HEAD NOTES

OF
LEADING CASES

ADVOCATES-ON-RECORD EXAMINATION
SYLLABUS FOR PAPER IV-LEADING CASES

PRINTED UNDER THE AUTHORITY OF THE SUPREME COURT OF INDIA

ALL RIGHTS RESERVED

VOLUME III
 LIST OF LEADING CASES

65. Nandini Sundar And Ors. v. State of Chattisgarh ....... 1873

[2011] 8 S.C.R. 1028

66. Arnesh Kumar v. State of Bihar & Anr. ....... 1876

[2014] 8 S.C.R. 128

67. Abhiram Singh v. C.D. Commachen (Dead)

by Lrs. & Ors. ....... 1880
[2017] 1 S.C.R. 158

68. Neeraj Dutta v. State (Govt. of N.C.T. of Delhi) ....... 1902

[2022] 5 S.C.R. 104

69. Sukhpal Singh Khaira v. The State of Punjab ....... 1916

[2022] 10 S.C.R. 156

70. Satender Kumar Antil v.

Central Bureau of Investigation & Anr. ....... 1923
[2022] 10 S.C.R. 351

71. Janhit Abhiyan v. Union of India ....... 1932

[2022] 14 S.C.R. 1

72 Shilpa Sailesh v. Varun Sreenivasan ....... 1984

[2023] 5 S.C.R. 165

73. Kaushal Kishor v. State of Uttar Pradesh & Ors. ....... 1994
[2023] 8 S.C.R. 130

74. Subhash Desai v. Principal Secretary,

Governor of Maharashtra & Ors. ....... 2014
[2023] 8 S.C.R. 857

75. Cox and Kings Ltd. v. SAP India Pvt. Ltd. & Anr. ....... 2023
[2023] 15 S.C.R. 621 : 2023 INSC 1051
76. In Re: Interplay Between Arbitration Agreements
under The Arbitration and Conciliation Act 1996 and
The Indian Stamp Act 1899 ....... 2039
[2023] 15 S.C.R. 1081 : 2023 INSC 1066

77. In Re: Article 370 of The Constitution ....... 2051

[2023] 16 S.C.R. 1 : 2023 INSC 1058

78. Association for Democratic Reforms & Anr. v.

Union of India & Ors. ....... 2065
[2024] 2 S.C.R. 420 : 2024 INSC 113

79. Dr Kavita Kamboj v.

High Court of Punjab and Haryana & Ors ....... 2095
[2024] 2 S.C.R. 1136 : 2024 INSC 192

80. Sita Soren v. Union of India ....... 2099

[2024] 3 S.C.R. 462 : 2024 INSC 161

81. Government of NCT of Delhi & Anr. v.

M/s BSK Realtors LLP & Anr. ....... 2113
[2024] 5 S.C.R. 1159 : 2024 INSC 455

82. Mineral Area Development Authority & Anr. v.

M/s Steel Authority of India & Anr. Etc. ....... 2119
[2024] 7 S.C.R. 1549 : 2024 INSC 554

83. The State of Punjab & Ors. v. Davinder Singh & Ors. ....... 2159
[2024] 8 S.C.R. 1321 : 2024 INSC 562

84. Aligarh Muslim University v. Naresh Agarwal & Ors. ....... 2179
[2024] 11 S.C.R. 1647 : 2024 INSC 856

85. Property Owners Association & Ors. v.

State of Maharashtra & Ors. ....... 2206
[2024] 11 S.C.R. 1 : 2024 INSC 835

86. Tej Prakash Pathak & Ors. v.

Rajasthan High Court & Ors. ....... 2237
[2024] 12 S.C.R. 28 : 2024 INSC 847

*****
 [2011] 8 S.C.R. 1028

NANDINI SUNDAR AND ORS.

v.
STATE OF CHATTISGARH
(Writ Petition (Civil) No. 250 of 2007)

JULY 05, 2011

[B. SUDERSHAN REDDY AND

SURINDER SINGH NIJJAR, JJ.]

Constitution of India, 1950:

Constitutional norms and values – Held: Constitution promises to each
and every citizen, complete justice-social, economic and political – Such a
promise, even in its weakest form and content, cannot condone policies that
turn a blind eye to deliberate infliction of misery on large segments of our
population – On facts, violation of human rights of people of Dantewada
District and its neighbouring areas in the State of Chattisgarh – Approach
of lawless violence (counter-insurgency operations) in response to violence
by the Maoist/Naxalite insurgency in the State of Chattisgarh, has not,
and will not, solve the problems, and instead it would only perpetuate the
cycles of more violent, both intensive and extensive, insurgency and counter-
insurgency.
Articles 14 and 21 – Public interest litigation – Counter-insurgency
operations launched by the State of Chattisgarh against Maoist/Naxalites
extremists in the State of Chattisgarh – Violation of human rights of people of
Dantewada District and its neighbour areas in the State of Chattisgarh – Writ
Petition – Allegation that State of Chattisgarh was actively promoting criminal
activities of Salwa Judum, or sometimes called Koya Commandos, thereby
further exacerbating the ongoing struggle, and leading to further widespread
violation of human rights; and that barely literate tribal youth are appointed
as Special Police Officers (SPO) and given firearms to undertake tasks that
only formal police force could undertake – Direction by Supreme Court to
Union of India to file an affidavit regarding its role in the appointment of
SPOs – Affidavit filed by the Union of India to the effect that its role is limited
only to approving the total number of SPOs and the extent of reimbursement
of honourarium paid to them and thus, the Union of India abdicated its
responsibilities – State of Chattisgarh and the Union of India acknowledged

1873
1874 SUPREME COURT REPORTS [2011] 8 S.C.R. 1028

that the SPOs are actually involved in combat with the Maoist/Naxalites and
are placed in direct danger of attacks without adequate safety that formal
security would possess – Given their educational levels, the training provided
to them is not adequate – Manner of use of firearm is not consonant with the
concept of self-defence – Involving ill-equipped barely literate youngsters
in counter-insurgency activities cannot be said to be creating livelihood
for them – They (SPOs) are expected to perform all the duties of police
officers, yet paid only an honorarium – Appointment of SPOs is temporary
and once it is over, their life would be in danger – Thus, the appointment of
tribal youth as SPOs in counter-insurgency activities has endangered and
will necessarily endanger the human rights of the others in the society – It
is violative of Article 21 and 14 – Thus, Central Bureau of Investigation
directed to immediately take over the investigation as also take appropriate
legal action against all individuals responsible for the said incidents – The
State of Chattisgarh directed to immediately cease and desist from using
SPOs in controlling, countering, mitigating or eliminating Maoist/Naxalite
activities in the State; to make every effort to recall ail firearms issued to
any of the SPOs; to make arrangements to provide appropriate security, and
take necessary measures to protect those who had been employed as SPOs
previously, or given any initial orders of selection/appointment; and to take
all appropriate measures to prevent the operation of any group, including but
not limited to Salwa Judum and Koya Commandos – Union of India also not
to use any of its funds in supporting the recruitment of SPOs for engaging
in any form of counter-insurgency activities – CBI directed to submit its
preliminary status report within six weeks – The State of Chattisgarh and the
Union of India also directed to submit compliance reports with respect to all
the orders and directions issued within six weeks.

Olga Tellis v Bombay Municipal Corporation (1985) 3 SCC

545 – referred to.

State policies designed to combat terrorism and extremism – Interference

with – Held: It can be interfered with, for security considerations – State
necessarily has the obligation, moral and constitutional, to combat
terrorism, extremism, and provide security to the people of the country –
This is a primordial necessity – Judiciary intervenes in order to safeguard
constitutional values and goals, and fundamental rights such as equality,
and right to life.
 NANDINI SUNDAR AND ORS. v. STATE OF CHATTISGARH 1875

G.V.K Industries v. ITO (2011) 4 SCC 36 – referred to.

Almadani v. Ministry of Defense H.C. 3451/02, 56(3) P.D

– referred to.

Counter-insurgency operations against Maoist/Naxalites extremists in

the State of Chattisgarh – Violation of human rights of people of Dantewada
District and its neighbour areas in the State of Chattisgarh – Allegations by
civil society leader with regard to the incidents of violence in three villages,
as well as incidents of violence allegedly perpetrated by people, including
SPOs, Koya Commandos, and/or members of Salwa Judum, against him
and others travelling with him in March 2011 to provide humanitarian aid
to victims of violence in the said villages – Affidavit filed by the State of
Chattisgarh – Held: Affidavit wherein the State admitted about the incident
is nothing more than an attempt at self-justification and rationalization,
rather than an acknowledgment of the constitutional responsibility to take
such instances of violence seriously – Offer/measure by State of Chattisgarh
to constitute an Inquiry Commission, headed by a sitting or a retired judge
of the High Court, are inadequate – These may prevent such incidents
in the future, however, they do not fulfill the requirement of the law: that
crimes against citizens be fully investigated and those engaging in criminal
activities be punished by law – Public interest litigation.
Chattisgarh Police Act, 2007 – s. 23(1)(h) and 23(1)(i) – Special Police
Officers – Appointment of, to perform any of the duties of regular police
officers, other than those specified in s.23(1)(h) and s.23(1)(i) – Held: Is
unconstitutional – Tribal youth, previously engaged as SPOs in counter-
insurgency activities against Maoists/Naxalites may be employed as SPOs
to perform duties limited to those enumerated in s. 23(1)(h) and 23(1)(i),
provided they have not engaged in any activities, as SPOs or in their own
individual/private capacities, violative of human rights of other individuals
or of, any disciplinary code or criminal laws.

Case Law Reference:

(2005) 5 SCC 517 Relied on Para 78
(1985) 3 SCC 545 Referred to Para 62
(2011) 4 SCC 36 Referred to Para 68
H.C. 3451/02, 56(3) P.D Referred to Para 70
 [2014] 8 S.C.R. 128

ARNESH KUMAR
v.
STATE OF BIHAR & ANR.
(Criminal Appeal No. 1277 of 2014)

JULY 2, 2014

[CHANDRAMAULI KR. PRASAD AND

PINAKI CHANDRA GHOSE, JJ.]

CODE OF CRIMINAL PROCEDURE, 1973:

s.41 and 167 — Arrest by police without warrant — Of persons accused
of offences punishable with imprisonment upto seven years - Held: Section
41 makes it evident that a person accused of offence punishable with
imprisonment for a term which may be less than seven years or which may
extend to seven years with or without fine, cannot be arrested by the police
officer only on its satisfaction that such person had committed the offence —
Before arrest police officer to record his satisfaction with regard to factors
enumerated in clauses (a) to (e) of s.41(1) — Arrest brings humiliation,
curtails freedom and casts scars forever — The need for caution in exercising
the drastic power of arrest has been emphasized time and again by courts but
has not yielded desired result - The attitude to arrest first and then proceed
with rest is despicable - It has become a handy tool to police officers who
lack sensitivity or act with oblique motive — No arrest should be made only
because the offence is non-bailable and cognizable and therefore, lawful
for police officers to do so — No arrest can be made in a routine manner
on a mere allegation of commission of an offence made against a person
— Directions given in order to ensure that police officers do not arrest
accused unnecessarily and Magistrate do not authorise detention casually
and mechanically — Penal Code, 1860 - s.498-A - Dowry Prohibition Act,
1961 — s.4.
s. 41-A - Notice of appearance before police officer - Held: Where the
arrest of a person is not required u/s 41(1), police officer is required to issue
notice directing the accused to appear before him at a specified place and
time - Law obliges such an accused to appear before police officer and it
further mandates that if such an accused complies with the terms of notice
he shall not be arrested, unless for reasons to be recorded, police officer is of

1876
 ARNESH KUMAR v. STATE OF BIHAR & ANR. 1877

the opinion that arrest is necessary - At this stage also, condition precedent
for arrest as envisaged u/s 41 has to be complied and shall be subject to
scrutiny by Magistrate.
s. 167 r/w s. 57- Judicial Magistrate authorising accused to police
remand - Held: The power u/s 167 to authorise detention is a very solemn
function - It affects the liberty and freedom of citizens and needs to be
exercised with great care and caution - Before a Magistrate authorises
detention u/s 167, he has to be first satisfied that the arrest made is legal
and in accordance with law and all the constitutional rights of the person
arrested is satisfied - The police officer effecting the arrest is required to
furnish to the Magistrate, the facts, reasons and its conclusions for arrest
and Magistrate in turn is to be satisfied that condition precedent for arrest
u/s 41 has been satisfied and it is only thereafter that he will authorise
detention of an accused - Constitution on India, 1950 - Art. 22.
BAIL:
Application of appellant for anticipatory bail - In a case involving
offences u/s 498-A, IPC and s.4 of Dowry Prohibition Act - Declined by High
Court - Provisional bail granted by Supreme Court on certain conditions
- Held: Order granting bail made absolute - Penal Code, 1860 - s.498-A -
Dowry Prohibition Act, 1961 - s.4.
The appellant-husband apprehending his arrest in a case of offences
u/s 498-A IPC and s.4 of the Dowry Prohibition Act, 1961, having failed
to secure anticipatory bail, filed the instant appeal. During the pendency
of the appeal, the Supreme Court, by order dated 31.10.2013, granted
provisional bail to the appellant.
Allowing the appeal, the Court
HELD: 1.1. There is phenomenal increase in matrimonial disputes
in recent years. Arrest brings humiliation, curtails freedom and casts
scars forever. The need for caution in exercising the drastic power of
arrest has been emphasized time and again by courts but has not yielded
desired result. The attitude to arrest first and then proceed with the rest
is despicable. It has become a handy tool to the police officers who lack
sensitivity or act with oblique motive. No arrest should be made only
because the offence is non-bailable and cognizable and therefore, lawful
for the police officers to do so. The existence of the power to arrest is one
thing, the justification for the exercise of it is quite another. Apart from
1878 SUPREME COURT REPORTS [2014] 8 S.C.R. 128

power to arrest, the police officers must be able to justify the reasons
thereof. No arrest can be made in a routine manner on a mere allegation
of commission of an offence made against a person. [para 6- 8]
1.2. Section 41 makes it evident that a person accused of offence
punishable with imprisonment for a term which may be less than
seven years or which may extend to seven years with or without fine,
cannot be arrested by the police officer only on its satisfaction that such
person had committed the offence. Apart from this, the police officer
has to be satisfied further that the arrest is necessary for one or the
more purposes envisaged by sub-clauses (a) to (e) of clause (1) of s. 41
of Cr.PC. Police officer before arrest, in such cases has to be satisfied
that such arrest is necessary to prevent such person from committing
any further offence; or for proper investigation of the case; or to prevent
the accused from causing the evidence of the offence to disappear; or
tampering with such evidence in any manner; or to prevent such
person from making any inducement, threat or promise to a witness so
as to dissuade him from disclosing such facts to the Court or the police
officer; or unless such accused person is arrested, his presence in the
court whenever required cannot be ensured. Law mandates the police
officer to state the facts and record the reasons in writing which led him
to come to a conclusion while making such arrest. Law further requires
the police officers to record the reasons in writing for not making the
arrest. [para 9]
1.3. This Court is of the opinion that if the provisions of s.41, Cr.PC
which authorises the police officer to arrest an accused without an order
from a Magistrate and without a warrant, are scrupulously enforced,
the wrong committed by the police officers intentionally or unwittingly
would be reversed and the number of cases which come to the Court for
grant of anticipatory bail will substantially reduce. It is emphasised that
the practice of mechanically reproducing in the case diary all or most of
the reasons contained in s.41 Cr.PC for effecting arrest be discouraged
and discontinued. [para 13]
2. An accused arrested without warrant by the police has the right
under Art. 22(2) of the Constitution of India and s.57, Cr.PC to be
produced before the Magistrate without unnecessary delay and in
no circumstances beyond 24 hours excluding the time necessary for
the journey. The power u/s 167 CrPC to authorise detention is a very
solemn function. It affects the liberty and freedom of citizens and needs
 ARNESH KUMAR v. STATE OF BIHAR & ANR. 1879

to be exercised with great care and caution. The experience shows that
it is not exercised with the seriousness it deserves. In many of the cases,
detention is authorised in a routine, casual and cavalier manner. Before
a Magistrate authorises detention u/s 167, Cr.PC, he has to be first
satisfied that the arrest made is legal and in accordance with law and
all the constitutional rights of the person arrested is satisfied. The police
officer effecting the arrest is required to furnish to the Magistrate, the
facts, reasons and its conclusions for arrest and the Magistrate in turn is
to be satisfied that condition precedent for arrest u/s 41 Cr.PC has been
satisfied and it is only thereafter that he will authorise the detention of
an accused. The Magistrate before authorising detention will record his
own satisfaction, may be in brief but the said satisfaction must reflect
from his order. The Magistrate has to address the question whether
specific reasons have been recorded for arrest and if so, prima facie
those reasons are relevant and secondly a reasonable conclusion could
at all be reached by the police officer that one or the other conditions
stated are attracted. To this limited extent the Magistrate will make
judicial scrutiny. [para 10]
3.1. Further, s.41-A CrPC makes it clear that in all cases where the
arrest of a person is not required u/s 41(1) Cr.PC, the police officer is
required to issue notice directing the accused to appear before him at
a specified place and time. Law obliges such an accused to appear
before the police officer and it further mandates that if such an accused
complies with the terms of notice he shall not be arrested, unless for
reasons to be recorded, the police officer is of the opinion that the arrest
is necessary. At this stage also, the condition precedent for arrest as
envisaged u/s 41 Cr.PC has to be complied and shall be subject to the
scrutiny by the Magistrate. [para 12]
3.2. Directions are given in order to ensure that police officers do not
arrest accused unnecessarily and Magistrate do not authorise detention
casually and mechanically. The directions issued shall not only apply
to the cases u/s 498-A of the I.P.C. or s.4 of the Dowry Prohibition Act,
the case in hand, but also to such cases where offence is punishable with
imprisonment for a term which may be less than seven years or which
may extend to seven years, whether with or without fine. [para 15]
4. The order dated 31.10.2013 granting provisional bail to the
appellant on certain conditions, is made absolute. [para 17]
 [2017] 1 S.C.R. 158

ABHIRAM SINGH
v.
C.D. COMMACHEN (DEAD) BY LRS. & ORS.
(Civil Appeal No. 37 of 1992)

JANUARY 02, 2017

[T.S. THAKUR, CJI, MADAN B. LOKUR, S. A. BOBDE,

ADARSH KUMAR GOEL, UDAY UMESH LALIT,
DR. D.Y. CHANDRACHUD AND L. NAGESWARA RAO, JJ.]

Representation of the People Act, 1951:

s. 123 (3) (as amended in 1961) – Interpretation of – Held: Majority
View: The Act being a statute that enables to cherish and strengthen
democratic ideals should be interpreted in a manner that assists the elector
or the electorate and not that assists the candidates – Keeping in view the
social context in which sub-section (3) of s.123 was enacted and today’s
social and technological context, it is absolutely necessary to give a broad
and purposive interpretation rather than a literal or strict interpretation –
The provisions under sub-section (3) are required to be read and appreciated
in the context of simultaneous and contemporaneous amendments inserting
sub-section (3A) in s. 123 and inserting s. 153A in IPC – Therefore sub-
section (3) of s. 123 is to be interpreted in such a way so as to bring within
sweep of ‘corrupt practice’, any appeal on the ground of the religion, race,
caste, community or language of (i) any candidate or (ii) his agent, or
(iii) any other person making appeal with the consent of the candidate, or
(iv) the elector – The bar u/s. 123 (3) to making an appeal on the ground of
religion must not be confined to the religion of the candidate or that of his
rival candidates – The word ‘his’ occurring in the Section refers not only to
the candidate or his agent, but is also intended to refer to the voter or elector
– Determination of the facts whether an appeal, at all, has been made to
the elector and whether appeal made, is in violation of s. 123(3), would be
a matter of evidence – Minority view: Election petitions alleging corrupt
practices have a quasi-criminal character wherein standard of proof is close
to that which guides a criminal trial – Therefore, s.123(3) must be interpreted
in literal sense – The expression ‘his’ in s. 123(3) used in conjunction with
religion, race, caste, community or language is in reference to the religion,

1880
 ABHIRAM SINGH v. 1881
C.D. COMMACHEN (DEAD) BY LRS. & ORS.

race, caste, community or language of the candidate (in whose favour the
appeal to caste a vote is made) or that of a rival candidate (when an appeal
is made to refrain from voting for another) – Sub-section (3) cannot be
construed as referring to the religion, race, caste, community or language
of the voter, even if the provision is given a purposive interpretation –
Discussion, debate or dialogue, of matters relating to religion, race, caste,
community or language of the voters is not an appeal on those grounds, and
the same is protected being an intrinsic part of freedom of speech.
s.123(3) – Long-standing interpretation of given by the courts – Unsettling
of – Permissibility – Held: Per Madan B. Lokur, J.: The interpretation given
to s.123(3) was not well recognized and there was uncertainty about correct
interpretation thereof, the court can unsettle the long-standing interpretation
– Per: Dr. D.Y. Chandrachud, J.: A change in the legal position, which
has held the field through judicial precedent over a length of time can be
considered only in exceptional and compelling circumstances – In the present
cases no case has been made out to take a view at variance with the settled
legal position that the expression ‘his’ in s. 123 (3) must mean the religion,
race, community or language of the candidate – Precedent.
Interpretation of Statutes:
Literal interpretation vis-a-vis purposive interpretation – Per Madan
B. Lokur, J.: While interpreting a statute or a provision in a statute, not
only the text of the law, but also the context in which it was enacted and the
social context, should be considered – However, in statutes having penal
consequence, affecting liberty of an individual or imposing financial burden
on a person, the rule of literal interpretation would still hold good – Per T.S.
Thakur, C.J.I.: While interpreting an enactment, the courts should remain
cognizant of constitutional goals and the purpose of the Act and interpret the
provisions accordingly – Per S.A. Bobde, J.: A literal interpretation does not
exclude a purposive interpretation – While construing a statute both the rules
of interpretation can be applied whether it be penal statute or taxing statute
– Per Dr. D.Y. Chandrachud, J.: Where a statutory provision implicates
penal consequences or consequences of a quasi-criminal character, a strict
construction of the words used by the legislature must be adopted.
Rule of Interpretation – Per T. S. Thakur, C.J.I.: An interpretation which
has the effect of eroding or diluting the constitutional objective of keeping the
State and its activities free from religious considerations, must be avoided –
1882 SUPREME COURT REPORTS [2017] 1 S.C.R. 158

The interpretations that are in tune with constitutional provisions and ethos
ought to be preferred over others.
Rule of interpretation – Per S.A. Bobde, J.: While interpreting statutes,
wherever the language is clear, the intention of the legislature must be
gathered from the language used, and the support from extraneous sources
should be avoided.
Statutory interpretation – Use of legislative history as an aid to statutory
interpretation – Permissibility – Held: Per Dr. D.Y. Chandrachud, J.:
Legislative history is a significant element in the formation of an informed
interpretation.
Answering the reference, the Court
HELD: MAJORITY VIEW: Per Madan B. Lokur, J. (For himself
and for L. Nageswara Rao, J.):
1.1 The conflict between giving a literal interpretation or a purposive
interpretation to a statute or a provision in a statute is perennial. It
can be settled only if the draftsman gives a long-winded explanation in
drafting the law but this would result in an awkward draft that might
well turn out to be unintelligible. The interpreter has, therefore, to
consider not only the text of the law but the context in which the law was
enacted and the social context in which the law should be interpreted.
[Para 36]

R. v. Secretary of State for Health ex parte Quintavalle

[2003] UKHL 13 – referred to.

Bennion on Statutory Interpretation Sixth Edition (Indian

Reprint) page 847 – referred to.

1.2 Ordinarily, if a statute is well-drafted and debated in

Parliament there is little or no need to adopt any interpretation other
than a literal interpretation of the statute. However, in a welfare State,
what is intended for the benefit of the people is not fully reflected in
the text of a statute. In such legislations, a pragmatic view is required
to be taken and the law interpreted purposefully and realistically so
that the benefit reaches the masses. Of course, in statutes that have a
penal consequence and affect the liberty of an individual or a statute
 ABHIRAM SINGH v. 1883
C.D. COMMACHEN (DEAD) BY LRS. & ORS.

that could impose a financial burden on a person, the rule of literal

interpretation would still hold good. [Para 38]
1.3 The Representation of the People Act, 1951 is a statute that
enables to cherish and strengthen democratic ideals. To interpret it in
a manner that assists candidates to an election rather than the elector
or the electorate in a vast democracy like that of India would really be
going against public interest. [Para 39]
1.4 The purpose of enacting sub-section (3) of Section 123 of the
Act and amending it more than once during the course of the first 10
years of its enactment indicates the seriousness with which Parliament
grappled with the necessity of curbing communalism, separatist
and fissiparous tendencies during an election campaign (and even
otherwise in view of the amendment of Section 153A of the IPC). It is
during electioneering that a candidate goes virtually all out to seek votes
from the electorate and Parliament felt it necessary to put some fetters
on the language that might be used so that the democratic process
is not derailed but strengthened. Taking all this into consideration,
Parliament felt the need to place a strong check on corrupt practices
based on an appeal on grounds of religion during election campaigns
(and even otherwise). [Para 41]
1.5 The concerns which formed the ground for amending Section
123(3) of the Act have increased with the tremendous reach already
available to a candidate through the print and electronic media, and
now with access to millions through the internet and social media as well
as mobile phone technology, none of which were seriously contemplated
till about fifteen years ago. Therefore now, more than ever it is necessary
to ensure that the provisions of sub-section (3) of Section 123 of the
Act are not exploited by a candidate or anyone on his or her behalf
by making an appeal on the ground of religion with a possibility of
disturbing the even tempo of life. [Para 42]
1.6 Keeping in view the social context in which sub-section (3) of
Section 123 of the Act was enacted and today’s social and technological
context, it is absolutely necessary to give a purposive interpretation to
the provision rather than a literal or strict interpretation i.e. limited
only to the candidate’s religion or that of his rival candidates. [Para 46]
1884 SUPREME COURT REPORTS [2017] 1 S.C.R. 158

Union of India v. Raghubir Singh (Dead) by Lrs. [1989] 3

SCR 316 : (1989) 2 SCC 754; Maganlal Chhaganlal (P)
Ltd. v. Municipal Corporation of Greater Bombay [1975]
1 SCR 1 : (1974) 2 SCC 402; Badshah v. Urmila Badshah
Godse [2013] 10 SCR 259 : (2014) 1 SCC 188 – relied on.

1.7 The provisions of sub-section (3) of Section 123 of the

Representation of the People Act, 1951 are required to be read and
appreciated in the context of simultaneous and contemporaneous
amendments inserting sub-section (3A) in Section 123 of the Act and
inserting Section 153A in the Penal Code. [Para 49]
1.8 So read together, and for maintaining the purity of the
electoral process and not vitiating it, sub-section (3) of Section 123 of
the Representation of the People Act, 1951 must be given a broad and
purposive interpretation thereby bringing within the sweep of a corrupt
practice any appeal made to an elector by a candidate or his agent or by
any other person with the consent of a candidate or his election agent to
vote or refrain from voting for the furtherance of the prospects of the
election of that candidate or for prejudicially affecting the election of
any candidate on the ground of the religion, race, caste, community or
language of (i) any candidate or (ii) his agent or (iii) any other person
making the appeal with the consent of the candidate or (iv) the elector.
[Para 49]
1.9 It is a matter of evidence for determining whether an appeal
has at all been made to an elector and whether the appeal if made
is in violation of the provisions of sub-section (3) of Section 123 of the
Representation of the People Act, 1951. [Para 49]
2. There was some uncertainty about the correct interpretation of
sub-section (3) of Section 123 of the Act. It is not as if the interpretation
was well-recognized and settled. That being the position, the court can
unsettle the long-standing interpretation given to s. 123(3) of the Act.
[Para 48]

Kultar Singh v. Mukhtiar Singh AIR 1965 SC 141 : [1964]

SCR 790 – followed.

Jagdev Singh Sidhanti v. Pratap Singh Daulta [1964] 6

 ABHIRAM SINGH v. 1885
C.D. COMMACHEN (DEAD) BY LRS. & ORS.

SCR 750; Kami Prasad Jayshanker Yagnik v. Pushottamdas

Ranchhoddas Patel [1969] 3 SCR 400 : (1969) 1 SCC 455;
Dr Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath
Kunte [1995] 6 Suppl. SCR 371: (1996) 1 SCC 130 – held
not correct law.

Abhiram Singh v. C.D. Commachen [1996] 1 Suppl. SCR

340 : (1996) 3 SCC 665; Narayan Singh v. Sunderlal Patwa
(2003) 9 SCC 300; Mohd. Aslam v. Union of India [1996]
3 SCR 782 : (1996) 2 SCC 749; S. R. Bommai v. Union
of India [1994] 2 SCR 644 : (1994) 3 SCC 1; Ziyauddin
Burhanuddin Bukhari v. Brijmohan Ramdass Mehra [1975]
Suppl. SCR 281 : (1976) 2 SCC 17; S. Hareharan Singh
v. S. Sajjan Singh [1985] 2 SCR 159 : (1985) 1 SCC 370;
Jamuna Prasad Mukhariya v. Lachhi Ram [1955] 1 SCR
608 – referred to.

