the civil court for claiming compensation.” (emphasis supplied) In Nilabati Behera (supra), this Court put in a word of caution thus:- “Of course, relief in exercise of the power under Article 32 or 226 would be granted only (when) it is established that there has been an infringement of the fundamental rights of the citizen and no other form of appropriate redressal by the court in the facts and circumstances of the case, is possible. ….Law is in the process of development and the process necessitates developing separate public law procedures as also public law principles. It may be necessary to identify the situations to which separate proceedings and principles apply and the courts have to act firmly but with certain amount of circumspection and self-restraint, lest proceedings under Article 32 or 226 are misused as a disguised substitute for civil action in private law.” (emphasis supplied) In D. K. Basu (supra), this Court repeatedly stressed that compensation can be awarded only for redressal of an established violation of Article 21. This Court also drew attention to the following aspect :

“There is one other aspect also which needs our consideration. We are conscious of the fact that the police in India have to perform a difficult and delicate task, particularly in view of the deteriorating law and order situation, communal riots, political turmoil, student unrest, terrorist activities, and among others the increasing number of underworld and armed gangs and criminals. Many hard core criminals like extremists, the terrorists, drug peddlers, smugglers who have organized, gangs, have taken strong roots in the society. It is being said in certain quarters that with more and more liberalization and enforcement of fundamental rights, it would lead to difficulties in the detection of crimes committed by such categories of hardened criminals by soft peddling interrogation, it is felt in those quarters that if we lay too much of emphasis on protection of their fundamental rights and human rights, such criminals may go scot-free without exposing any element or iota of criminality with the result, the crime would go unpunished and in the ultimate analysis the society would suffer. The concern is genuine and the problem is real. To deal with such a situation, a balanced approach is needed to meet the ends of justice. This is all the more so, in view of the expectation of the society that police must deal with the criminals in an efficient and effective manner and bring to book those who are involved in the crime. The cure cannot, however, be worst than the disease itself.” [Emphasis supplied] In Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble [2003 (7) SCC 749] and Munshi Singh Gautam v. State of M.P.

[2005 (9) SCC 631], this Court warned against non-genuine claims:

“But at the same time there seems to be a disturbing trend of increase in cases where false accusations of custodial torture are made, trying to take advantage of the serious concern shown and the stern attitude reflected by the courts while dealing with custodial violence. It needs to be carefully examined whether the allegations of custodial violence are genuine or are sham attempts to gain undeserved benefit masquerading as victims of custodial violence.” In Dhananjay Sharma vs. State of Haryana [1995 (3) SCC 757], this Court refused compensation where the petitioner had exaggerated the incident and had indulged in falsehood. This Court held :

“Since, from the report of the CBI and our own independent appraisal of the evidence recorded by the CBI. we have come to the conclusion that Shri Dhananjay Sharma and Sushil Kumar had been illegally detained by respondents 3 to 5 from the afternoon of 15.1.94 to 17.1.94, the State must be held responsible for the unlawful acts of its officers and it must repair the damage done to the citizens by its officers for violating their indivisible fundamental right of personal liberty without any authority of law in an absolutely high-handed manner. We would have been, therefore, inclined to direct the State Government of Haryana to compensate Dhananjay Sharma and Sushil Kumar but since Sushil Kumar has indulged in false-hood in this Court and Shri Dhananjay Sharma, has also exaggerated the incident by stating that on 15.1.94 when he was way laid along with Sushil Kumar and Shri S.C. Puri, Advocate, two employees of respondents 6 and 7 were also present with the police party, which version has not been found to be correct by the CBI, they both have disentitled themselves from receiving any compensation, as monetary amends for the wrong done by respondents 3 to 5, in detaining them. We, therefore do not direct the payment of any compensation to them.” [Emphasis supplied]

20. Cases where violation of Article 21 involving custodial death or torture is established or is incontrovertible stand on a different footing when compared to cases where such violation is doubtful or not established. Where there is no independent evidence of custodial torture and where there is neither medical evidence about any injury or disability, resulting from custodial torture, nor any mark/scar, it may not be prudent to accept claims of human right violation, by persons having criminal records in a routine manner for awarding compensation. That may open the floodgates for false claims, either to mulct money from the State or as to prevent or thwart further investigation.

Courts should, therefore, while jealously protecting the fundamental rights of those who are illegally detained or subjected to custodial violence, should also stand guard against false, motivated and frivolous claims in the interests of the society and to enable Police to discharge their duties fearlessly and effectively. While custodial torture is not infrequent, it should be borne in mind that every arrest and detention does not lead to custodial torture.

21. In cases where custodial death or custodial torture or other violation of the rights guaranteed under Article 21 is established, courts may award compensation in a proceeding under Article 32 or 226. However, before awarding compensation, the Court will have to pose to itself the following questions : (a) Whether the violation of Article 21 is patent and incontrovertible, (b) whether the violation is gross and of a magnitude to shock the conscience of the court, (c) whether the custodial torture alleged has resulted in death or whether custodial torture is supported by medical report or visible marks or scars or disability. Where there is no evidence of custodial torture of a person except his own statement, and where such allegation is not supported by any medical report or other corroboration evidence, or where there are clear indications that the allegations are false or exaggerated fully or in part, courts may not award compensation as a public law remedy under Article 32 or 226, but relegate the aggrieved party to the traditional remedies by way of appropriate civil/criminal action.

