Even as Delhi-NCR gasps for breath under severe levels of pollution which has become the norm at this time of the year, the Supreme Court on November 7 directed the governments of Punjab, Rajasthan, Uttar Pradesh and Haryana to take immediate steps to stop stubble burning by farmers in these states.

A Division Bench of Justices Sanjay Kishan Kaul and Sudhanshu Dhulia also directed the Delhi government to ensure that the municipal corporation does not burn the city’s solid waste in the open, as Delhi cannot be left to struggle with pollution every year. The Bench asked the centre to provide subsidies to farmers and motivate them to grow other crops so that stubble burning can be stopped before winter.

The Court stated that “the residents of Delhi have been struggling with health issues because they do not seem to find a solution year after year to the aggravating problem of pollution at this time of the year. That part of the year passes and it goes on to the next year. This has been the ongoing process for five years! It is time that something is done as of yesterday rather than postponing it and we do believe that the matter requires immediate attention and Court monitoring irrespective of the fact whether it improves or not in the next few days.”

The bench noted that in this respect some constructive suggestions were given by Gurminder Singh Kharbanda, advocate general, Punjab, and referred to them in its order. They are: 

• The farmers are burning the stubble on account of economic reasons. The alternatives given to them are not being adhered to in some cases because of economic reasons. An endeavour should be made so that an alternative solution is provided free of cost. Thus, while expensive machines have been purchased, even where 50% or 25% of the cost is to be paid by the farmers, in view of small holdings,  the farmers are unwilling to spend even that much. The state of Punjab is willing to bear 25% of the cost of making those facilities free and 25% can be borne by Delhi. The central government can bear 50% of the cost.
• The state of Punjab has seen a scenario where the growth of paddy is causing the water table to decline and that too drastically. A number of wells are beyond redemption. The very cultivation of paddy, which is certainly not consumed in Punjab, is a problem. Paddy cultivation must be phased out to be substituted with other crops and the central government should explore the aspect of giving minimum support price for the alternative crops rather than going for paddy.
• The misuse is arising from minimum support price (MSP) for paddy because paddy grown in adjacent states is then brought into Punjab to claim MSP and sold under the MSP policy.
• The particular kind of paddy which is grown mostly in Punjab and of which the stubble is a by-product, and coupled with the season when it is grown as well as the period required for cultivation, causes the problem which may not be true for Basmati grown in other states. A serious look is required whether this kind of paddy should at all be grown. In fact 15 years back, this problem did not exist because this particular cropping did not take place.
• It is true that Delhi has a particular locational issue. Therefore, weather conditions in and around Delhi state affects the pollution level. We cannot be dependent upon the weather conditions alone to hope for some reduction.

The bench further observed that immediate action is required and the Punjab Preservation of Subsoil Water Act, 2009, has been brought to the Court’s notice. It said that no doubt the objective of that Act is to preserve the subsoil water, but there are ramifications regarding pollution arising from the violation of the provisions of the Act because if the sowing takes place after a time period, the cutting of paddy also gets delayed and then it hits the season where due to atmospheric conditions, the impact is borne by Delhi and surrounding areas. The bench said that the Act also provides for the punitive measures so that the farmers sow the crop after the specified date.

The Court said that the bottom line is the very sowing of paddy which is not a local crop and not consumed locally. The switch over to alternative crops is necessary so that next year the problem does not crop up. It further observed that the switch over can only occur when the MSP is not granted for paddy, but is given to an alternative crop, something which the central government in any case is seeking to encourage by growing and utilization of the traditional crops.

The Court directed the Punjab government, and for that matter all states adjacent to Delhi as well as some parts of Delhi, to ensure that crop burning is stopped forthwith and the local SHO is made responsible for it under the overall supervision of the DGP and chief secretary for the time being.

The solicitor general also mentioned in the Court that the chief minister of Delhi himself had said that the Indian Agricultural Research Institute’s decomposer has proved to be a success in addressing the problem of stubble burning and demanded a specific timeline from the Punjab government in tackling the problem.

