At one time, he was a phenomenon— a yoga teacher-turned-entrepreneur who built a massive empire on his Patanjali Ayurvedic drugs and potions and was feted by the rich  and powerful. Now, the legal  cases and strictures are piling up faster than he created his  spiritual business

The Supreme Court on April 30 criticized the Uttarakhand State Licensing Authority (SLA) for its failure to take action against Patanjali Ayurved for years. A bench, comprising Justices Hima Kohli and Ahsanuddin Amanullah, stated that the SLA appears to have chosen to act against Patanjali’s misleading advertisements only after the top court passed strictures and made strong observations in that regard. Earlier on April 27, the SLA had filed an affidavit apologising for its earlier inaction and stated that it has filed a criminal complaint against Patanjali Ayurved and its founders Baba Ramdev and Acharya Balkrishna, for violating the Drugs and Magic Remedies (Objectionable Advertisements) Act.

Earlier, the top court on April 23 sought explanation from the centre over its failure to invoke the Drugs and Cosmetics Rules, 1945, against Patanjali Ayurved for broadcasting misleading advertisements. The bench mentioned that the AYUSH ministry of the centre had sent a letter to all the state governments in 2023 directing them not to take any action under Rule 170 of the Drugs and Cosmetics Rules, 1945. The Court further pointed out that the minister of state had submitted in Parliament that the government had taken steps against such advertisements, but now the centre was saying that Rule 170 will not be given effect to. Asking if the government can put on hold the exercise of law when it is in power, Justice Amanullah stated that it is a “colourable” exercise of power and violation of law. Meanwhile, Justice Kohli remarked that it seems that the authorities were busy looking at the revenue. Subsequently, the Court ordered the centre to explain the letter to the Drugs Controller Authority, states, omitting Rule 170.

The top court further decided to take a closer look into implementation of laws, such as the Drugs and Cosmetics Act and the Drugs and Magic Remedies (Objectionable Advertisements) Act. The Court clarified that this examination would not just be limited to having these laws enforced against Patanjali Ayurved, but would also concern its implementation against misleading advertisements for other fast moving consumer goods. Further, the Court expressed that it was concerned with such misleading advertisements taking the public for a ride and affecting the health of babies and children and the elderly, who have been consuming medicines after being influenced by the misleading advertisements. During the hearing, the apex court also asked Patanjali Ayurved if the public apology published by the company in newspapers on April 22 was as big as its advertisements.

On April 22, Patanjali Ayurved had published advertisements in certain newspapers expressing apology for the mistake of publishing advertisements and holding a press conference even after its counsel had made a statement in the apex court. Patanjali’s counsel assured the apex court that they

will issue a public apology for their mistake. Subsequently, Justice Kohli asked if the apology was of the same size as their advertisements. To this, the counsel said that the apology costs tens of lakhs of rupees and was published in 67 newspapers.

The Supreme Court had on April 19 granted two weeks time to Bihar and Chhattisgarh to inform it about the status regarding the FIRs and chargesheets filed against Baba Ramdev’s remarks on Allopathy. The Court observed that as the petition was filed in 2021 and the chargesheet would have been filed.

The apex court was hearing Ramdev’s plea to combine multiple FIRs filed against him in several states over his alleged remarks that Allopathy cannot cure Covid. The First Information Reports (FIR) against Ramdev were registered in Bihar and Chhattisgarh, based on complaints by the Indian Medical Association. Notably, the Patna and Raipur chapters of the Association had also filed complaints against Ramdev, alleging that his comments are likely to cause prejudice to Covid control, as the misinformation spread by him in a position of influence can dissuade people from availing proper treatment against the pandemic.

The Supreme Court in this petition had also asked Ramdev to produce the video and transcripts of his statements on the Allopathy cure for Covid. In the petition filed under Article 32, Ramdev sought clubbing and the consolidation of FIRs and their transfer to Delhi. He also sought a stay on the investigation in the FIRs as an interim relief. The FIRs mentioned offences under Sections 188 (disobedience to order duly promulgated by public servant), 269 (negligent act likely to spread infection of disease dangerous to life), 504 (intentional insult with intent to provoke breach of the peace), and other provisions of Disaster Management Act 2005.

Additionally, Ramdev is also facing contempt proceedings initiated by the Supreme Court for publishing misleading medical advertisements in breach of an undertaking given by Patanjali Ayurved to the top court. The Court had on April 10 come down heavily on the founders of Patanjali Ayurved, Baba Ramdev and Acharya Balkrishna in a contempt case related to airing of misleading medical advertisements. The bench of Justices Hima Kohli and Ahsanuddin Amanullah had refused to accept the second affidavit filed by Balkrishna, in which he expressed unconditional and unqualified apology for airing the advertisements in breach of an undertaking given to the Court in November, last year. The apex court refused to accept the apology on the grounds that the affidavit was merely “on paper” and warned that the proposed contemnors should be ready to face penal action for violation of the undertaking.

During the course of the hearing, the top court commented that both the Patanjali’s managing director and Baba Ramdev tried to evade personal appearance before the Court by making false claims of travel abroad. After show-cause notices were issued to them, they attempted to “wriggle out” of their personal presence by moving applications seeking exemption on the ground that they were travelling abroad. To demonstrate the fact, affidavits were filed by them, referring to certain flight tickets, which were produced as annexures. The Court observed that though the applications were filed on March 30, the flight tickets produced as annexures were dated March 31. The concerned lawyer was confronted with this fact during the earlier hearing.

In the latest affidavits, Balkrishna and Ramdev admitted that the tickets were issued a day after the affidavits were sworn and explained that at the time of filing of the affidavit, the photocopies of the tickets were annexed. The Court also came down heavily on the Uttarakhand government for its failure to take legal action against Patanjali and its subsidiary Divya Pharmacy. It asked why it should not think that the Uttarakhand authorities were “hands-in-glove” with Patanjali/Divya Pharmacy. The bench further remarked that it was “appalled” to note that apart from “pushing” the file, the SLA did nothing and were merely trying to “pass” on the buck to somehow “delay” the matter.

It said the SLA was equally “complicit” due to its inaction against the Divya Pharmacy despite having information about their advertisements violating the Drugs and Magic Remedies (Objectionable Advertisements) Act. The Bench said it was refraining from issuing contempt notices to other officers and directed all officers holding the post of joint director of the SLA, Haridwar, between 2018 till date, to file affidavits explaining inaction on their part.

Baba Ramdev and Balkrishna tendered an unconditional and unqualified apology before the Supreme Court over the company’s misleading advertisements and claims targeting evidence-based medicine. Ramdev and Balkrishna filed separate affidavits before the apex court on April 6, seeking pardon for the breach of their earlier statement that they would not telecast or publish such misleading advertisements. They further assured to always uphold the majesty of the law and justice.

Ramdev further apologised for his November 2023 press conference, wherein he had spoken about the case after the Court had passed strictures against Patanjali Ayurved. He assured the top court that he would comply with its directives “in letter and spirit”. The development followed the April 2 order of the Supreme Court, reprimanding Patanjali Ayurved over its earlier apology affidavit, which was dubbed as casual and a mere lip service. The concerned bench sought apology from the Patanjali founders for their failure to stop carrying misleading advertisements to promote their Ayurvedic products by disparaging modern medicine. The bench passed the order while hearing a plea filed by the Indian Medical Association against an alleged smear campaign carried out by Patanjali and its founder against the Covid-19 vaccination drive and modern medicine.