Per T.S. Thakur, C.J.I. (Concurring)

1. It cannot be said that the amendment in 1961, in one sense served
to widen the scope of corrupt practice u/s. 123(3) of Representation
of People Act, 1951, but in another sense restrict the scope of corrupt
practice. The unamended provision made any appeal in the name
of religion, race, caste, community or language a corrupt practice,
regardless of whose religion, race, caste, community or language was
involved for such an appeal. The only other requirement was that
such an appeal was made in a systematic manner for the furtherance
of the prospects of a candidate. If that was the legal position before the
amendment and if the Parliament intended to enlarge the scope of the
corrupt practice, the question of the scope being widened and restricted
at the same time did not arise. There is nothing to suggest either in
the statement of objects and reasons or contemporaneous record of
proceedings, including notes accompanying the bill to show that the
amendment was contrary to the earlier position intended to permit
appeals in the name of religion, race, caste, community or language
to be made except those made in the name of the religion, race, caste,
community or language of the candidate for the furtherance of whose
prospects such appeals were made. Any such interpretation will not
1886 SUPREME COURT REPORTS [2017] 1 S.C.R. 158

only do violence to the provisions of Section 123(3) but also go against

the avowed purpose of the amendment. Any such interpretation
will artificially restrict the scope of corrupt practice for it will make
permissible what was clearly impermissible under the unamended
provision. The correct approach, is to ask whether appeals in the name
of religion, race, caste, community or language which were forbidden
under the unamended law were actually meant to be made permissible
subject only to the condition that any such appeal was not founded on
the religion, race, caste, community or language of the candidate for
whose benefit the same was made. The answer to that question has to be
in the negative. The law as it stood before the amendment did not permit
an appeal in the name of religion, race, caste community or language,
no matter whose religion, race, community or language was invoked.
The amendment did not intend to relax or remove that restriction. On
the contrary it intended to widen the scope of the corrupt practice by
making even a ‘single such appeal’ a corrupt practice which was not so
under the unamended provision. Seen both textually and contextually
the argument that the term “his religion” appearing in the amended
provision must be interpreted so as to confine the same to appeals in
the name of “religion of the candidate” concerned alone does not stand
closer scrutiny and must be rejected. [Paras 8 and 9]
2.1 Under the constitutional scheme mixing religion with State
power is not permissible while freedom to practice, profess and
propagate religion of one’s choice is guaranteed. The State being
secular in character will not identify itself with any one of the religions
or religious denominations. This necessarily implies that religion
will not play any role in the governance of the country which must at
all times be secular in nature. The elections to the State legislature or
to the Parliament or for that matter or any other body in the State is
a secular exercise just as the functions of the elected representatives
must be secular in both outlook and practice. The Constitutional ethos
forbids mixing of religions or religious considerations with the secular
functions of the State. This necessarily implies that interpretation
of any statute must not offend the fundamental mandate under the
Constitution. An interpretation which has the effect of eroding or
diluting the constitutional objective of keeping the State and its
activities free from religious considerations, therefore, must be avoided.
 ABHIRAM SINGH v. 1887
C.D. COMMACHEN (DEAD) BY LRS. & ORS.

While interpreting an enactment, the Courts should remain cognizant

of the Constitutional goals and the purpose of the Act and interpret the
provisions accordingly. [Para 23]
2.2 While interpreting a legislative provision, the Courts must
remain alive to the constitutional provisions and ethos and that
interpretations that are in tune with such provisions and ethos ought
to be preferred over others. Applying that principle to the present
case, an interpretation that will have the effect of removing the religion
or religious considerations from the secular character of the State or
state activity ought to be preferred over an interpretation which may
allow such considerations to enter, effect or influence such activities.
Electoral processes are doubtless secular activities of the State. Religion
can have no place in such activities for religion is a matter personal to
the individual with which neither the State nor any other individual
has anything to do. The State is under an obligation to allow complete
freedom for practicing, professing and propagating religious faith to
which a citizen belongs in terms of Article 25 of the Constitution of India
but the freedom so guaranteed has nothing to do with secular activities
which the State undertakes. The State can and indeed has in terms of
Section 123(3) forbidden interference of religions and religious beliefs
with secular activity of elections to legislative bodies. [Para 28]

Saifuddin Saheb v. State of Bombay AIR 1962 SC 853:

[1962] Suppl. SCR 496; Ahmedabad St. Xavier’s College
Society and Anr. v. State of Gujarat and Anr. [1975] 1
SCR 173 : (1974) 1 SCC 717; Indira Nehru Gandhi v.
Shri Raj Narain [1976] SCR 347 : (1975) Suppl. SCC 1;
S.R. Bommai v. Union of India [1994] 2 SCR 644 : 1994
(3) SCC 1; M.P. Gopalakrishnan Nair and Anr. v. State
of Kerala and Ors. [2005] 3 SCR 712: (2005) 11 SCC
45; Dr. Vimal (Mrs.) v. Bhaguji & Ors. [1995] 1 Suppl.
SCR 392 : (1996) 9 SCC 351; Ambika Sharan Singh v.
Mahant Mahadeva and Giri and Others (1969) 3 SCC 492;
Kedar Nath v. State of Bihar (AIR 1962 SC 955) : [1962]
Suppl. SCR 769; State of Karnataka v. Appa Balu Ingale
and Others [1992] 3 Suppl. SCR 284 : (1995) Supp.4 SCC
469; Vipulbhai M. Chaudhary v. Gujarat Cooperative Milk
1888 SUPREME COURT REPORTS [2017] 1 S.C.R. 158

Marketing Federation Ltd. and Ors. [2015] 3 SCR 997 :

(2015) 8 SCC 1 – relied on.

3. An appeal in the name of religion, race, caste, community or

language is impermissible under the Representation of the People
Act, 1951 and would constitute a corrupt practice sufficient to annul
the election in which such an appeal was made regardless whether the
appeal was in the name of the candidate’s religion or the religion of the
election agent or that of the opponent or that of the voter’s. The sum
total of Section 123 (3) even after amendment is that an appeal in the
name of religion, race, caste, community or language is forbidden even
when the appeal may not be in the name of the religion, race, caste,
community or language of the candidate for whom it has been made. So
interpreted religion, race, caste, community or language would not be
allowed to play any role in the electoral process and should an appeal
be made on any of those considerations, the same would constitute a
corrupt practice. [Para 29]

Per S. A. Bobde, J. (Concurring):

1. The bar under Section 123(3) of the Representation of People
Act, 1951 to making an appeal on the ground of religion must not be
confined to the religion of the candidate because of the word ‘his’
in that provision. The purposive interpretation in the social context
adjudication as a facet of purposive interpretation warrants a broad
interpretation of that section. That the section is intended to serve the
broad purpose of checking appeals to religion, race, caste, community
or language by any candidate. That to maintain the sanctity of the
democratic process and to avoid the vitiating of secular atmosphere of
democratic life, an appeal to any of the factors should avoid the election
of the candidate making such an appeal. [Para 1]
2. Such a construction is not only warranted upon the
application of the purposive test of interpretation but also on textual
interpretation. A literal interpretation does not exclude a purposive
interpretation of the provisions whether in relation to a taxing statute
or a penal statute. There seems no valid reason while construing a
statute (be it a taxing or penal statute) why both rules of interpretation
cannot be applied. [Para 2]
 ABHIRAM SINGH v. 1889
C.D. COMMACHEN (DEAD) BY LRS. & ORS.

IRC v. Trustees of Sir John Aird’s Settlement 1984 CH 382 :

(1983) 3 All ER 481 (CA) – referred to.

3. Section 123 (3) prohibits an “appeal by a candidate”, etc.

“to vote or refrain from voting for any person on the ground of his
religion”, etc. The word “his” occurring in the section refers not only to
the candidate or his agent but is also intended to refer to the voter i.e.
the elector. What is prohibited by a candidate is an appeal to vote on
certain grounds. The word “his” therefore must necessarily be taken to
embrace the entire transaction of the appeal to vote made to voters and
must be held referable to all the actors involved i.e. the candidate, his
election agent etc. and the voter. Thus, the pronoun in the singular “his”
refers to a candidate or his agent or any other person with the consent
of a candidate or his election agent and to the voter. In other words,
what is prohibited is an appeal by a candidate etc. to a voter for voting
on the ground of his religion i.e. those categories preceding “his”. This
construction is fortified by the purposive test. [Para 3]
4. While interpreting statutes, wherever the language is clear, the
intention of the legislature must be gathered from the language used
and support from extraneous sources should be avoided. The language
that is used in Section 123 (3) of the Act intends to include the voter and
the pronoun “his” refers to the voter in addition to the candidate, his
election agent etc. Also because the intendment and the purpose of the
statute is to prevent an appeal to votes on the ground of religion. It is
an unreasonable shrinkage to hold that only an appeal referring to the
religion of the candidate who made the appeal is prohibited and not an
appeal which refers to religion of the voter. It is quite conceivable that
a candidate makes an appeal on the ground of religion but leaves out
any reference to his religion and only refers to religion of the voter. This
interpretation is wholesome and leaves no scope for any sectarian caste
or language based appeal and is best suited to bring out the intendment
of the provision. There is no doubt that the section on textual and
contextual interpretation proscribes a reference to either. [Para 4]

Grasim Industries v. Collector of Customs, Bombay [2002]

2 SCR 945 : 2002 (4) SCC 297 – relied on.
1890 SUPREME COURT REPORTS [2017] 1 S.C.R. 158

5. It is an overriding duty of the Court while interpreting the

provision of a statute that the intention of the legislature is not frustrated
and any doubt or ambiguity must be resolved by recourse to the rules
of purposive construction. It seems clear that the mens or sententia
legis of the Parliament in using the pronoun “his” was to prohibit an
appeal made on the ground of the voter’s religion. Parliamentary intent
therefore, was to clearly proscribe appeals based on sectarian, linguistic
or caste considerations; to infuse a modicum of oneness, transcending
such barriers and to borrow Tagore’s phrase transcend the fragmented
“narrow domestic walls” and send out the message that regardless of
these distinctions voters were free to choose the candidate best suited
to represent them. Applying the above principles, there is no doubt that
Parliament intended an appeal for votes on the ground of religion is not
permissible whether the appeal is made on the ground of the religion of
the candidate etc. or of the voter. Accordingly, the words “his religion”
must be construed as referring to all the categories of persons preceding
these words. [Paras 5, 7 and 8]

Balram Kumawat v. Union of India [2003] 3 Suppl. SCR

24 : 2003 (7) SCC 628 – relied on.

Craies on Statute Law 7th Edn. Page 531 – referred to.

MINORITY VIEW:
Per Dr. D. Y. Chandraçhud, J. (for himself and for Adarsh Kumar
Goel and Uday Umesh Lalit, JJ.) :
1. Election petitions alleging corrupt practices have a quasi-
criminal character. Where a statutory provision implicates penal
consequences or consequences of a quasi-criminal character, a strict
construction of the words used by the legislature must be adopted.
The standard of proof is hence much higher than a preponderance of
probabilities which operates in civil trials. The standard of proof in an
election trial veers close to that which guides a criminal trial. While
a strict construction of a quasi-criminal provision in the nature of an
electoral practice is mandated, the legislative history also supports that
view. [Paras 11, 12 and 44]
 ABHIRAM SINGH v. 1891
C.D. COMMACHEN (DEAD) BY LRS. & ORS.

Tolaram Relumal v. State of Bombay [1951] 1 SCR 158 –

followed.

Amolakchand Chhazed v. Bhagwandas (1977) 3 SCC

566; Baldev Singh Mann v. Gurcharan Singh (MLA)
[1996] 2 SCR 99 : (1996) 2 SCC 743; Thampanoor Ravi
v. Charupara Ravi [1999] 2 Suppl. SCR 419 : (1999) 8
SCC 74; Bipinchandra Parshottamdas Patel (Vakil) v.
State of Gujarat [2003] 3 SCR 533 : (2003) 4 SCC 642; S
Subramaniam Balaji v. State of Tamil Nadu (2013) 9 SCC
659 – relied on.

2.1 Essentially, Section 123(3) can be understood by dividing

its provisions into three parts. The first part describes the person
making the appeal, the second part describes what the appeal seeks
to achieve while the third part relates to the ground or basis reflected
in the second. The first part of the provision postulates an appeal. The
appeal could be : (i) by a candidate; or (ii) by the agent of a candidate;
or (iii) by another person with the consent of a candidate; or (iv) by
another person with the consent of the election agent of the candidate.
Where the person making the appeal is not the candidate or his agent,
consent of the candidate or his agent is mandated. The appeal is to vote
or refrain from voting for any person. The expression ‘any person’ is
evidently a reference to a candidate contesting the election. The third
part speaks of the basis of the appeal. The appeal is to vote or refrain
from voting for any person on the ground of his religion, race, caste,
community or language. In the latter part of Section 123(3), the corrupt
practices consist in the use of or appeal to religious symbols or national
symbols such as the national flag or emblem for (i) the furtherance
of the prospects of the election of that candidate or (ii) prejudicially
affecting the election of any candidate. [Paras 13 and 14]
2.2 Section 123(3) evinces a Parliamentary intent to bring within the
corrupt practice an appeal by a candidate or his agent (or by any person
with the consent of the candidate or his election agent) to either vote or
refrain from voting for any person. The positive element is embodied in
the expression “to vote”. What it means is that there is an appeal to vote
in favour of a particular candidate. Negatively, an appeal not to vote for
a rival candidate is also within the text of the provision. An appeal to
1892 SUPREME COURT REPORTS [2017] 1 S.C.R. 158

vote for a candidate is made to enhance the prospects of the candidate

at the election. An appeal to refrain from voting for a candidate has a
detrimental effect on the election prospects of a rival candidate. Hence,
in the first instance, there is an appeal by a candidate (or his agent or
by another person with the consent of the election agent). The appeal
is for soliciting votes in favour of the candidate or to refrain from
voting for a rival candidate. The expression ‘his’ means belonging to or
associated with a person previously mentioned. The expression “his”
used in conjunction with religion, race, caste, community or language
is in reference to the religion, race, caste, community or language of the
candidate (in whose favour the appeal to cast a vote is made) or that of
a rival candidate (when an appeal is made to refrain from voting for
another). It is impossible to construe sub-section (3) as referring to the
religion, race, caste, community or language of the voter. The provision,
adverts to “a candidate” or “his agent”, or “by any other person with
the consent of a candidate or his election agent”. This is a reference to
the person making the appeal. The next part of the provision contains
a reference to the appeal being made “to vote or refrain from voting for
any person”. The vote is solicited for a candidate or there is an appeal
not to vote for a candidate. Each of these expressions is in the singular.
They are followed by expression “on the ground of his religion...”. The
expression “his religion...” must necessarily qualify what precedes;
namely, the religion of the candidate in whose favour a vote is sought
or that of another candidate against whom there is an appeal to refrain
from voting. ‘His’ religion (and the same principle would apply to ‘his’
race, ‘his’ caste, ‘his’ community, or ‘his’ language) must hence refer
to the religion of the person in whose favour votes are solicited or the
person against whom there is an appeal for refraining from casting a
ballot. [Para 15]
2.3 Section 123(3) uses the expression “on the ground of his
religion...”. The expression ‘the’ is a definite article used especially
before a noun with a specifying or particularizing effect. ‘The’ is used as
opposed to the indefinite or generalizing forces of the indefinite article
‘a’ or ‘an’. The expression ‘ground’ was substituted in Section 123(3) in
place of ‘grounds’, following the amendment of 1961. Read together, the
words “the ground of his religion...” indicate that what the legislature
has proscribed is an appeal to vote for a candidate or to refrain from
 ABHIRAM SINGH v. 1893
C.D. COMMACHEN (DEAD) BY LRS. & ORS.

voting for another candidate exclusively on the basis of the religion

(or race, caste, community or language) of the candidate or a rival
candidate. ‘The ground’ means solely or exclusively on the basis of the
identified feature or circumstance. [Para 16]
2.4 There is a clear rationale and logic underlying the provision
u/s. 123(3). A person who contests an election for being elected as
a representative of the people either to Parliament or the State
legislatures seeks to represent the entire constituency. A person who is
elected represents the whole of the constituency. The Constitution of
India has rejected and consciously did not adopt separate electorates.
Even where a constituency is reserved for a particular category, the
elected candidate represents the constituency as a whole and not
merely persons who belong to the class or category for whom the seat
is reserved. A representative of the people represents people at large
and not a particular religion, caste or community. Consequently, as a
matter of legislative policy Parliament has mandated that the religion of
a candidate cannot be utilized to solicit votes at the election. Similarly,
the religion of a rival candidate cannot form the basis of an appeal to
refrain from voting for that candidate. [Para 17]
2.5 There is also rationale for Section 123(3) not to advert to
the religion, caste, community or language of the voter as a corrupt
practice. The Constitution recognizes the broad diversity of India and,
as a political document, seeks to foster a sense of inclusion. It seeks to
wield a nation where its citizens practice different religions, speak
varieties of languages, belong to various castes and are of different
communities into the concept of one nationhood. Yet, the Constitution,
in doing so, recognizes the position of religion, caste, language and
gender in the social life of the nation. Individual histories both of
citizens and collective groups in the society are associated through the
ages with histories of discrimination and injustice on the basis of these
defining characteristics. In numerous provisions, the Constitution has
sought to preserve a delicate balance between individual liberty and
the need to remedy these histories of injustice founded upon immutable
characteristics such as of religion, race, caste and language. There is no
wall of separation between the State on the one hand and religion, caste,
language, race or community on the other. [Paras 18, 20]
2.6 The corrupt practice lies in an appeal being made to vote for
1894 SUPREME COURT REPORTS [2017] 1 S.C.R. 158

a candidate on the ground of his religion, race, caste, community or

language. The corrupt practice also lies in an appeal to refrain from
voting for any candidate on the basis of the above characteristics
of the candidate. Electors however, may have and in fact do have a
legitimate expectation that the discrimination and deprivation which
they may have suffered in the past (and which many continue to suffer)
on the basis of their religion, caste, or language should be remedied.
Access to governance is a means of addressing social disparities.
Social mobilisation is a powerful instrument of bringing marginalised
groups into the mainstream. To hold that a person who seeks to contest
an election is prohibited from speaking of the legitimate concerns of
citizens that the injustices faced by them on the basis of traits having
an origin in religion, race, caste, community or language would be
remedied is to reduce democracy to an abstraction. Coupled with this
fact is the constitutional protection of free speech and expression in
Article 19(1)(a) of the Constitution. This fundamental right is subject to
reasonable restrictions as provided in the Constitution. Section 123(3)
was not meant to and does not refer to the religion (or race, community,
language or caste) of the voter. If Parliament intended to do so, it was
for the legislature to so provide in clear and unmistakable terms.
There is no warrant for making an assumption that Parliament while
enacting Section123(3) intended to sanitize the electoral process from
the real histories of the people grounded in injustice, discrimination
and suffering. The purity of electoral process is sought to be maintained
by proscribing an appeal to the religion of a candidate (or to his or
her caste, race, community or language) or in a negative sense to these
characteristics of a rival candidate. The “his” in Section 123(3) cannot
validly refer to the religion, race, caste, community or language of the
voter. [Para 20]
2.7 s. 123(3) does not prohibit discussion, debate or dialogue during
the course of an election campaign on issues pertaining to religion or
on issues of caste, community, race or language. Discussion of matters
relating to religion, caste, race, community or language which are of
concern to the voters is not an appeal on those grounds. Caste, race,
religion and language are matters of concern to voters especially where
large segments of the population were deprived of basic human rights
as a result of prejudice and discrimination which they have suffered on
 ABHIRAM SINGH v. 1895
C.D. COMMACHEN (DEAD) BY LRS. & ORS.

the basis of caste and race. Discussion about these matters - within and
outside the electoral context – is a constitutionally protected value and is
an intrinsic part of the freedom of speech and expression. [Para 21]
2.8 Thus, Section 123(3) must be interpreted in a literal sense.
However, even if the provision were to be given a purposive
interpretation, that does not necessarily lead to the interpretation that
Section 123(3) must refer to the caste, religion, race, community or
language of the voter. On the contrary, there are sound constitutional
reasons, which militate against Section 123(3) being read to include a
reference to the religion (etc) of the voter. Hence, it is not proper for the
court to choose a particular theory based on purposive interpretation,
when that principle of interpretation does not necessarily lead to one
inference or result alone. It must be left to the legislature to amend or
re-draft the legislative provision, if it considers it necessary to do so.
[Para 22]
2.9 The traditional view of courts both in India and the UK was
a rule of exclusion by which parliamentary history was not readily
utilized in interpreting a law. Over a period of time, the narrow
view favouring the exclusion of legislative history has given way to a
broader perspective. Debates in the Constituent Assembly have been
utilized as an aid to the interpretation of a constitutional provision. The
modern trend is to permit the utilization of parliamentary material,
particularly a speech by the Minister moving a Bill in construing
the words of a statute. The use of parliamentary debates as an aid to
statutory interpretation has been noticed in several decisions of
this Court. There is need for a balance between the traditional view
supporting the exclusion of the enacting history of a statute and the
more realistic contemporary doctrine allowing its use as an aid to
statutory interpretation. The modern trend is to enable the court to look
at the enacting history of a legislation to foster a full understanding of
the meaning behind words used by the legislature, the mischief which
the law seeks to deal and in the process, to formulate an informed
interpretation of the law. Enacting history is a significant element in the
formation of an informed interpretation. [Paras 31, 32, 33 and 35 ]

Chiranjit Lal Chowdhuri v. Union of India AIR 1951 SC

41: [1950] SCR 869; Dr Ramesh Yeshwant Prabhoo v. PK
1896 SUPREME COURT REPORTS [2017] 1 S.C.R. 158

Kunte [1995] 6 Suppl. SCR 371 : 1995 (7) SCALE 1 –

relied on.

State of Travancore Co. v. Bombay Co. Ltd. AIR 1952 SC

366 : [1952] SCR 1112; State of West Bengal v. Union of
India [1964] 1 SCR 371; Indra Sawhney v. Union of India
AIR 1993 SC 477 : [1992] 2 Suppl. SCR 454; Novartis
AG v. Union of India (2013) 6 SCC 1 : [2013] 13 SCR 148;
State of Madhya Pradesh v. Dadabhoy’s New Chirimiri
Ponri Hill Colliery Co. Pvt. Ltd. (1972) 1 SCC 298 : [1972]
2 SCR 609; Union of India v. Legal Stock Holders Syndicate
AIR 1976 SC 879 : [1976] 3 SCR 504; K.P. Vergese v.
Income Tax Officer AIR 1981 SC 1922 : [1982] 1 SCR
629; Surana Steels Pvt. Ltd. v. Dy Commissioner of Income
Tax [1999] 2 SCR 589 : (1999) 4 SCC 306 – referred to.

‘Principles of Statutory Interpretation’ by G.P. Singh XIVth

Edn.P-253; Bennion on Statutory Interpretation, Indian
Reprint Sixth Edition page 561 – referred to.

2.10 The legislative history of s. 123(3) indicates that Parliament,

while omitting the requirement of a “systematic” appeal intended to
widen the ambit of the provision. An ‘appeal’ is not hedged in by the
restrictive requirements, evidentiary and substantive, associated
with the expression “systematic appeal”. ‘Language’ was introduced
as an additional ground as well. However, it would not be correct as a
principle of interpretation to hold that if the expression “his” religion
is used to refer to the religion of a candidate, the legislature would be
constraining the width of the provision even beyond its pre-amended
avatar. It is true that the expression “his” was not a part of Section
123(3) as it stood prior to the amendment of 1961. Conceivably the
appeal to religion was not required to relate to an appeal to the religion
of the candidate. But by imposing the requirement of a systematic
appeal, Parliament had constrained the application of Section 123(3)
only to cases where as the word systematic indicates the conduct was
planned and repetitive. Moreover, subsection 3A was not introduced
earlier into Section 123. A new corrupt practice of that nature was
introduced in 1961. The position can be looked at from more than one
 ABHIRAM SINGH v. 1897
C.D. COMMACHEN (DEAD) BY LRS. & ORS.

perspective. When Parliament expanded the ambit of Section 123(3)

in 1961, it was entitled to determine the extent to which the provision
should be widened. Parliament would be mindful of the consequence of
an unrestrained expansion of the ambit of Section 123(3). Parliament
is entitled to perceive, in the best interest of democratic political
discourse and bearing in mind the fundamental right to free speech and
expression that what should be proscribed should only be an appeal to
the religion, race, caste, community or language of the candidate or of a
rival candidate. For, if the provision is construed to apply to the religion
of the voter, this would result in a situation where persons contesting
an election would run the risk of engaging in a corrupt practice if the
discourse during the course of a campaign dwells on injustices suffered
by a segment of the population on the basis of caste, race, community
or language. Parliament did not intend its amendment to lead to such
a drastic consequence. In making that legislative judgment, Parliament
cannot be faulted. The extent to which a legislative provision,
particularly one of a quasi-criminal character, should be widened lies in
the legislative wisdom of the enacting body. While expanding the width
of the erstwhile provision, Parliament was legitimately entitled to define
its boundaries. The incorporation of the word “his” achieves just that
purpose. [Para 36]

Jagdev Singh Sidhanti v. Pratap Singh Daulta [1964] 6

SCR 750; Kultar Singh v. Mukhtiar Singh AIR 1965 SC
141 : [1964] SCR 790 – followed.

Kanti Prasad Jayshanker Yagnik v. Purshottam Das

Ranchhoddas Patel [1969] 3 SCR 400 : (1969) 1 SCC 455
– relied on.

2.11 Secularism is a basic feature of the Constitution of India.

It postulates the equality amongst and equal respect for religions in
the polity. Parliament, when it legislates as a representative body
of the people, can legitimately formulate its policy of what would
best subserve the needs of secular India. It has in Section 123(3) laid
down its normative vision. An appeal to vote on the ground of the
religion (or caste, community, race or language) of a candidate or
torefrain from voting for a candidate on the basis of these features is
1898 SUPREME COURT REPORTS [2017] 1 S.C.R. 158

proscribed. Certain conduct is in addition prohibited by sub-section

3A, which is also a corrupt practice. Legislation involved drawing
balances between different, and often conflicting values. Even when
the values do not conflict,the legislating body has to determine what
weight should be assigned to each value in its calculus. Parliament has
made that determination and the duty of the court is to give effect to
it. The reference to ‘his’ religion in Section 123(3) has been construed
to mean the religion of the candidate in whose favour votes arc sought
or the religion of a rival candidate where an appeal is made to refrain
from voting for him. A change in a legal position which has held the
field through judicial precedent over a length of time can be considered
only in exceptional and compelling circumstances. In the present case,
no case has been made out to take a view at variance with the settled
legal position that the expression “his” in Section 123(3) must mean the
religion, race,community or language of the candidate in whose favour
an appeal to cast a vote is made or that of another candidate against
whom there is an appeal to refrain from voting on the ground of the
religion, race, caste, community or language of that candidate. [Paras
42, 43, 46 and 50]

Supreme Court Advocates on Record Association v. Union

of India (2016) 5 SCC 1; Keshav Mills Company Ltd. v.
Commissioner of Income Tax, Bombay North, Ahmedabad
[1965] 2 SCR 908 – followed.

Ambika Sharan Singh v. Mahant Mahadeva and Giri (1969)

3 SCC 492; Ziyauddin Bukhari v. Brijmohan Ramdas
[1975] Suppl. SCR 281 : (1976) 2 SCC 17; Dr Ramesh
Yeshwant Prabhoo v. Prabhakar Kashinath Kunte [1995]
6 Suppl. SCR 371 : (1996) 1 SCC 130; Manohar Joshi
v. Nitin Bhaurao Patil [1995] 6 Suppl. SCR 421 : (1996)
1 SCC 169; Harmohinder Singh Pradhan v. Ranjit Singh
Talwandi [2005] 3 SCR 952 : (2005) 5 SCC 46; Mohd.
Aslam v. Union of India [1996] 3 SCR 782 : (1996) 2 SCC
749 – relied on.

S R Bommai v. Union of India [1994] 2 SCR 644 : (1994) 3

SCC 1 – referred to.
 ABHIRAM SINGH v. 1899
C.D. COMMACHEN (DEAD) BY LRS. & ORS.

Case Law Reference

In the Judgment of Madan B, Lokur, J,

[1996] 1 Suppl. SCR 340 referred to Para 2

(2003) 9 SCC 300 referred to Para 2
[1964] 6 SCR 750 held not correct law Para 6
[1964] 7 SCR 790 relied on Para 7
[1969] 3 SCR 400 held not correct law Para 8
[1996] 3 SCR 782 referred to Para 10
[1994] 2 SCR 644 referred to Para 10
[1995] 6 Suppl. SCR 371 held not correct law Para 11
[1975] Suppl. SCR 281 referred to Para 35
[1985] 2 SCR 159 referred to Para 35
[2003] UKHL 13 referred to Para 36
[1989] 3 SCR 316 relied on Pare 43
[1975] 1 SCR 1 relied on Pare 44
[2013] 10 SCR 259 relied on Pare 45
[1955] 1 SCR 608 referred to Page 47

In the Judgment of T.S. Thakur, C.J.I

[1962] Suppl, SCR 496 relied on Para 13

[19751 1 SCR 173 relied on Para 14
[1976] SCR 347 relied on Para 15
[1994] 2 SCR 644 relied on Para 16
[2005| 3 SCR 712 relied on Para 20
[1995] 1 Suppl. SCR 392 relied on Para 21
(1969) 3 SCC 492 relied on Para 22
1900 SUPREME COURT REPORTS [2017] 1 S.C.R. 158

[1962] Suppl. SCR 769 relied on Para 24

[1992] 3 Suppl. SCR 284 relied on Para 26
J2015J 3 SCR 997 relied on Para 27

In the Judgment of S.A. Bobde, J.

1984 CH 382 =
(1983) 3 AII ER 481 (CA) referred to Para2
[2002] 2 SCR 94 5 relied on Para5
[2003] 3 Suppl. SCR 24 relied on Para 7

In the Judgment of Dr, D. Y, Chandrachud J.

[1951] 1 SCR 158 followed Para 1

(1977) 3 SCC 566 relied on Para 11
[1996] 2 SCR 99 relied on Para 12
[1999] 2 Suppl. SCR 419 relied on Para 12
[2003] 3 SCR 533 relied on Para 12
(2013) 9 SCC 659 relied on Para 12
[1952] SCR 1112 referred to Para 32
[1964] 1 SCR 371 referred to Para 32
[1950] SCR 869 relied on Para 32
[1992] 2 Suppl. SCR 454 referred to Para 32
[2013] 13 SCR 148 referred to Para 32
[1972] 2 SCR 609 referred to Para 32
[1976] 3 SCR 504 referred to Para 32
[1982] 1 SCR 629 referred to Para 32
[1999] 2 SCR 589 referred to Para 32
[1995] 6 Suppl. SCR 371 relied on Para 34
 ABHIRAM SINGH v. 1901
C.D. COMMACHEN (DEAD) BY LRS. & ORS.