The bench also stated that the smog tower in Delhi, which has been instituted in pursuance to the directions issued earlier albeit on experimental basis, is not working. “On our query, the answer is some disciplinary action is proposed against an officer, who is Chairman of DPCC. This is ludicrous. We want the tower to be working. As to which officer what they do is their business,” the Court said. It suggested that a real time monitoring was to take place by the DPCC, but the result has not been put in the public domain, the Court observed. 

At the suggestion of Court-appointed amicus curiae, Senior Advocate Aparajita Singh, the Court directed the Delhi government to monitor and ensure that municipal solid waste is not burnt in the city in the open as happens during this season and has an impact. The amicus curiae informed the Court that in order to control vehicular pollution, the colour-coded sticker was envisaged and a reference was made even in the order dated, December 2, 2022, in respect of the earlier order dated, August  21, 2020. It appears that the same has been implemented only by the Delhi government and not by the adjacent states. No compliance report has been filed. The Court directed all concerned states to obtain instructions.

The Court observed that it is thus suggested that though the Delhi government is seeking to impose restrictions on the basis of “Odd-Even”, she submits that this is really an unscientific method if on the basis of colour coded stickers, vehicles which have orange stickers can be banned instead. On this aspect also the state government will report back to the Court. The Court further stated that there are a large number of the app-based taxis in Delhi which have registrations in different states. The Court said that “if we look at the roads, each one is carrying only one passenger. We would like to know whether there is any way of monitoring, especially during this period of time that only the taxis registered in Delhi are permitted to ply as an additional measure to control the pollution.” The Delhi government should place before Court, the figures of environment compensation charge, which has been collected and in what manner it has been utilized, the Court instructed.

Earlier, the Court had appointed Justice (retd) Madan Lokur to monitor actions taken against stubble burning in states such as Punjab, Haryana and Uttar Pradesh. However, the Lokur committee was suspended when the Union government told the Court that it was coming up with a permanent authority to monitor air pollution in Delhi. 

The Supreme Court took the plea up again in November 2021 and continuously monitored measures taken by the state and Union governments to stop stubble burning. Ultimately, on the last date of the hearing, the Court asked all stakeholders to come up with a scientific solution to battle Delhi’s air pollution problem. The case has not come up in close to two years now. 

—By Adarsh Kumar and India Legal Bureau

The Supreme Court has ruled that a daily-rated employee cannot claim regularisation of employment when his initial appointment was not done by a competent authority and a sanctioned post did not exist on which such an employee was working.

The Bench of Justice S. Ravindra Bhat and Justice Sudhanshu Dhulia on Wednesday made these observations, while dismissing a petition challenging the refusal of the June 27, 2019 order of the Madhya Pradesh High Court to grant the benefit of regularisation to the appellant-employee.

The plea contended that in 1980, he was engaged as a supervisor on a daily rated basis, under a project of the State Water Resources Department. He had sought regularisation to the post of supervisor/ time keeper, but the minimum qualification for the said post at that time was matriculation with mathematics, which the appellant did not possess.

Later, the government relaxed this requirement of qualification and the appellant again sought regularisation since he was qualified for the post and had been working on a daily wage basis for a long period of time.

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However, his claim was again rejected for the reasons that though the minimum qualifications of matriculation with mathematics would not come in the way for his regularisation, but the fact remained that the appellant was never appointed against any post.

The petitioner said the authority concerned had contended that the appointment of the appellant was never made by a competent authority and there were no posts available when the appellant had sought regularisation.

The daily wager claimed that he had set his claim for regularisation on the fact that persons who were junior to him as daily wagers were regularised in 1990 or even before, but he was not regularised.

The Single-Judge of the High Court allowed the claim and gave directions for regularisation of the appellant from the date on which his juniors were regularised.

However, the Division Bench set aside the order of the Single Judge, after which the petitioner moved the top court of the country.

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The Apex Court said that as per its decision in Secretary, the State of Karnataka vs Uma Devi and Others (2006), there were two pre-conditions to be fulfilled in order to claim regularisation of employment. These were:

–  initial appointment must be done by the competent authority; and

– there must be a sanctioned post on which the daily rated employee must be working.

The Bench observed that both the above conditions were missing as far as the appellant was concerned. Therefore, the rejection of his regularisation request was correct on part of the authority and the High Court, it added.