The apex court had earlier imposed a temporary ban on such advertisements and issued contempt of court notices to the company and Balkrishna for making misleading claims. In November 2023, the Supreme Court had threatened to impose costs of Rs 1 crore per false claim made in each advertisement for Patanjali Ayurved products that claimed to cure diseases. Patanjali was directed not to publish false advertisements in the future. However, since such advertisements were published despite the warning, the apex court imposed a temporary ban on Patanjali Ayurved’s advertisements, while lamenting that the company had been taking the country for a ride. On March 19, the apex court had directed Ramdev and Balkrishna to be personally present before it after the latter failed to file a reply to the show-cause notice in the contempt proceedings. 

Ramdev now has to swallow some strong legal medicine himself. 

—By Shivam Sharma and India Legal Bureau

Vacillation by courts while deciding MTP cases shows the enormity and difficulty of their decisions. The rights of the mother have to be balanced with that of the child and require great sensitivity

By Dr Swati Jindal Garg

In an exceptional judgment, the Supreme Court first allowed a 14-year-old sexual assault victim to terminate her almost 30-week pregnancy terming it a “very very exceptional case where we have to protect her”, but then recalled the order after interacting with her parents. The order came on the heels of another one passed by the Bombay High Court where relief was denied to the rape survivor.

The apex court order regarding termination was passed by a bench presided by Chief Justice of India DY Chandrachud after reading the report submitted by the dean of Lokmanya Tilak Municipal General Hospital and Medical College, Sion, Mumbai. The bench said the report “has clearly opined that the continuation of the pregnancy against the will of the minor may impact negatively on the physical and mental well-being of a minor who is barely 14 years old”.

The bench had further asked the dean to constitute a special team to undertake the medical termination of pregnancy of the minor. Allowing the procedure at that time, the bench had said this was necessary “bearing in mind the exigencies of the situation and the welfare of the minor which is of paramount importance and her safety….”

The apex court even went to the extent of saying that the state has agreed to bear all the expenses of the procedure. The Supreme Court added that if post-termination, any further medical care is required, it may be ensured in the interest of the minor. 

However, the procedure could not go through and a week later, after interacting with the parents of the girl and understanding their concern over her health if she were to undergo MTP at such an advanced stage of pregnancy, the Court recalled its earlier order. The parents have expressed their willingness to get a natural delivery done in the normal course.

The case took note of the fact that an FIR regarding the offence under various sections of the Indian Penal Code and the Protection of Children from Sexual Offences Act was registered in connection with the crime. This was recorded beyond the period of 24 weeks. Incidentally, the MTP Act does not permit abortions beyond 24 weeks.

The Court was also considerate of the fact that the medical report relied on by the Bombay High Court did not contain an evaluation of the physical and mental status of the minor, particularly with regard to the background leading up to the pregnancy, including the alleged sexual assault. Taking into account this grave lapse, the Supreme Court asked Sion Hospital to constitute a medical board to examine the victim afresh. Accordingly, the hospital set up a team of six doctors, which medically examined her again.

The case is unique in the sense that even though abortion in India has been legalised, the MTP Act’s upper limit for it is 24 weeks. The current ruling passed by the apex court wherein it initially allowed the termination, but recalled the order, has again set the ball rolling regarding the time limit for abortion. 

In the recent past, a 26-year-old married woman was also denied the right to terminate her 32 weeks pregnancy. She had claimed that it was unplanned and she did not have the resources or the mental frame to support the child. The case came up before a three-judge bench after a two-judge one had delivered a split verdict on the woman’s plea. This two-judge bench, comprising Justices Hima Kohli and BV Nagarathna of the SC, had allowed the abortion in a previous hearing, but Justice Kohli reversed her judgment after the Union government sought a recall order based on an opinion from a doctor at AIIMS who said that the foetus was viable. Subsequently, permission was denied by the three judge bench too.

This is not the first time that the Supreme Court has been sensitive to the tussle between the mother’s right to terminate an unwanted pregnancy vis-à-vis the right to life of the unborn foetus. In August last year, a bench headed by Justice Nagarathna had held a special sitting on a Saturday (when the Court is shut) to allow termination of a rape survivor’s pregnancy at 27 weeks and three days.

In 2022, a bench led by Justice Chandrachud had also allowed abortion to an un­married woman who was 24 weeks pregnant, and had been in a consensual relationship. Citing “transformative constitutionalism” that promotes and engenders societal change, the bench had said that “the law must remain cognizant of the fact that changes in society have ushered in significant changes in family structures”.

Then there are cases where the courts have overruled the decision of the medical board to allow termination as in Bhatou Boro vs State of Assam where the Gauhati High Court allowed termination of pregnancy of over 26 weeks of a minor rape survivor.

The law on abortions in India is governed by The Medical Termination of Pregnancy Act, 1971, which allows the termination of pregnancy under certain circumstances. While termination is allowed on the advice of one doctor upto a period of 20 weeks, in the case of a pregnancy of 20-24 weeks, abortion is only allowed as an exception under certain categories, and that too after two registered medical practitioners have evaluated the right to seek termination.

Section 3B of the Rules under the MTP Act lists seven categories of forced pregnancies:

(a) Survivors of sexual assault or rape or incest.

(b) Minors.

(c) Change of marital status during the ongoing pregnancy (widowhood and divorce).

(d) Women with physical disabilities (major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016).

(e) Mentally-ill women, including mental retardation.

(f) Foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped.

(g) Women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the government.

After 24 weeks of pregnancy, the law requires that a medical board be set up in “approved facilities”, which may “allow or deny termination of pregnancy” only if there is substantial foetal abnormality.

In a much discussed judgment passed last year, the CJI-led bench said that the rights of a woman “must trump” when it comes to abortion, and that there was a need to “balance out the rights of the unborn child”. “There is no doubt that our law is far ahead of other countries. We will not have a ‘Roe versus Wade’ situation here. Our law is liberal and pro-choice,” the CJI had observed.

In the landmark 1973 US Supreme Court verdict of Roe vs Wade, US courts had made abortion a constitutional right, allowing it up to the point of foetal viability—the time after which a foetus can survive outside the womb. Hence, even though Indian courts have read the MTP Act liberally, the test of “foetal viability” as a benchmark to allow abortion is new in this country. 

While foetal viability in 1973 was pegged at 28 weeks (seven months), the same may stand at 23-24 weeks (six months) with scientific advancement. Hence it has been argued that foetal viability is an arbitrary standard which may keep changing depending upon scientific advancement.

The law of abortion in India as it stands today has indeed come a long way—starting with the 1960s when termination/abortion was punishable under law, till 1971 when based on the report of the Shantilal Shah Committee, a medical termination bill was introduced in the Lok Sabha and Rajya Sabha and passed by Parliament in August 1971.

However, the criticism of the Indian law is that the decision of whether a termination should be allowed beyond 20 weeks is shifted to the doctors and not the woman who carries the child. It then becomes a point of debate whether the mother is mentally prepared to give birth to the child or not. 

The recent trend where a vacillation is seen by courts between granting termination and then recalling it shows the enormity and difficulty of their decisions. While most think that the decision to keep or not keep a child should rest with the pregnant woman alone, the rights of the unborn child also cannot be ignored.

Finding the right balance between both is the key. 

—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi

With technology advancing by leaps and bounds, it is not unthinkable that artificial intelligence (AI) will one day replace lawyers. The recent excitement around ChatGPT and related AI-based software has heightened concerns about machines doing the work that was earlier only done by humans. The tech sector is already experiencing major layoffs, which may be an indication of things to come.