[1964] 6 SCR 750 relied on Para 37

[1964] SCR 790 relied on Para 38
[1969] 3 SCR 400 relied on Para 38
(1969) 3 SCC 492 relied on Para 39
[1975] Suppl. SCR 281 relied on Para 40
[1995] 6 SuppL SCR 371 relied on Para 41
[1995] 6 Suppl. SCR 421 relied on Para 41
[2005] 3 SCR 952 relied on Fara 41
[1994] 2 SCR 644 referred to Para 43
[1996] 3 SCR 782 referred to Para 43
[1965] 2 SCR 908 relied on Para 46
(2016) 5 SCC 1 followed Para 47
 [2022] 5 S.C.R. 104

NEERAJ DUTTA
v.
STATE (GOVT. OF N.C.T. OF DELHI)
(Criminal Appeal No. 1669 of 2009)

DECEMBER 15, 2022

[S. ABDUL NAZEER, B. R. GAVAI, A. S. BOPANNA,

V. RAMASUBRAMANIAN AND B. V. NAGARATHNA, JJ.]

Prevention of Corruption Act 1988: ss.7 and 13(1)(d) r/w s.13(2) – In the
absence of evidence of the complainant (direct/primary, oral/documentary
evidence) it is permissible to draw an inferential deduction of culpability/
guilt of a public servant u/ss.7 and 13(1)(d) r/w s.13(2) of the Act based on
other evidence adduced by the prosecution.
Reference Matter – Prevention of Corruption Act 1988 – Whether B.
Jayaraj v State of A.P & P. Satyanarayana Murthy v D. Insp. Of Police,
State of A.P. in conflict with M. Narsinga Rao v State of A.P – Reference
Answered – There is no conflict in B. Jayaraj and P. Satyanarayana Murthy
with the decision in M. Narasinga Rao, with regard to the nature and
quality of proof necessary to sustain a conviction for offences u/ss.7 or
13(1)(d)(i) and (ii) of the Act, when the direct evidence of the complainant
or “primary evidence” of the complainant is unavailable owing to his
death or any other reason – Proof of demand and acceptance of illegal
gratification by a public servant as a fact in issue by the prosecution is a
sine qua non in order to establish the guilt of the accused public servant
u/ss.7 and 13 (1)(d) (i) and (ii) of the Act – Prosecution has to first prove the
demand of illegal gratification and the subsequent acceptance as a matter of
fact and the same can be proved by direct evidence – The proof of demand
and acceptance of illegal gratification can also be proved by circumstantial
evidence in the absence of direct oral and documentary evidence, if such
circumstantial evidences corroborates the foundational fact of demand and
acceptance of illegal gratification.
Prevention of Corruption Act 1988: s.20 – Scope of Presumption used
therein – s.20 envisages the law regarding the presumption where public
servant accepts gratification other than legal remuneration – The expression
used therein is “shall presume” which is legal or compulsory presumption

1902
 NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI) 1903

– The said provision deals with a legal presumption which is in the nature
of a command that it has to be presumed that the accused accepted the
gratification as a motive or reward for doing or forbearing to do any official
act etc., if the condition envisaged in the former part of the Section is
satisfied – It does not say that the said condition should be satisfied through
direct evidence but the only requirement is that it must be proved that the
accused has accepted or agreed to accept gratification.
Evidence Act, 1872: s.3 – Word “Fact” – “Factum Probandum &
Factum Probans” – Classification and Connection – Fact consists of state of
things, events or mental state – The principal fact (fact-in-issue) constitutes
Factum Probandum whereas the evidentiary fact (relevant fact) constitute
Factum Probans – Facts relevant to the issue are evidentiary fact which
render probable the existence or non-existence of fact-in-issue or some other
relevant fact.
Evidence Act, 1872: s.3 – Word “Evidence” – Scope – Evidence may
include the actual words of witnesses, or documents produced – The term
evidence is not restricted to only oral and documentary evidence but also to
other things like material objects, the demeanour of the witnesses, facts of
which judicial notice could be taken, admissions of parties, local inspection
made and answers given by the accused to questions put forth by the
Magistrate or Judge u/s.313 of the Criminal Procedure Code.
Evidence Act, 1872 – ss. 3, 59, 60, 61 – Classification of Evidence
– Evidence may be classified as direct evidence (original evidence) and
indirect evidence (substantial evidence) – Direct Evidence establishes the
existence of a thing or fact either by actual production or by testimony
or demonstrable declaration of someone who has himself perceived it and
the same is devoid of any room for inference or presumption – Indirect
Evidence gives rise to the logical inference that a fact-in-issue exists, either
conclusively or presumptively – Direct Evidence may constitute either oral
or documentary evidence – Indirect evidence may constitute evidence which
is circumstantial in nature.
Evidence Act, 1872: s.60 – Oral Evidence – Classification and Scope –
Oral Evidence can be either original or hearsay in nature – It is original if it
is given by the person who himself have seen or heard something through his
own senses – Hearsay Evidence could be called as derivative, transmitted
or second-hand evidence in which a witness is merely reporting what he had
1904 SUPREME COURT REPORTS [2022] 5 S.C.R. 104

not himself seen or heard but have learnt from some third person – Oral
Evidence is also sub-categorized as Primary and Secondary evidence –
Former is an oral account of the original evidence while latter is a report or
an oral account of the original evidence or a copy of a document or a model
of the original thing – As per the mandate of s.60, the oral evidence must be
direct or positive.
Evidence Act, 1872: Word “Hearsay evidence” – Scope – The expression
“hearsay evidence” is not defined under the Evidence Act – Hearsay evidence
is inadmissible to prove a fact which is deposed to on hearsay, but it does
not necessarily preclude evidence as to a statement having been made upon
which certain action was taken or certain results followed such as evidence
of an informant of the crime.
Evidence Act, 1872: ss. 59, 61, 62, 63, 64, 65, 66, 67(2), 78 – Documentary
Evidence – Classification and scope – As per the mandate of s.59 contents
of document cannot be proved by oral evidence – Documentary evidences
are to be proved by production of documents themselves or, in their absence,
by secondary evidence u/s.65 of the Act – s.61 permits proof of contents
of document by primary or by secondary evidence – As per s.62, primary
evidence mean when the document itself is produced for inspection of the
court – For an evidence to be a secondary evidence for proving the contents
of the document, it must be of the kind as specified u/s.63 – As per the
mandate of s.64 document must be proved by adducing primary evidence,
except in the cases mentioned u/s.65 – The policy of law is that primary
evidence is the best evidence and it affords the greatest certainty of the fact
in question and it is only when the absence of the primary source has been
satisfactorily explained that secondary evidence is permissible to prove the
contents of documents.
Evidence Act, 1872: ss. 4, 114 – Law regarding presumptions – Word
“May Presume, Shall Presume, Conclusive Proof” – Factual Presumption
or discretionary presumption come under “May Presume” and in this case
facts may be proved either by adducing evidence or the court may presume
the existence of a fact – Legal Presumption or Compulsory Presumption
come under “shall presume” and once it is declared by the law that the court
shall presume the existence of a fact, then the court is under obligation to
presume such fact unless such presumption is displaced by adducing evidence
contrary to such presumption – Conclusive proof is a strict declaration
of law and once a fact is declared to be a conclusive proof of the other,
 NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI) 1905

then the court shall not allow the evidence to be adduced to misplace such
presumption – The presumption as contemplated by s.114 is a discretionary
presumption.
Evidence Act, 1872: Chapter 7 – Burden of Proof - The phrase “burden
of proof” has two meanings one, the burden of proof as a matter of law and
pleading and the other, the burden of establishing a case; the former is fixed
as a question of law on the basis of the pleadings and is unchanged during
the entire trial, whereas the latter is not constant but shifts as soon as a party
adduces sufficient evidence to raise a presumption in his favour.
Evidence Act, 1872: Hostile Witness – Admissibility of Evidence –
Settled Legal Position – Even if a witness is treated as “hostile” and is
cross-examined, his evidence cannot be written off altogether but must be
considered with due care and circumspection and that part of the testimony
which is creditworthy must be considered and acted upon.

Answering the Reference petition, the Court

HELD: 1. Congruent to the principle of res gestae, a fact includes
a state of things or events as well as the mental state i.e. intention or
animus. A fact in law of evidence includes the factum probandum
i.e., the principal fact to be proved and the factum probans, i.e., the
evidentiary fact from which the principal fact follows immediately or by
inference. On the other hand, the expression “fact in issue” means the
matters which are in dispute or which form the subject of investigation.
It is well settled that evidence is upon facts pleaded in a case and hence,
the principal facts are sometimes the facts in issue. Facts relevant to the
issue are evidentiary facts which render probable the existence or non-
existence of a fact in issue or some relevant fact. [Para 30, 31]
2. In criminal cases, the facts in issue are constituted in the charge,
or acquisition, in cases of warrant or summon cases. The proof of
facts in issue could be oral and documentary evidence. Evidence is the
medium through which the court is convinced of the truth or otherwise
of the matter under enquiry, i.e., the actual words of witnesses, or
documents produced and not the facts which have to be proved by
oral and documentary evidence. Of course, the term evidence is not
restricted to only oral and documentary evidence but also to other
things like material objects, the demeanour of the witnesses, facts
1906 SUPREME COURT REPORTS [2022] 5 S.C.R. 104

of which judicial notice could be taken, admissions of parties, local

inspection made and answers given by the accused to questions put
forth by the Magistrate or Judge under Section 313 of the Criminal
Procedure Code (CrPC). [Para 32]
3. “Direct” or “original” evidence means that evidence which
establishes the existence of a thing or fact either by actual production or
by testimony or demonstrable declaration of someone who has himself
perceived it, and believed that it established a fact in issue. Direct
evidence proves the existence of a fact in issue without any inference of
presumption. On the other hand, “indirect evidence” or “substantial
evidence” gives rise to the logical inference that such a fact exists, either
conclusively or presumptively. The effect of substantial evidence under
consideration must be such as not to admit more than one solution and
must be inconsistent with any explanation that the fact is not proved. By
direct or presumptive evidence (circumstantial evidence), one may say
that other facts are proved from which, existence of a given fact may be
logically inferred. [Para 33]
4. Oral evidence can be classified as original and hearsay evidence.
Original evidence is that which a witness reports himself to have seen
or heard through the medium of his own senses. Hearsay evidence is
also called derivative, transmitted, or second-hand evidence in which
a witness is merely reporting not what he himself saw or heard, and
not what has come under the immediate observation of his own bodily
senses, but what he has learnt in respect of the fact through the medium
of a third person. Normally, a hearsay witness would be inadmissible,
but when it is corroborated by substantive evidence of other witnesses,
it would be admissible. [Para 34]
5. Evidence that does not establish the fact in issue directly but
throws light on the circumstances in which the fact in issue did not
occur is circumstantial evidence (also called inferential or presumptive
evidence). Circumstantial evidence means facts from which another
fact is inferred. Although circumstantial evidence does not go to prove
directly the fact in issue, it is equally direct. Circumstantial evidence has
also to be proved by direct evidence of the circumstances. [Para 35]
6. Section 59 of the Evidence Act states that all facts, except
the contents of documents or electronic records, may be proved by
 NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI) 1907

oral evidence. Oral evidence means the testimony of living persons

examined in the presence of the court or commissioners appointed by
the court, deaf and dumb persons may also adduce evidence by signs or
through interpretation or by writing, if they are literate. Documentary
evidences, on the other hand, are to be proved by the production of the
documents themselves or, in their absence, by secondary evidence under
Section 65 of the Act. Further, facts showing the existence of any state
of mind, such as intention, knowledge, good faith, negligence, or ill will
need not be proved by direct testimony. It may be proved inferentially
from conduct, surrounding circumstances, etc. [Para 36, 37]
7. Section 60 of the Evidence Act requires that oral evidence
must be direct or positive. Direct evidence is when it goes straight
to establish the main fact in issue. The word “direct” is used in
juxtaposition to derivative or hearsay evidence where a witness gives
evidence that he received information from some other person. If that
person does not, himself, state such information, such evidence would
be inadmissible being hearsay evidence. On the other hand, forensic
procedure as circumstantial or inferential evidence or presumptive
evidence (Section 3) is indirect evidence. It means proof of other facts
from which the existence of the fact in issue may be logically inferred.
In this context, the expression “circumstantial evidence” is used in a
loose sense as, sometimes, circumstantial evidence may also be direct.
Although the expression “hearsay evidence” is not defined under the
Evidence Act, it is, nevertheless, in constant use in the courts. However,
hearsay evidence is inadmissible to prove a fact which is deposed to on
hearsay, but it does not necessarily preclude evidence as to a statement
having been made upon which certain action was taken or certain
results followed such as evidence of an informant of the crime. At this
stage, it must be distinguished that even with regard to oral evidence,
there are sub-categories – primary evidence and secondary evidence.
Primary evidence is an oral account of the original evidence i.e., of a
person who saw what happened and gives an account of it recorded by
the court, or the original document itself, or the original thing when
produced in court. Secondary evidence is a report or an oral account of
the original evidence or a copy of a document or a model of the original
thing. [Para 39, 40, 41]
1908 SUPREME COURT REPORTS [2022] 5 S.C.R. 104

8. Section 61 deals with proof of contents of documents which is by

either primary or by secondary evidence. When a document is produced
as primary evidence, it will have to be proved in the manner laid down
in Sections 67 to 73 of the Evidence Act. Mere production and marking
of a document as an exhibit by the court cannot be held to be due proof
of its contents. Its execution has to be proved by admissible evidence.
On the other hand, when a document is produced and admitted by the
opposite party and is marked as an exhibit by the court, the contents
of the document must be proved either by the production of the
original document i.e., primary evidence or by copies of the same as
per Section 65 as secondary evidence. So long as an original document
is in existence and is available, its contents must be proved by primary
evidence. It is only when the primary evidence is lost, in the interest of
justice, the secondary evidence must be allowed. Primary evidence
is the best evidence and it affords the greatest certainty of the fact in
question. Thus, when a particular fact is to be established by production
of documentary evidence, there is no scope for leading oral evidence.
What is to be produced is the primary evidence i.e., document itself. It
is only when the absence of the primary source has been satisfactorily
explained that secondary evidence is permissible to prove the contents
of documents. Secondary evidence, therefore, should not be accepted
without a sufficient reason being given for non-production of the
original. [Para 42]
9. Section 62 of the Evidence Act defines primary evidence to
mean the documents itself produced for the inspection of the court. If
primary evidence is available, it would exclude secondary evidence.
Section 63 of the Evidence Act deals with secondary evidence and
defines what it means and includes. Section 63 mentions five kinds
of secondary evidence, namely, - (i) Certified copies given under the
provisions hereinafter contained; (ii) Copies made from the original by
mechanical processes which in themselves ensure the accuracy of the
copy, and copies compared with such copies; (iii) Copies made from or
compared with the original; (iv) Counterparts of documents as against
the parties who did not execute them; (v) Oral accounts of the contents
of a document given by some person who has himself seen it. [Para 43]
10. Section 64 of the Evidence Act states that documents must be
proved by primary evidence except in certain cases mentioned above.
 NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI) 1909

Once a document is admitted, the contents of that document are also

admitted in evidence, though those contents may not be conclusive
evidence. Moreover, once certain evidence is conclusive it shuts out any
other evidence which would detract from the conclusiveness of that
evidence. There is a prohibition for any other evidence to be led which
may detract from the conclusiveness of that evidence and the court has
no option to hold the existence of the fact otherwise when such evidence
is made conclusive. Thus, once a document has been properly admitted,
the contents of the documents would stand admitted in evidence, and if
no objection has been raised with regard to its mode of proof at the stage
of tendering in evidence of such a document, no such objection could be
allowed to be raised at any later stage of the case or in appeal. [Para 44]
11. Courts are authorised to draw a particular inference from a
particular fact, unless and until the truth of such inference is disproved
by other facts. The court can, under Section 4 of the Evidence Act, raise
a presumption for purposes of proof of a fact. It is well settled that a
presumption is not in itself evidence but only makes a prima facie
case for a party for whose benefit it exists. As per English Law, there
are three categories of presumptions, namely, (i) presumptions of
fact or natural presumption; (ii) presumption of law (rebuttable and
irrebuttable); and (iii) mixed presumptions i.e., “presumptions of
mixed law and fact” or “presumptions of fact recognised by law”. The
expression “may presume” and “shall presume” in Section 4 of the
Evidence Act are also categories of presumptions. Factual presumptions
or discretionary presumptions come under the division of “may
presume” while legal presumptions or compulsory presumptions
come under the division of “shall presume”. “May presume” leaves it
to the discretion of the court to make the presumption according to the
circumstances of the case but “shall presume” leaves no option with
the court, and it is bound to presume the fact as proved until evidence
is given to disprove it, for instance, the genuineness of a document
purporting to be the Gazette of India. The expression “shall presume”
is found in Sections 79, 80, 81, 83, 85, 89 and 105 of the Evidence Act.
[Para 46]
12. Section 20 of the Act deals with presumption where public
servant accepts gratification other than legal remuneration. It uses
the expression “shall be presumed” in sub-section (1) and sub-section
1910 SUPREME COURT REPORTS [2022] 5 S.C.R. 104

(2) unless the contrary is proved. The said provision deals with a legal
presumption which is in the nature of a command that it has to be
presumed that the accused accepted the gratification as a motive or
reward for doing or forbearing to do any official act etc., if the condition
envisaged in the former part of the Section is satisfied. The only
condition for drawing a legal presumption under Section 20 of the Act
is that during trial, it should be proved that the accused had accepted
or agreed to accept any gratification. The Section does not say that
the said condition should be satisfied through direct evidence. Its only
requirement is that it must be proved that the accused has accepted or
agreed to accept gratification. [Para 48]
13. A presumption under Section 114 of the Evidence Act is
discretionary in nature inasmuch as it is open to the court to draw
or not to draw a presumption as to the existence of one fact from the
proof of another fact. This is unlike a presumption under Section
4(1) of the 1947 Act or Section 20 of the Act where the court has to
draw such presumption, if a certain fact is proved, that is, where any
illegal gratification has been received by an accused. In such a case the
presumption that has to be drawn that the person received that thing
as a motive of reward. Therefore, the court has no choice in the matter,
once it is established that the accused has received a sum of money
which was not due to him as a legal remuneration. Of course, it is open
to the accused to show that though that money was not due to him as a
legal remuneration it was legally due to him in some other manner or
that he had received it under a transaction or an arrangement which
is lawful. The burden resting on the accused in such a case would not
be as light as it is where a presumption is raised under Section 114 of
the Evidence Act and cannot be held to be discharged merely by reason
of the fact that the explanation offered by the accused is reasonable
and probable. It must further be shown that the explanation is a true
one. The words “unless the contrary is proved” which occur in this
provision make it clear that the presumption has to be rebutted by
“proof” and not by a bare explanation which is merely plausible. A fact
is said to be proved when its existence is directly established or when
upon the material brought before it, the Court finds its existence to be
so probable that a reasonable man would act on the supposition that
 NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI) 1911

it exists. Unless, therefore, the explanation is supported by proof, the

presumption created by the provision cannot be said to be rebutted.
[Para 50]
14. As opposed to the expressions “may presume” and “shall
presume”, the expression “conclusive proof” is also used in Section 4 of
the Evidence Act. When the law says that a particular kind of evidence
would be conclusive, that fact can be proved either by that evidence
or by some other evidence that the court permits or requires. When
evidence which is made conclusive is adduced, the court has no option
but to hold that the fact exists. For instance, the statement in an order
of the court is conclusive of what happened before the presiding officer
of the court. Thus, conclusive proof gives an artificial probative effect
by the law to certain facts. No evidence is allowed to be produced with a
view to combat that effect. When a statute makes certain facts final and
conclusive, evidence to disprove such facts is not to be allowed. [Para 52]
15. All evidence let in before the court of law are classified either
as direct or circumstantial evidence. “Direct evidence” means
when the principal fact is attested directly by witnesses, things or
documents. For all other forms, the term “circumstantial evidence”
which is “indirect evidence” is referred, whether by witnesses, things
or documents, which can be received as evidence. This is also of two
kinds namely, conclusive and presumptive. Conclusive is when the
connection between the principal and evidentiary facts – the factum
probandum and factum probans - is a necessary consequence of the
laws of nature; “presumptive” is when the inference of the principal
fact from the evidence is only probable, whatever be the degree of
persuasion which it may generate. Thus, circumstantial evidence is
evidence of circumstances as opposed to what is called direct evidence.
The prosecution must take place and prove all necessary circumstances
constituting a complete chain without a snap and pointing to the
hypothesis that except the accused, no one had committed the offence.
[Para 53]
16. Proof of demand and acceptance of illegal gratification by a
public servant as a fact in issue by the prosecution is a sine qua non in
order to establish the guilt of the accused public servant under Sections
1912 SUPREME COURT REPORTS [2022] 5 S.C.R. 104

7 and 13 (1)(d) (i) and(ii) of the Act. In order to bring home the guilt
of the accused, the prosecution has to first prove the demand of illegal
gratification and the subsequent acceptance as a matter of fact. This
fact in issue can be proved either by direct evidence which can be in
the nature of oral evidence or documentary evidence. Further, the
fact in issue, namely, the proof of demand and acceptance of illegal
gratification can also be proved by circumstantial evidence in the
absence of direct oral and documentary evidence. [Para 68]
17. There is no conflict in the three judge Bench decisions of this
Court in B. Jayaraj and P. Satyanarayana Murthy with the three judge
Bench decision in M. Narasinga Rao, with regard to the nature and
quality of proof necessary to sustain a conviction for offences under
Sections 7 or 13(1)(d)(i) and (ii) of the Act, when the direct evidence
of the complainant or “primary evidence” of the complainant is
unavailable owing to his death or any other reason. [Para 69][160-E-F]

Subash Parbat Sonvane v. State of Gujarat (2002) 5 SCC

86 : [2002] 3 SCR 359; Ram Krishan v. State of Delhi AIR
1956 SC 476 : [1956] SCR 182; C.K. Damodaran Nair v.
Government of India (1997) 9 SCC 477 : [1997] 1 SCR
107; B. Jayaraj v. State of Andhra Pradesh (2014) 13 SCC
55 (“B. Jayaraj”) : [2014] 4 SCR 554; P. Satyanarayana
Murthy v. D. Inspector of Police, State of A.P. (2015) 10
SCC 152; M. Narsinga Rao v. State of A.P. (2001) 1 SCC
691 : [2000] 5 Suppl. SCR 584; A. Subair v. State of
Kerala (2009) 6 SCC 587 : [2009] 9 SCR 1058; State of
Kerala v. C.P. Rao (2011) 6 SCC 450 : [2011] 6 SCR 864;
Suresh Budharmal Kalani v. State of Maharashtra (1998)
7 SCC 337 : [1998] 1 Suppl. SCR 608; Hazari Lal v.
State (Delhi Admn.) (1980) 2 SCC 390 : [1980] 2 SCR
1053; Kishan Chand Mangal v. State of Rajasthan (1982) 3
SCC 466 : [1983] 1 SCR 569; K. Shanthamma v. State of
Karnataka (2022) 4 SCC 574; State of U.P. v. Ram Asrey
(1990) Suppl. SCC 12; Mukhtiar Singh v. State of Punjab
(2017) 8 SCC 136 : [2017] 8 SCR 109; M. R. Purushotam
v. State of Karnataka (2015) 3 SCC 247; C. M. Sharma
NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI) 1913

v. State of Andhra Pradesh (2010) 15 SCC 1 : [2010] 13

SCR 1105; State of Maharashtra v. Dhyaneshwar Laxman
Rao Wankhede (2009) 15 SCC 200 : [2009] 11 SCR 513;
Sukumaran v. State of Kerala (2015) 11 SCC 314; Sunkanna
v. State of Andhra Pradesh (2016) 1 SCC 713 : [2015] 12
SCR 882; State of Madhya Pradesh v. Ram Singh (2000)
5 SCC 88 : [2000] 1 SCR 579; State of Rajasthan v. Babu
Meena (2013) 4 SCC 206; Amarjit Singh v. State (Delhi
Admn.) 1995 Cr LJ 1623 (Del); Kumar Exports v. Sharma
Carpets (2009) 2 SCC 513 : [2008] 17 SCR 572; Krishna
Janardhan Bhat v. Dattatraya G Hegde (2008) 4 SCC 54
: [2008] 1 SCR 605; State of Madras v. A. Vaidyanatha
Iyer AIR 1958 SC 61 : [1958] SCR 580; Dhanvantrai
Balwantrai Desai v. State of Maharashtra AIR 1964 SC
575 : [1963] Suppl. SCR 485; Navaneethakrishnan v. State
by Inspector of Police AIR 2018 SC 2027 : [2018] 6 SCR
749; Sharad Birdhichand Sarda v. State of Maharashtra
(1984) 4 SCC 116 : [1985] 1 SCR 88; Prakash v. State of
Rajasthan (2013) 4 SCC 668 : [2013] 2 SCR 458; Kundan
Lal Rallaram v. The Custodian, Evacuee Property Bombay
AIR 1961 SC 1316; Madhukar Bhaskarrao Joshi v. State
of Maharashtra (2000) 8 SCC 571 : [2000] 4 Suppl.
SCR 475; State v. Dr. Anup Kumar Srivastava (2017) 15
SCC 560 : [2017] 9 SCR 341; State of Andhra Pradesh
v. V. Vasudeva Rao (2004) 9 SCC 319 : [2003] 5 Suppl.
SCR 500; State of Andhra Pradesh v. P. Venkateshwarlu
(2015) 7 SCC 283 : [2015] 6 SCR 262; Selvaraj v. State of
Karnataka (2015) 10 SCC 230 : [2015] 9 SCR 381; Nayan
Kumar Shivappa Waghmare v. State of Maharashtra (2015)
11 SCC 213 : [2015] 2 SCR 171; Prakash Chand v. State
(Delhi Admn.) (1979) 3 SCC 90 : [1979] 2 SCR 330; Sat
Paul v. Delhi Administration (1976) 1 SCC 727 : [1976]
2 SCR 11; Swatantar Singh v. State of Haryana (1997) 4
SCC 14 : [1997] 2 SCR 639; A.B. Bhaskara Rao v. CBI
(2011) 10 SCC 259 : [2011] 12 SCR 718; State of M.P. v.
Shambhu Dayal (2006) 8 SCC 693 : [2006] 8 Suppl. SCR
319 – referred to.
1914 SUPREME COURT REPORTS [2022] 5 S.C.R. 104

Case Law Reference

[2002] 3 SCR 359 referred to Para 6

[1956] SCR 182 referred to Para 6
[1997] 1 SCR 107 referred to Para 8
[2014] 4 SCR 554 referred to Para 9
[2000] 5 Suppl. SCR 584 referred to Para 9
[2009] 9 SCR 1058 referred to Para 10b(iv)
[2011] 6 SCR 864 referred to Para 10b(iv)
[1998] 1 Suppl. SCR 608 referred to Para 10c(iii)
[1980] 2 SCR 1053 referred to Para 10c(v)
[1983] 1 SCR 569 referred to Para 14(viii)
[2017] 8 SCR 109 referred to Para 15
[2010] 13 SCR 1105 referred to Para 15
[2009] 11 SCR 513 referred to Para 15
[2015] 12 SCR 882 referred to Para 15
[2000] 1 SCR 579 referred to Para 23
[2008] 17 SCR 572 referred to Para 47
[2008] 1 SCR 605 referred to Para 47
[1958] SCR 580 referred to Para 49
[1963] Suppl. SCR 485 referred to Para 50
[2018] 6 SCR 749 referred to Para 53
[1985] 1 SCR 88 referred to Para 55
[2013] 2 SCR 458 referred to Para 55
[2000] 4 Suppl. SCR 475 referred to Para 57
[2017] 9 SCR 341 referred to Para 58
[2003] 5 Suppl. SCR 500 referred to Para 59(i)
NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI) 1915

[2015] 6 SCR 262 referred to Para 59(ii)

[2015] 9 SCR 381 referred to Para 59(iii)
[2015] 2 SCR 171 referred to Para 61
[1979] 2 SCR 330 referred to Para 62
[1976] 2 SCR 11 referred to Para 66
[1997] 2 SCR 639 referred to Para 71
[2011] 12 SCR 718 referred to Para 71
[2006] 8 Suppl. SCR 319 referred to Para 71
 [2022] 10 S.C.R. 156

SUKHPAL SINGH KHAIRA

v.
THE STATE OF PUNJAB
(Criminal Appeal No. 885 of 2019)

DECEMBER 05, 2022

[S. ABDUL NAZEER, B.R. GAVAI, A.S. BOPANNA,

V. RAMASUBRAMANIAN AND B.V NAGARATHNA, JJ.]

Code of Criminal Procedure, 1973 : s. 319 – Power to summon additional

accused under – When the trial with respect to other co-accused has
ended and the judgment of conviction rendered on the same date before
pronouncing the summoning order – Held: Power u/s. 319 has to be
exercised before the pronouncement of the order of sentence where there is
a judgment of conviction of the accused – In the case of acquittal, the power
should be exercised before the order of acquittal is pronounced – In case of
conviction, summoning order u/s. 319 has to precede the conclusion of trial
by imposition of sentence – If the order is passed on the same day, it will
have to be examined on the facts and circumstances of each case and if such
summoning order is passed either after the order of acquittal or imposing
sentence in the case of conviction, the same would not be sustainable.
s. 319 – Power to summon additional accused under – When the trial in
respect of certain other absconding accused (whose presence is subsequently
secured) is pending, having been bifurcated from the main trial – Held: Court
has power to summon additional accused in trial proceedings in respect of
the absconding accused after securing his presence subject to the evidence
recorded in the split up (bifurcated) trial pointing to the involvement of the
accused sought to be summoned – However, evidence recorded in the main
concluded trial cannot be the basis of the summoning order if such power
has not been exercised in the main trial till its conclusion.
s. 319 – Exercise of power under – Guidelines issued.