(Case title: Vibhuti Shankar Pandey vs State of Madhya Pradesh and Others)

Supreme Court Judge, Justice M.R. Shah has suggested a young lawyer to observe and learn from the arguments made by other Advocates, instead of idling their time in the Court canteen.

The eminent Apex Court Judge gave the young Advocate his own example and said that he was also asked, during his initial days at the Bar, to observe how other lawyers were arguing their cases.

Justice Shah, who was hearing a bail application with Justice Sudhanshu Dhulia, said that sitting in the Court, whenever possible in his initial years, made him understand the nuances of the Court.

He also mentioned Senior Counsels V.V. Giri and Dushyant Dave, who were patiently waiting for their turn and said that the young Advocates had a great opportunity to learn from so many people.

Justice Shah further told the young gun not to show over-enthusiasm during their appearance in the court.

The Supreme Court on Thursday delivered a split verdict on wearing of Hijab (headscarf) in educational institutes, with one Judge upholding the Karnataka High Court verdict on the matter, while the other one setting it aside, in view of education of girl child.

The Bench of Justice Hemant Gupta and Justice Sudhanshu Dhulia pronounced the operative portion of the judgement, saying that in light of divergence in opinion, the matter has to be placed before the Chief Justice of India for appropriate directions.

Before the pronouncement of verdict, Justice Hemant Gupta, while dismissing the 26 appeals that were filed against the Karnataka High Court judgement, noted that there was divergent opinion.

He said, “In my order, I have framed 11 questions. These include:

“Whether an appeal should be referred to the Constitution Bench?

“Whether college management can take a call on uniform of students and if wearing of hijab and restricting it is violative of Article 25?

“Whether the Right under Articles 19 and 25 of the Constitution are mutually exclusive?

“Whether the government order infringes upon the fundamental right?

“Can a student exert her fundamental right, is wearing right a part of essential religious practice under Islam?

“On the question whether the government order serves the purpose of access of education, the answer according to me is against the appellant. I dismiss the appeal,” added Justice Gupta.

Justice Dhulia said, “I have quashed the Government Order of February 5 and have ordered the removal of restrictions. I have also set aside the Karnataka High Court order.

“The main thrust of my judgement is that the entire concept of essential religious practice (ERP) was not essential to the dispute. The court took a wrong path. It was just a question of choice. I have held that the ratio in Bijoy Emmanuel squarely covers the case.

“One thing which was topmost for me was the education of girl child. A girl child finishes the household work and chores before going to school. Are we making her life any better by doing this? I respectfully differ. It is ultimately a matter of choice and Article 14 and 19 of the Constitution, nothing more and nothing less,” he added.

The Bench then decided to place the matter before the CJI for appropriate directions, in view of divergence in opinion.

On September 22, the Apex Court had reserved its verdict on the batch of appeals challenging the verdict, which upheld the government order by the State of Karnataka, empowering government colleges in the State to ban the Muslim students on wearing hijab in colleges premises.

The Bench of Justice Hemant Gupta and  Justice Sudhanshu Dhulia had reserved the verdict, after conducting hearing on the same for 10 days.

A bunch of petitioners, who were Muslim girl students from various colleges in Karnataka, had approached the High Court after they were denied permission to attend classes on account of wearing hijab.

The appellants before the Supreme Court said that this was failure of the state accommodation to a student to exercise her right under Articles 19 and 21 of the Constitution.

The appellants also added that if an attire disrupted public order, it could be restricted and it was the responsibility of the State to ensure that an atmosphere was created, where one could exercise their fundamental rights.

When the question arose regarding the issue of Essential Religious Practice Test (ERP) as to whether hijab was essential to Islam, the appellants said that the only issue was whether the restriction was a valid Constitutional restriction.

Some appellants said that everything in the Quran was mandatory and nothing was directory, so hijab was essential to Islam.

They added that the order discriminated on the grounds of both religion and sex.

The state government, on the other hand, maintained that the order was ‘religion-neutral’ and did not target any particular community.

The government’s submission was that an ERP was only one that could be traced back to the origin of a religion and was mandatory.

The appellants rebuttal said that the government order targeting the headscarf could not be seen as religion-neutral.