India is steadily growing to be a global leader in industry and technological development. The 21st century has seen an increase in the number of technological company incubators that aim to nurture new ideas, thus connecting ideation to commercialisation. In terms of AI, India has made strides with the establishment of the National Artificial Intelligence Strategy (NITI Aayog), clearing the door for further possibilities in AI.

India presently ranks third among the most attractive investment destinations for technology transactions internationally, implying that scientific areas here have advanced significantly.

AI is an area of computer science that focuses on developing and managing technology that can learn to make decisions and carry out actions independently on behalf of humans. We’ve all utilised AI at some point, whether it was Siri, Facebook or Alexa. The advent of Covid in 2020 altered the dynamics of technology and law; AI has advanced to the point where it can create art, literature and many other things on its own.

AI has touched practically every area of life. The primary concept underlying this language is a machine that can think and behave like humans, making and practically implementing its own decisions by appropriately developing and employing a conventional thought process. While the legal profession was not among the first to adopt AI, it has a lot of potential to benefit from it and convert it into a perk. A major use of AI can be seen in legal domains such as “e-discovery”, “legal research”, “compliance”, “contract analysis”, “documents”, “due diligence”, etc.

The Supreme Court is not far behind in utilising AI for the benefit of litigants and advocates. The Court created SUVAS (Supreme Court Vidhik Anuvaad Software), a dedicated open-source judicial domain language translation tool, to translate judicial documents from English to nine vernacular languages such as Marathi, Hindi, Kannada, Tamil, Telugu, Punjabi, Gujarati, Malayalam, and Bengali, and vice versa. Further, a software called SCI-Interact was launched to make all benches paperless. The software comprises of scanned copies of pending cases, e-filing of fresh cases, IT hardware, MPLS network with dual redundancy and security audit.

Chief Justice of India Dr DY Chandrachud, who is chairman of the apex court’s e-committee, reportedly said: “With the help of this software, judges will be able to access files, annexures to petitions and make soft notes on computers itself, without it being accessible to others. Say, six months later, I will be able to retrieve my notes on the file.”

In 2021, the Supreme Court launched its first artificial intelligence portal, called SUPACE (Supreme Court Portal for Assistance in Court Efficiency). The objective was to use machine learning to deal with massive amounts of case data. During the launch, then chief justice, SA Bobde, stated that the Supreme Court was incorporating artificial intelligence into its normal work. SUPACE, he claimed, would be a hybrid of human and artificial intellect.

As lawyers are essentially word traders, they are considered the profession most at risk from recent developments in AI. The new technology can recognise, analyse and synthesise text in real-time. It appears to be prepared and capable of doing tasks that lawyers rely on.

The disruption created by Covid-19 resulted in long-term structural changes in the advancement and progression of companies of all types. In the sphere of law, there was a surge in the adoption of AI as it ensured better client service and boosted productivity at a time when most law firms and courts of law opted to work from home.

Several Indian startups such as Case Mine, Manupatra, and SCC Online are aiming to make lawyers’ jobs easier by providing a smooth online platform built on AI technology that allows them to perform research for their cases. These frequently go beyond simple keyword searches and make the study process more logical. It has become vital for Indian law firms to achieve a competitive advantage by first understanding the client’s needs and then utilising technology for legal research and other operations.

However, AI should not be viewed as a threat, but as an opportunity to enhance the quality of legal practice. Keeping in view the pandemic times where technology played a significant role in keeping the wheels of justice turning, Justice Hima Kohli of the Supreme Court referred to AI as a “game changer” for the legal fraternity. She was speaking at an event organised by ICICI Bank.

She said: “As we embrace technology, it is imperative that we are aware of the ethical concerns that come with the use of artificial intelligence in courts. The use of AI raises concerns about accountability, transparency, and protection of rights of parties. It will be critical to establish clear guidelines and protocols to ensure that justice is dispensed equitably to all parties…. Lawyers may fear that their expertise and skills will be made redundant by technology. However, to my mind, AI should not be viewed as a threat, but as an opportunity to enhance the quality of legal practice.

“The bottom line is that AI can never replace human values that are deeply in­grained in the constitutions of countries, in institutions of excellence in the academia and governments, and the civil society. So, let us embrace technology and AI, but with wisdom, and a steadfast commitment to the rule of law,” she said.

Internationally, AI has been used in the legal system. A business from the US recently produced the world’s first AI legal system called “ROSS Intelligence” which has been widely adopted by legal re­searchers. The company has attempted to make legal research chores more efficient and enjoyable with ROSS.

In addition, the world’s first robot lawyer defended an alleged traffic rule violator in the US using “DoNotPlay”, a downloadable application that uses AI to provide legal services for $36 per month. It listened to court arguments in real-time and advised the defendant on how to respond via an earbud if enabled by the DoNotPay application. DoNotPay also covers the traffic ticket fines if the defendant loses the case. “We’re trying to limit our legal liability,” DoNotPay founder and CEO Joshua Browder told New Scientist. “And it’s not good if it actually twists facts and is too manipulative.”

PricewaterhouseCoopers LLP recently unveiled a chatbox service for its lawyers, joining the ranks of professional services organisations that embrace artificial intelligence to increase productivity through a 12-month partnership with AI startup Harvey.

There are concerns that the ChatGPT-style software, with its human-like linguistic fluency, could replace a significant portion of legal work. The new AI has problems, most notably its inclination to invent things, in­cluding bogus legal citations.

However, supporters argue that these are minor flaws in a new technology that can be fixed. But we cannot deny the fact that new AI technology will transform the practice of law, and some jobs will be eliminated, but it also promises to increase the productivity of lawyers and paralegals and create new professions. That is what happened after the arrival of other work-altering technologies such as the personal computer and internet.

According to a new study by experts at Princeton University, the University of Pennsylvania and New York University, the industry most exposed to the new Al was “legal services”. Another study conducted by Goldman Sachs economists predicted that 44% of legal work might be automated. Only office and administrative support work (46%) was higher.

Lawyers are merely one occupation on the path to Al advancement. According to a study conducted by researchers at OpenAl, the creator of ChatGPT, and the University of Pennsylvania, the latest Al software will influence at least 10% of American workers. In the past, the legal profession was considered as a prime candidate for Al automation. In 2011, one piece in a lengthier series on Al’s advancement (titled “Smarter Than You Think”) in The New York Times focused on the anticipated influence on legal work. Its headline reads, “Armies of Expensive Lawyers Are Being Replaced by Cheaper Software”.

Although AI may not be capable of doing all of the activities of lawyers, it has the potential to automate some of them. Legal research is one area where this is currently happening because technology can find information faster than people, leaving lawyers to focus on more complex jobs. An increasing market for legal research services is also aiding in the development of legal research. Automated legal research services can deliver better-structured findings, which may improve user experience. Furthermore, AI can broaden the field of legal research.

Lawyers are seen as one of the highly skilled professionals who should only be hired when there is a specific need. However, as machine learning progresses, AI will be able to create customised solutions and may someday replace lawyers in certain cases.

—By Ritika Gaur and India Legal Bureau

By Prof Upendra Baxi

Chief Justice of India (CJI) Dr Dhananjaya Y Chandrachud (in a Bench also comprising Justice Hima Kohli) wrote a compact and extremely well-organised opinion (Sections A-L) in Madhyamam Broadcasting Limited vs Union of India¹ consisting  only  of 133 pages—a versatile juridical achievement in itself! Thus, we have an elegantly expounded judicious perspective for balancing concerns of unity and integrity of the nation with the requirements of procedural and substantive aspects of natural justice.