Answering the questions referred, the Court

HELD: 1.1 The power under Section 319 of the Code of
Criminal Procedure, 1973 is to be invoked and exercised before the

1916
 SUKHPAL SINGH KHAIRA v. THE STATE OF PUNJAB 1917

pronouncement of the order of sentence where there is a judgment of

conviction of the accused. In the case of acquittal, the power should
be exercised before the order of acquittal is pronounced. Hence, the
summoning order has to precede the conclusion of trial by imposition
of sentence in the case of conviction. If the order is passed on the same
day, it will have to be examined on the facts and circumstances of each
case and if such summoning order is passed either after the order of
acquittal or imposing sentence in the case of conviction, the same will
not be sustainable. [Para 33]
1.2 The trial court has the power to summon additional accused
when the trial is proceeded in respect of the absconding accused after
securing his presence, subject to the evidence recorded in the split up
(bifurcated) trial pointing to the involvement of the accused sought to
be summoned. But the evidence recorded in the main concluded trial
cannot be the basis of the summoning order if such power has not been
exercised in the main trial till its conclusion. [Para 33]
1.3 The guidelines that the competent court must follow while
exercising power under Section 319 CrPC are:
(i) If the competent court finds evidence or if application under
Section 319 of CrPC is filed regarding involvement of any other person
in committing the offence based on evidence recorded at any stage in the
trial before passing of the order on acquittal or sentence, it shall pause
the trial at that stage.
(ii) The Court shall thereupon first decide the need or otherwise to
summon the additional accused and pass orders thereon.
(iii) If the decision of the court is to exercise the power under Section
319 of CrPC and summon the accused, such summoning order shall be
passed before proceeding further with the trial in the main case.
(iv) If the summoning order of additional accused is passed,
depending on the stage at which it is passed, the Court shall also apply
its mind to the fact as to whether such summoned accused is to be tried
along with the other accused or separately.
(v) If the decision is for joint trial, the fresh trial shall be
commenced only after securing the presence of the summoned accused.
1918 SUPREME COURT REPORTS [2022] 10 S.C.R. 156

(vi) If the decision is that the summoned accused can be tried

separately, on such order being made, there will be no impediment for
the Court to continue and conclude the trial against the accused who
were being proceeded with.
(vii) If the proceeding paused as in (i) above is in a case where the
accused who were tried are to be acquitted and the decision is that the
summoned accused can be tried afresh separately, there will be no
impediment to pass the judgment of acquittal in the main case.
(viii) If the power is not invoked or exercised in the main trial till its
conclusion and if there is a split-up (bifurcated) case, the power under
Section 319 of CrPC can be invoked or exercised only if there is evidence
to that effect, pointing to the involvement of the additional accused to be
summoned in the split up (bifurcated) trial.
(ix) If, after arguments are heard and the case is reserved for
judgment the occasion arises for the Court to invoke and exercise the
power under Section 319 of CrPC, the appropriate course for the court
is to set it down for re-hearing.
(x) On setting it down for re-hearing, the above laid down procedure
to decide about summoning; holding of joint trial or otherwise shall be
decided and proceeded with accordingly.
(xi) Even in such a case, at that stage, if the decision is to summon
additional accused and hold a joint trial the trial shall be conducted
afresh and de novo proceedings be held.
(xii) If, in that circumstance, the decision is to hold a separate trial
in case of the summoned accused as indicated earlier;
(a) The main case may be decided by pronouncing the conviction
and sentence and then proceed afresh against summoned accused.
(b) In the case of acquittal the order shall be passed to that effect
in the main case and then proceed afresh against summoned accused.
[Para 33][187-D-H; 188-A-H; 189-A]
2.1 It is amply clear from s. 319 Cr.PC that the power bestowed on
the Court is to the effect that in the course of an inquiry into, or trial
of an offence, based on the evidence tendered before the Court, if it
appears to the Court that such evidence points to any person other than
 SUKHPAL SINGH KHAIRA v. THE STATE OF PUNJAB 1919

the accused who are being tried before the Court to have committed any
offence and such accused has been excluded in the charge sheet or in the
process of trial till such time could still be summoned and tried together
with the accused for the offence which appears to have been committed
by such persons summoned as additional accused. [Para 14]
2.2 Under section 319, power bestowed on the court to summon
any person who is not an accused in the case is, when in the course of
the trial it appears from the evidence that such person has a role in
committing the offence. Therefore, it would be open for the Court
to summon such a person so that he could be tried together with the
accused and such power is exclusively of the Court. Obviously, when
such power is to summon the additional accused and try such a person
with the already charged accused against whom the trial is proceeding,
it will have to be exercised before the conclusion of trial. The
connotation ‘conclusion of trial’ in the instant case cannot be reckoned
as the stage till the evidence is recorded, but, is to be understood as the
stage before pronouncement of the judgment, since on judgment being
pronounced the trial comes to a conclusion since until such time the
accused is being tried by the Court. [Para 20]
2.3 From the perusal of section 232 CrPC, it is seen that if the
Sessions Court while analysing the evidence recorded finds that there
is no evidence to hold the accused for having committed the offence,
the judge is required to record an order of acquittal. In that case,
there is nothing further to be done by the judge and therefore the trial
concludes at that stage. In such cases where it arises u/s. 232 CrPC and
an order of acquittal is recorded and when there are more than one
accused or the sole accused, have/has been acquitted, in such cases,
that being the end of the trial by drawing the curtain, the power of the
court to summon an accused based on the evidence as contemplated
under Section 319 CrPC will have to be invoked and exercised before
pronouncement of judgment of acquittal. There shall be application
of mind also, as to whether separate trial or joint trial is to be held
while trying him afresh. After such order it will be open to pronounce
the judgment of acquittal of the accused who was tried earlier. If
Judge arrives at the conclusion that the accused is to be convicted, the
conviction shall be ordered through the judgment as contemplated u/s.
235 CrPC. Sub-section (2) thereto provides that if the Judge does not
1920 SUPREME COURT REPORTS [2022] 10 S.C.R. 156

proceed to give the benefit to the accused of being released on probation

u/s. 360 of CrPC, the judge shall hear the accused on the question of
sentence and then impose a sentence on him. [Para 22, 23]
2.4 Even after the pronouncement of the judgment of conviction,
the trial is not complete since the Sessions Judge is required to apply
her/his mind to the evidence which is available on record to determine
the gravity of the charge for which the accused is found guilty; the
role of the particular accused when there is more than one accused
involved in an offence and in that light, to award an appropriate
sentence. Therefore, it cannot be said that the trial is complete on the
pronouncement of the judgment of conviction alone, though it may be
so in the case of acquittal as contemplated under Section 232 of CrPC,
since in that case there is nothing further to be done by the Judge except
to record an order of acquittal which results in conclusion of trial.
[Paras 24]
2.5 The conclusion of the trial in a criminal prosecution if it ends in
conviction, a judgment is considered to be complete in all respects only
when the sentence is imposed on the convict, if the convict is not given
the benefit of Section 360 of CrPC. Similarly, in a case where there are
more than one accused and if one or more among them are acquitted
and the others are convicted, the trial would stand concluded as against
the accused who are acquitted and the trial will have to be concluded
against the convicted accused with the imposition of sentence. When
considered in the context of Section 319 of CrPC, there would be no
dichotomy, since what becomes relevant here is only the decision to
summon a new accused based on the evidence available on record which
would not prejudice the existing accused since in any event they are
convicted. [Para 27]
2.6 In that view of the matter, if the Court finds from the evidence
recorded in the process of trial that any other person is involved,
such power to summon the accused under Section 319 CrPC can
be exercised by passing an order to that effect before the sentence is
imposed and the judgment is complete in all respects bringing the trial
to a conclusion. While arriving at such conclusion what is also to be
kept in view is the requirement of sub-section (4) to Section 319 CrPC.
From the said provision it is clear that if the Sessions Judge exercises
the power to summon the additional accused, the proceedings in respect
 SUKHPAL SINGH KHAIRA v. THE STATE OF PUNJAB 1921

of such person shall be commenced afresh and the witnesses will have
to be re-examined in the presence of the additional accused. In a case
where the Sessions Judge exercises the power under Section 319 CrPC
after recording the evidence of the witnesses or after pronouncing the
judgment of conviction but before sentence being imposed, the very
same evidence which is available on record cannot be used against the
newly added accused in view of Section 273 of CrPC. As against the
accused who has been summoned subsequently a fresh trial is to be
held. However while considering the application under Section 319
CrPC, if the decision by the Sessions Judge is to summon the additional
accused before passing the judgment of conviction or passing an order
on sentence, the conclusion of the trial by pronouncing the judgment is
required to be withheld and the application under Section 319 CrPC is
required to be disposed of and only then the conclusion of the judgment,
either to convict the other accused who were before the Court and to
sentence them can be proceeded with. This is so since the power under
Section 319 CrPC can be exercised only before the conclusion of the
trial by passing the judgment of conviction and sentence. [Para 28]
2.7 Though Section 319 of CrPC provides that such person
summoned as per sub-section (1) thereto could be jointly tried together
with the other accused, keeping in view the power available to the
Court under Section 223 of CrPC to hold a joint trial, it would also be
open to the Sessions Judge at the point of considering the application
under Section 319 of CrPC and deciding to summon the additional
accused, to also take a decision as to whether a joint trial is to be held
after summoning such accused by deferring the judgment being passed
against the tried accused. If a conclusion is reached that the fresh trial
to be conducted against the newly added accused could be separately
tried, in such event it would be open for the Sessions Judge to order
so and proceed to pass the judgment and conclude the trial insofar as
the accused against whom it had originally proceeded and thereafter
proceed in the case of the newly added accused. However, what is
important is that the decision to summon an additional accused either
suo-moto by the Court or on an application under Section 319 in all
eventuality be considered and disposed of before the judgment of
conviction and sentence is pronounced, as otherwise, the trial would get
concluded and the Court will get divested of the power under Section
1922 SUPREME COURT REPORTS [2022] 10 S.C.R. 156

319. Since a power is available to the Court to decide as to whether a

joint trial is required to be held or not, the phrase, “could be tried
together with the accused” as contained in Section 319(1) CrPC, is to be
directory. [Para 29]
2.8 If the trial against the absconding accused is split up (bifurcated)
and is pending, that by itself will not provide validity to an application
filed under Section 319 of CrPC or the order of Court to summon an
additional accused in the earlier main trial if such summoning order is
made in the earlier concluded trial against the other accused. This is so,
since such power is to be exercised by the Court based on the evidence
recorded in that case pointing to the involvement of the accused who is
sought to be summoned. If in the split up case, on securing the presence
of the absconding accused the trial is commenced and if in the evidence
recorded therein it points to the involvement of any other person
as contemplated in Section 319 CrPC, such power to summon the
accused can certainly be invoked in the split up (bifurcated) case before
conclusion of the trial therein. [Para 30]

Shashikant Singh v. Tarkeshwar Singh (2002) 5 SCC 738 :

[2002] 3 SCR 400; Hardeep Singh v. State of Punjab (2014)
3 SCC 92 : [2014] 2 SCR 1; Rama Narang vs. Ramesh
Narang and Others (1995) 2 SCC 513 : [1995] 1 SCR 456;
Yakub Abdul Razak Memon v. State of Maharashtra (2013)
13 SCC 1 : [2013] 15 SCR 1; Rajendra Singh v. State of
U.P. and Another (2007) 7 SCC 378 : [2007] 8 SCR 834;
Manjit Singh v. State of Haryana and Others (2021) SCC
Online SC 632 – referred to.

Case Law Reference

[2014] 2 SCR 1 referred to Para 5

[1995] 1 SCR 456 relied on Para 25
[2013] 15 SCR 1 referred to Para 26
[2002] 3 SCR 400 relied on Para 29
[2007] 8 SCR 834 referred to Para 31
 [2022] 10 S.C.R. 351

SATENDER KUMAR ANTIL

v.
CENTRAL BUREAU OF INVESTIGATION & ANR.
(Miscellaneous Application No.1849 of 2021)

JULY 11, 2022

[SANJAY KISHAN KAUL AND M.M. SUNDRESH, JJ.]

Bail – Grant of – Code of Criminal Procedure, 1973 – ss. 41, 41A, 88,
170, 204 and 209 – Constitution of India – Arts. 21 & 22 – Applications
have been filed seeking certain directions/clarifications, to deal with the
aspects governing the grant of bail – Held: The Government of India may
consider the introduction of a separate enactment in the nature of a Bail
Act so as to streamline the grant of bail – While considering the application
for enlargement on bail, Courts will have to satisfy themselves on the due
compliance of sec. 41 of CrPC – Any non-compliance would entitle the
accused to a grant of bail – Section 41 and 41A are facets of Article 21 of
the Constitution – The directions of Arnesh Kumar v. State of Bihar ought
to be complied with in letter and spirit by the investigating and prosecuting
agencies – While the view expressed by the Supreme Court on the non-
compliance of Section 41 and the consequences that flow from it has to be
kept in mind by the Court, which is expected to be reflected in the orders – To
take care of not only the unwarranted arrests, but also the clogging of bail
applications before various Courts, all the State Governments and the Union
Territories directed to facilitate standing orders, to comply with the mandate
of Section 41A – There need not be any insistence of a bail application while
considering the application u/ss. 88, 170, 204 and 209 of the Code.
Code of Criminal Procedure, 1973 – Special Courts – Constitution of –
The State and Central Governments will have to comply with the directions
issued by Supreme Court from time to time with respect to constitution of
special courts – The High Court in consultation with the State Governments
will have to undertake an exercise on the need for the special courts – The
vacancies in the position of Presiding Officers of the special courts will have
to be filled up expeditiously.
Code of Criminal Procedure, 1973 – ss. 436A, 440 – Undertrial
Prisoners – The statistics placed before the Court indicated that more

1923
1924 SUPREME COURT REPORTS [2022] 10 S.C.R. 351

than 2/3rd of the inmates of the prisons constitute undertrial prisoners –

Of this category of prisoners, majority may not even be required to be
arrested despite registration of a cognizable offense, being charged with
offenses punishable for seven years or less – The High Courts are directed
to undertake the exercise of finding out the undertrial prisoners who are not
able to comply with the bail conditions – After doing so, appropriate action
will have to be taken in light of sec. 440, facilitating the release – While
insisting upon sureties the mandate of sec. 440 of the Code has to be kept
in mind – An exercise will have to be done in a similar manner to comply
with the mandate of sec. 436A both at the district judiciary level and the
High Court as earlier directed by this Court in Bhim Singh, followed by
appropriate orders.
Code of Criminal Procedure, 1973 – Bail Application – Disposal of –
Timeframe – Bail applications ought to be disposed of within a period of two
weeks except if the provisions mandate otherwise, with the exception being
an intervening application – Applications for anticipatory bail are expected
to be disposed of within a period of six weeks with the exception of any
intervening application.
Code of Criminal Procedure, 1973 – Sec. 167(2) – Object and
presumption under – It has got a laudable object behind it, which is to ensure
an expeditious investigation and a fair trial, and to set down a rationalised
procedure that protects the interests of the indigent sections of society – This
is also another limb of Art. 21 – Presumption of innocence is also inbuilt
in this provision – The right enshrined is an absolute and indefeasible one,
inuring to the benefit of suspect – A duty is enjoined upon the agency to
complete the investigation within the time prescribed and a failure would
enable the release of the accused – Such a right cannot be taken away
even during any unforeseen circumstances – As a consequence of the right
flowing from Sec.167(2), courts will have to give due effect to it, and thus
any detention beyond this period would certainly be illegal, being an affront
to the liberty of the person concerned – Therefore, it is not only the duty of
the investigating agency but also the courts to see to it that an accused gets
the benefit of Section 167 (2).
Code of Criminal Procedure, 1973 – Sec. 170 – Scope and ambit – A
power which is to be exercised by the court after the completion of the
investigation – In a case where the prosecution does not require custody
of the accused, there is no need for an arrest when a case is sent to the
 SATENDER KUMAR ANTIL v. 1925
CENTRAL BUREAU OF INVESTIGATION & ANR.

magistrate u/s. 170 – There is not even a need for filing a bail application, as
the accused is merely forwarded to the court for the framing of charges and
issuance of process for trial – However, cases in which the accused persons
are already in custody, then, the bail application has to be decided on its
own merits – There needs to be Strict Complanace of he mandate laid down
in Siddharth v. State of U.P.
Code of Criminal Procedure, 1973 – ss. 88 & 204 – s. 204 gives a
discretion to a Magistrate, and being procedural in nature, it is to be
exercised as a matter of course by following the prescription of sec. 88 –
Thus, issuing a warrant may be an exception in which case the Magistrate
will have to give reasons.
Code of Criminal Procedure, 1973 – s. 209 – It gives ample power to the
Magistrate to remand a person into custody during or until the conclusion of
the trial – Since the power is to be exercised by the Magistrate on a case-to-
case basis, it is his wisdom in either remanding an accused or granting bail
– Even here, it is judicial discretion which the Magistrate has to exercise
– A Magistrate can take a call even without an application for bail if he is
inclined to do so.
Code of Criminal Procedure, 1973 – sec. 309 – Bail – It mandates courts
to continue the proceedings on a day-to-day basis till the completion of
the evidence – Any delay on the part of the court or the prosecution would
certainly violate Art. 21 – Courts shall make sure that the accused does not
suffer for the delay occasioned due to no fault of his own – Therefore, while
it is expected of the court to comply with sec. 309 to the extent possible, an
unexplained, avoidable and prolonged delay in concluding a trial, appeal or
revision would certainly be a factor for the consideration of bail.
Code of Criminal Procedure, 1973 – sec. 389 – Bail – It concerns itself
with circumstances pending appeal leading to the release of the appellant on
bail – The power exercisable u/s. 389 is different from that of the one either
u/ss. 437 or 439, pending trial – This is for the reason that “presumption
of innocence” and “bail is the rule and jail is the exception” may not be
available to the appellant who has suffered a conviction – A mere pendency
of an appeal per se would not be a factor – However, delay in taking up the
main appeal or revision coupled with the benefit conferred u/s. 436A of the
Code among other factors ought to be considered for a favourable release
on bail.
1926 SUPREME COURT REPORTS [2022] 10 S.C.R. 351

Code of Criminal Procedure, 1973 – sec. 436A – In a case where an

appeal is pending for a longer time, to bring it u/s. 436A, the period of
incarceration in all forms will have to be reckoned, and so also for the
revision – When a person has undergone detention for a period extending to
one-half of the maximum period of imprisonment specified for that offense
he shall be released by the court on his personal bond with or without
sureties – There is not even a need for a bail application in a case of this
nature particularly when the reasons for delay are not attributable against
the accused.
Code of Criminal Procedure, 1973 – sec. 437 – It empowers the
Magistrate to deal with all the offenses while considering an application for
bail with the exception of an offense punishable either with life imprisonment
or death triable exclusively by the Court of Sessions.
Code of Criminal Procedure, 1973 – sec. 440 – The amount of every
bond executed is to be fixed with regard to the circumstances of the case and
shall not be excessive – Reasonableness of the bond and surety is something
which the court has to keep in mind whenever the same is insisted upon,
and therefore while exercising the power u/s. 88 also the said factum has to
be kept in mind – Imposing a condition which is impossible of compliance
would be defeating the very object of the release.
Code of Criminal Procedure, 1973 – ss. 436A, 309 167(2), 440 – Special
Acts – The general principle governing delay would apply to Special Acts
also – To make it clear, the provision contained in sec. 436A would apply
to the Special Acts also in the absence of any specific provision – There is a
need to comply with the directions of this Court to expedite the process and
also a stricter compliance of Sec. 309 – The existence of a pari materia or a
similar provision like sec.167(2) available under the Special Act would have
the same effect entitling the accused for a default bail – Even here the court
will have to consider the satisfaction u/s. 440.
Bail – Whether Economic Offences should be treated as a class of its
own or otherwise – The gravity of the offence, the object of the Special Act,
and the attending circumstances are a few of the factors to be taken note of,
along with the period of sentence – After all, an economic offence cannot be
classified as such, as it may involve various activities and may differ from
one case to another – Therefore, it is not advisable on the part of the court to
categorise all the offences into one group and deny bail on that basis.
 SATENDER KUMAR ANTIL v. 1927
CENTRAL BUREAU OF INVESTIGATION & ANR.

Practice and Procedures – Criminal Trial – Approach of the Court -

Criminal courts in general with the trial court in particular are the guardian
angels of liberty - Any conscious failure by the Criminal Courts would
constitute an affront to liberty - It is the pious duty of the Criminal Court to
zealously guard and keep a consistent vision in safeguarding the constitutional
values and ethos - A criminal court must uphold the constitutional thrust
with responsibility mandated on them by acting akin to a high priest.
Bail Application – Judicial Dispensation - Courts tend to think that
the possibility of a conviction being nearer to rarity, bail applications will
have to be decided strictly, contrary to legal principles – The Court cannot
mix up consideration of a bail application, which is not punitive in nature
with that of a possible adjudication by way of trial – On the contrary, an
ultimate acquittal with continued custody would be a case of grave injustice
– Uniformity and certainty in the decisions of the court are the foundations
of judicial dispensation - Persons accused with same offense shall never be
treated differently either by the same court or by the same or different courts
– Such an action though by an exercise of discretion despite being a judicial
one would be a grave affront to Arts. 14 and 15 of the Constitution of India.
Code of Criminal Procedure, 1973 – Trial - Defined - An extended
meaning has to be given to this word for the purpose of enlargement on bail
to include, the stage of investigation and thereafter - In the former stage,
an arrest followed by a police custody may be warranted for a thorough
investigation, while in the latter what matters substantially is the proceedings
before the Court in the form of a trial - An appeal or revision shall also be
construed as a facet of trial when it comes to the consideration of bail on
suspension of sentence.
Code of Criminal Procedure, 1973 – Bail – Defined - A bail is nothing
but a surety inclusive of a personal bond from the accused - It means the
release of an accused person either by the orders of the Court or by the
police or by the Investigating Agency - It is a conditional release on the
solemn undertaking by the suspect that he would cooperate both with the
investigation and the trial - Bail is the rule and jail is the exception.
Presumption of innocence - Onus on the prosecution to prove the guilt
before the Court - Presumption of innocence being a facet of Article 21, shall
inure to the benefit of the accused – The weightage of the evidence has to be
assessed on the principle of beyond reasonable doubt.
1928 SUPREME COURT REPORTS [2022] 10 S.C.R. 351

Disposing of the applications, the Court

HELD: 1. These directions are meant for the investigating agencies
and also for the courts. Accordingly, the Court deem it appropriate
to issue the following directions, which may be subject to State
amendments.:
a.) The Government of India may consider the introduction of a
separate enactment in the nature of a Bail Act so as to streamline the
grant of bails.
b.) The investigating agencies and their officers are duty-bound to
comply with the mandate of Section 41 and 41A of the Code and the
directions issued by this Court in Arnesh Kumar. Any dereliction on
their part has to be brought to the notice of the higher authorities by the
court followed by appropriate action.
c.) The courts will have to satisfy themselves on the compliance of
Section 41 and 41A of the Code. Any non-compliance would entitle the
accused for grant of bail.
d.) All the State Governments and the Union Territories are directed
to facilitate standing orders for the procedure to be followed under
Section 41 and 41A of the Code while taking note of the order of the
High Court of Delhi dated 07.02.2018 in Writ Petition (C) No. 7608 of
2017 and the standing order issued by the Delhi Police i.e. Standing
Order No. 109 of 2020, to comply with the mandate of Section 41A of the
Code.
e.) There need not be any insistence of a bail application while
considering the application under Section 88, 170, 204 and 209 of the
Code.
f.) There needs to be a strict compliance of the mandate laid down in
the judgment of this court in Siddharth.
g.) The State and Central Governments will have to comply with
the directions issued by this Court from time to time with respect to
constitution of special courts. The High Court in consultation with the
State Governments will have to undertake an exercise on the need for
the special courts. The vacancies in the position of Presiding Officers of
the special courts will have to be filled up expeditiously.
 SATENDER KUMAR ANTIL v. 1929
CENTRAL BUREAU OF INVESTIGATION & ANR.

h.) The High Courts are directed to undertake the exercise of

finding out the undertrial prisoners who are not able to comply with the
bail conditions. After doing so, appropriate action will have to be taken
in light of Section 440 of the Code, facilitating the release.
i.) While insisting upon sureties the mandate of Section 440 of the
Code has to be kept in mind.
j.) An exercise will have to be done in a similar manner to comply
with the mandate of Section 436A of the Code both at the district
judiciary level and the High Court as earlier directed by this Court in
Bhim Singh, followed by appropriate orders.
k.) Bail applications ought to be disposed of within a period of two
weeks except if the provisions mandate otherwise, with the exception
being an intervening application. Applications for anticipatory bail
are expected to be disposed of within a period of six weeks with the
exception of any intervening application.
l.) All State Governments, Union Territories and High Courts are
directed to file affidavits/ status reports within a period of four months.
[Para 73]

Nikesh Tarachand Shah v. Union of India (2018) 11 SCC 1 :

[2017] 12 SCR 358; Sanjay Chandra v. CBI (2012) 1 SCC
40 : [2011] 13 SCR 309; Corey Lee James Myers v. Her
Majesty the Queen 2019 SCC 18; Her Majesty the Queen
v. Kevin Antic and Ors. 2017 SCC 27; Arnesh Kumar v.
State of Bihar (2014) 8 SCC 273 : [2014] 8 SCR 128; Inder
Mohan Goswami v. State of Uttaranchal (2007) 12 SCC 1 :
[2007] 10 SCR 847; Pankaj Jain v. Union of India (2018) 5
SCC 743 : [2018] 9 SCR 248; M. Ravindran v. Directorate
of Revenue Intelligence (2021) 2 SCC 485; Siddharth v.
State of U.P. (2021) 1 SCC 676; Hussainara Khatoon &
Ors. v Home Secretary, State of Bihar, 1980 (1) SCC 81 :
[1979] 3 SCR 169; Hussain & Anr. v. Union of India & Ors.
2017 (5) SCC 702 : [2017] 2 SCR 626; Surinder Singh @
Shingara Singh v State of Punjab 2005 (7) SCC 387 : [2005]
2 Suppl. SCR 1172; Atul Tripathi v State of U.P. &
Anr. 2014 (9) SCC 177 : [2014] 14 SCR 1188; Angana v.
1930 SUPREME COURT REPORTS [2022] 10 S.C.R. 351

State of Rajasthan (2009) 3 SCC 767 : [2009] 1 SCR 941;

Sunil Kumar v. Vipin Kumar (2014) 8 SCC 868; Bhim Singh
v. Union of India (2015) 13 SCC 605; Prahlad Singh Bhati
v. NCT, Delhi (2001) 4 SCC 280 : [2001] 2 SCR 684; The
Balasaheb Satbhai Merchant Coop Bank Ltd. vs. The State
of Maharashtra and Ors. 2011 SCC OnLine Bom 1261;
In re Kenneth Humphrey, S 247278; 482 P.3d 1008 (2021);
Union of India v. K.A. Najeeb (2021) 3 SCC 713; Supreme
Court Legal Aid Committee v. Union of India (1994) 6
SCC 731 : [1994] 4 Suppl. SCR 386; P. Chidambaram v.
Directorate of Enforcement (2020) 13 SCC 791 : [2019]
14 SCR 450; Sanjay Chandra v. CBI (2012) 1 SCC 40 :
[2011] 13 SCR 309; Arnab Manoranjan Goswami v. State
of Maharashtra (2021) 2 SCC 427 – referred to

Case Law Reference

[2017] 12 SCR 358 referred to Para 11

[2011] 13 SCR 309 referred to Para 12
(2019) SCC 18 referred to Para 16
(2017) SCC 27 referred to Para 16
[2014] 8 SCR 128 referred to Para 25
[2007] 10 SCR 847 referred to Para 32
[2018] 9 SCR 248 referred to Para 32
(2021) 2 SCC 485 referred to Para 36
(2021) 1 SCC 676 referred to Para 36
[1979] 3 SCR 169 referred to Para 41
[2017] 2 SCR 626 referred to Para 41
[2005] 2 Suppl. SCR 1172 referred to Para 41
[2014] 14 SCR 1188 referred to Para 44
[2009] 1 SCR 941 referred to Para 44
 SATENDER KUMAR ANTIL v. 1931
CENTRAL BUREAU OF INVESTIGATION & ANR.