On March 15, a three-judge Bench of then Chief Justice of Karnataka High Court Ritu Raj Awasthi, and Justice Krishna S. Dixit and Justice J.M. Khazi had ruled that Hijab was not a part of essential religious practices of Islam.

The High Court had observed that the requirement of uniform was a reasonable restriction on the fundamental right to freedom of expression under Article 19(1)(a)

The government has the power to pass the Government Order (GO), no case is made out for its invalidation, the three-Judge Bench had ruled.

Case title: Aishat Shifa vs State of Karnataka and Others

The Supreme Court on Wednesday witnessed an unruly scene as Solicitor General Tushar Mehta and former president of Supreme Court Bar Association (SCBA) Dushyant Dave engaged in a heated exchange of words, while appearing in a case.

The SG and the Senior Advocate were appearing before a Bench of Justice Hemant Gupta and Justice Sudhanshu Dhulia on a bail plea filed by the accused in a forgery case.

The Bench asked if the Counsel wanted adjournment.

Solicitor General Tushar Mehta said that Dave’s arguments “will be pedestrian”. The SG went on to say that he was stating it on Dave’s face, since people used to say this outside.

The Senior Advocate Dushyant Dave took “strong objection” to Mehta’s statement and called him “a disgrace to the office of the Solicitor General”.

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He further said that the SG was “a political appointee and functioned like one”.

Justice Hemant Gupta intervened and told them not to get “tempers high!”

The SG retorted that he was not a political appointee, as alleged by Dave.

The Apex Court then proceeded to adjourn the case.

The Supreme Court on Wednesday continued hearing for the fifth day on a bunch of petitions filed against the Karnataka High Court verdict, which upheld the state government’s ban on wearing of hijab by Muslim girl students in some schools and colleges of Karnataka.

The Bench comprising Justice Hemant Gupta and Justice Sudhanshu Dhulia today heard submissions made by Senior Advocate Aditya Sondhi, representing an intervenor and Senior Advocates Rajeev Dhavan and Huzefa Ahmadi, who appeared for the petitioners.

Dhavan said the rationale in the Kerala case given by the Board was that to prevent malpractices in the AIPMT exam. But here, in Karnataka case, there is no rationale given.

He further said the fact that large number of women were wearing hijab bonafidely has been ignored. Hijab across the board was permitted in public places. He wondered as to what was the basis to say hijab cannot be in class room and was opposed to public order.

He said, “When you say you can’t allow burqa in school, it is reasonable, because you want to see the face. But what reasonable objection can be there to the headscarf?

“The test is one of proportionality. The test is to take the least invasive approach. One of the suggestion made by pupils was that they will wear the headscarf with the same colour as the uniform.”

Dhavan referred to a Kenyan decision. He said what was important in cases like this was a certain degree of sensitivity, without which one can’t find a common ground.

What was required was an inclusive policy after due discussion. None of this has taken place as far as Karnataka is concerned.

He said as on July 1, 2021, no uniform was prescribed for PUCs. Then there was a campaign against hijab. This is what this case is all about. The campaign “Hijab Must Go Come What May”.

Dhavan referred to grounds raised in petition.

Stating that proportionality meant taking the least restrictive alternative, he cited the case of Modern Dental College. He said this was not a ‘Yes’ or ‘No’ issue. The Senior Advocate asked what were the obligations on the authorities concerned to bring about a measure of inclusiveness and apply the least restrictive approach.

“In my respectful submission, there was no foundation in Government Order (GO) against Hijab, it is probably to target Muslims and Muslim women particularly, and it violates Articles 14 and 15 (of the Constitution). This kind of targeting is not permissible in Constitution,” Dhavan concluded. 

Another counsel asked whether he can clarify to the bench if there is any doubt on what is “farz”.

Justice Gupta asked him to wait for his turn. “Don’t be restless”, Justice Gupta told him.

Senior Advocate Huzefa Ahmadi began his submissions by raising the point on fraternity.

He said as per the circular, it was to develop fraternity, but it was the anti-thesis of fraternity.
The Senior Advocate raised his second point, asking what was the legitimate state interest.

The Senior Advocate further said that the legitimate state interest was in encouraging education, especially among minors. Was it legitimate state interest to adopt a restriction, which would encourage drop outs?