At stake, of course, was media freedom to be firmly protected against blanket summary and arbitrary executive decisions concerning State security. The Court hails an “independent press” as “vital for the robust functioning of a democratic republic”. However, when it fails to perform “a duty to speak truth to power”, the media assists a slow democide by presenting a “homogenized view on issues that range from economic polity to political ideologies” that pose “grave dangers to democracy” [Para 166].

Taking the case as an “opportunity” to clarify and consolidate the law “for renewal of permission for Uplinking and Downlinking of news channels”, the Court holds that all administrative action is judicially reviewable on the grounds of (i) unreasonableness or irrationality; (ii) illegality and (iii)“procedural impropriety”. In addition, it is open to judicial review on the ground of proportionality if it affects freedoms that are guaranteed under Articles 19 and 21 of the Constitution [Para 31].

Re-affirming that “every individual has a right to a reasonable hearing”, the Court holds that the “rules of natural justice cannot be modified to suit the needs of the situation to such an extent as to violate the core of the primary tenets of natural justice—the right to a fair hearing, and the right against bias”. In other words, “natural justice principles breathe reasonableness into the procedure” so much so that “the right to a fair and reasonable procedure, independent of the outcome” is judicially read “into an enactment to save it from being declared unconstitutional on procedural grounds” [Para 47]. When the applicant proves that the procedure followed was not reasonable (being violative of the core principles of natural justice), the “burden of proving otherwise shifts to the State” [Para 48].

Following these principles, the appeals were allowed and the Ministry of Information and Broadcasting order (dated January 31, 2022) and the judgment of the High Court (dated March 2, 2022) were set aside. The involvement of national security considerations must be assessed on the twin tests of whether there is “material to conclude that the non-disclosure of information is in the interest of national security” and whether a “reasonable prudent person would draw the same inference from the material on record”. True, “national security concerns overweigh the duty of fairness” but mere criticism of governmental policy as “anti-establishment” can “by no stretch of imagination be brought within the fold of any of the grounds stipulated in Article 19(2)” [Para 167]. Nor is it open to the Union Ministry of Home Affairs to overlook the judicial invalidation of the past three orders banning an organisation labeled as “terrorist” [Para 168]. The Court further innovates a special investigatory role for an amicus curie to assist it on such matters in the future, to “balance concerns of confidentiality with the need to preserve public confidence in the objectivity of the justice delivery process” [Para 171].

This is as good a place as any to ponder over two matters. The first concerns the repeated slippage between core “rules” and “principles”, which probably occurs because public law, especially administrative law, discourse speaks of the “rules of natural justice”. But the slippage is all the same worrisome jurisprudentially. For example, while HLA Hart spoke about law as a system of rules, Ronald Dworkin offered a view of law as a system of principles. The difference is enormously pertinent and in my view, this decision is best read as a discourse on principles, rather than on rules.

Second, such jurisprudential exits are not simply available when confined to two basic or core principles of administrative law. It is not self-evident to regard only Audi alteram partem and Nomo judex sua causa as constituting the “core”, as there exist many more ways of speaking about the “core” and “peripheral” principles,² Probably that is one reason why the Court insists elsewhere that the “standard of proportionality must be used to assess the reasonableness of the limitation of procedural rights as well” [Para 51], and from then on “there is no reason for the court to use different standards to test the reasonability of substantive and procedural actions” [Para 52]. Is it then “unreasonable” to elevate “reasonableness” and “proportionality” as among the core principles.

Further, the perplexity almost vanishes when we realize that the two core principles extend to the “constitutionalization” of the “core” [Section E of the judgment] thus encapsulating “natural justice” in the doctrine of fairness or as Justice Bhagwati named it, “fair action in play” [Para 41]. Such constitutionization involves, first, the expanded “meaning of the expression ‘procedure established by law’ in Article 21 of the Constitution to include procedural due process” and second, “the shift from reading the provisions of Part III of the Constitution as isolated silos” towards an understanding  of “the overlapping tendencies of fundamental rights”[Para 43]. 

This approach is manifestly “value oriented and not purpose oriented”, a reason why “the courts have been more than open in identifying that the action is unreasonable rather than identifying if the action is reasonable” and why the courts “have adopted a higher standard of scrutiny in the form of proportionality” [Para 49]. Accepting it entails that it “is well within the power of the claimant to argue that multiple facets of the right to a fair trial were infringed”³ [Para 54]. 

All this ensures transparency and accountability by placing a check on “arbitrary exercise of power”, and secures “the rule of law”. It provides an “articulation of reasons aids in arriving at a just decision by minimalizing concerns of arbitrary state action”, and for the exclusion of “irrelevant and extraneous considerations”. And “reasoned orders” further “the right to information and the constitutional goal of open government” [Para 56].

Further arrested are the habits of secrecy that “broods partiality, corruption and other vices that are antithetical to a governance model that is premised on the rule of law”. Moreover, a “non-reasoned order” is not allowed to limit the exercise of judicial review process and power and any limitation on the right to appeal necessarily means that the scope of judicial review is restricted [Para 56]. 

Thus, contrary to a hurried reading (such a reading is no reading at all!], reading slowly demonstrates that the “core” is very large, thus encoding “values from a modern perspective, not out of philosophical dogmatism but because a modern understanding of the values coheres better with the development of administrative law.”⁴ Administrative law values preserve judicial “due deference to the State to form its opinion”, allowing courts little power to “second guess the judgment of the State” about security matters [Para 84]. Courts may review “the opinion on limited grounds of whether there is nexus between the material and the conclusion”. At the same time, it cannot allow any “cavalier manner” [Para 91] which excludes judicial review on the ground of security “on a mere mention” of that phrase. It is “rule of law” incompatible to use “national security as a tool to deny citizens remedies that are provided under the law” [Para 97].

In an advisory to the Court itself, the Bench insists that it “should undertake an analysis of the possible procedural modalities that could be used to realise the purpose, and the means that are less restrictive of the procedural guarantees must be adopted” [Para 158]. One hopes that this matter would soon be followed upon, as the sealed cover jurisprudence is becoming rapidly rampant throughout the judicial system in ways that amount to the violation of the values of public law as a whole.⁵ The Bench itself noted alarmingly that “ad-hoc and extemporaneous” deployment [Para 143] and urged re-visitation of the “exercise of power…to secure material in a sealed cover” which has adverse impact on other constitutional rights such as the freedom of press [Para 142]. Courts “must follow the structured proportionality standard”, under which “the court places the burden of proof on the party opposing disclosure of documents to prove the claim of public interest in non-disclosure”. It also prescribes “a strict standard to test the reasonableness of an action”, which the sealed cover procedure altogether violates [Para 143]. 

In any event, the sealed cover procedure came into being only in 2013 by an amendment to the Supreme Court rules which merely say that the court “may exercise its power to secure material in a sealed cover if the material is confidential or the disclosure of which would injure public interest”. But this does not “stipulate any guidelines for the exercise of power by the court to secure material in a sealed cover”. [Para 145].

In the instant case, the sealed cover procedure as followed by the single judge and the Division Bench has “necessarily rendered the appellant’s right to writ remedies, …“the ‘heart and soul’ of the Constitution and a basic feature of the constitution”, a dry parchment” [Para 60]. Harsh words, but surely warranted by a situation of a “non-reasoned order” that “perpetuates the non-application of judicial mind in assessing the veracity of the inputs. The nexus of the reasons to the order cannot be adjudicated upon if the reasons are not disclosed” [Para 60].