(2014) 8 SCC 868 referred to Para 44

(2015) 13 SCC 605 referred to Para 47
[2001] 2 SCR 684 referred to Para 53
(2021) 3 SCC 713 referred to Para 64
[1994] 4 Suppl. SCR 386 referred to Para 64
[2019] 14 SCR 450 referred to Para 66
[2011] 13 SCR 309 referred to Para 66
(2021) 2 SCC 427 referred to Para 68
 [2022] 14 S.C.R. 1

JANHIT ABHIYAN
v.
UNION OF INDIA
(Writ Petition (Civil) No. 55 of 2019)

NOVEMBER 07, 2022

[UDAY UMESH LALIT, CJI, DINESH MAHESHWARI,

S. RAVINDRA BHAT, BELA M. TRIVEDI AND
J.B. PARDIWALA, JJ.]

Constitution (One Hundred and Third Amendment) Act, 2019 – Challenge to

– Vide said amendment, Arts. 15 and 16 of the Constitution were amended by
adding two new clauses viz., clause (6) to Art.15 with Explanation and
clause (6) to Art.16; and thereby, the State was empowered, inter alia, to
provide for a maximum of ten per cent reservation for “the economically
weaker sections” (EWS) of citizens other than “the Scheduled Castes”, “the
Scheduled Tribes” and the non-creamy layer of “the Other Backward
Classes” – The amendment did not mandate but enabled reservation for
EWS and prescribed a ceiling limit of ten per cent – Challenge to said
amendment essentially on three-fold grounds: first, that making of special
provisions including reservation in education and employment on the basis
of economic criteria is entirely impermissible and offends the basic structure
of the Constitution; second, that in any case, exclusion of socially and
educationally backward classes i.e., SCs, STs and non-creamy layer OBCs
from the benefit of the special provisions for EWS is inexplicably
discriminatory and destroys the basic structure of the Constitution; and
third, that providing for ten per cent additional reservation directly breaches
the fifty per cent ceiling of reservations already settled by decisions of
Supreme Court and hence, results in unacceptable abrogation of the Equality
Code which, again, destroys the basic structure of the Constitution –
Constitution (One Hundred and Third Amendment) Act, 2019 – Validity of
– Held (per 3:2 majority) (Majority opinion contained in separate
judgments rendered by Dinesh Maheshwari, Bela M. Trivedi and J.B.
Pardiwala, JJ.) : Valid – Held (per Dinesh Maheshwari, J.): Reservation is
an instrument of affirmative action by the State so as to ensure all-inclusive
march towards the goals of an egalitarian society while counteracting
inequalities; it is an instrument not only for inclusion of socially and

1932
 JANHIT ABHIYAN v. UNION OF INDIA 1933

educationally backward classes to the mainstream of society but, also for

inclusion of any class or section so disadvantaged as to be answering the
description of a weaker section – In this background, reservation structured
singularly on economic criteria does not violate any essential feature of the
Constitution and does not cause any damage to the basic structure of the
Constitution – Exclusion of the classes covered by Arts.15(4), 15(5) and
16(4) from getting the benefit of reservation as economically weaker sections,
being in the nature of balancing the requirements of non-discrimination and
compensatory discrimination, does not violate Equality Code and does not
in any manner cause damage to the basic structure of the Constitution –
Reservation for economically weaker sections of citizens up to ten per cent
in addition to the existing reservations does not result in violation of any
essential feature of the Constitution and does not cause any damage to the
basic structure of the Constitution on account of breach of the ceiling limit
of fifty per cent because, that ceiling limit itself is not inflexible and in any
case, applies only to reservations envisaged by Arts.15(4), 15(5) and 16(4)
of the Constitution – The 103rd Constitution Amendment cannot be said to
breach the basic structure of the Constitution by permitting the State to make
special provisions, including reservation, based on economic criteria or by
permitting the State to make special provisions in relation to admission to
private unaided institutions or in excluding the SEBCs/OBCs/SCs/STs from
the scope of EWS reservation – Held (per Bela M. Trivedi, J.) (Concurring
with Dinesh Maheshwari, J.): The impugned amendment enabling the State
to make special provisions for the “economically weaker sections” of the
citizens other than the scheduled castes/schedules tribes and socially and
educationally backward classes of citizens, is required to be treated as an
affirmative action on the part of the Parliament for the benefit and for
advancement of the economically weaker sections of the citizens – Treating
economically weaker sections of the citizens as a separate class would be a
reasonable classification, and cannot be termed as an unreasonable or
unjustifiable classification, much less a betrayal of basic feature or violative
of Art.14 – Just as equals cannot be treated unequally, unequals also cannot
be treated equally – Treating unequals as equals would as well offend the
doctrine of equality enshrined in Arts.14 and 16 of the Constitution – The
impugned amendment creates a separate class of “economically weaker
sections of the citizens” from the general/unreserved class, without affecting
the special rights of reservations provided to the Scheduled Caste/Scheduled
Tribe and backward class of citizens covered under Art.15(4), 15(5) and
1934 SUPREME COURT REPORTS [2022] 14 S.C.R. 1

16(4) – Therefore, their exclusion from the newly created class for the benefit
of the “economically weaker sections of the citizens” in the impugned
amendment cannot be said to be discriminatory or violative of the equality
code – Such amendment could certainly be not termed as shocking,
unconscionable or unscrupulous travesty of the quintessence of equal justice
– The limitations- substantive or procedural - imposed on the exercise of
constituent power of the State under Art.368 could not be said by any stretch
of imagination, to have been disregarded by the Parliament – Neither the
procedural limitation i.e. the mode of exercise of the amending power nor
the substantive limitation i.e. the restricted field has been disregarded, which
otherwise would invalidate the impugned amendment – What is visualised in
the Preamble and what is permissible both in Part-III and Part-IV of the
Constitution cannot be said to be violative of the basic structure or basic
feature of the Constitution – In absence of any obliteration of any of the
constitutional provisions or any alteration or destruction in the existing
structure of equality code or in the basic structure of the Constitution, neither
the width test nor the identity test as propounded in Kesavananda case can
be said to have been violated in the impugned Amendment – Accordingly, the
challenge to the constitutional validity of the 103rd Amendment fails, and the
validity thereof is upheld – However, there is a need to revisit the system of
reservation in the larger interest of the society as a whole, as a step forward
towards transformative constitutionalism – If a time limit is prescribed, for
the special provisions in respect of the reservations and representations
provided in Arts. 15 and 16 of the Constitution, it could be a way forward
leading to an egalitarian, casteless and classless society – Held (per J.B.
Pardiwala, J.) (Concurring with Dinesh Maheshwari, J.): Reservation is
not an end but a means – a means to secure social and economic justice –
The longstanding development and the spread of education have resulted in
tapering the gap between the classes to a considerable extent – As larger
percentages of backward class members attain acceptable standards of
education and employment, they should be removed from the backward
categories so that the attention can be paid toward those classes which
genuinely need help – In such circumstances, it is very much necessary to
take into review the method of identification and the ways of determination
of backward classes, and also, ascertain whether the criteria adopted or
applied for the classification of backward is relevant for today’s conditions
– Reservation should not continue for an indefinite period of time so as to
become a vested interest – The impugned amendment is valid and in no
 JANHIT ABHIYAN v. UNION OF INDIA 1935

manner alters the basic structure of the Constitution – Held (per S. Ravindra
Bhat, J. (for Uday Umesh Lalit, CJI and himself) (Minority opinion): The
States’ compelling interest to fulfil the objectives set out in the Directive
Principles, through special provisions on the basis of economic criteria, is
legitimate – That reservation or special provisions have so far been provided
in favour of historically disadvantaged communities, cannot be the basis for
contending that other disadvantaged groups who have not been able to
progress due to the ill effects of abject poverty, should remain so and the
special provisions should not be made by way of affirmative action or even
reservation on their behalf – Therefore, special provisions based on objective
economic criteria (for the purpose of Art.15), is per se not violative of the
basic structure – However, the framework in which it has been introduced by
the impugned amendment – by excluding backward classes ­– is violative of
the basic structure – The impugned amendment and the classification it
creates, is arbitrary, and results in hostile discrimination of the poorest
sections of the society that are socially and educationally backward, and/or
subjected to caste discrimination – Insertion of Art.15(6) and 16(6) is struck
down, and is held to be violative of the equality code, particularly the
principle of non-discrimination and non-exclusion which forms an
inextricable part of the basic structure of the Constitution – ss.2 and 3 of the
Constitution (One Hundred and Third Amendment) Act, 2019 which inserted
clause (6) in Art.15 and clause (6) in Art.16, respectively, are unconstitutional
and void on the ground that they are violative of the basic structure of the
Constitution – Constitution of India – Arts. 15 and 16.
Doctrines/Principles – Doctrine of basic structure – Vide Constitution
(One Hundred and Third Amendment) Act, 2019, Arts. 15 and 16 of the
Constitution was amended by adding two new clauses viz., clause (6) to
Art.15 with Explanation and clause (6) to Art.16; and thereby, the State was
empowered, inter alia, to provide for a maximum of ten per cent reservation
for “the economically weaker sections” (EWS) of citizens other than “the
Scheduled Castes”, “the Scheduled Tribes” and the non-creamy layer of “the
Other Backward Classes” – The amendment did not mandate but enabled
reservation for EWS and prescribed a ceiling limit of ten per cent – Whether
the doctrine of basic structure could be invoked for laying a challenge to
the 103rd Amendment – Held (per Dinesh Maheshwari, J.): No – Using the
doctrine of basic structure as a sword against the amendment in question
and thereby to stultify State’s effort to do economic justice as ordained by the
1936 SUPREME COURT REPORTS [2022] 14 S.C.R. 1

Preamble and DPSP and, inter alia, enshrined in Articles 38, 39 and 46 of
the Constitution cannot be countenanced – Provisions contained in Arts. 15
and 16 of the Constitution, providing for reservation by way of affirmative
action, being of exception to the general rule of equality, cannot be treated
as a basic feature – Moreover, even if reservation is one of the features of
the Constitution, it being in the nature of enabling provision only, cannot
be regarded as an essential feature of that nature whose modulation for the
sake of other valid affirmative action would damage the basic structure of
the Constitution – Constitution (One Hundred and Third Amendment) Act,
2019.
Constitution of India – Art.368 – Power to amend the Constitution
availing under Art.368 – Held (Per Dinesh Maheshwari, J.): Is recognized
as a constituent power and is subject to various safeguards intrinsic to
Art.368, including the procedural safeguards.
Constitution of India – Art.368 – Doctrine of Basic Structure and
Constitutional Amendments – Discussed – Held (Per Dinesh Maheshwari,
J.): The power to amend the Constitution essentially vests with the
Parliament and when a high threshold and other procedural safeguards are
provided in Art.368, it would not be correct to assume that every amendment
to the Constitution could be challenged by theoretical reference to the basic
structure doctrine – As exposited in Kesavananda case, the amending power
can even be used by the Parliament to reshape the Constitution in order to
fulfil the obligation imposed on the State, subject, of course, to the defined
limits of not damaging the basic structure of the Constitution – Again, as
put in Kesavananda case, judicial review of constitutional amendment is
a matter of great circumspection for the judiciary where the Courts cannot
be oblivious of the practical needs of the Government and door has to be
left open even for ‘trial and error’, subject, again, to the limitations of not
damaging the identity of the Constitution – The expressions “basic features”
and “basic structure” convey different meaning, even though many times
they have been used interchangeably – Basic structure of the Constitution
is the sum total of its essential features – As to when abrogation of any
particular essential feature would lead to damaging the basic structure
of Constitution would depend upon the nature of that feature as also the
nature of amendment – As regards Part-III of the Constitution, every
case of amendment of Fundamental Rights may not necessarily result in
damaging or destroying the basic structure – The issue would always be
 JANHIT ABHIYAN v. UNION OF INDIA 1937

as to whether what is sought to be withdrawn or altered is an inviolable

part of the basic structure – Mere violation of the rule of equality does
not violate the basic structure of the Constitution unless the violation is
shocking, unconscionable or unscrupulous travesty of the quintessence of
equal justice – If any constitutional amendment moderately abridges or
alters the equality principles, it cannot be said to be a violation of the basic
structure.
Doctrines / Principles – Doctrine of equality – Reasonable classification
– Discussed – Held (Per Dinesh Maheshwari, J.): Equals must be treated
equally while unequals need to be treated differently – A classification to be
valid must necessarily satisfy two tests: first, the distinguishing rationale
should be based on a just objective and secondly, the choice of differentiating
one set of persons from another should have a reasonable nexus to the object
sought to be achieved – However, a valid classification does not require
mathematical niceties and perfect equality; nor does it require identity of
treatment – If there is similarity or uniformity within a group, the law will
not be condemned as discriminatory, even though due to some fortuitous
circumstances arising out of a particular situation, some included in the
class get an advantage over others left out, so long as they are not singled
out for special treatment – In spite of certain indefiniteness in the expression
‘equality’, when the same is sought to be applied to a particular case or
class of cases in the complex conditions of a modern society, there is no
denying the fact that the general principle of ‘equality’ forms the basis of a
Democratic Government – Democracy – Constitution of India – Arts. 14 to
18.
Reservation – Affirmative Action by ‘Reservation’: Exception to the
General Rule of Equality – Affirmative action by way of compensatory
discrimination – Held (Per Dinesh Maheshwari, J.): In a multifaceted
social structure, ensuring substantive and real equality, perforce, calls for
consistent efforts to remove inequalities, wherever existing and in whatever
form existing – Hence, the State is tasked with affirmative action – And,
one duly recognised form of affirmative action is by way of compensatory
discrimination, which has the preliminary goal of curbing discrimination
and the ultimate goal of its eradication so as to reach the destination of real
and substantive equality – This has led to what is known as reservation and
quota system in State activities – The ‘doctrine of equality’, as collectively
enshrined in Arts.14 to 18, happens to be the principal basis for the creation of
1938 SUPREME COURT REPORTS [2022] 14 S.C.R. 1

a reasonable classification whereunder ‘affirmative action’, be it legislative

or executive, is authorised to be undertaken – The constitutional Courts too,
precedent by precedent, have constructively contributed to evolution of what
may be termed as ‘reservation jurisprudence’ – Reservation jurisprudence –
Constitution of India – Arts. 14 to 18.
Reservation – For economically weaker sections – Economic Disabilities
and Affirmative Action – Held (Per Dinesh Maheshwari, J.): The expression
‘economically weaker sections of citizens’ is not a matter of mere semantics
but is an expression of hard realities – Poverty is not merely a state of
stagnation but is a point of regression – Providing for affirmative action in
relation to one particular segment or class may operate constructively in
the direction of meeting with and removing the inequalities faced by that
segment or class but, if another segment of society suffers from inequalities
because of one particular dominating factor like that of poverty, the said
segment could not be denied of the State support by way of affirmative
action of reservation only because of the fact that that segment is otherwise
not suffering from other disadvantages – In the State’s efforts of ensuring
all-inclusive socio-economic justice, there cannot be competition of claims
for affirmative action based on disadvantages in the manner that one
disadvantaged section would seek denial of affirmative action for another
disadvantaged section – Justice – Socio-economic justice.
Doctrines /Principles – Principle of “Distributive Justice” – Discussed
– Mandate of the Constitution – Held (Per Dinesh Maheshwari, J.):
Principle of “Distributive Justice” is a bedrock of the provisions like Art.46
as also Arts. 38 and 39 of the Constitution – The mandate of the Constitution
to the State is to administer distributive justice; and in the law-making
process, the concept of distributive justice connotes, inter alia, the removal
of economic inequalities – There could be different methods of distributive
justice – The philosophy of distributive justice is of wide amplitude which,
inter alia, reaches to the requirements of removing economic inequalities;
and then, it is not confined to one class or a few classes of the disadvantaged
citizens – The wide spectrum of distributive justice mandates promotion of
educational and economic interests of all the weaker sections, in minimizing
the inequalities in income as also providing adequate means of livelihood
to the citizens – In this commitment, leaving one class of citizens to struggle
because of inequalities in income and want of adequate means of livelihood
may not serve the ultimate goal of securing all-inclusive socio-economic
 JANHIT ABHIYAN v. UNION OF INDIA 1939

justice – Constitution of India – Art.46, 38 and 39 – Words and Phrases –

“Distributive Justice”.
Constitution of India – Doctrine of Basic Structure and Constitutional
Amendments – Held (Per Dinesh Maheshwari, J.): There is no, and there
cannot be any, cut-and-dried formula or a theorem which could supply a
ready-made answer to the question as to whether a particular amendment
to the Constitution violates or affects the basic structure – The nature of
amendment and the feature/s of the Constitution sought to be touched,
altered, modulated, or changed by the amendment would be the material
factors for an appropriate determination of the question – Doctrine of basic
structure cannot be readily applied to every constitutional amendment –
Supreme Court has applied the same only against such hostile constitutional
amendments which were found to be striking at the very identity of the
Constitution, like direct abrogation of the features of judicial review
(Kesavananda, Minerva Mills and P. Sambhamurthy cases); free and fair
elections (Indira Nehru Gandhi case); plenary jurisdiction of constitutional
Courts (L. Chandra Kumar case); and independence of judiciary (NJAC
Judgment case) – Most of the other attempts to question the constitutional
amendments have met with disapproval of the Court even when there had
been departure from the existing constitutional provisions and scheme.
Constitution of India – Interplay of amending powers of the Parliament
and judicial review by the Constitutional Court over such exercise of
amending powers – Reason for minimal interference by Supreme Court in
the constitutional amendments – Held (Per Dinesh Maheshwari, J.): In our
constitutional set-up of parliamentary democracy, even when the power of
judicial review is an essential feature and thereby an immutable part of the
basic structure of the Constitution, the power to amend the Constitution,
vested in the Parliament in terms of Art.368, is equally an inherent part of
the basic structure of the Constitution – Both these powers, of amending
the Constitution (by Parliament) and of judicial review (by Constitutional
Court) are subject to their own limitations.
Reservation – Compensatory discrimination – Exclusion of Socially
and Educationally Backward Classes (SEBCs) / Other Backward Classes
(OBCs) / Scheduled Castes (SCs)/ Scheduled Tribes (STs) from Economically
Weaker Sections (EWS) reservation – Held (Per Dinesh Maheshwari,
J.): Compensatory discrimination, wherever applied, is exclusionary in
character and could acquire its worth and substance only by way of exclusion
1940 SUPREME COURT REPORTS [2022] 14 S.C.R. 1

of others – Such differentiation cannot be said to be legally impermissible;

rather it is inevitable – Exclusion of Socially and Educationally Backward
Classes (SEBCs) / Other Backward Classes (OBCs) / Scheduled Castes
(SCs)/ Scheduled Tribes (STs) from Economically Weaker Sections (EWS)
reservation is compensatory discrimination of the same species as is
exclusion of general EWS from SEBCs/OBCs/SCs/STs reservation.
Reservation – Reservation by affirmative action – Held (Per Dinesh
Maheshwari, J.): Economic backwardness of citizens can also be the sole
ground for providing reservation by affirmative action.
Equality – Indian constitutional jurisprudence – Equality clause in the
Constitution – Held (Per Dinesh Maheshwari, J.): Guarantee of equality
is substantive and not a mere formalistic requirement – Equality is at the
nucleus of the unified goals of social and economic justice.
Reservation – Exception to the general rule of equality – Held (Per
Dinesh Maheshwari, J.): For the socio-economic structure which the law
in our democracy seeks to build up, the requirements of real and substantive
equality call for affirmative action – Reservation is recognised as one such
affirmative action, which is permissible under the Constitution; and its
operation is defined by a large number of decisions of this Court, running up
to the detailed expositions in Dr. Jaishri Patil case – However, reservation is
nevertheless an exception to the general rule of equality and hence, cannot
be regarded as such an essential feature of the Constitution that cannot be
modulated.
Constitution of India – Art.46 – Phraseology of Art. 46 – Expression
“other weaker sections” in Art.46 – Meaning of – Held (Per Dinesh
Maheshwari, J.): The broader expression “other weaker sections” in
Art.46 is disjointed from the particular weaker sections (Scheduled Castes
and Scheduled Tribe); and is not confined to only those sections who are
similarly circumstanced to SCs and STs – It cannot be said that the expression
“other weaker sections” is not to be given widest possible meaning or
that this expression refers only to those weaker sections who are similarly
circumstanced to SCs and STs – Reservation.
Constitution of India – Amendment to – Scope for judicial review –Held
(per Bela Trivedi, J.): Any amendment made by the Parliament is open to
judicial review and is liable to be interfered with by the Court on the ground
that it affects one or the other basic feature of the Constitution.
 JANHIT ABHIYAN v. UNION OF INDIA 1941

Constitution of India – Amendment to – Challenge to, on ground of being

discriminatory – Held (per Bela Trivedi, J.): A Constitutional amendment
cannot be struck down as discriminatory if the state of facts are reasonably
conceived to justify it.
Constitution of India – Interpretation of – Distinction from interpretation
of statutes – Held (per J.B. Pardiwala, J.): If there is an apparent or real
conflict between two provisions of the Constitution, it is to be resolved
by applying the principle of harmonious construction – The rules of the
interpretation of the Constitution have to take into consideration the
problems of government, structure of a State, dynamism in operation, caution
about checks and balances, not ordinarily called for in the interpretation of
statutes.
Constitution of India – Amendment of – Scope and limitations – Held
(per J.B. Pardiwala, J.): Since the power to amend the Constitution is a
derivative power, the exercise of such power to amend the Constitution is
subject to two limitations, namely, the doctrine of Basic Structure and lack
of legislative competence – If an amendment is to be struck down under the
‘basic structure’ formulation, the central principle of these inter-related
provisions should be at threat – A mere violation of one of the enabling
provisions would not be of much consequence under the doctrine of Basic
Structure as long as such violation does not infringe upon the central thesis
of equality – Redress for marginal encroachment cannot be found under
the ‘Basic Structure Doctrine’ – Doctrines/ Principles – Doctrine of ‘Basic
Structure’.
Constitution (One Hundred and Third Amendment) Act, 2019 – Challenge
to – Vide said amendment, Arts. 15 and 16 of the Constitution was amended
by adding two new clauses viz., clause (6) to Art.15 with Explanation and
clause (6) to Art.16; and thereby, the State was empowered, inter alia, to
provide for a maximum of ten per cent reservation for “the economically
weaker sections” (EWS) of citizens other than “the Scheduled Castes”,
“the Scheduled Tribes” and the non-creamy layer of “the Other Backward
Classes” – Held (per J.B. Pardiwala, J.): The new concept of economic
criteria introduced by the impugned amendment for affirmative action may
go a long way in eradicating caste-based reservation – It may be perceived
as a first step in the process of doing away with caste-based reservation.
1942 SUPREME COURT REPORTS [2022] 14 S.C.R. 1

Doctrines/ Principles – Doctrine of basic structure – Enabling provision

– Effect of – Held (per Ravindra Bhat, J. (for Uday Umesh Lalit, CJI and
himself): It is inaccurate to say that provisions that enable, exercise of
power, would not violate the basic structure of the Constitution – The court’s
inquiry therefore, cannot stop at the threshold, when an enabling provision
is enacted – Its potential for violating the basic structure of the Constitution
is precisely the power it confers, on the legislature, or the executive.
Constitution of India – Judicial review of constitutional amendments
– Scope – Held (per Ravindra Bhat, J. (for Uday Umesh Lalit, CJI and
himself): Appropriate test or standard of judicial review of constitutional
amendments is not the same as in the case of ordinary laws – In constitutional
amendment judicial review, the court would consider the history of the
provision amended, or the way the new provision impacts the identity, or
character, or nature of the Constitution.
Constitution of India – Fraternity – Relevance of – Held (per Ravindra
Bhat, J. (for Uday Umesh Lalit, CJI and himself): People cannot be
assured of Justice, Liberty or Equality, unless Fraternity in one form or
another, to some degree, is felt by individuals at each level of our social
order, and economic system – Weakening fraternity therefore undermines
justice, liberty, and equality – The value of fraternity is as much a part of the
equality code, and its facets – equality of opportunity, the principle of non-
discrimination and the non-exclusionary principle, as it inextricably binds
them with the concepts of liberty and freedom.
Words and Phrases – “basic features” and “basic structure” – Meaning
of – Held (per Dinesh Maheshwari, J.): Basic structure of the Constitution
is the sum total of its essential features.
Words and Phrases – Words “other than” in Arts. 15(6) and 16(6) of
the Constitution – If to be read as “in addition to”, so as to include SCs/
STs/OBCs within Economically Weaker Sections (EWS) – Held (per Dinesh
Maheshwari, J.): The suggested construction is plainly against the direct
meaning of the exclusionary expression “other than” as employed in, and
for the purpose of, the said Arts. 15(6) and 16(6) – Constitution of India –
Arts. 15(6) and 16(6).
Words and Phrases – “compensatory discrimination” and “reservation
jurisprudence” – Discussed (per Dinesh Maheshwari, J.).
 JANHIT ABHIYAN v. UNION OF INDIA 1943

Words and Phrases – “economically weaker sections of citizens” –

Meaning of – Discussed (per Dinesh Maheshwari, J.).
Equality – Real and substantive equality – Economic justice vis-à-vis
social justice – Discussed (per Dinesh Maheshwari, J.).
In the instant writ petitions and other proceedings the following
three questions came up for consideration:-
Question 1: Whether the 103rd Constitution Amendment can be said
to breach the basic structure of the Constitution by permitting the State
to make special provisions, including reservation, based on economic
criteria?
Question 2: Whether the 103rd Constitution Amendment can be said
to breach the basic structure of the Constitution by permitting the State
to make special provisions in relation to admission to private unaided
institutions?
Question 3: Whether the 103rd Constitution Amendment can be
said to breach the basic structure of the Constitution in excluding the
SEBCs/OBCs/SCs/STs from the scope of EWS reservation?
Disposing of the Writ petitions and other proceedings, the Court
HELD:
Per COURT (3:2 majority)
In view of the decision rendered by the majority consisting of
Hon’ble Mr. Justice Dinesh Maheshwari, Hon’ble Ms. Justice Bela M.
Trivedi and Hon’ble Mr. Justice J.B. Pardiwala, the challenge raised to
103rd Amendment to the Constitution fails and the decision rendered by
Hon’ble Mr. Justice S. Ravindra Bhat remains in minority. [Para 2]
Per DINESH MAHESHWARI, J.
HELD: 1. The power to amend the Constitution availing
under Article 368 has been a significant area of the development
of Constitutional Law in our country. This power, recognised as a
constituent power, is subject to various safeguards which are intrinsic to
Article 368, including the procedural safeguards. [Para 34]
2. The expressions “basic features” and “basic structure” convey
different meaning, even though many times they have been used
1944 SUPREME COURT REPORTS [2022] 14 S.C.R. 1

interchangeably. It could reasonably be said that basic structure of

the Constitution is the sum total of its essential features. As to when
abrogation of any particular essential feature would lead to damaging
the basic structure of Constitution would depend upon the nature of
that feature as also the nature of amendment. [Paras 39.4, 39.5]
3. In a nutshell, the principle of equality can be stated thus: equals
must be treated equally while unequals need to be treated differently,
inasmuch as for the application of this principle in real life, one has to
differentiate between those who being equal, are grouped together, and
those who being different, are left out from the group. This is expressed
as reasonable classification. Now, a classification to be valid must
necessarily satisfy two tests: first, the distinguishing rationale should
be based on a just objective and secondly, the choice of differentiating
one set of persons from another should have a reasonable nexus to the
object sought to be achieved. However, a valid classification does not
require mathematical niceties and perfect equality; nor does it require
identity of treatment. If there is similarity or uniformity within a group,
the law will not be condemned as discriminatory, even though due
to some fortuitous circumstances arising out of a particular situation,
some included in the class get an advantage over others left out, so long
as they are not singled out for special treatment. In spite of certain
indefiniteness in the expression ‘equality’, when the same is sought to be
applied to a particular case or class of cases in the complex conditions of
a modern society, there is no denying the fact that the general principle
of ‘equality’ forms the basis of a Democratic Government. [Para 44]
4. In the multifaceted social structure, ensuring substantive and
real equality, perforce, calls for consistent efforts to remove inequalities,
wherever existing and in whatever form existing. Hence, the State
is tasked with affirmative action. And, one duly recognised form of
affirmative action is by way of compensatory discrimination, which has
the preliminary goal of curbing discrimination and the ultimate goal
of its eradication so as to reach the destination of real and substantive
equality. This has led to what is known as reservation and quota system
in State activities. [Para 48]
5. The ‘doctrine of equality’, as collectively enshrined in Articles 14
to 18, happens to be the principal basis for the creation of a reasonable
classification whereunder ‘affirmative action’, be it legislative or
 JANHIT ABHIYAN v. UNION OF INDIA 1945

executive, is authorised to be undertaken. The constitutional Courts

too, precedent by precedent, have constructively contributed to
the evolution of what one may term as ‘reservation jurisprudence’.
However, reservation, one of the permissible affirmative actions
enabled by the Constitution of India, is nevertheless an exception to
the general rule of equality and hence, cannot be regarded as such an
essential feature of the Constitution that cannot be modulated; or whose
modulation for a valid reason, including benefit of any section other
than the sections who are already availing its benefit, may damage the
basic structure. [Paras 50, 56]
6. In almost all references to real and substantive equality, the
concept of economic justice has acquired equal focus alongside the
principles of social justice. In giving effect to the rule of equality
enshrined in Article 14, the Courts have also been guided by the
jurisprudence evolved by the U.S. Supreme Court in the light of
the amendments made to their Constitution, which were founded
on economic considerations. This is to highlight that the economic
backwardness of citizens can also be the sole ground for providing
reservation by affirmative action. Any civilized jurisdiction
differentiates between haves and have-nots, in several walks of life
and more particularly, for the purpose of differential treatment by
way of affirmative action. If an egalitarian socio-economic order is the
goal so as to make the social and economic rights a meaningful reality,
which indeed is the goal of our Constitution, the deprivations arising
from economic disadvantages, including those of discrimination and
exclusion, need to be addressed to by the State; and for that matter,
every affirmative action has the sanction of our Constitution, as
noticeable from the frame of Preamble as also the text and texture of the
provisions contained in Part III and Part IV. [Paras 64, 65, 67]
7. The expression ‘economically weaker sections of citizens’ is
not a matter of mere semantics but is an expression of hard realities.
Poverty is not merely a state of stagnation but is a point of regression.
Of course, mass poverty cannot be eliminated within a short period
and it is a question of progress along a time path. In Kesavananda
case, building a Welfare State is held to be one of the main objectives
of the Constitution. In the Welfare State, public power becomes
an instrumentality for the achievement of purposes beyond the
1946 SUPREME COURT REPORTS [2022] 14 S.C.R. 1

minimum objectives of domestic order and national defence. It is not

enough that the society be secured against internal disorder and/or
external aggression; a society can be thus secured and well-ordered
but, could be lacking in real and substantive justice for all. Equally,
providing for affirmative action in relation to one particular segment
or class may operate constructively in the direction of meeting with
and removing the inequalities faced by that segment or class but, if
another segment of society suffers from inequalities because of one
particular dominating factor like that of poverty, the question arises as
to whether the said segment could be denied of the State support by
way of affirmative action of reservation only because of the fact that
that segment is otherwise not suffering from other disadvantages.
The answer could only be in the negative for, in the State’s efforts
of ensuring all-inclusive socio-economic justice, there cannot be
competition of claims for affirmative action based on disadvantages
in the manner that one disadvantaged section would seek denial of
affirmative action for another disadvantaged section. [Paras 69, 70]
8. On a contextual reading, it could reasonably be culled out that
the observations, wherever occurring in the decisions of this Court, to
the effect that reservation cannot be availed only on economic criteria,
were to convey the principle that to avail the benefit of this affirmative
action under Articles 15(4) and/or 15(5) and/or 16(4), as the case may
be, the class concerned ought to be carrying some other disadvantage
too and not the economic disadvantage alone. The said decisions cannot
be read to mean that if any class or section other than those covered by
Articles 15(4) and/or 15(5) and/or 16(4) is suffering from disadvantage
only due to economic conditions, the State can never take affirmative
action qua that class or section. In view of the principles discernible
from the decisions as also the background aspects, including the
avowed objective of socio-economic justice in the Constitution, the
observations of this Court in the past decisions that reservations
cannot be claimed only on the economic criteria, apply only to class
or classes covered by or seeking coverage under Articles 15(4) and/or
15(5) and/or 16(4); and else, this Court has not put a blanket ban on
providing reservation for other sections who are disadvantaged due to
economic conditions. [Paras 72, 73]
 JANHIT ABHIYAN v. UNION OF INDIA 1947