He said the The Karnataka Education Act promoted unity in diversity and the circular was against the objective of the Act. He then alleged that the circular was indirectly discriminating, although it was facially neutral.

As per Ahmadi, “What this Court held in Sabarimala reference was that it was not sure which test to apply for essential religious practice – whether the text, or whether the view of a leader or whether every religious practice will be accepted. So today, we are not clear on which test.”

Justice Dhulia said, “If we go that way, that is essential religious practice, then probably you are right.”

Ahmadi said, “Which is the test to be applied is a bit of conundrum in the light of the reference, that is why I say it should await the decision on reference.
Now coming to the core of my submission. The Preamble of the Constitution and Article 51A(f). 

Ahmadi then read from the Preamble, “Fraternity which assures the dignity of individual”. He pointed out that dignity of an individual was put before the Unity of nation.

The Senior Advocate referred to fundamental duties under Articles 51A(e) and 51A(f), to promote harmony and the spirit of common brotherhood… to preserve composite culture.

He then referred to Dr B.R. Ambedkar’s speech on Preamble.

Case title: Fathima Bushra vs State of Karnataka

The Supreme Court on Wednesday told the petitioners in the case challenging the hijab ban in Karnataka government educational institutions, that if right to dress is claimed as an absolute fundamental right under Article 19 of the Constitution, then right to undress would also qualify as one.

A bench comprising of Justice Hemant Gupta and Justice Sudhanshu Dhulia continued hearing the batch of petitions challenging the order by the Karnataka High Court which upheld the ban on wearing of Hijab by Muslim girl.

Senior Advocate Devadatt Kamat ,who appeared for Petitioners said that the order was not “innocuous”, instead violates fundamental rights of the students under Article 19, 21 and 25 of the Constitution.

He further contended that the GO said prohibiting Hijab will not violate the right to practice religion and then left the matter to be decided by the College Development Committees. He questioned that if the state already gives a hint, the colleges will have no option but to ban hijab .

The bench asked the petitioner’s counsel Senior Advocate Devadatt Kamat whether the right to dress as a facet of Article 19 can be stretched to illogical ends.

The bench posed this question after Kamat cited the NALSA judgment of the Supreme Court(2014) to say that right to dress is recognized as a fundamental right under Article 19(1)(a).

Justice Gupta questioned “We cannot take this to illogical ends.. if you say right to dress is a fundamental right then right to undress also becomes a fundamental right.

Advocate Kamat replied”I am not here to make cliche arguments milord. I am proving a point. No one is undressing in school milord”.

Justice Gupta replied back by saying that the right to dress in not denied“

Advocate Kamat then said to the Court “positive Secularism” is practiced in India and therefore the government must exercise “reasonable accommodation” and allow the Petitioner to wear headscarf in addition to uniform.

Kamat questioned the bench “Wearing this additional dress (hijab), can it be restricted on the basis of Article 19? He also asked “No one is forcing her to wear it, but if the girl choses to wear it can the the State prohibit this.”

He maintained that hijab does not create any public order issue and does not go against any morality.

The bench said that “No one is prohibiting her to wear the hijab… but only in school, she has to be wearing what the committee decides.

The hearing will resume at 11.30 am tomorrow.

The Supreme Court has directed conman Sukesh Chandrasekhar and his wife to list the names of Tihar Jail officials he bribed and also to mention through whom he made the payments within 10 days.

The bench of Justice U.U. Lalit, Justice S. Ravindra Bhat and Justice Sudhanshu Dhulia said they will go to the root of this matter. The next hearing in the matter will be on July 26. The bench was hearing the plea by Chandrasekhar and his wife Leena Maria Paul seeking their transfer from Tihar Jail in the capital to any other prison.

During the hearing, Chandrasekhar and his wife’s counsel Senior Advocate R. Basant submitted that jail authorities are threatening him. The Delhi government has also admitted that bribes were taken from him.

Basant said that FIRs have been lodged against us in many states. We can also be sent to Bangalore Jail. The Senior Advocate also said that Chandrasekhar’s elderly widowed mother was also in the KArnataka capital.