Interestingly, the date of this MBC judgment (reported on April 5, 2023) is the same as the Bench presided over by the learned CJI which dismissed as withdrawn, the well-crafted petition by 14 Opposition parties expressing constitutional concerns about the alleged targeted and secretive prosecution against their leaders, and others who criticised the ruling regime. Characterising as “dangerous” the idea of prescribing general guidelines in the abstract about arrest, remand, and bail without concrete contexts of the facts of the cases, the Court asked learned Counsel to “come back when you have an individual criminal case or a group of cases”. 

Perhaps, one reason was the Court was then aware of the MBC decision, while understandably, neither counsel nor the litigating public, were. But the elaborate immanent administrative judicial values and virtues of constitutional judicial review process and power urged in this case leave sufficient scope for cogent arguments for un-constitutionalizing persecution, while allowing just prosecution that respects fair trial and due process of law.⁶ 

—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer

Footnotes

¹ Civil Appeal No. 8129 of 2022, referred to hereafter in the text simply by Paragraph Numbers Madhyamam Broadcasting Limited will be referred to as MBC. The opinion was written by Chief Justice D. Chandrachud.

² See, for example, Kevin M. Stack, “An Administrative Jurisprudence: The Rule of Law In The Administrative State”, Columbia Law Review 115: 1189-2002 (1985); Cass R. Sunstein & Adrian Vermeule, “The Morality of Administrative Law”, Harvard Law Review, 134:1923-1978 (1978). See also footnote 4, infra.

³ See Upendra Baxi, “Human Rights in the Administration of Criminal Justice: The Concept of Fair Trial”, National Human Rights Commission Journal, 1-22(2020).

⁴ See Paul Daly, “Administrative Law: a Values-Based Approach”, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3930233, 1 (2021). He calls values as the “motor for administrative law”(p. 3).

⁵ See also, Aryan Ahmed, “Can Trial Court Accept Evidence In Sealed Cover In A Criminal Trial?”, India Legal, 3 April, 2023.

⁶ As we go to press, an eloquent plea for achieving this goal is made by Senior Advocate Sriram Panchu, Indian Express, 14 April, 2013.

The Chief Justice of India who will demit the office tomorrow was given a farewell by the Delhi High Court Bar Association (DHCBA) to bid him farewell on his superannuation.

CJI Ramana who has served as Chief Justice of the Delhi High Court from September 2013 to February 2014 after which he was elevated as a judge of the Supreme Court said that there are six judges at the Supreme Court who have served at the Delhi High Court. That number will decrease to five with his impending retirement.

He added “I hope some more judges will join soon”.

CJI thanked everyone from the Delhi Bar for their extended support to him during the “challenging days” before he took the charge as the CJI.

With nostalgia in eyes, CJI Ramana said “I remember the days of the challenge. An instance had taken place two years back when I was a judge. Every member of the Bar, especially in Delhi, stood in solidarity and passed a resolution supporting me. I am extremely proud and happy to have such support.”

In his speech CJI mentioned that administration of justice is a challenge and that he learned a lot about it from the Registry, including listing of matters, preparation of roster and allotment of cases at the Delhi High Court.

CJI Ramana added to say that whatever he learned during his time in Delhi High Court and from registry, helped him a long way in working as Chief Justice of India. This was a launching pad and a learning period for me to be a successful Chief Justice of India.”

CJI praised the prevalent practices pat the Delhi High Court and stated that he enjoys the amount of litigation, variety of subjects, that cannot be compared with any High Court in the country.

He said that he is amazed at the art of survival we learn in Delhi High Court where the lawyers have to deal with diffferent subjects with thorough knowledge and that too in a within a given time. The discipline and courtesy shown to the other side is also amazing.”

The ceremony was attended by the Supreme Court’s Justices Kaul, Indira Banerjee, Sanjiv Khanna, S Ravindra Bhatand Hima Kohli.

The Delhi High Court Chief Justice Satish Chandra Sharma and all other judges of the High Court also made to the farewell of CJI.

CJI Ramana said that he is very touched by the amount of affection, and love shown by everyone. He thanked all his fellow service people and said “My brother and sister judges, members of the Bar, and you have encouraged me, supported me and hugged me”.

CJI Ramana: Delhi HC has special features. It’s located in capital, the litigation, you cannot compare it with any other high court in the country.

CJI Ramana also thanked Justice Hima who was sitting next to him and said , I am thankful to her also , she helped in dictating judgments and hearing cases.

I thank all of you, the affection shown by all. First time in my life I’ve seen such huge amount of lawyers attending. He ended by thanking all his predecessors and wished luck to the successors.

With Chief Justice of India (CJI) NV Ramana retiring soon, one legacy he left behind is that he filled up many vacancies in the Supreme Court and High Courts. This was unlike his predecessor, Justice SA Bobde, who made no appointments to the Supreme Court due to the collegium being deadlocked for 22 months. 

However, the collegium led by CJI Ramana in August 2021 made nine  suggestions for the apex court in one go, including three women—Justices Hima Kohli, Bela M Trivedi and BV Nagarathna, who is in line to be the first woman CJI in 2027.

High Courts too saw a record number of appointments, with 266 judges being appointed, bringing vacancies down to 381 against the total sanctioned strength of 1,108. The government also cleared the highest number of names under CJI Ramana’s tenure in High Courts, while his predecessors Chief Justices SA Bobde and Ranjan Gogoi had 104 and 107 appointments to High Courts cleared by the government.

The Collegium came into being in 1998, while considering appointments or transfer of judges among various High Courts. The three senior-most judges of the Supreme Court constitute the collegium, whereas for appointments at the apex court, the collegium consists of five senior-most judges.

The Supreme Court collegium after carrying out due deliberations behind closed doors makes recommendations for appointments and transfers to the law ministry. They are then sent to the Intelligence Bureau for background vetting, following which the ministry’s response is informed to the collegium.

Recently, John Brittas, a CPI MP in the Upper House, grabbed interest  when he spoke about the lack of diversity in the Indian judiciary, during a discussion on the High Court and Supreme Court Judges (Salaries and Conditions of Service (Amendment) Bill, 2021.

“Out of 47 Chief Justices of India till date, at least 14 have been Brahmins. From 1950-70, the maximum strength of the Supreme Court was 14 judges and 11 of them were Brahmins…. Dr. BR Ambedkar would be turning in his grave, seeing how judicial appointments are being made and how the independence of the judiciary is tampered with. There is no diversity in the judiciary…. I am not against Brahmins…I am not against any class. I am just completing it. This august House will be shocked to note that till 1980, there was no judge from the OBC in the Supreme Court, in the highest court of the country,” he said.

CJI Ramana, while speaking at 2nd Comparative Constitutional Law Conversation Series, said: “The Indian independent judiciary is non negotiable. The courts uphold fundamental rights and rule of law. People will trust the judiciary only if it acts independently. Judicial appointments are aimed at sustaining people’s faith and trust.” He said that the notion that judges appoint judges is a “wrong” one.

When Justice Ramana retires, the strength of the Supreme Court will come down to 30, with Justices UU Lalit, Indira Banerjee and Hemant Gupta due to retire later this year.      

—By Shashank Rai and India Legal Bureau

The central government recently told the Supreme Court that freebies promised by political parties before polls is an “economic disaster”. Solicitor General Tushar Mehta, representing the central government, said that the populist announcements distort the informed decision making of the voter and a voter should know what’s going to fall on him. He told the bench: “This is the way we are heading towards economic disaster”. 

The apex court suggested that an expert body, comprising representatives of the NITI Aayog, Finance Commission, RBI, political parties and other stakeholders, should examine the pros and cons of freebies, while acknowledging that it is a serious issue. 