9. The mandate of the Constitution to the State is to administer

distributive justice; and in the law-making process, the concept of
distributive justice connotes, inter alia, the removal of economic
inequalities. There could be different methods of distributive justice;
and it comprehends more than merely achieving the lessening
of inequalities by tax or debt relief measures or by regulation of
contractual transactions or redistribution of wealth, etc. It is more than
evident that the philosophy of distributive justice is of wide amplitude
which, inter alia, reaches to the requirements of removing economic
inequalities; and then, it is not confined to one class or a few classes
of the disadvantaged citizens. In other words, the wide spectrum of
distributive justice mandates promotion of educational and economic
interests of all the weaker sections, in minimizing the inequalities in
income as also providing adequate means of livelihood to the citizens.
In this commitment, leaving one class of citizens to struggle because of
inequalities in income and want of adequate means of livelihood may
not serve the ultimate goal of securing all-inclusive socio-economic
justice. In fact, the argument that the State may adopt any poverty
alleviation measure but cannot provide reservation for EWS by way
of affirmative action proceeds on the assumption that the affirmative
action of reservation in our constitutional scheme is itself reserved only
for SEBCs/OBCs/SCs/STs in view of the existing text of Articles 15(4),
15(5) and 16(4) of the Constitution. Such an assumption is neither valid
nor compatible with our constitutional scheme. This line of argument is
wanting on the fundamental constitutional objectives, with the promise
of securing ‘JUSTICE, social, economic and political’ for ‘all’ the
citizens; and to promote FRATERNITY among them ‘all’. Thus viewed,
the challenge to the amendment in question fails on the principle of
distributive justice. [Paras 74.1.1, 74.1.2]
10. Though, the text and the order of expressions used in the
body of Article 46 have been repeatedly recounted on behalf of the
petitioners to emphasise on the arguments based on ejusdem generis
principle of interpretation but, as aforesaid, that principle does not
fit in the interpretation of an organic thing like the Constitution.
This apart, when traversing through the principles of interpretation,
it could also be noticed that in case of any doubt, the heading or sub-
heading of a provision could also be referred to as an internal aid in
1948 SUPREME COURT REPORTS [2022] 14 S.C.R. 1

construing the provision, while not cutting down the wide application
of clear words used in the provision. What is interesting to notice is that
in the heading of Article 46, the chronology of the description of target
groups for promotion of educational and economic interests is stated in
reverse order than the contents of the provision. The heading signifies
‘Promotion of educational and economic interests of Scheduled Castes,
Scheduled Tribes and other weaker sections’ whereas the contents of
the main provision are framed with the sentence ‘interest of the weaker
sections of the people, and, in particular, of the Scheduled Castes and
the Scheduled Tribes’. A simple reading of the heading together with
the contents would make it clear that the broader expression “other
weaker sections” in Article 46 is disjointed from the particular weaker
sections (Schedule Castes and Scheduled Tribe); and is not confined to
only those sections who are similarly circumstanced to SCs and STs.
[Para 74.2.3]
11. The amendment in question could be correlated with any other
provision of the Constitution, including the Preamble as well as Articles
38 and 39. Moreover, it is not the requirement of our constitutional
scheme that an amendment to the Constitution has to be based on some
existing provision in DPSP. In fact, an amendment to the Constitution
(of course, within the bounds of basic structure) could be made even
without any corresponding provision in DPSP. In the aforesaid view
of matter, there appears no reason to analyse another unacceptable
line of arguments adopted by the petitioners that the amendment in
question provides for compensatory discrimination in favour of the so-
called forward class/caste. Suffice it to observe that the amendment in
question is essentially related to the requirements of those economically
weaker sections who have hitherto not been given the benefit of such an
affirmative action (particularly of reservation), which was accorded to
the other class/classes of citizens namely, the SEBCs/OBCs/SCs/STs.
Viewing this affirmative action of EWS reservation from the standpoint
of backward class versus forward class is not in accord with the very
permissibility of compensatory discrimination towards the goal of
real and substantive justice for all. The challenge to the amendment
in question on the ground that though the State could take all the
relevant measures to deal with poverty and the disadvantages arising
therefrom but, the affirmative action of reservation is envisaged by
 JANHIT ABHIYAN v. UNION OF INDIA 1949

the Constitution only for socially and educationally backward class

of citizens; and economic disadvantage alone had never been in
contemplation for this action of reservation, is required to be rejected.
In any case, any legitimate effort of the State towards all-inclusive socio-
economic justice, by way of affirmative action of reservation in support
of economically weaker sections of citizens, who had otherwise not been
given the benefit of this affirmative action, cannot be lightly interfered
with by the Court. [Paras 74.3, 75, 76]
12. EWS reservation itself is another form of compensatory
discrimination, which is meant for serving the cause of such weaker
sections who have hitherto not been given any State support by
way of reservation. SEBCs/OBCs/SCs/STs are having the existing
compensatory discrimination in their favour wherein the presently
supported EWS are also excluded alongwith all other excluded classes/
persons. As a necessary corollary, when EWS is to be given support
by way of compensatory discrimination, that could only be given by
exclusion of others, and more particularly by exclusion of those who
are availing the benefit of the existing compensatory discrimination
in exclusion of all others. Put in simple words, the exclusion of
SEBCs/OBCs/SCs/STs from EWS reservation is the compensatory
discrimination of the same species as is the exclusion of general EWS
from SEBCs/OBCs/SCs/STs reservation. As said above, compensatory
discrimination, wherever applied, is exclusionary in character and
could acquire its worth and substance only by way of exclusion of
others. Such differentiation cannot be said to be legally impermissible;
rather it is inevitable. [Para 82.1]
13. The fact that exclusion is innate in compensatory discrimination
could further be exemplified by the fact that in Indra Sawhney,
this Court excluded the creamy layer of OBCs from the benefit of
reservation. In the complex set-up of formal equality on one hand
(which debars discrimination altogether) and real and substantive
equality on the other (which permits compensatory discrimination
so as to upset the disadvantages), exclusion is as indispensable as the
compensatory discrimination itself is. In fact, ‘creamy layer’ principle
itself was applied to make a true compact of socially and educationally
backward class. Two features strikingly come to fore with creamy
layer principle. One is that to make a real compact of socially and
1950 SUPREME COURT REPORTS [2022] 14 S.C.R. 1

educationally backward class, economic factors play an equally

important role; and then, the exclusionary principle applies therein
too. These two features, when applied to the present case, make it
clear that the use of economic criteria is not contra- indicated for the
exercise of reservation, rather it is imperative; and second, to make the
exercise of compensatory discrimination meaningful so as to achieve
its desired result, exclusion of every other class/person from the target
group is inevitable. Thus viewed, the amendment in question remains
unexceptionable in the accepted principles of constitutional law
presently in operation. [Paras 83, 83.1]
14. Having examined the permissible limits of affirmative action
in light of the possible harm of preferential treatment qua other
innocent class of competitors, i.e., general merit candidates, this
Court has expressed the desirability of fifty per cent as the ceiling
limit for reservation in education and public employment but, all such
observations are required to be read essentially in the context of the
reservation obtaining under Articles 15(4), 15(5) and 16(4) or other areas
of affirmative action like that in relation to local self- government and
cannot be overstretched to the reservation provided for entirely different
class, consisting of the economically weaker sections. [Para 93]
15. In the ultimate analysis, it is beyond doubt that using the
doctrine of basic structure as a sword against the amendment in
question and thereby to stultify State’s effort to do economic justice
as ordained by the Preamble and Directive Principles of State Policy
(DPSP) and, inter alia, enshrined in Articles 38, 39 and 46, cannot
be countenanced. This is essentially for the reason that the provisions
contained in Articles 15 and 16 of the Constitution of India, providing
for reservation by way of affirmative action, being of exception to the
general rule of equality, cannot be treated as a basic feature. Moreover,
even if reservation is one of the features of the Constitution, it being in
the nature of enabling provision only, cannot be regarded as an essential
feature of that nature whose modulation for the sake of other valid
affirmative action would damage the basic structure of the Constitution.
Therefore, the doctrine of basic structure cannot be invoked for laying a
challenge to the 103rd Amendment. [Para 101]
16. Reservation is an instrument of affirmative action by the State
so as to ensure all-inclusive march towards the goals of an egalitarian
 JANHIT ABHIYAN v. UNION OF INDIA 1951

society while counteracting inequalities; it is an instrument not only

for inclusion of socially and educationally backward classes to the
mainstream of society but, also for inclusion of any class or section so
disadvantaged as to be answering the description of a weaker section. In
this background, reservation structured singularly on economic criteria
does not violate any essential feature of the Constitution of India and
does not cause any damage to the basic structure of the Constitution of
India. [Para 102]
17. Exclusion of the classes covered by Articles 15(4), 15(5) and 16(4)
from getting the benefit of reservation as economically weaker sections,
being in the nature of balancing the requirements of non-discrimination
and compensatory discrimination, does not violate Equality Code and
does not in any manner cause damage to the basic structure of the
Constitution of India. [Para 102]
18. Reservation for economically weaker sections of citizens up to
ten per cent. in addition to the existing reservations does not result in
violation of any essential feature of the Constitution of India and does
not cause any damage to the basic structure of the Constitution of
India on account of breach of the ceiling limit of fifty per cent because,
that ceiling limit itself is not inflexible and in any case, applies only to
the reservations envisaged by Articles 15(4), 15(5) and 16(4) of the
Constitution of India. [Para 102]
19. The 103rd Constitution Amendment cannot be said to breach
the basic structure of the Constitution by permitting the State to make
special provisions, including reservation, based on economic criteria.
[Para 104]
20. The 103rd Constitution Amendment cannot be said to breach
the basic structure of the Constitution by permitting the State to
make special provisions in relation to admission to private unaided
institutions. [Para 104]
21. The 103rd Constitution Amendment cannot be said to breach the
basic structure of the Constitution in excluding the SEBCs/OBCs/SCs/
STs from the scope of EWS reservation. [Para 104]
1952 SUPREME COURT REPORTS [2022] 14 S.C.R. 1

Kesavananda Bharati Sripadagalvaru v. State of Kerala

and Anr. (1973) 4 SCC 225: [1973] Suppl. SCR 1; Bhim
Singhji v. Union of India and Ors. (1981) 1 SCC 166 and
Minerva Mills Ltd. and Ors. v. Union of India and Ors.
(1980) 3 SCC 625: [1981] 1 SCR 206 – relied on.

State of Madras v. Champakam Dorairajan AIR

1951 SC 226: [1951] SCR 525; K.C. Vasanth Kumar
and Anr. v. State of Karnataka 1985 Supp SCC 714:
[1985] Suppl. SCR 352; Justice K.S. Puttaswamy (Retd.)
and Anr. v. Union of India and Ors. (2017) 10 SCC 1: [2017]
10 SCR 569; People’s Union for Democratic Rights and
Ors. v. Union of India and Ors. (1982) 3 SCC 235: [1983]
1 SCR 456; Jolly George Varghese and Anr. v. The Bank of
Cochin (1980) 2 SCC 360: [1980] 2 SCR 913; Ahmedabad
Municipal Corporation v. Nawab Khan Gulab Khan and
Ors. (1997) 11 SCC 121:[1996] 7 Suppl. SCR 548; State
of Kerala and Anr. v. N.M. Thomas and Ors. (1976) 2 SCC
310; P. Sambhamurthy and Ors. v. State of Andhra Pradesh
and Anr. (1987) 1 SCC 362: [1987] 1 SCR 879; Lingappa
Pochanna Appelwar v. State of Maharashtra and Anr. (1985)
1 SCC 479: [1985] 2 SCR 224; T. Devadasan v. Union of
India and Anr. [1964] 4 SCR 680; Indra Sawhney and Ors.
v. Union of India and Ors. 1992 Supp (3) SCC 217; M.
Nagaraj and Ors. v. Union of India and Ors. (2006) 8 SCC
212:[2006] 7 Suppl. SCR 336; Ashoka Kumar Thakur v.
Union of India and Ors. (2008) 6 SCC 1:[2008] 4 SCR 1;
M.R. Balaji and Ors. v. State of Mysore and Ors. [1963]
Supp 1 SCR 439; Indra Sawhney v. Union of India (2000)
1 SCC 168:[1999] 5 Suppl. SCR 229; R. Chitralekha and
Anr. v. State of Mysore and Ors. [1964] 6 SCR 368; Janki
Prasad Parimoo and Ors. v. State of J&K and Ors. (1973)
1 SCC 420: [1973] 3 SCR 236; Sri Sankari Prasad Singh
Deo v. Union of India and Anr. [1952] SCR 89; Sajjan
Singh v. State of Rajasthan [1965] 1 SCR 933; I.C. Golak
Nath and Ors. v. State of Punjab and Anr. [1967] 2 SCR
762; E.P. Royappa v. State of Tamil Nadu and Anr. (1974) 4
SCC 3: [1974] 2 SCR 348; Prathvi Raj Chauhan v. Union
 JANHIT ABHIYAN v. UNION OF INDIA 1953

of India and Ors. (2020) 4 SCC 727: [2020] 2 SCR 727;

B.K. Pavitra and Ors. v. Union of India and Ors. (2019)
16 SCC 129:[2019] 7 SCR 1086; Dr. Jaishri Laxmanrao
Patil v. Chief Minister and Ors. (2021) 8 SCC 1; Dayaram
Khemkaran Verma v. State of Gujarat 2016 SCC Online
Guj 1821; Madhav Rao Scindia Bahadur etc. v. Union
of India (1971) 1 SCC 85:[ 1971] 3 SCR 9; State (NCT
of Delhi) v. Union of India and Anr. (2018) 8 SCC 501:
[2018] 7 SCR 1; T.M.A. Pai Foundation and Ors. v. State
of Karnataka and Ors. (2002) 8 SCC 481; V.V. Giri v. D.S.
Dora [1960] 1 SCR 246; Saurav Yadav and Ors. v. State of
Uttar Pradesh and Ors. (2021) 4 SCC 542; Waman Rao and
Ors. v. Union of India and Ors. (1981) 2 SCC 362: [1981]
2 SCR 1; Ashoka Kumar Thakur v. State of Bihar and Ors.
(1995) 5 SCC 403: [1995] 3 Suppl. SCR 269; Subhash
Chandra and Anr. v. Delhi Subordinate Services Selection
Board and Ors. (2009) 15 SCC 458:[2009] 12 SCR 978;
Raghunathrao Ganpatrao v. Union of India 1994 Supp
(1) SCC 191: [1993] 1 SCR 480; Society for Unaided
Private Schools of Rajasthan v. Union of India and Anr.
(2012) 6 SCC 1; Pramati Educational and Cultural Trust
(Registered) and Ors. v. Union of India and Ors. (2014) 8
SCC 1; Indira Nehru Gandhi v. Raj Narain and Anr. 1975
Supp SCC 1; State of Karnataka v. Union of India and
Anr. (1977) 4 SCC 608: [1978] 2 SCR 1; Kihoto Hollohan
v. Zachillhu and Ors. 1992 Supp (2) SCC 651: [1992]
1 SCR 686; L. Chandra Kumar v. Union of India and
Ors. (1997) 3 SCC 261: [1997] 2 SCR 1186; K. Krishna
Murthy (Dr.) and Ors. v. Union of India and Anr. (2010) 7
SCC 202: [2010] 6 SCR 972; Supreme Court Advocates-
on-Record Association and Anr. v. Union of India (2016) 5
SCC 1: [2015] 13 SCR 1; Maganlal Chhaganlal (P) Ltd. v.
Municipal Corporation of Greater Bombay and Ors. (1974)
2 SCC 402: [1975] 1 SCR 1; Chairman and Managing
Director, Central Bank of India and Ors. v. Central Bank of
India SC/ST Employees Welfare Association and Ors. (2015)
12 SCC 308: [2015] 1 SCR 55; State of Uttar Pradesh v.
Dr. Dina Nath Shukla and Anr. (1997) 9 SCC 662: [1997]
1954 SUPREME COURT REPORTS [2022] 14 S.C.R. 1

1 SCR 750; M/s Shantistar Builders v. Narayan K. Totame

and Ors. (1990) 1 SCC 520; Association of Unified Tele
Services Providers and Ors. v. Union of India and Ors.
(2014) 6 SCC 110: [2014] 9 SCR 780; People’s Union for
Civil Liberties (PUCL) and Anr. v. Union of India and Anr.
(2003) 4 SCC 399: [2003] 2 SCR 1136; M/s Frick India
Ltd. v. Union of India and Ors. (1990) 1 SCC 400: [1989]
2 Suppl. SCR 570; Akhil Bharatiya Soshit Karamchari
Sangh (Railway) v. Union of India and Ors. (1981) 1 SCC
246: [1981] 2 SCR 185 and R. D. Upadhyay v. State of
Andhra Pradesh and Ors. (2007) 15 SCC 337: [2006]
3 SCR 1132 – referred to.

Corocraft v. Pan American Airways 1969 (1) All ER 82 –

referred to.

Per BELA M. TRIVEDI, J. (Concurring with DINESH

MAHESHWARI, J.)
HELD: 1. It is very well-established proposition of law that it is
the Constitution and not the constituent power which is supreme. It is
axiomatic that the Parliament has been conferred upon the constituent
power to amend by way of addition, variation or repeal any provision
of the Constitution under Article 368 of the Constitution, and the same
is required to be exercised in accordance with the procedure laid down
in the said Article. The Constitution is said to be a living document
or a work in progress only because of the plenary power to amend is
conferred upon the Parliament under the said provision. Of course,
as laid down in plethora of judgments, the said power is subject to the
constraints of the basic structure theory. Deriving inspiration from the
Preamble and the whole scheme of the Constitution, the majority in
Kesavananda Bharati case held that every provision of the Constitution
can be amended so long as the basic foundation and structure of the
Constitution remains the same. Some of the basic features of the
constitutional structure carved out by the Court in the said judgment
were, the supremacy of the Constitution, Republican and democratic
form of government, separation of powers, judicial review, sovereignty
and the integrity of the nation, Federal Character of Government etc.
A multitude of features have been acknowledged as the basic features
 JANHIT ABHIYAN v. UNION OF INDIA 1955

in various subsequent judicial pronouncements. Accordingly, any

amendment made by the Parliament is open to the judicial review and is
liable to be interfered with by the Court on the ground that it affects one
or the other basic feature of the Constitution. [Paras 5, 6]
2. As transpiring from the Statements of Objects and Reasons for
introducing the Bill to the impugned amendment, the Parliament
has taken note that the economically weaker sections of the citizens
have largely remained excluded from attaining the higher educational
institutions and public employment on account of their financial
incapacity to compete with the persons who are economically more
privileged. The benefits of existing reservations under Clauses (4) and
(5) of Article 15 and Clause (4) of Article 16 are generally unavailable to
them unless they meet with the specific criteria of social and educational
backwardness. It has been further stated that vide the Constitution
(Ninety-third Amendment) Act, 2005, Clause (5) was inserted in Article
15 of the Constitution which enables the State to make special provision
for the advancement of any social and educational backwardness
of citizens, or for the Scheduled Castes or the Scheduled Tribes, in
relation to their admission in higher educational institutions. Similarly,
Clause(4) of Article 16 of the Constitution enables the State to make
special provision for the reservation of appointments or posts in favour
of any backward class of citizens which in the opinion of the State, is
not adequately represented in the services under the State. However,
economically weaker sections of citizens were not eligible for the benefit
of reservation. Therefore, with a view to fulfil the ideals lying behind
Article 46, and to ensure that economically weaker sections of citizens
to get a fair chance of receiving higher education and participation in
employment in the services of the State, it was decided to amend the
Constitution of India. [Para 19]
3. As well settled, it must be presumed that the legislature
understands and appreciates the needs of its own people. Its laws
are directed to the problems made manifest by experience, and
its discriminations are based on adequate norms. Therefore, the
constitutional amendment could not be struck down as discriminatory
if the state of facts are reasonably conceived to justify it. In the instant
case, the Legislature being aware of the exclusion of economically
weaker sections of citizens from having the benefits of reservations
1956 SUPREME COURT REPORTS [2022] 14 S.C.R. 1

provided to the SCs/STs and SEBCs citizens in Clauses(4) and (5) of

Article 15 and Clause(4) of Article 16, has come out with the impugned
amendment empowering the State to make special provision for the
advancement of the “economically weaker sections” of citizens other
than the classes mentioned in Clauses(4) and (5) of Article 15 and
further to make special provision for the reservation of appointments or
posts in favour of the economically weaker sections of the citizens other
than the classes mentioned in Clause(4) of Article 16. The impugned
amendment enabling the State to make special provisions for the
“economically weaker sections” of the citizens other than the scheduled
castes/schedules tribes and socially and educationally backward
classes of citizens, is required to be treated as an affirmative action on
the part of the Parliament for the benefit and for the advancement of
the economically weaker sections of the citizens. Treating economically
weaker sections of the citizens as a separate class would be a
reasonable classification, and could not be termed as an unreasonable
or unjustifiable classification, much less a betrayal of basic feature or
violative of Article 14. Just as equals cannot be treated unequally,
unequals also cannot be treated equally. Treating unequals as equals
would as well offend the doctrine of equality enshrined in Articles 14
and 16 of the Constitution. [Para 20]
4. The Scheduled Castes/Scheduled Tribes and the backward class
for whom the special provisions have already been provided in Article
15(4), 15(5) and 16(4) form a separate category as distinguished from
the general or unreserved category. They cannot be treated at par
with the citizens belonging to the general or unreserved category. The
impugned amendment creates a separate class of “economically weaker
sectionsof the citizens” from the general/unreserved class, without
affecting the special rights of reservations provided to the Scheduled
Caste/Scheduled Tribe and backward class of citizens covered under
Article 15(4), 15(5) and 16(4). Therefore, their exclusion from the
newly created class for the benefit of the “economically weaker sections
of the citizens” in the impugned amendment cannot be said to be
discriminatory or violative of the equality code. Such amendment could
certainly be not termed as shocking, unconscionable or unscrupulous
travesty of the quintessence of equal justice as sought to be submitted by
the petitioners. [Para 21]
 JANHIT ABHIYAN v. UNION OF INDIA 1957

5. The sum and substance is that the limitations – substantive or

procedural – imposed on the exercise of constituent power of the State
under Article 368 could not be said by any stretch of imagination, to
have been disregarded by the Parliament. Neither the procedural
limitation i.e. the mode of exercise of the amending power has been
disregarded nor the substantive limitation i.e. the restricted field has
been disregarded, which otherwise would invalidate the impugned
amendment. What is visualised in the Preamble and what is permissible
both in Part-III and Part-IV of the Constitution could not be said to be
violative of the basic structure or basic feature of the Constitution. In
absence of any obliteration of any of the constitutional provisions and
in absence of any alteration or destruction in the existing structure of
equality code or in the basic structure of the Constitution, neither the
width test nor the identity test as propounded in Kesavananda could be
said to have been violated in the impugned Amendment. Accordingly,
the challenge to the constitutional validity of the 103rd Amendment fails,
and the validity thereof is upheld. [Para 22]
6. What was envisioned by the framers of the Constitution, what
was proposed by the Constitution Bench in 1985 and what was sought
to be achieved on the completion of fifty years of the advent of the
Constitution, i.e. that the policy of reservation must have a time span,
has still not been achieved even till this day, i.e. till the completion of
seventy-five years of our Independence. It cannot be gainsaid that the
age-old caste system in India was responsible for the origination of
the reservation system in the country. It was introduced to correct the
historical injustice faced by the persons belonging to the scheduled
castes and scheduled tribes and other backward classes, and to provide
them a level playing field to compete with the persons belonging to
the forward classes. However, at the end of seventy-five years of our
independence, we need to revisit the system of reservation in the
larger interest of the society as a whole, as a step forward towards
transformative constitutionalism. [Para 28]
7. As per Article 334 of the Constitution, the provisions of the
Constitution relating to the reservation of seats for the SCs and the
STs in the House of the People and in the Legislative Assemblies of the
States would cease to have effect on the expiration of a period of eighty
years from the commencement of the Constitution. The representation
1958 SUPREME COURT REPORTS [2022] 14 S.C.R. 1

of Anglo-Indian community in the House of the Parliament and in the

Legislative Assemblies of the States by nomination, has already ceased
by virtue of the 104thAmendment w.e.f. 25.01.2020. Therefore, similar
time limit if prescribed, for the special provisions in respect of the
reservations and representations provided in Article 15 and Article 16
of the Constitution, it could be a way forward leading to an egalitarian,
casteless and classless society. [Para 29]

Kesavananda Bharati v. State of Kerala & Anr. (1973) 4 SCC

225; K.C. Vasanth Kumar and Anr. v. State of Karnataka,
(1985) Suppl. SCC 714 : 1985 (1) Suppl. SCR 352 and
Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 :
2008 (4) SCR 1 – relied on.

Kihoto Hollohan v. Zachillhu & Ors. (1992) Suppl. 2 SCC

651: [1992] 1 SCR 686; Maharao Sahib Shri Bhim Singhji
v. Union of India & Ors. (1981) 1 SCC 166; Indira Nehru
Gandhi v. Raj Narain (1975) Suppl. SCC 1: [1976] 2 SCR
347; State of Kerala & Anr. v. N.M. Thomas & Ors. (1976)
2 SCC 310: [1976] 1 SCR 906 and Waman Rao & Ors. v.
Union of India & Ors. (1981) 2 SCC 362:[1981] 2 SCR 1;
M. Nagraj & others v. Union of India (2006) 8 SCC 212:
[2006] 7 Suppl. SCR 336 and State of Gujarat and Another
v. & The Ashok Mills Co. Ltd. Ahmedabad and Another
(1974) 4 SCC 656: [1974] 3 SCR 760 – referred to.