Justice Lalit asked the government about the facilities which were granted to Chandrasekhar in Tihar. The judge also wanted to know how the conman was communicating.

In response, Additional Solicitor General S.V. Raju said that Chandrasekhar was keeping in touch with the outside world through a mobile phone which he accessed with the help of jail staff. For this, he had given a huge amount as bribe.

ASG Raju said Chandrasekhar has also cheated in the name of Supreme Court judges. He hasn’t spared anyone and was running his racket uninterrupted. Due to the opening of the case, a large number of the prison staff has been suspended. Now with no slackening of the rigour accorded to him, he wants to go to another jail and run his extortion business from there.

The Court asked the ASG when did they first complain about the threat? The ASG said they had complained first to the Enforcement Directorate and other agencies and then approached the Supreme Court.  The court again asked when did you complain against extortion, Basant replied the complaint was made on March 7 this year.

The Court then wanted to know how much money he had collected. Basant said Chandrasekhar had already collected Rs 12.5 crore.

Expressing surprise, the court said the jail personnel had been involved in the racket with Chandrasekhar and were on his payroll and it took more than two years for the investigating agency to unearth this racket.

Basant said more than Rs 12 crore was cheated from him. The Court then asked both of you were in jail, then who and how did you get cheated of so much money? Basant said Chandrasekhar used to send money through the people who used to come to meet him.

The Court said you were running your criminal syndicate on the pretext of meeting.

The bench then asked Basant to reveal the names of the people through whom the deal was done and money routed. 

The Supreme Court on Tuesday adjourned hearing on the permanent medical bail application of Bhima-Koregaon violence accused Varavara Rao to July 19.

A Bench comprising Justice U.U. Lalit, Justice S. Ravindra Bhat and Justice Sudhanshu Dhulia fixed July 19 as the next date of hearing in the case of poet Varavara Rao. Solicitor General Tushar Mehta had sought the adjournment and said the interim protection from surrender granted by the Bombay High Court can be extended.

Few days back, the Vacation Bench of Justice Surya Kant and Justice J.B. Pardiwala had heard a request made by senior advocate Anand Grover on behalf of the former professor and poet, asking for an urgent hearing in the case.

Advocate Grover had pointed out that Rao’s interim bail, granted by the Bombay High Court in April, would come to an end on July 13.

“He is 83-years-old. There is some urgency. Please, hear this immediately on reopening of the court,” said the Counsel.

The Bombay High Court had rejected the plea of Rao for permanent medical bail and permission for shifting to Hyderabad in Telangana, citing ill health and high expenses in Mumbai on April 13.

The court had, however, extended the interim bail, earlier granted to Rao in February, by another three months.

In his application, Rao had submitted that his condition was getting worse due to Parkinson’s disease. The plea said that he had already spent over two-and-a-half years in custody as an undertrial, and he deserved to be released on permanent medical bail.

Rao had requested that at this stage, if he lives with his family in Hyderabad, he would have access to good and free medical facilities (the treatment is free for former government employees).

Although his request was rejected by the court for permanent medical bail, the High Court gave directions to the Taloja Central prison to improve the facilities.

Varavara Rao is among the activists, lawyers, poets and scholars, who were arrested by NIA in connection with the Elgar Parishad case.

As per the case registered by police, some people had made provocative speeches during the Elgar Parishad conclave in Pune on December 31, 2017, which triggered violence on January 1, 2018 near the Koregaon-Bhima war memorial located on the outskirts of the western Maharashtra city.

The Supreme Court on Thursday dismissed the anticipatory bail application of a person, who was investigated by the Enforcement Directorate in connection with a corruption case of 2009.
A Bench comprising Justice C.T. Ravikumar and Justice Sudhanshu Dhulia upheld the order passed by the Rajasthan High Court, stating that the Sarpanch and the Panchayat Secretary misused their positions and bail cannot be granted into this matter.
The Counsel for the petitioner contended that the incident happened in 2009 and the FIR was lodged in 2014. He added that the petitioner has not been named in the FIR.
He urged the Supreme Court to list the matter for Monday, stating that there were some important documents, which he would like to submit before the Court.

The Apex Court ruled that it was a serious offence of corruption, in which anticipatory bail could not be granted and dismissed the case.