Mehta suggested that the Election Commission of India (ECI) should apply its mind on the matter and have a re­look. However, the ECI’s counsel said that its hands were tied by a judgment of the apex court on freebies.

A bench headed by the Chief Justice of India (CJI), NV Ramana, said this is a serious issue and the ECI and the central government cannot say that they cannot do anything in the matter. He said the government and the ECI have to consider the issue and give suggestions. The CJI sought suggestions from senior advocate Kapil Sibal, who was present in the courtroom for another matter. Sibal suggested that the ECI should be kept out of the matter as it is a political and economic issue and there should be a debate in Parliament on it.

The bench, also comprising justices Krishna Murari and Hima Kohli, said no political party would like to take out freebies and all want freebies. It further noted that these are all policy matters and everyone should participate in the debate. “We’ll say Finance Commission, political parties, opposition parties, all of them can be members of this group. Let them have a debate and let them interact. Let them give their suggestions and submit their report,” the bench noted.

The top court asked the centre, ECI, petitioner and Sibal to give suggestions within a week on the composition of an expert body that will examine how to regulate freebies and give its report to centre, ECI and the Court. It was hearing a PIL filed by advocate Ashwini Upadhyay against the announcements made by political parties for inducing voters, through freebies, during elections. Upadhyay argued that the ECI should debar state and national parties from making such promises. He claimed that the promise or distribution of irrational freebies from public funds before polls shakes the roots of a free and fair election and vitiates the purity of the election process. 

The plea sought a direction from the top court to declare that the promise of irrational freebies, which are not for public purposes, from public funds before election violates Articles 14, 162, 266(3), and 282 of the Constitution. It further contended that a condition should be imposed on the political party that it would not promise or distribute irrational freebies from the public fund. 

The bench had on January 25 issued notices to the centre and the poll panel on the matter. Last month, the Court asked the central government to engage with the Finance Commission on the issue of political parties inducing voters through freebies and examine if there is a possibility to regulate them by taking into account the money spent on freebies. 

Prime Minister Narendra Modi, recently, cautioned people against what he called a “revadi” culture of offering freebies for votes and said this is “very dangerous” for the development of the country. Promising pre-poll sops to voters has been a common custom among India’s politicians for decades. From cash to liquor, household gadgets, scholarships, subsidies and foodgrains, the options are endless.

The late Tamil Nadu chief minister and AIADMK leader J Jayalalithaa was in many ways one of the pioneers of the freebie culture. She promised free power, mobile phones, Wi-Fi connections, subsidised scooters, interest-free loans, fans, mixer-grinders, scholarships, and more, to the voters. The Amma Canteen chain started by her was also a huge success. She must have picked up some tips from one of her predecessors, chief minister CN Annadurai, who in the 1960s announced a kilogram of rice for one Rupee.

In 2013, the Akhilesh Yadav government in Uttar Pradesh announced an ambitious free laptop scheme for students that many believed won him great political capital, particularly amongst the youth.

The Arvind Kejriwal-led Aam Aadmi Party (AAP) at present appears to be one of the biggest proponents of the freebie model of politics. Before the 2015 assembly elections in Delhi, in which it registered a famous victory, the AAP promised a reduction of consumers’ electricity expenditure by 50% through an audit of power distribution companies and 700 litres of free water per day to every household. 

Kejriwal recently promised to create 10 lakh government jobs in Gujarat and a Rs 3,000-monthly unemployment allowance for young people if his government gets voted to power in the state. If AAP forms a government in Gujarat, the party will ensure that each unemployed youth gets a job in the next five years, Kejriwal said, while addressing a public rally at Veraval town of Gir Somnath district in the Saurashtra region. Assembly elections are due by the end of this year in Gujarat, where Kejriwal’s party is trying to gain a foothold. His announcement of unemployment allowance is a new addition to the offer of free water and electricity that got huge support in Punjab.

Since the Finance Commission is a constitutional body and plays a vital role in evaluating the state of finances of the Union and state governments and gives recommendations on distribution of tax revenues between the Union and the states and amongst the states themselves, it can impose restrictions on such revenue luxuries. Not just this, the ECI can also penalise such political parties and even prohibit contesting elections by such candidates based primarily on these promises or can increasingly regulate this addiction like on the limit of spending on election campaigns. 

The strongest tool and antidote to this opium is in the hands of the lawmakers themselves who can make laws in Parliament against this practice.

—By Abhilash Kumar Singh and India Legal Bureau

The Supreme Court today restrained the Punjab government  from taking any coercive action against GVK Power.

The three-judge bench of Chief Justice N.V. Ramana, Justices A.S. Bopanna and Hima Kohli heard a Petition filed by GVK Power (Goindwal Sahib) Ltd. by Advocate Pukhrambam Ramesh Kumar seeking directions to the Punjab Government (Respondent No.1 ) and Punjab State Power Corporation Ltd:-

(a) To quash the Default Notice dated 29.10.2021 issued by Punjab State Power Corporation Ltd. (Respondent No.2 ) at the behest of State of Punjab purporting to terminate the Amended and Restated power purchase agreement (PPA) dated 26.05.2009 executed with GVK, 

(b)  to comply with its obligations to procure power generated at Petitioner’s 540 MW Thermal Power Project located in Goindwal Sahib, Punjab in terms of the Amended and Restated PPA.  

It is submitted that the actions of Respondent No.1 and Respondent No.2 are violative of provisions of the Electricity Act, 2003, Constitution of India and settled principles of law laid down by the Supreme Court.

The petition stated that  the claim of frustration of contract is belied by the fact that after issuing the notice on 29.10.2021, Respondent No. 2 has again requested Petitioner (GVK Power (Goindwal Sahib) Ltd. ) to generate and supply power with effect from 08.12.2021. This conclusively establishes that the Amended and Restated PPA has not been frustrated, continues to be in effect and the parties are bound to perform their respective obligations thereunder.

It is submitted that the Impugned Notice and actions of Respondent No.2 are pursuant to and upon instructions and directions of Respondent No.1 in terms of the following:- 
(a) On 18.09.2021, the incumbent Chief Minister of Punjab, Captain Amrinder Singh resigned from the post of the Chief Minister. Thereafter, on 20.09.2021,  Charanjit Singh Channi was sworn in as the new Chief Minister of Punjab. 
(b) With an eye on the upcoming State Elections, Respondent No. 1 decided to terminate and cancel all power purchase agreements with Independent Power Producers (IPPs) such as Petitioner . 
(c) On 28.10.2021, Respondent No.1 took the decision to terminate the Amended and Restated PPA. Accordingly, Respondent No. 2 issued the Impugned Notice on 29.10.2021. The fact that this action was upon the direction and decision of Respondent No. 1 is evident from newspaper reports dated 29.10.2021 as well. 
(d) On 09.11.2021 the Punjab Vidhan Sabha passed the Punjab Renewable Energy Security, Reform, Termination and Redetermination of Power Tariff Bill, 2021 (Punjab RE Tariff Bill) and The Punjab Energy Security, Reform, Termination and Redetermination of Power Tariff Bill, 2021 (Punjab Energy Bill) pursuant to which identified power purchase agreements with private companies are sought to be terminated.

The Petitioner challenged the Impugned Notice on the following grounds: 

(a) The actions of Respondent Nos. 1 and 2 amount to malice in law, done with the sole aim and objective of furthering the agenda of the State Government in light of the upcoming elections. The actions are a classic example of regime revenge with Respondent Nos. 1 and 2 seeking to cancel PPAs including the Amended and Restated PPA which was entered into in 2009 and under which Petitioner No.1 has been supplying power since 2016. 