22. We should not, however, be understood as holding that harassment and custodial violence is not serious or worthy of consideration, where there is no medical report or visible marks or independent evidence. We are conscious of the fact that harassment or custodial violence cannot always be supported by a medical report or independent evidence or proved by marks or scars. Every illegal detention irrespective of its duration, and every custodial violence, irrespective of its degree or magnitude, is outright condemnable and per se actionable. Remedy for such violation is available in civil law and criminal law. The public law remedy is additionally available where the conditions mentioned in the earlier para are satisfied. We may also note that this Court has softened the degree of proof required in criminal prosecution relating to such matters. In State of MP vs.

Shyamsunder Trivedi – 1995 (4) SCC 262, reiterated in ABDUL GAFAR KHAN and MUNSHI SINGH GAUTAM (supra),this Court observed :- “Rerely in cases of police torture or custodial death, direct ocular evidence of the complicity of the police personnel would be available…… Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues………. The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt, by the prosecution, ignoring the ground realities, the fact-situations and the peculiar circumstances of a given case….., often results in miscarriage of justice and makes the justice delivery system a suspect. In the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach of the Courts because it reinforces the belief in the mind of the police that no harm would come to them, if an odd prisoner dies in the lock-up, because there would hardly be any evidence available to the prosecution to directly implicate them with the torture.” Improving the present situation

23. Unfortunately, police in the country have given room for an impression in the minds of public, that whenever there is a crime, investigation usually means rounding up all persons concerned (say all servants in the event of a theft in the employer’s house, or all acquaintances of the deceased, in the event of a murder) and subjecting them to third-degree interrogation in the hope that someone will spill the beans. This impression may not be correct, but instances are not wanting where police have resorted to such a practice. Lack of training in scientific investigative methods, lack of modern equipment, lack of adequate personnel, and lack of a mindset respecting human rights, are generally the reasons for such illegal action. One other main reason is that the public (and men in power) expect results from police in too short a span of time, forgetting that methodical and scientific investigation is a time consuming and lengthy process. Police are branded as inefficient even when there is a short delay in catching the culprits in serious crimes.

The expectation of quick results in high-profile or heinous crimes builds enormous pressure on the police to somehow ‘catch’ the ‘offender’. The need to have quick results tempts them to resort to third degree methods. They also tend to arrest “someone” in a hurry on the basis of incomplete investigation, just to ease the pressure. Time has come for an attitudinal change not only in the minds of the police, but also on the part of the public. Difficulties in criminal investigation and the time required for such investigation should be recognized, and police should be allowed to function methodically without interferences or unnecessary pressures. If police are to perform better, the public should support them, government should strengthen and equip them, and men in power should not interfere or belittle them. The three wings of the Government should encourage, insist and ensure thorough scientific investigation under proper legal procedures, followed by prompt and efficient prosecution.

Be that as it may.

24. Custodial violence requires to be tackled from two ends, that is, by taking measures that are remedial and preventive.

Award of compensation is one of the remedial measures after the event. Effort should be made to remove the very causes, which lead to custodial violence, so as to prevent such occurances. Following steps, if taken, may prove to be effective preventive measures:

a) Police training should be re-oriented, to bring in a change in the mindset and attitude of the Police personnel in regard to investigations, so that they will recognize and respect human rights, and adopt thorough and scientific investigation methods.

b) The functioning of lower level Police Officers should be continuously monitored and supervised by their superiors to prevent custodial violence and adherence to lawful standard methods of investigation.

c) Compliance with the eleven requirements enumerated in D.K. Basu (supra) should be ensured in all cases of arrest and detention.

d) Simple and fool-proof procedures should be introduced for prompt registration of first information reports relating to all crimes.

e) Computerization, video-recording, and modern methods of records maintenance should be introduced to avoid manipulations, insertions, substitutions and ante-dating in regard to FIRs, Mahazars, inquest proceedings, Port-mortem Reports and Statements of witnesses etc. and to bring in transparency in action.

f) An independent investigating agency (preferably the respective Human Rights Commissions or CBI) may be entrusted with adequate power, to investigate complaints of custodial violence against Police personnel and take stern and speedy action followed by prosecution, wherever necessary.

The endeavour should be to achieve a balanced level of functioning, where police respect human rights, adhere to law, and take confidence building measures (CBMs), and at the same time, firmly deal with organized crime, terrorism, white-collared crime, deteriorating law and order situation etc.

CONCLUSION :

25. In this case, there is no clear or incontrovertible evidence about custodial torture, nor any medical report of any injury or disability. The grievance of the petitioner and his relatives is against different officers in different Police Stations at different points of time. More importantly, several of the allegations are proved to be exaggerated and false. We, therefore, do not consider this to be a fit case for award of compensation. All reliefs which should be granted in such a case, have already been granted by ordering an inquiry by the CBI and ensuring that the Police Officers named are prosecuted. The law will have to take own course.

26. This order will not come in the way of any civil court awarding compensation in an action in tort or the criminal court awarding compensation under section 357 CPC in the pending prosecution against any of the officers, if the charges are established. With the said observations, we dispose of this petition, as no further reliefs/directions are called for.

27. We record our appreciation for the effort put in by Shri S. Muralidhar, Amicus Curiae, in presenting the matter.

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