(b) The malice in law is evident from the fact that the purported event of frustration being cancellation of the captive coal block pursuant to Coal Judgment which occurred in 2014. Thereafter Respondent No. 2 had already given its consent to Petitioner No. 1 for procuring coal under Shakti Scheme. Moreover, Petitioner No. 1 has been supplying power since 2016 and Respondent No. 2 has been accepting the power and paying tariff without protest. 

(c) The allegation of commercial impracticability and high tariff is belied by the fact that tariff for the Project is determined by Ld. PSERC under Section 62 read with Section 86 of the Electricity Act. These tariff orders have been implemented by Respondent No.2. No appeal has been filed by Respondent No.2 challenging the tariff orders passed by Ld. PSERC. 

(d) When the Amended and Restated PPA itself provides for tariff determination and relief for change in law and force majeure events, claiming frustration on the ground of cancellation of the Captive Coal Mines which is a change in law and force majeure event is contrary to law. This is a deliberate and calculated attempt by Respondent No.1 and Respondent No.2 to accumulate political mileage and gains at the cost of the Petitioners. 

(e) The Impugned Notice and actions of Respondent No.1 and Respondent No.2 are manifestly arbitrary and discriminatory. The Impugned Notice has been issued for ulterior motives indicated above, without following due process and in complete and utter contravention of the provisions of the Electricity Act and the Amended and Restated PPA. 

(f) The decision to terminate the Amended and Restated PPA is premeditated and pre-judged as the decision to terminate the said PPA was that of the Respondent No. 1 in the Meeting dated 28.10.2021. 

(g) Premature termination of the Amended and Restated PPA amounts to deprivation / expropriation of the property of Petitioner  in contravention of the constitutional safeguards under Article 300A

(h) Issuance of the Impugned Notice is contrary to Petitioner’s right to carry on its business under Article 19(1)(g) of the Constitution. Article 19(1)(g) guarantees Petitioner No.1 right to carry on its profession in a fair, reasonable and equitable treatment especially with regard to a regulated sector. 

(i) Mere incidence of expense or delay or commercial onerousness in performance of the Contract is not valid ground to claim frustration. Therefore, merely because Respondent No.2 is of the view that tariff claimed by Petitioner  is excessive does not create a valid ground for termination of the PPA. 

(j) After citing frustration of the Amended and Restated PPA, from 08.12.2021 onwards, Respondent No. 2 has scheduled power from Petitioner . Therefore, by accepting performance in accordance with the, Respondent No. 2 has accepted by conduct that the PPA is not frustrated. 

(k) Termination of a Power Purchase Agreement solely on the ground of initiation or admission of insolvency proceedings against a corporate debtor is impermissible. 

(l) Respondent No.2 is not entitled to unilaterally terminate the Amended and Restated PPA which has been approved by the Ld. Punjab State Electricity Regulatory Commission under Section 62 read with Section 86 of the Electricity Act. Once approved, the PPA becomes a statutory contract and cannot be unilaterally altered/rejected by either party. 

(m) The tariff charged by Petitioner  is computed and approved by Ld. PSERC in accordance with Section 61 and 62 of the Electricity Act, the Amended and Restated PPA dated 26.05.2009 and the applicable Tariff Regulations notified by Ld. PSERC. Since the Orders of Ld. PSERC determining tariff have not been challenged by Respondent No.2, the same have attained finality qua Respondent No.2. Therefore, Respondent No.2 is precluded from contending that Petitioner ’s tariff is excessive having accepted Ld. PSERC’s finding.

The Supreme Court has on Wednesday granted interim bail for a period of four weeks to former Minister K.T. Rajenthra Bhalaji who has been arrested by Tamil Nadu Police in connection with a Government Job Scam Case. 

A bench led by Chief Justice N.V. Ramana has granted bail in view of the order passed by in a Suo Motu Writ titled “IN RE : CONTAGION OF COVID 19 VIRUS IN PRISONS” to decongest jails in view of the outbreak of Covid-19 pandemic. 

“We have given certain directions in SMW 1/2020, to decongest the jail in offences less than 7 years or less serious offences. In view of that, we grant bail to the petitioner for a period of four weeks on a condition that he will not leave the jurisdiction where the crime was registered. He should surrender his passport and Cooperate with the investigation,” noted the CJI in its order. 

“The order has to be communicated with the concerned Magistrate and on filing of the papers Bhalaji maybe released. Concerned Magistrate/In-charge magistrate to release him tomorrow. List after three weeks,” said the bench which also comprised Justices Surya Kant and Hima Kohli. 

The Tamil Nadu Police arrested Bhalaji, after a three-week search, from Haasan in Karnataka last Wednesday. He is accused of taking money to offer jobs in Aavin, the state-run milk producer, as minister for dairy development.

Courtroom Exchange 

Senior Advocate Mukul Rohatgi arguing for the State for Tamil Nadu opposed the maintainability of Bhalaji’s habeas corpus plea under Article 32. And challenge to anticipatory bail which became infructuous after he was arrested.

Mukul Rohatgi said statements recorded under Section 164 CrPC will show that there is evidence against the Minister. It was the State Agent who promises the victims to pay money against the job. There are at-least 10-15 witnesses in every case. Two complaints, one by Ravindran, and one by the State Agent. 

Zero tolerance for corruption: Justice Surya Kant

Justice Surya Kant said, “We have zero tolerance for corruption charges and we want to know whether there was any political vendetta.” 

Rohatagi said, “If it was a case of vendetta then the complaint should have been given at the earliest.” 

CJI Ramana said, “Politics will be there. This matter was filed after dismissal of the anticipatory bail.” 

Rohatgi said the High Court dismissed the anticipatory bail on 17/12/2021. 

“That’s is why we want the State to place the record before the High Court. We want to know why the house of the advocate was raided by the police. Doesn’t the accused have the right to go to a lawyer? According to the report it’s says “his wife was generous to open the door and inspect the house”…That shows the threat of uniform”, remarked Justice Surya Kant.

Rohatgi said, if the complainant turned turtle then it doesn’t mean that other statements recorded under Section 164 CrPC could not be considered. Which is recorded in two crimes in case of Raveendaran and other was in Case of Advocate of State Agent. A person who is absconding is not entitled to any relief. Why could he not appear before the police? He is a public person. It is unfortunate that this happened on 5th January, 2022. Look at both sides. 

CJI said if we are looking at one side then we should have granted bail last week only. 

Habeas Corpus will not be maintainable if there is a valid remand order: Rohatgi 

Rohatgi said, “See the events, there are 31 witnesses. And 8 statements under S 164, which could not be brushed aside. See the nature of proceedings. The Anticipatory Bail order was infructuous as the remand order was in place. He could have only challenged the remand order. How can a petition under 32 lie for grant of bail? It is not the FIR without a jurisdiction. Even the Habeas Corpus will not lie if there is a valid remand order. I have circulated the police diary which shows that money was received by him in his house. How can a court entertain this kind of petition? People have sold their jewellery to pay money to him. I can show lordship judgments of this court.” 

Rohatgi: “We have 32 complaint as of today. There are several judgments of this Court that a Habeas Corpus petition will not lie for the grant of Bail. In Case of Niharika 2021, SCC Online 3151. Another Case is of 2019, 5 SCC 266, where the Delhi HC granted interim bail under 226, this Court set aside that order observing that there was valid remand order. There are other two other order by Justice Khanwilkar passed in 2019. If this is the position and none of his petition, whether anticipatory bail petition which is become infructuous. He can go only for quashing before the High Court. He is not entitled to get any relief in any of his petition from this Court.” 

Senior Advocate Dushyant Dave for the petitioner: As far as case of cheating, there is no inducement from the side of the minister. There is a political vendetta. There is no case against the minister either in 406 IPC or 420 IPC. It is a case of political vendetta. Police is using the criminal to turn out against me. There are series of cases against the complainant. There are judgments of this Court saying that if Anticipatory Bail is rejected then the accused may not be arrested immediately and we have written a letter to the Superintendent of Police. We moved this Court and the case has been listed after the winter vacation. What would happen if he had not been arrested for one week? The Court should come down heavily on the State. They have filed a counter, only allegation is this that you knew this boy. The learned Magistrate has not even given us the copy of the remand order.”

CJI said to AAG Tamil Nadu V Krishnaswamy, “We have passed an order in the Writ Petition. Mukul Rohatgi said we haven’t passed the notice. What does it mean? Do we have to say that notice issued when we have passed an order?” 

Dave: If you are going to take away citizens’ rights like this, nobody is safe then. 

Advocate Dr Aristotle for State of Tamil Nadu: He has been taken to Madurai Jail and shifted to Trichy  Jail. 

CJI: Jurisdiction is Madurai Jail. I don’t understand. The issue is becoming very complicated now. 

Dave: There are two jails in Madurai. 

CJI: Mr V Krishnamurthy, do you want to file any affidavit on the bail application? 

AAG: Yes we will pass. 

CJI: We will pass some orders. Not only Trichy Jail. 

Justice Kant: The fact that you didn’t issue any notice to him. The way you arrested him. The way you have taken him 300 km away from Madurai. Did he request to be taken to good jail in Trichy? 

CJI: If your jails are over crowded in Madurai, why you are not decrowding the jail? 

Dave: There is one week holiday in Tamil Nadu. They overreach your lordships court. They are telling citizens don’t go to the Supreme Court. We have moved the Apex Court on 20/12/2021. 

Supreme Court Order

CJI: Issue notice in the writ petition also. The detailed order will be passed. After the anticipatory bail dismissed by the HC, the petition was filed before this Court. The matter was listed on 6/01/2022, by the time he was arrested on 5/01/2022. It is seen that petitioner’s advocate made a representation to the Superintendent of Police. 

Senior Advocate Mukul Rohatgi argued for the State of Tamil Nadu, vehemently against any relief to the petitioner. We have been informed by the counsel for the petitioner that he was taken to jail which is 300 km away from Madurai.

“We have given certain directions in SMW 1/2020, to decongest the jail in offences less than 7 years or less serious offences. In view of that We grant bail to the petitioner for a period of four weeks on a condition that he will not leave the jurisdiction where the crime was registered. He should surrender his passport and Cooperate with the investigation. The order has to be communicated with the concerned Magistrate and on filing of the papers Bhalaji maybe released. Concerned Magistrate/In-charge magistrate to release him tomorrow. List after three weeks,” noted the CJI in its order. 

The Supreme Court on Monday granted bail to an accused in a narcotics case and observed that a large number of tablets seized by the Directorate of Revenue Intelligence (DRI) admittedly contain herbs or medicines meant to enhance male potency and they don’t attract the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985.

A bench, headed by Chief Justice N.V. Ramana and comprising Justices Surya Kant and Hima Kohli, quashed the Madras High Court order which had canceled the bail granted to an accused Bharat Chaudhary (accused),  in an alleged narcotics case.

The case set up by the prosecution is that on specific information received by the DRI, Chennai Zonal had seized about 1,37,665 tablets of different types collectively weighing 90 kg (approx.) described as psychotropic substances. Vide order dated November 2, 2020, the Special Judge, EC & NDPS Cases, Chennai granted bail to Bharat Chaudhary. On the DRI challenging the order before the High Court of Madras, the bail order granted in favour of Bharat Chaudhary has been canceled by the Single Judge.

The High Court opined that the test reports did not totally negate the fact that the seized contraband goods were not narcotic substances. Much emphasis was laid on the total quantity of the contraband seized and it was held that once the test reports showed that some of the tablets contained narcotic substances, it was sufficient to refuse bail. Critical of the approach of the trial Court that held that since the test reports were not filed by the prosecuting agency along with the complaint, the benefit ought to ensure in favour of Bharat Chaudhary, the High Court observed that, by the time the Special Judge, EC & NDPS Cases had pronounced the order on November 2, 2020, test reports were available and ought to have been taken into consideration. The accused then approached the Top Court.

Senior Advocate Gopal Shankaranarayanan, appearing for the accused in the Supreme Court, assailed the High Court order contending that there was no good reason for the High Court to have canceled the bail granted to the accused by the Special Judge, EC & NDPS cases. He submitted that a grave error has been committed by the High Court by completely overlooking the fact that not a single tablet was recovered from the possession of the accused. The tablets were seized from the premises and some of the extracted samples sent for testing showed that a large number of the seized pills were sex enhancement drugs and not contraband; the seized contraband had not been produced or sampled before the Magistrate .

Also Read: Allahabad High Court directs action against officers for falsely booking a man under NDPS Act

Additional Solicitor General Aishwarya Bhati, appearing for DRI, supported the HC judgment and argued that Bharat Chaudhary is the mastermind behind the entire criminal conspiracy. She alluded to the 71 samples sent for testing and the test report of CRCL, Chennai dated December 18, 2019 confirming the presence of narcotic substances along with male potency increment drugs and strenuously argued that the nexus is not only established through the statements recorded under Section 67 of the NDPS Act but also from the documents in the form of printouts of the data downloaded from the mobile phone and laptop of Bharat Chaudhary, in particular, the WhatsApp chats and bank transactions. Submitting that since the twin tests laid down under Section 37 of the NDPS Act in respect of commercial quantity for grant of bail have not been satisfied, the impugned order does not deserve interference.

After carefully examining the arguments advanced by counsel for the parties and having cursorily glanced at the records, the Supreme Court opined that order canceling the bail granted in favour of Bharat Chaudhary is not sustainable in view of the fact that the records sought to be relied upon by the prosecution show that one test report dated December 6, 2019, two test reports dated December 17, 2019 and one test report dated December 21, 2019 in respect of the sample pills/tablets drawn and sent for testing by the prosecuting agency conclude with a note appended by the Assistant Commercial Examiner at the foot of the reports stating that “quantitative analysis of the samples could not be carried out for want of facilities”.

In the absence of any clarity so far on the quantitative analysis of the samples, the prosecution cannot be heard to state at this preliminary stage that the petitioners have been found to be in possession of commercial quantities of psychotropic substances as contemplated under the NDPS Act, the Bench held.

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Further,the Court added that a large number of the tablets that have been seized by the DRI admittedly contain herbs/medicines meant to enhance male potency and they do not attract the provisions of the NDPS Act. Most importantly, none of the tablets were seized by the prosecution during the course of the search conducted, either at the office or at the residence of Bharat Chaudhary at Jaipur, on March 16, 2020. Reliance on printouts of WhatsApp messages downloaded from the mobile phone and devices seized from the office premises of Bharat Chaudhary cannot be treated at this stage as sufficient material to establish a live link between him and other accused , when even as per the prosecution, scientific reports in respect of the said devices are still awaited.

In the absence of any psychotropic substance found in the conscious possession of the accused, the Bench opined that mere reliance on the statement made by other accused under Section 67 of the NDPS Act is too tenuous a ground to sustain the impugned order dated July 15, 2021. “This is all the more so when such a reliance runs contrary to the ruling in Tofan Singh (supra),” the Court said while quashing the Madras High Court order and granted bail to the accused.

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