Per J.B. PARDIWALA, J. (Concurring with DINESH

MAHESWHARI, J.)
HELD:1. Article 21 encompasses the right to live with dignity.
Article 21 has been given wide connotation and expression by the
courts, particularly, by this Court to give effect to the constitutional
policy of welfare state. The decision of this Court in Unni Krishnan is
an authority on this aspect where the Court confirmed that right to
education is implicit under Article 21 and proceeded to identify the
content and parameters of this right to be achieved by Articles 41, 45,
and 46 in relation to education. Understood in this context, Article 46
gives not only solemn protection to the weaker sections of the people at
 JANHIT ABHIYAN v. UNION OF INDIA 1959

par with the Scheduled Castes and the Scheduled Tribes but speaks of
special care to be taken by the State of this section of people. Further,
the expression “educational and economic interests” in Article 46
concludes the whole legal position in relation to Article 46 to mean
that the State must endeavour to do welfare especially of this section
of people. The endeavour of the State to give the weaker section of
the people a life of dignity is the link between Articles 46 and 21. The
conjoint reading of both the provisions puts constitutional obligation
on the State to achieve the goal of welfare of the weaker sections of
the people by all means. Article 46 is not based on social test but on
the means test. It speaks of “educational and economic interests”
of “weaker sections”. The expression “weaker sections” and their
“economic interests” are correlative and denote the means status of
the people who are to be taken care of. Although, the phrase “economic
interests” is not to be read alone but in consonance with the expression
“educational” used in Article 46; yet to confuse Article 46 with the
“social status” would be to put a strain and nullify otherwise the pure
object of Article 46. The distinction can be explained with the aid of
Article 15(4). Article 15(4) gives impetus to the social and educational
“advancement” of Backward Classes or the Scheduled Castes and
Scheduled Tribes. It is an enabling provision for the State to make
special provisions for the socially and educationally backward classes
of citizens or for the Scheduled Castes or the Scheduled Tribes. The
emphasis here is on the upliftment of three constitutionally earmarked
classes i.e., Scheduled Castes, Scheduled Tribes and Backward classes.
However, Article 46 is wide in expression. The object of welfare under
Article 46 is towards those educationally and economically weak. Thus,
it is evident from the aforesaid that there can be reservation for certain
weaker sections other than the SCs/STs and socially and educationally
backward classes. The impugned amendment is meant for weaker
sections of the society who are economically weak and cannot afford to
impart education to their children or are unable to secure employment
in the services of the State. [Para 81, 82]
2. The interpretation of a Constitution involves more than a passing
interest concerning the actual litigants and being a pronouncement of
the Courts on the government and administration, has a more general
and far-reaching consequence. If there is an apparent or real conflict
1960 SUPREME COURT REPORTS [2022] 14 S.C.R. 1

between two provisions of the Constitution, it is to be resolved by

applying the principle of harmonious construction. The rules of the
interpretation of the Constitution have to take into consideration the
problems of government, structure of a State, dynamism in operation,
caution about checks and balances, not ordinarily called for in the
interpretation of statutes. [Para 86, 87, 90]
3. Since the power to amend the Constitution is a derivative power,
the exercise of such power to amend the Constitution is subject to
two limitations, namely, the doctrine of Basic Structure and lack of
legislative competence. The doctrine of Basic Structure is brought in
as a window to keep the power of judicial review intact as abrogation
of such a power would result in violation of basic structure. When one
speaks of discrimination or arbitrary classification, the same constitutes
violation of Article 14 of the Constitution. There is a distinction between
constitutional law and ordinary law in a rigid Constitution like ours.
The said distinction proceeds on the assumption that ordinary law
can be challenged on the touchstone of the Constitution. Therefore,
when an ordinary law seeks to make a classification without any
rational basis and without any nexus with the object sought to be
achieved, such ordinary law could be challenged on the touchstone of
Article 14 of the Constitution. However, when it comes to the validity
of a constitutional amendment, one has to examine the validity
of such amendment by asking the question as to whether such an
amendment violates any overarching principle in the Constitution.
What is overarching principle? Concepts like secularism, democracy,
separation of powers, power of judicial review fall outside the scope of
amendatory powers of the Parliament under Article 368. If any of these
were to be deleted, it would require changes to be made not only in Part
III of the Constitution but also in Article 245 and the three Lists of the
Constitution resulting in the change of the very structure or framework
of the Constitution. When an impugned Act creates a classification
without any rational basis and having no nexus with the objects
sought to be achieved, the principle of equality before law is violated
undoubtedly. Such an Act can be declared to be violative of Article 14.
Such a violation does not require re-writing of the Constitution. This
would be a case of violation of ordinary principle of equality before
law. Similarly, “egalitarian equality” is a much wider concept. It is an
 JANHIT ABHIYAN v. UNION OF INDIA 1961

overarching principle. The term “egalitarianism” has distinct definition

that all people should be treated as equal and have the same political,
economic, social and civil rights or have a social philosophy advocating
the removal of economic inequalities among the people, economic
egalitarianism or the decentralisation of power. [Para 154]
4. Article 14 has two clear facets which are invalid. One is over-
classification and the other is under-classification, which is otherwise,
over- inclusiveness or under-inclusiveness. The judicial review of over-
classification should be undertaken very strictly. In the cases of under-
classification when the complaint is either by those who are left out or
those who are in i.e. that the statute has roped him in, but a similarly
situated person has been left out, it would be under-inclusiveness. It is
to say that you ought to have brought him in to make the classification
reasonable. It is in such cases that the courts have said that ‘who should
be brought in’ should be left to the wisdom of the legislature because it
is essentially a stage where there should be an element of practicability.
Therefore, the cases of under-inclusion can be reviewed in a little liberal
manner. The under-inclusion argument should not be very readily
accepted by the courts because the stage could be experimental. For
instance, in the case on hand, the argument in the context of 103rd
Constitution Amendment is that SCs, STs and OBCs have been left out,
the Court would say that it is under-inclusiveness. The Legislature does
not have to bring any and everybody to make it reasonable. The case on
hand is not one of active exclusion. The SCs, STs and OBCs who have
been left out at the first instance are telling the Court that they ought to
have been included. In such circumstances, the test would be very strict,
not that it would be impervious to review. Had they been included in
clause (6) of Article 15 & clause (6) of Article 16 resply at any point of
time and thereafter, excluded, it would be legitimate for them to argue
that having treated them as one, they cannot be excluded in an arbitrary
manner. [Para 164]
5. Each one of the Constitutional provisions that are categorised
as rights under Part III has intrinsic value content. Many of these
rights are a part of the mechanism geared towards realising a common
constitutional principle. For example, Articles 14, 15 and 16 of the
Constitution are committed to the common principle of equality.
Reasonably then, if an amendment is to be struck down under the
1962 SUPREME COURT REPORTS [2022] 14 S.C.R. 1

‘basic structure’ formulation, the central principle of these inter-related

provisions should be at threat. A mere violation of one of these enabling
provisions would not be of much consequence under the doctrine of
Basic Structure as long as such violation does not infringe upon the
central thesis of equality. Redress for marginal encroachment cannot
be found under the ‘Basic Structure Doctrine’. In considering the effect
of an amendment on the constitutional core, it is important to keep in
mind the widest ramifications of the amendment. It is imperative to
contemplate and consider every way in which the ‘basic structure’ of the
Constitution might be threatened through the impugned amendment.
The amendment would stand as constitutional only after a satisfactory
understanding as to its effect on the constitutional core is reached by the
courts. To sustain itself, the amendment should not violate such core in
the widest interpretation given to it. [Para 186]
6. The new concept of economic criteria introduced by the
impugned amendment for affirmative action may go a long way in
eradicating caste-based reservation. It may be perceived as a first step
in the process of doing away with caste-based reservation. [Para 187]
7. Reservation is not an end but a means – a means to secure social
and economic justice. Reservation should not be allowed to become a
vested interest. Real solution, however, lies in eliminating the causes
that have led to the social, educational and economic backwardness of
the weaker sections of the community. This exercise of eliminating the
causes started immediately after the Independence i.e., almost seven
decades back and it still continues. The longstanding development and
the spread of education have resulted in tapering the gap between the
classes to a considerable extent. As larger percentages of backward class
members attain acceptable standards of education and employment,
they should be removed from the backward categories so that the
attention can be paid toward those classes which genuinely need help.
In such circumstances, it is very much necessary to take into review the
method of identification and the ways of determination of backward
classes, and also, ascertain whether the criteria adopted or applied for
the classification of backward is relevant for today’s conditions. The idea
of Baba Saheb Ambedkar was to bring social harmony by introducing
reservation for only ten years. However, it has continued past seven
decades. Reservation should not continue for an indefinite period of time
so as to become a vested interest. [Para 190]
 JANHIT ABHIYAN v. UNION OF INDIA 1963

8. In the result, the impugned amendment is valid and in no manner

alters the basic structure of the Constitution. [Para 191]

Minor A. Peeriakaruppan v. State of Tamil Nadu and Others

(1971) 1 SCC 38: [1971] 2 SCR 430 – relied on.

Kesavananda Bharati Sripadagalvaru v. State of Kerala

and Anr. (1973) 4 SCC 225: [1973] Suppl. SCR 1; The
State of Madras v. Champakam Dorairajan & Another AIR
1951 SC 226: [1951] SCR 525; Kathi Raning Rawat v.
State of Saurashtra AIR 1952 SC 123: [1952] SCR 435;
State of Kerala and Another v. N.M. Thomas and Others
(1976) 2 SCC 310 : [1976] 1 SCR 906; E.P. Royappa
v. State of Tamil Nadu and Another AIR 1974 SC 555:
[1974] 2 SCR 348; Govt. of Andhra Pradesh v. P.B.
Vijaykumar and another AIR 1995 SC 1648; T.M.A. Pai
Foundation and Others v. State of Karnataka and Others
(2002) 8 SCC 481: [2002] 3 Suppl. SCR 587; Supreme
Court Advocates-on-Record Association and another v.
Union of India AIR 2016 SC 117: [2015] SCR 975; Smt.
Indira Nehru Gandhi v. Shri Raj Narain AIR 1975 SC 2299:
[1975] Suppl. SCC 1; S.R. Bommai and others etc. etc. v.
Union of India and others etc. etc. AIR 1994 SC 1918:
[1994] 2 SCR 644; I.R. Coelho (dead) by L.Rs. v. State
of Tamil Nadu AIR 2007 SC 861: [2007] 1 SCR 706; The
State of West Bengal v. Anwar Ali Sarkar [1952] 0 SCR
284; State of Gujarat and Another v. Shri Ambika Mills
Ltd. Ahmedabad and Another (1974) 4 SCC 656: [1974]
3 SCR 760; Mohammad Shujat Ali and others v. Union of
India and others Ashutosh Gupta v. State of Rajasthan AIR
2002 SC 1533; Mohini Jain (Miss) v. State of Karnataka
and Others (1992) 3 SCC 666: [1992] 3 SCR 658; Society
for Unaided Private Schools of Rajasthan v. Union of India
and Another (2012) 6 SCC1: [2012] 2 SCR 715; Pramati
Educational and Cultural Trust (Registered) and Others
v. Union of India and Others (2014) 8 SCC 1: [2014] 11
SCR 712; M. Nagaraj and Others v. Union of India and
Others (2006) 8 SCC 212: [2006] 7 Suppl. SCR 336;
1964 SUPREME COURT REPORTS [2022] 14 S.C.R. 1

M.R. Balaji and Others v. State of Mysore [1963] Supp 1

SCR 439 and Dalmia Cement (Bharat) Ltd. and Another
v. Union of India and Others (1996) 10 SCC 104: [1996]
1 Suppl. SCR 825; State of Jammu & Kashmir v. Triloki
Nath Khosa and others AIR 1974 SC 1: [1974] 1 SCR
771; Ram Singh and Others v. Union of India (2015) 4
SCC 697: [2015] 5 SCR 670; M/s Shantistar Builders v.
Narayan Khimalal Totame and Others (1990) 1 SCC 520;
Ashoka Kumar Thakur v. Union of India (2008) 6 SCC 1:
[2008] 4 SCR 1; M.P.V. Sundararamier & Co. v. State of A.P.
and Others [1958] SCR 1422; State of West Bengal v. Shaik
Serajuddin Batley [1954] SCR 378; Shri Ram Krishna
Dalmia v. Shri Justice S.R. Tendolkar and Others [1959]
SCR 279; R.C. Poudyal v. Union of India and Others 1994
Supp (1) SCC 324 : [1993] 1 SCR 891; Kihoto Hollohan
v. Zachillhu and Others 1992 Supp (2) SCC 651: [1992]
1 SCR 686; Kuldip Nayar v. Union of India & Ors. AIR
2006 SC 3127: [2006] 5 Suppl. SCR 1; Glanrock Estate
Private Limited v. State of Tamil Nadu (2010) 10 SCC 96:
[2010] 12 SCR 597; Sanjeev Coke Manufacturing Co.
v. Bharat Coking Coal Ltd. (1983) 1 SCC 147: [1983] 1
SCR 1000; S. Seshachalam and Others v. Chairman, Bar
Council of Tamil Nadu and Others (2014) 16 SCC 72 :
[2014] 12 SCR 465; State of Madhya Pradesh v. Narmada
Bachao Andolan and Another (2011) 7 SCC 639: [2011]
6 SCR 443; Ajit Singh and Others v. State of Punjab and
Others (1999) 7 SCC 209: [1999] 2 Suppl. SCR 521; C.A.
Rajendran v. Union of India & Others [1968] 1 SCR 721;
Indra Sawhney and Others v. Union of India and Others
1992 Supp (3) SCC 217 : [1992] 2 Suppl. SCR 454; Unni
Krishnan, J.P. and Others v. State of Andhra Pradesh and
Others (1993) 1 SCC 645: [1993] 1 SCR 594; Sajjan Singh
v. State of Rajasthan AIR 1965 SC 845: [1965] 1 SCR 933
and Golak Nath and Others v. State of Punjab and Another
1967 AIR SC 1643: [1967] 2 SCR 762 – referred to.

Srimathi Champakam Dorairajan and Another v. The State

of Madras AIR 1951 Madras 120; Padmraj Samarendra v.
 JANHIT ABHIYAN v. UNION OF INDIA 1965

the State of Bihar, Patna High Court, Special Bench, 1978

SCC OnLine Pat 64 : 1979 PLJR 258 : AIR 1979 Pat
266; State of Kerala v. R. Jacob Mathew and others, AIR
1964 Kerala 316 – referred to.

James v. Commonwealth of Australia (1936) A.C. 578, 614;

Central Provinces Case (1939) F. C. R. 18; United States
v. Patrick B. Classic [1941 SCC OnLine US SC 112: 313
US 299 (1941)] ; Missouri, K & T Rly v. May, 194 US 267
(1904), 269 – referred to.

Per S. RAVINDRA BHAT, J. (for UDAY UMESH LALIT, CJI

and himself) (Minority opinion)
1. Our Constitution does not speak the language of exclusion.
The 103rd Constitution Amendment, by the language of exclusion,
undermines the fabric of social justice, and thereby, the basic structure.
[Para 1]
2. The addition, or insertion of the ‘economic criteria’ for
affirmative action in aid of the section of population who face
deprivation due to poverty, in furtherance of Article 46 of the
Constitution, does not per se stray from the Constitutional principles,
so as to alter, violate, or destroy its basic structure. As long as the State
addresses deprivation resulting from discriminatory social practices
which have kept the largest number of our populace in the margins, and
continues its ameliorative policies and laws, the introduction of such
deprivation-based affirmative action, is consistent with constitutional
goals. What, however, needs further scrutiny, is whether the manner of
implementing – i.e., the implicit exclusion of those covered under Art.
15(4) and 16(4) [Scheduled Castes (“SC”), Scheduled Tribes (“ST”), and
socially and educationally backward classes (“SEBC”)], cumulatively
referred to as ‘backward classes’] violates, or damages the basic
structure or essential features of the Constitution. [Para 2]
3. The appropriate test or standard of judicial review of
constitutional amendments is not the same as in the case of ordinary
laws; the test is whether the amendment challenged destroys, abrogates,
or damages the “identity”, or “nature” or “character” or “personality”
of the Constitution, by directly impacting one or some of the
1966 SUPREME COURT REPORTS [2022] 14 S.C.R. 1

“overarching principles” which inform its express provisions. Further

in constitutional amendment judicial review, the court would consider
the history of the provision amended, or the way the new provision
impacts the identity, or character, or nature of the Constitution. The
standard of judicial review of constitutional amendments, draws upon
distinct terminologies – identity, personality, nature and character to
see if the constitutional identity undergoes a fundamental change, as
to alter the Constitution into something it can never be. Or, differently
put, the test is whether the impact of the amendment is to change the
Constitution, into something it could never be considered to be. Each
of the terms, i.e. identity, nature, personality, character, and so on,
are methods of expressing the idea that some part of the Constitution,
either through its express provisions, or its general scheme, and yet
transcending those provisions, are embedded as overarching principles,
which cannot be destroyed or damaged. [Paras 29, 30]
4. The application of the doctrine classification differentiating the
poorest segments of the society, as one segment (i.e., the forward classes)
not being beneficiaries of reservation, and the other, the poorest, who
are subjected to additional disabilities due to caste stigmatization or
social barrier based discrimination – the latter being justifiably kept out
of the new reservation benefit, is an exercise in deluding ourselves that
those getting social and educational backwardness based reservations
are somehow more fortunate. This classification is plainly contrary to
the essence of equal opportunity. If this Constitution means anything,
it is that the Code of Articles 15(1), 15(2), 15(4), 16(1), 16(2), and 16(4)
are one indivisible whole. Articles 16(1) and 16(4) are facets of the same
equality principle. That one needs Article 15(4) and 16(4) to achieve
equality of opportunity guaranteed to all in Articles 15(1) and 16(1)
cannot now be undermined, through this reasoning, to hold that the
theory of classification permits exclusion on this very basis. [Para 80]
5. The basis of classification in the impugned amendment, enacted
in furtherance of Article 46 – is economic deprivation. Applying that
criterion, it is either income, or landholding, or value of assets or the
extent of resources controlled, which are classifiers. The social origins,
or identities of the target group are thus irrelevant. That there is some
basis for classification, whether relevant or irrelevant, which is sufficient
to differentiate between members of an otherwise homogenous group,
 JANHIT ABHIYAN v. UNION OF INDIA 1967

is no justification. The economic criteria, based on economic indicators,

which distinguish between one individual and another, would be
relevant for the purpose of classification, and grant of reservation
benefit. The Union’s concern that SC/ST/OBCs are beneficiaries of
other reservations, which set apart the poorest among them, from the
poorest amongst other communities which do not fall within Articles
15(4) and 16(4), cannot be a distinguishing factor, as to either constitute
an intelligible differentia between the two, nor is there any rational
nexus between that distinction and the object of the amendment, which
is to eliminate poverty and further the goal of equity and economic
justice. [Para 84, 87]
6. None of the materials placed on the record contain any suggestion
that the SC/ST/OBC categories should be excluded from the poverty
or economic criteria-based reservation, on the justification that
existing reservation policies have yielded such significant results,
that a majority of them have risen above the circumstances which
resulted in, or exacerbate, their marginalization and poverty. There is
nothing to suggest, how, keeping out those who qualify for the benefit
of this economic-criteria reservation, but belong to this large segment
constituting 82% of the country’s population (SC, ST and OBC
together), will advance the object of economically weaker sections of
society. [Para 91]
7. The characterisation of including the poor (i.e., those who qualify
for the economic eligibility) among those covered under Articles 15(4)
and 16(4), in the new reservations under Articles 15(6) and 16(6), as
bestowing “double benefit” is incorrect. What is described as ‘benefits’
for those covered under Articles 15(4) and 16(4) by the Union, cannot
be understood to be a free pass, but as a reparative and compensatory
mechanism meant to level the field – where they are unequal due to their
social stigmatisation. This exclusion violates the non-discrimination and
the non-exclusionary facet of the equality code, which thereby violates
the basic structure of the Constitution. [Para 100]
8. The impugned amendment creates paths, gateways, and
opportunities to the poorest segments of our society, enabling them
multiple access points to spaces they were unable to go to, places and
positions they were unable to fill, and opportunities they could not hope,
ever to ordinarily use, due to their destitution, economic deprivation,
1968 SUPREME COURT REPORTS [2022] 14 S.C.R. 1

and penury. These: destitution, economic deprivation, poverty, are

markers, or intelligible differentia, forming the basis of the classification
on which the impugned amendment is entirely premised. To that
extent, the amendment is constitutionally indefeasible. However, by
excluding a large section of equally poor and destitute individuals –
based on their social backwardness and legally acknowledged caste
stigmatization – from the benefit of the new opportunities created for
the poor, the amendment practices constitutionally prohibited forms
of discrimination. The overarching principles underlying Articles
15(1), 15(2), and Articles 16(1), 16(2) is that caste based or community-
based exclusion (i.e., the practice of discrimination), is impermissible.
Whichever way one would look at it, the Constitution is intolerant
towards untouchability in all its forms and manifestations which are
articulated in Articles 15(1), (2), Articles 16, 17, 23 and 24. It equally
prohibits exclusion based on past discriminatory practices. The
exclusion made through the “other than” exclusionary clause, negates
those principles and strikes at the heart of the equality code (specifically
the non-discriminatory principle) which is a part of the core of the
Constitution. [Para 101]
9. Equality of opportunity in public employment – a specific
facet of the equality code – is a guarantee to each citizen. The equally
forthright prohibition in Article 16(2), enjoining discrimination on
various grounds, including caste, is to reinforce the absoluteness of
equality of opportunity, that it cannot be denied. The only departure
through Article 16(4) is to give voice to hitherto unrepresented classes,
discriminated against on the proscribed grounds. This link- between
providing equal opportunity, and representation through reservations,
was the only exception, permitted by the Constitution, to further
equality in public employment. The impugned amendment snaps the
link between the idea of providing reservation for backward classes
to ensure their empowerment and representation (who were, before
the enactment of Article 16(4), absent from public employment).
The entire philosophy of Article 16 is to ensure barrier-free equal
opportunity in regard to public employment. Article 16(4) – enables
citizens belonging to backward classes access to public employment
with the superadded condition that this is to ensure their “adequate
representation”. Important decisions of this court: Indra Sawhney,
 JANHIT ABHIYAN v. UNION OF INDIA 1969

M. Nagaraj, Jarnail Singh v. Lachhmi Narain Gupta and BK

Pavitra (II) v. Union of India have time and again emphasized that
reservations under Article 16 are conditioned upon periodic adequate
representation review. [Paras 129, 130]
10. The introduction of reservations for economically weaker
sections of the society is not premised on their lack of representation
(unlike backward classes); the absence of this condition implies
that persons who benefit from the EWS reservations can, and in all
probability do belong to classes or castes, which are “forward” and are
represented in public service, adequately. This additional reservation,
by which a section of the population who are not socially backward, and
whose communities are represented in public employment – violates the
equality of opportunity which the Preamble assures, and Article 16(1)
guarantees. [Para 131]
11. The impugned amendment results in treating those covered by
reservations under Article 16(4) with a standard that is more exacting
and stringent than those covered by Article 16(6). For instance, if the
poorest citizens among a certain community or that entire community,
is unrepresented, and the quota set apart for the concerned group (SC)
as a whole is filled, the requirement of “representation” is deemed
fulfilled, i.e., notwithstanding that the specific community has not been
represented in public employment, no citizen belonging to it, would be
entitled to claim reservation. However, in the case of non-SC/ST/OBCs,
whether the individual belongs to a community which is represented or
not, is entirely irrelevant. This vital dimension of need to be represented,
to be heard in the decision-making process, has been entirely discarded
by the impugned amendment in clause (6) of Article 16. Within the
amended Article 16, therefore, lie two standards: representation
as a relevant factor (for SC, ST and OBC under Article 16(4)), and
representation as an irrelevant factor (for Article 16(6)). [Para 132]
12. The introduction of this reservation in public employment
violates the right to equal opportunity, in addition to the non-
discriminatory facet of equality, both of which are part of the equality
code and the basic structure. [Para 133]
13. The characterisation of reservations for economically weaker
sections of the population (EWS) as compensatory and on par with the
1970 SUPREME COURT REPORTS [2022] 14 S.C.R. 1

existing reservations under Articles 15(4) and 16(4), is without basis.

The endeavour of the Constitution makers was to ensure that past
discriminatory practices which had, so to say, eaten the vitals of the
Indian society and distorted it to such an extent that when the republic
was created, an equal society was merely an illusion, which compelled
them to enact special provisions such as Article 16(4) – and later Article
15(4), to ensure equality. It was not compensatory but also reparatory.
They continue to compensate, definitionally and in reality, because even
as on date, the acknowledged position is that reservations are necessary
for SCs/STs and OBCs who are not part of the creamy layer. On the
other hand, the EWS category, was consciously not made beneficiaries
of reservations at the time of the framing of the Constitution, because
perhaps the framers felt that the enacted provisions (including the soon
to be added Articles 31A and 31B) and the slew of economic reforms
which were enacted were sufficient to remove economic disparities. That
hope however, did not materialise. Economic disparities (unconnected
with social and educational backwardness) continued – and perhaps
were even exacerbated to such an extent that as of now almost 25%
of the population continue to live in abject poverty. Indra Sawhney
acknowledged that measures taken for their purpose would only result
in “poverty alleviation”. [Para 168]
14. The principles of non-discrimination, non-exclusion and
equality of opportunity to all is manifested in the Constitution through
the equality code, which is part of its basic structure. Their link with
fraternity, which the Preamble assures is intrinsic to “dignity of the
individual and unity and integrity of the nation”, is inseparable. The
framers of our constitution recognised that there can be no justice
without equality of status, and that bereft of fraternity, even equality
would be an illusion as existing divisions and “narrow domestic walls”
would fragment society. [Para 180]
15. The fraternal principle is deeply embedded to this nation’s ethos
and culture. The specific provisions which form part of the Equality
Code, are inextricably intertwined with fraternity as well.
People cannot be assured of Justice, Liberty or Equality, unless
Fraternity in one form or another, to some degree, is felt by individuals
at each level of our social order, and economic system. Weakening
 JANHIT ABHIYAN v. UNION OF INDIA 1971

fraternity therefore undermines justice, liberty, and equality. [Paras

181, 182, 183]
16. One-ness, inclusiveness, humanism and the idea that not only
are all equal, and should have equal opportunities, and the content of
each one’s rights be no different from the other, but also that all stand
together, and for each other, is a powerful precept. This precept suffuses
every provision of Part III of the Constitution, especially Articles 14-18,
38-39 and 46. The value of fraternity is as much a part of the equality
code, and its facets – equality of opportunity, the principle of non-
discrimination and the non-exclusionary principle, as it inextricably
binds them with the concepts of liberty and freedom. [Paras 185, 186]
17. The exclusionary clause (in the impugned amendment) that
keeps out from the benefits of economic reservation, backward classes
and SC/STs therefore, strikes a death knell to the equality and fraternal
principle which permeates the equality code and non-discrimination
principle. [Para 187]
18. The concepts which our Constitution fosters, and the principles
it engenders – equality, fraternity, egalitarianism, dignity, and justice
(at individual and social levels) are all inclusive, all encompassing. The
equality code in its majestic formulation (Article 14, 15, 16 and 17)
promotes inclusiveness. Even provisions enabling reservations foster
social justice and equality, to ensure inclusiveness and participation
of all sections of society. These provisions assure representation,
diversity, and empowerment. Conversely, exclusion, with all its negative
connotation – is not a constitutional principle and finds no place in our
constitutional ethos. Therefore, to admit now, that exclusion of people
based on their backwardness, rooted in social practice, is permissible,
destroys the constitutional ethos of fraternity, non-discrimination, and
non-exclusion. [Para 188]
19. On Question 1, it is held that the states’ compelling interest
to fulfil the objectives set out in the Directive Principles, through
special provisions on the basis of economic criteria, is legitimate. That
reservation or special provisions have so far been provided in favour
of historically disadvantaged communities, cannot be the basis for
contending that other disadvantaged groups who have not been able to
progress due to the ill effects of abject poverty, should remain so and the
1972 SUPREME COURT REPORTS [2022] 14 S.C.R. 1

special provisions should not be made by way of affirmative action or

even reservation on their behalf. Therefore, special provisions based on
objective economic criteria (for the purpose of Article 15), is per se not
violative of the basic structure. [Para 189]
20. However, the framework in which it has been introduced by the
impugned amendment – by excluding backward classes ­– is violative
of the basic structure. The identifier for the new criteria-is based on
deprivation faced by individuals. Therefore, which community the
individual belongs to is irrelevant. An individual who is a target of
the new 10% reservation may be a member of any community or
class. The state does not – and perhaps justly so - will not look into her
background. Yet in the same breath, the state is saying that members
of certain communities who may be equally or desperately poor (for
the purposes of classification identification) but will otherwise be
beneficiaries of reservation of a different kind, would not be able to
access this new benefit, since they belong to those communities. This
dichotomy of on the one hand, using a neutral identifier entirely based on
economic status and at the same time, for the purpose of exclusion, using
social status, i.e., the castes or socially deprived members, on the ground
that they are beneficiaries of reservations (under Article 15(4) and 16(4))
is entirely offensive to the Equality Code. [Para 190]
21. A universally acknowledged truth is that reservations
have been conceived and quotas created, through provision in the
Constitution, only to offset fundamental, deep rooted generations of
wrongs perpetrated on entire communities and castes. Reservation
is designed as a powerful tool to enable equal access and equal
opportunity. Introducing the economic basis for reservation – as
a new criterion, is permissible. Yet, the “othering” of socially and
educationally disadvantaged classes – including SCs/ STs/ OBCs by
excluding them from this new reservation on the ground that they
enjoy pre-existing benefits, is to heap fresh injustice based on past
disability. The exclusionary clause operates in an utterly arbitrary
manner. Firstly, it “others” those subjected to socially questionable,
and outlawed practices – though they are amongst the poorest sections
of society. Secondly, for the purpose of the new reservations, the
exclusion operates against the socially disadvantaged classes and
castes, absolutely, by confining them within their allocated reservation
 JANHIT ABHIYAN v. UNION OF INDIA 1973

quotas (15% for SCs, 7.5% for STs, etc.). Thirdly, it denies the chance
of mobility from the reserved quota (based on past discrimination) to
a reservation benefit based only on economic deprivation. The net
effect of the entire exclusionary principle is Orwellian, (so to say) which
is that all the poorest are entitled to be considered, regardless of their
caste or class, yet only those who belong to forward classes or castes,
would be considered, and those from socially disadvantaged classes for
SC/STs would be ineligible. Within the narrative of the classification
jurisprudence, the differentia (or marker) distinguishing one person
from another is deprivation alone. The exclusion, however, is not based
on deprivation but social origin or identity. This strikes at the essence of
the non-discriminatory rule. Therefore, the total and absolute exclusion
of constitutionally recognised backward classes of citizens - and more
acutely, SC and ST communities, is nothing but discrimination which
reaches to the level of undermining, and destroying the equality code,
and particularly the principle of non-discrimination. [Para 191]
22. On question 3, it is clear that the impugned amendment and the
classification it creates, is arbitrary, and results in hostile discrimination
of the poorest sections of the society that are socially and educationally
backward, and/or subjected to caste discrimination. For these reasons,
the insertion of Article 15(6) and 16(6) is struck down, is held to
be violative of the equality code, particularly the principle of non-
discrimination and non-exclusion which forms an inextricable part of
the basic structure of the Constitution. [Para 192]
23. While this reasoning is sufficient to conclude that Article 16(6)
is liable to be struck down, there are additional reasons due to which
this court is compelled to clarify that while the ‘economic criteria’ per
se is permissible in relation to access of public goods (under Article 15),
the same is not true for Article 16, the goal of which is empowerment,
through representation of the community. [Para 193]
24. On the point of Question 2, it is true that unaided private
educational institutions would be bound under Article 15(6) to provide
for EWS reservations, however, given that the analysis under Question
3 on ‘exclusion’ leads to the conclusion that the Amendment is violative
of the basic structure, the question herein has been rendered moot.
[Para 194]
1974 SUPREME COURT REPORTS [2022] 14 S.C.R. 1

25. Sections 2 and 3 of the Constitution (One Hundred and Third

Amendment) Act, 2019 which inserted clause (6) in Article 15 and clause
(6) in Article 16, respectively, are unconstitutional and void on the
ground that they are violative of the basic structure of the Constitution.
[Para 195]

State of Madras v. Champakam Dorairajan 1951 SCC 351:

[1951] SCR 525; M.R. Balaji v. State of Mysore [1963]
Supp 1 SCR 439; T. Devadasan v. Union of India (1964)
4 SCR 680; State of Kerala v. N.M. Thomas (1976) 2 SCC
310: [1976] 1 SCR 906; Indra Sawhney v. Union of India
1992 Supp (3) SCC 217: [1992] 2 Suppl. SCR 454;
Pramati Educational & Cultural Trust v. Union of India
(2014) 8 SCC 1; Chebrolu Leela Prasad Rao v. State of
A.P. (2021) 11 SCC 401; Jaishri Laxmanrao Patil v. State
of Maharashtra (2021) 8 SCC 1; Kesavananda Bharati
v. State of Kerala (1973) 4 SCC 225: [1973] Supp SCR
1; Minerva Mills v. Union of India (1980) 3 SCC 625:
[1981] 1 SCR 206; Indira Nehru Gandhi v. Raj Narain
1975 Supp SCC 1: [1976] 2 SCR 347; P. Sambamurthy v.
State of A.P (1987) 1 SCC 362: [1987] 1 SCR 879; Kihoto
Hollohan v. Zachillhu 1992 Supp (2) SCC 651: [1992] 1
SCR 686; L. Chandra Kumar v. Union of India (1997) 3
SCC 261: [1997] 2 SCR 1186 ; Raghunathrao Ganpatrao
v. Union of India 1994 Supp (1) SCC 191: [1993] 1 SCR
480; I.R. Coelho v. State of Tamil Nadu (2007) 2 SCC 1:
[2007] 1 SCR 706; Waman Rao v. Union of India (1981) 2
SCC 362: [1981] 2 SCR 1; Indra Sawhney (2) v. Union of
India (2000) 1 SCC 168: [1999] 5 Suppl. SCR 229; Indian
Young Lawyers Association and Ors. v. State of Kerala and
Ors. (2019) 11 SCC 1: [2018] 9 SCR 561; Supreme Court
Advocates on Record Association (SCAORA) v. Union of
India (2016) 5 SCC 1: [2015] 13 SCR 1; Roop Chand
Adlakha v. Delhi Development Authority (1989) Supp (1)
SCC 116: [1988] 3 Suppl. SCR 253; State of West Bengal
v. Anwar Ali Sarkar (1952) 1 SCC 1: [1952] SCR 284;
Mohammad Shujat Ali and Ors. v. Union of India (1975) 3
SCC 76: [1975] 1 SCR 449; Bhim Singhji v. Union of India
 JANHIT ABHIYAN v. UNION OF INDIA 1975

(1981) 1 SCC 166; M. Nagaraj v. Union of India (2006) 8

SCC 212: [2006] 7 Suppl. SCR 336; Ashok Kumar Thakur
v. Union of India (2008) 6 SCC 1: [2008] 4 SCR 1; K.
Krishna Murthy v. Union of India (2010) 7 SCC 202: [2010]
6 SCR 972; R.C. Poudyal v. Union of India 1994 Supp (1)
SCC 324: [1993] 1 SCR 891; Air India v. Nargesh Mirza
(1981) SC 1829 : [1982] 1 SCR 438; Vishaka v. State of
Rajasthan (1997) 6 SCC 241: [1997] 3 Suppl. SCR 404;
Anuj Garg and Others v. Hotel Association of India and
Others, (2008) 3 SCC 1: [2007] 12 SCR 991; National
Legal Services Authority v UOI and Others (2014) 5 SCC
438: [2014] 5 SCR 119; Vineeta Sharma v. Rakesh Sharma
& Others (2020) 9 SCC 1: [2020] 10 SCR 135; Secretary,
Ministry of Defence v. Babita Puniya & Others (2020) 7
SCC 469: [2020] 3 SCR 833; Lt. Col. Nitisha & Others v.
Union of India & Others, 2021 SCC OnLine SC 261; State
of Karnataka v. Appa Balu Ingale (1995) Supp (4) SCC
469: [1992] 3 Suppl. SCR 284; Marri Chandra Shekhar
Rao v. Dean, Seth G.S. Medical College & Ors. (1990) 3
SCC 130: [1990] 2 SCR 843; Valsamma Paul & Ors. v.
Cochin University & Ors. (1996) 3 SCC 545: [1996] 1
SCR 128; Abhiram Singh and Ors. v. C.D. Commachen
(2017) 2 SCC 629: [2017] 1 SCR 158; Saurabh Chaudri &
Ors. v. Union of India & Ors. (2003) 11 SCC 146; [2003]
Supp 5 SCR 152; S.R. Bommai v. Union of India (1994)
3 SCC 1: [1994] 2 SCR 644 ; Vikas Sankhala & Ors. v.
Vikas Kumar Agarwal & Ors (2017) 1 SCC 350: [2016]
7 SCR 639; Samatha v. State of A.P. & Ors. (1997) 8 SCC
191: [1997] Supp 2 SCR 305; Indian Medical Association
& Ors. v. Union of India & Ors. (2011) 7 SCC 179:
[2011] 6 SCR 599; Society for Unaided Private Schools
of Rajasthan v. Union of India, (2012) 6 SCC 1: [2012]
2 SCR 715; State of Jammu and Kashmir v. Triloki Nath
Khosa & Ors. (1974) 1 SCC 19: [1974] 1 SCR 771; Pattali
Makkal Katchi v. A. Mayilerumperumal and Ors 2022 SCC
Online SC 386; Col. A.S. Iyer v. V. Balasubramanyam
(1980) 1 SCC 634: [1980] 1 SCR 1036 ; Lachhman Das v.
State of Punjab [1963] 2 SCR 353; National Legal Services
Authority v. Union of India & Ors. (2014) 5 SCC 438:
1976 SUPREME COURT REPORTS [2022] 14 S.C.R. 1

[2014] 5 SCR 119; Charu Khurana v. Union of India (2015)

1 SCC 192: [2014] 12 SCR 259; State of West Bengal v.
Anwar Ali Sarkar [1952] 1 SCR 284; Nandini Satpathy
v. PL Dani [1978] 3 SCR 608; Jarnail Singh v. Lachhmi
Narain Gupta (2018) 10 SCC 396: [2018] 10 SCR 663; BK
Pavitra (II) v. Union of India (2019) 16 SCC 129: [2019]
7 SCR 1086; T.M.A. Pai Foundation v. State of Karnataka
(2002) 8 SCC 481: [2002] 3 Suppl. SCR 587; Delhi
Transport Corpn. v. D.T.C. Mazdoor Congress 1991 Supp
(1) SCC 600: [1990] 1 Suppl. SCR 142; K.C. Vasant Kumar
v. State of Karnataka (1985) Supp SCC 714: [1985] Suppl.
SCR 352; State of Gujarat v. Shri Ambika Mills (1974) 4
SCC 656: [1974] 3 SCR 760; S. Seshachalam & Ors. v.
Chairman Bar Council of TN (2014) 16 SCC 72: [2014] 12
SCR 465; R.K. Garg v. Union of India (1981) 4 SCC 675:
[1982] 1 SCR 947 and Prathvi Raj Chauhan v. Union of
India, (2020) 4 SCC 727: [2020] 2 SCR 727 – referred to.

Gulf, Colorado & Santa Fe Ry. Co. v. Ellis, 165 U.S. 150
(1891) and Korematsu v. United States, 323 U.S. 214 (1944)
– referred to.

Case Law Reference

In the judgment of DINESH MAHESHWARI, J.

[1964] 4 SCR 680 referred to Para 7.2

(1976) 2 SCC 310 referred to Para 7.2
1992 Supp (3) SCC 217 referred to Para 7.2
[1963] Supp 1 SCR 439 referred to Para 7.2
[2020] 2 SCR 727 referred to Para 7.4
[2019] 7 SCR 1086 referred to Para 8.2
[2006] 7 Suppl. SCR 336 referred to Para 9.2
(2021) 8 SCC 1 referred to Para 9.2
 JANHIT ABHIYAN v. UNION OF INDIA 1977

[1951] SCR 525 referred to Para 10

[2008] 4 SCR 1 referred to Para 10
[1974] 2 SCR 348 referred to Para 11
[1973] Suppl. SCR 1 relied on Para 13
[1971] 3 SCR 9 referred to Para 13
[2018] 7 SCR 1 referred to Para 15.4
[1985] Suppl. SCR 352 referred to Para 15.4
[1981] 1 SCR 206 relied on Para 16.1
[1999] 5 Suppl. SCR 229 referred to Para 16.2
(2002) 8 SCC 481 referred to Para 17.1
[1960] 1 SCR 246 referred to Para 17.1
[2017] 10 SCR 569 referred to Para 18.1
(2021) 4 SCC 542 referred to Para 19
[1964] 6 SCR 368 referred to Para 24.1
[1981] 2 SCR 1 referred to Para 24.1
[1995] 3 Suppl. SCR 269 referred to Para 24.3
[2009] 12 SCR 978 referred to Para 24.3
(1981) 1 SCC 166 relied on Para 24.3
[1993] 1 SCR 480 referred to Para 25.1
(2012) 6 SCC 1 referred to Para 25.5
(2014) 8 SCC 1 referred to Para 25.5
1975 Supp SCC 1 referred to Para 26
[1952] SCR 89 referred to Para 35
[1965] 1 SCR 933 referred to Para 35
[1967] 2 SCR 762 referred to Para 35
[1978] 2 SCR 1 referred to Para 36.1
1978 SUPREME COURT REPORTS [2022] 14 S.C.R. 1

[1987] 1 SCR 879 referred to Para 37.5

[1992] 1 SCR 686 referred to Para 37.6
[1997] 2 SCR 1186 referred to Para 37.8
[2010] 6 SCR 972 referred to Para 37.11
[2015] 13 SCR 1 referred to Para 37.13
[1975] 1 SCR 1 referred to Para 45.1
[2015] 1 SCR 55 referred to Para 53
[1997] 1 SCR 750 referred to Para 61
[1980] 2 SCR 913 referred to Para 62
[1996] 7 Suppl. SCR 548 referred to Para 63.1.1
[1983] 1 SCR 456 referred to Para 63.1.2
[1973] 3 SCR 236 referred to Para 71.3
(1990) 1 SCC 520 referred to Para 71.5
[1985] 2 SCR 224 referred to Para 74.1
[2014] 9 SCR 780 referred to Para 74.2.1
[2003] 2 SCR 1136 referred to Para 74.2.1
[1989] 2 Suppl. SCR 570 referred to Para 74.2.3
[1981] 2 SCR 185 referred to Para 92.4
[2006] 3 SCR 1132 referred to Para 99.1

In the judgment of BELA M. TRIVEDI, J.

(1973) 4 SCC 225 relied on Para 5

[1992] 1 SCR 686 referred to Para 7
(1981) 1 SCC 166 referred to Para 9
[1976] 2 SCR 347 referred to Para 10
[1976] 1 SCR 906 referred to Para 11
[1981] 2 SCR 1 referred to Para 12
 JANHIT ABHIYAN v. UNION OF INDIA 1979

[2006] 7 Suppl. SCR 336 referred to Para 13

[1974] 3 SCR 760 referred to Para 14
1985 (1) Suppl. SCR 352 relied on Para 26
2008 (4) SCR 1 relied on Para 27

In the judgment of J.B. PARDIWALA, J.

[1973] Suppl. SCR 1 referred to Para 5

[1951] SCR 525 referred to Para 13
[1952] SCR 435 referred to Para 14
AIR 2002 SC 1533 referred to Para 15
[1992] 2 Suppl. SCR 454 referred to Para 19
AIR 1974 SC 1631 referred to Para 29
[1976] 1 SCR 906 referred to Para 31
[1974] 2 SCR 348 referred to Para 33
AIR 1995 SC 1648 referred to Para 34
[1992] 3 SCR 658 referred to Para 36
[1993] 1 SCR 594 referred to Para 37
[2002] 3 Suppl. SCR 587 referred to Para 38
[2012] 2 SCR 715 referred to Para 39
[2014] 11 SCR 712 referred to Para 47
[2006] 7 Suppl. SCR 336 referred to Para 49
[1963] Supp 1 SCR 439 referred to Para 49
[1996] 1 Suppl. SCR 825 referred to Para 55
[1974] 1 SCR 771 referred to Para 60
[2015] 5 SCR 670 referred to Para 61
1980 SUPREME COURT REPORTS [2022] 14 S.C.R. 1

(1990) 1 SCC 520 referred to Para 78

[2008] 4 SCR 1 referred to Para 81
[1958] SCR 1422 referred to Para 91
[1954] SCR 378 referred to Para 92
[1959] SCR 279 referred to Para 93
[1993] 1 SCR 891 referred to Para 94
[1992] 1 SCR 686 referred to Para 95
[2006] 7 Suppl. SCR 336 referred to Para 96
[1965] 1 SCR 933 referred to Para 108
[1967] 2 SCR 762 referred to Para 115
[1975] Suppl. SCC 1 referred to Para 135
[1994] 2 SCR 644 referred to Para 139
[2007] 1 SCR 706 referred to Para 141
[2015] SCR 975 referred to Para 148
[2006] 5 Suppl. SCR 1 referred to Para 149
[2010] 12 SCR 597 referred to Para 151
[1974] 3 SCR 760 referred to Para 165
[1952] SCR 284 referred to Para 167
[1983] 1 SCR 1000 referred to Para 169
[2014] 12 SCR 465 referred to Para 171
[2011] 6 SCR 443 referred to Para 178
[1999] 2 Suppl. SCR 521 referred to Para 185
[1968] 1 SCR 721 referred to Para 185
[1971] 2 SCR 430 relied on Para 189
 JANHIT ABHIYAN v. UNION OF INDIA 1981

In the judgment of S. RAVINDRA BHAT, J.

[1951] SCR 525 referred to Para 6

[1963] Supp 1 SCR 439 referred to Para 6
[1976] 1 SCR 906 referred to Para 8
[1992] 2 Suppl. SCR 454 referred to Para 9
[2006] 7 Suppl. SCR 336 referred to Para10
[2008] 4 SCR 1 referred to Para 10
[2010] 6 SCR 972 referred to Para10
(2014) 8 SCC 1 referred to Para 10
(2021) 11 SCC 401 referred to Para 10
(2021) 8 SCC 1 referred to Para 10
[1973] Supp SCR 1 referred to Para 12
[1981] 1 SCR 206 referred to Para 12
[1976] 2 SCR 347 referred to Para 13
[1987] 1 SCR 879 referred to Para 16
[1992] 1 SCR 686 referred to Para 16
[1997] 2 SCR 1186 referred to Para 16
[1993] 1 SCR 480 referred to Para 16
[1981] 2 SCR 1 referred to Para 22
[1993] 1 SCR 891 referred to Para 24
[2015] 13 SCR 1 referred to Para 26
[1982] 1 SCR 438 referred to Para 40
[1997] 3 Suppl. SCR 404 referred to Para 40
[2007] 12 SCR 991 referred to Para 40
1982 SUPREME COURT REPORTS [2022] 14 S.C.R. 1

[2014] 5 SCR 119 referred to Para 40

[2018] 9 SCR 561 referred to Para 40
[2020] 10 SCR 135 referred to Para 40
[2020] 3 SCR 833 referred to Para 40
[1992] 3 Suppl. SCR 284 referred to Para 49
[1990] 2 SCR 843 referred to Para 50
[1996] 1 SCR 128 referred to Para 51
[2017] 1 SCR 158 referred to Para 52
[1999] 5 Suppl. SCR 229 referred to Para 53
[2003] Supp 5 SCR 152 referred to Para 64
[1994] 2 SCR 644 referred to Para 65
[2007] 1 SCR 706 referred to Para 66
[2016] 7 SCR 639 referred to Para 68
[1997] 2 Suppl. SCR 305 referred to Para 69
[2011] 6 SCR 599 referred to Para 70
(1981) 1 SCC 166 referred to Para 72
[2012] 2 SCR 715 referred to Para 74
[1952] SCR 284 referred to Para 81
[1974] 1 SCR 771 referred to Para 82
[1975] 1 SCR 449 referred to Para 83
[1980] 1 SCR 1036 referred to Para 85
[1963] 2 SCR 353 referred to Para 86
[2014] 5 SCR 119 referred to Para 88
[2014] 12 SCR 259 referred to Para 90
 JANHIT ABHIYAN v. UNION OF INDIA 1983

[1952] 1 SCR 284 referred to Para 124

[1978] 3 SCR 608 referred to Para 124
[2018] 10 SCR 663 referred to Para 130
[2019] 7 SCR 1086 referred to Para 130
[2002] 3 Suppl. SCR 587 referred to Para 134
[1990] 1 Suppl. SCR 142 referred to Para 140
[1985] Suppl. SCR 352 referred to Para 161
[1974] 3 SCR 760 referred to Para 163
[2014] 12 SCR 465 referred to Para 163
[1982] 1 SCR 947 referred to Para 163
[1988] 3 Suppl. SCR 253 referred to Para 164
[2020] 2 SCR 727 referred to Para 186
 [2023] 5 S.C.R. 165

SHILPA SAILESH
v.
VARUN SREENIVASAN
(Transfer Petition (Civil) No. 1118 of 2014)

MAY 01, 2023

[SANJAY KISHAN KAUL, SANJIV KHANNA*, ABHAY S. OKA,

VIKRAM NATH AND J.K. MAHESHWARI, JJ.]

Constitution of India – Art. 142 – Scope and ambit of – Held: The power
u/Art. 142(1) is undefined and uncatalogued, so as to ensure elasticity to
mould relief to suit a given situation – The Supreme Court can depart from
the procedure as well as the substantive laws, as long as the decision is
exercised based on considerations of fundamental general and specific
public policy – While deciding whether to exercise discretion, the Court
must consider the substantive provisions as enacted and not ignore the same,
albeit the Court acts as a problem solver by balancing out equities between
the conflicting claims – This power is to be exercised in a ‘cause or matter’.
Constitution of India – Art. 142 – Hindu Marriage Act, 1955 – s.13-B –
Grant of a decree of divorce by mutual consent – Whether Supreme
Court while hearing a transfer petition, or in any other proceedings, can
exercise power u/Art.142(1) to grant a decree of divorce by mutual consent
dispensing with the period and the procedure prescribed u/s.13-B of the Act
of 1956 and also quash and dispose of other/connected proceedings and in
which cases and under what circumstances should Supreme Court exercise
jurisdiction u/Art. 142 – Held: In view of settlement between the parties,
the Supreme Court has the discretion to dissolve the marriage by passing a
decree of divorce by mutual consent, without being bound by the procedural
requirement to move the second motion – This power should be exercised
with care and caution, keeping in mind the factors stated in Amardeep Singh
case and Amit Kumar case – This Court can also, in exercise of power u/Art.
142(1) can also quash and set aside other proceedings and orders, including
criminal proceedings.
Constitution of India – Art. 142 – Grant of divorce in case of irretrievable
breakdown of marriage – Whether Supreme Court can grant divorce in
exercise of power under Article 142(1), when there is complete and

1984
 SHILPA SAILESH v. VARUN SREENIVASAN 1985

irretrievable breakdown of marriage in spite of the other spouses opposing

the prayer – Held: The Court in exercise of power under Art.142(1), has
the discretion to dissolve the marriage on the ground of its irretrievable
breakdown – The Court’s discretionary power is to be exercised to do
‘complete justice’ to the parties – The Court should be fully convinced
and satisfied that the marriage is totally unworkable, emotionally dead and
beyond salvation and, therefore, dissolution of marriage is the right solution
and the only way forward – The Supreme Court, as a court of equity, is
required to also balance the circumstances and the background in which the
party opposing the dissolution is placed.
Hindu Marriage Act, 1955 – Irretrievable breakdown of marriage –
Determination of – Held: That the marriage has irretrievably broken down is
to be factually determined and firmly established – For this, several factors
are to be considered such as the period of time the parties had cohabited
after marriage; when the parties had last cohabited; the nature of allegations
made by the parties against each other and their family members; the orders
passed in the legal proceedings from time to time, cumulative impact on the
personal relationship; whether, and how many attempts were made to settle
the disputes by intervention of the court or through mediation, and when the
last attempt was made, etc. – The period of separation should be sufficiently
long, and anything above six years or more will be a relevant factor –
Question of custody and welfare of minor children are also to be considered
– Some of the factors mentioned can be taken as illustrative, and worthy of
consideration – The factors are not codified – The exercise of jurisdiction u/
Art. 142(1) is situation specific.
Constitution of India – Art.32 – Whether a party can directly canvass
before the Supreme Court on the ground of irretrievable breakdown, by
filing a writ petition under Art. 32 of the Constitution – Held: The parties
should not be permitted to circumvent the procedure by resorting to the writ
jurisdiction u/Art. 32 or 226 – The remedy of a person aggrieved by the
decision of the competent judicial forum is to approach the superior forum
for redressal of his grievance – Relief u/Art. 32 can be sought to enforce the
rights conferred by Part III of the Constitution of India, and on the proof of
infringement thereof – Judicial orders passed by the court in, or in relation
to, the proceedings pending before it, are not amenable to correction u/Art.
32 of the Constitution of India – The view regarding the same in Poonam v.
Sumit Tanwar is accepted.
1986 SUPREME COURT REPORTS [2023] 5 S.C.R. 165

Judgment/Order – Clarification – Held: It is clarified that reference in

Poonam v. Sumit Tanwar and the observation that it is questionable whether
the period of six months for moving the second motion can be waived has
not been approved.

Answering the reference, the Court

HELD:
The scope and ambit of power and jurisdiction of this Court under
Article 142(1) of the Constitution of India;
1. The plenary and conscientious power conferred on this Court under
Article 142(1) of the Constitution of India, seemingly unhindered,
is tempered or bounded by restraint, which must be exercised
based on fundamental considerations of general and specific
public policy. Fundamental general conditions of public policy
refer to the fundamental rights, secularism, federalism, and other
basic features of the Constitution of India. Specific public policy
should be understood as some express pre-eminent prohibition in
any substantive law, and not stipulations and requirements to a
particular statutory scheme. It should not contravene a fundamental
and non-derogable principle at the core of the statute. Even in the
strictest sense, it was never doubted or debated that this Court is
empowered under Article 142(1) of the Constitution of India to do
‘complete justice’ without being bound by the relevant provisions of
procedure, if it is satisfied that the departure from the said procedure
is necessary to do ‘complete justice’ between the parties. Difference
between procedural and substantive law in jurisprudential terms
is contentious, albeit not necessary to be examined in depth in the
present decision, as in terms of the dictum enunciated by this Court
in Union Carbide Corporation and Supreme Court Bar Association,
exercise of power under Article 142(1) of the Constitution of
India to do ‘complete justice’ in a ‘cause or matter’ is prohibited
only when the exercise is to pass an order which is plainly and
expressly barred by statutory provisions of substantive law based on
fundamental considerations of general or specific public policy. As
explained in Supreme Court Bar Association, the exercise of power
under Article 142(1) of the Constitution of India being curative in
nature, this Court would not ordinarily pass an order ignoring or
disregarding a statutory provision governing the subject, except
 SHILPA SAILESH v. VARUN SREENIVASAN 1987

to balance the equities between conflicting claims of the litigating

parties by ironing out creases in a ‘cause or matter’ before it.
In this sense, this Court is not a forum of restricted jurisdiction
when it decides and settles the dispute in a ‘cause or matter’.
While this Court cannot supplant the substantive law by building
a new edifice where none existed earlier, or by ignoring express
substantive statutory law provisions, it is a problem-solver in the
nebulous areas. As long as ‘complete justice’ required by the ‘cause
or matter’ is achieved without violating fundamental principles
of general or specific public policy, the exercise of the power and
discretion under Article 142(1) is valid and as per the Constitution
of India. This is the reason why the power under Article 142(1) of
the Constitution of India is undefined and uncatalogued, so as to
ensure elasticity to mould relief to suit a given situation. The fact
that the power is conferred only on this Court is an assurance that
it will be used with due restraint and circumspection. [Para 13]
2. Question as to the power and jurisdiction of this Court under Article
142(1) of the Constitution of India is answered holding that this
Court can depart from the procedure as well as the substantive
laws, as long as the decision is exercised based on considerations
of fundamental general and specific public policy. While deciding
whether to exercise discretion, this Court must consider the
substantive provisions as enacted and not ignore the same, albeit this
Court acts as a problem solver by balancing out equities between
the conflicting claims. This power is to be exercised in a ‘cause or
matter’. [Para 42]
Whether Court, while hearing a transfer petition, or in any other
proceedings, can exercise power under Article 142(1) of the Constitution
of India, in view of the settlement between the parties, and grant a
decree of divorce by mutual consent dispensing with the period and
the procedure prescribed under Section 13-B of the Hindu Marriage
Act, and also quash and dispose of other/connected proceedings
under the Protection of Women from Domestic Violence Act, 2005,
Section 125 of the Code of Criminal Procedure, 1973, or criminal
prosecution primarily under Section 498-A and other provisions of
the Indian Penal Code, 1860. If the answer to this question is in the
affirmative, in which cases and under what circumstances should this
1988 SUPREME COURT REPORTS [2023] 5 S.C.R. 165

Court exercise jurisdiction under Article 142(1) of the Constitution

of India is an ancillary issue to be decided;
3. There is a difference between existence of a power, and exercise of
that power in a given case. Existence of power is generally a matter
of law, whereas exercise of power is a mixed question of law and
facts. Even when the power to pass a decree of divorce by mutual
consent exists and can be exercised by this Court under Article
142(1) of the Constitution of India, when and in which of the cases
the power should be exercised to do ‘complete justice’ in a ‘cause
or matter’ is an issue that has to be determined independent of
existence of the power. This discretion has to be exercised on the
basis of the factual matrix in the particular case, evaluated on
objective criteria and factors, without ignoring the objective of the
statutory provisions. [Para 20]
4. Section 13-B of the Hindu Marriage Act does not impose any fetters
on the powers of this Court to grant a decree of divorce by mutual
consent on a joint application, when the substantive conditions of
the Section are fulfilled and the Court, after referring to the factors
mentioned above, is convinced and of the opinion that the decree
of divorce should be granted. [Para 21]
5. The legislature and the Courts treat matrimonial litigations as
a special, if not a unique category. Public policy underlying the
legislations dealing with family and matrimonial matters is to
encourage mutual settlement, as is clearly stated in Section 89 of
the C.P.C., Section 23(2) of the Hindu Marriage Act, and Section
9 of the Family Courts Act, 1984. Given that there are multiple
legislations governing different aspects, even if the cause of dispute is
identical or similar, most matrimonial disputes lead to a miscellany
of cases including criminal cases, at times genuine, and on other
occasions initiated because of indignation, hurt, anger or even
misguided advice to teach a lesson. The multiplicity of litigations can
restrict and block solutions, as a settlement has to be holistic and
comprehensive, given that the objective and purpose is to enable the
parties to cohabit and live together, or if they decide to part ways,
to have a new beginning and settle down to live peacefully. The
courts must not encourage matrimonial litigation, and prolongation
of such litigation is detrimental to both the parties who lose their
young age in chasing multiple litigations. Thus, adopting a hyper-
 SHILPA SAILESH v. VARUN SREENIVASAN 1989

technical view can be counter-productive as pendency itself causes

pain, suffering and harassment and, consequently, it is the duty
of the court to ensure that matrimonial matters are amicably
resolved, thereby bringing the agony, affliction, and torment to an
end. In this regard, the courts only have to enquire and ensure that
the settlement between the parties is achieved without pressure,
force, coercion, fraud, misrepresentation, or undue influence, and
that the consent is indeed sought by free will and choice, and the
autonomy of the parties is not compromised. In view of the above
legal position and discussion, Supreme Court, on the basis of
settlement between the parties, while passing a decree of divorce
by mutual consent, can set aside and quash other proceedings and
orders, including criminal cases and First Information Report(s),
provided the conditions, as specified in the various judgments, are
satisfied. [Para 22]
6. This Court, in view of settlement between the parties, has the
discretion to dissolve the marriage by passing a decree of divorce by
mutual consent, without being bound by the procedural requirement
to move the second motion. This power should be exercised with
care and caution, keeping in mind the factors stated in Amardeep
Singh and Amit Kumar. This Court can also, in exercise of power
under Article 142(1) of the Constitution of India, quash and set
aside other proceedings and orders, including criminal proceedings.
[Para 42]

Whether this Court can grant divorce in exercise of power under

Article 142(1) of the Constitution of India when there is complete
and irretrievable breakdown of marriage in spite of the other spouse
opposing the prayer.
7. This Court would not read the provisions of the Hindu Marriage
Act, their underlying intent, and any fundamental specific issue of
public policy, as barring this Court from dissolving a broken and
shattered marriage in exercise of the Constitutional power under
Article 142(1) of the Constitution of India. If at all, the underlying
fundamental issues of public policy, as explained in the judgments
of V. Bhagat, Ashok Hurra, and Naveen Kohli, support the view
that it would be in the best interest of all, including the individuals
involved, to give legality, in the form of formal divorce, to a dead
marriage, otherwise the litigation(s), resultant sufferance, misery
1990 SUPREME COURT REPORTS [2023] 5 S.C.R. 165

and torment shall continue. Therefore, apportioning blame and

greater fault may not be the rule to resolve and adjudicate the
dispute in rare and exceptional matrimonial cases, as the rules of
evidence under the Evidence Act are rules of procedure. When the
life-like situation is known indubitably, the essence and objective
behind section 13(1)(i-a) of the Hindu Marriage Act that no spouse
should be subjected to mental cruelty and live in misery and pain
is established. These rules of procedure must give way to ‘complete
justice’ in a ‘cause or matter’. Fault theory can be diluted by this
Court to do ‘complete justice’ in a particular case, without breaching
the self-imposed restraint applicable when this Court exercises
power under Article 142(1) of the Constitution of India. [Para 30]
8. It is clearly stated that grant of divorce on the ground of irretrievable
breakdown of marriage by this Court is not a matter of right, but
a discretion which is to be exercised with great care and caution,
keeping in mind several factors ensuring that ‘complete justice’ is
done to both parties. It is obvious that this Court should be fully
convinced and satisfied that the marriage is totally unworkable,
emotionally dead and beyond salvation and, therefore, dissolution
of marriage is the right solution and the only way forward. That
the marriage has irretrievably broken down is to be factually
determined and firmly established. For this, several factors are to
be considered such as the period of time the parties had cohabited
after marriage; when the parties had last cohabited; the nature
of allegations made by the parties against each other and their
family members; the orders passed in the legal proceedings from
time to time, cumulative impact on the personal relationship;
whether, and how many attempts were made to settle the disputes
by intervention of the court or through mediation, and when the
last attempt was made, etc. The period of separation should be
sufficiently long, and anything above six years or more will be a
relevant factor. But these facts have to be evaluated keeping in
view the economic and social status of the parties, including their
educational qualifications, whether the parties have any children,
their age, educational qualification, and whether the other spouse
and children are dependent, in which event how and in what manner
the party seeking divorce intends to take care and provide for the
spouse or the children. Question of custody and welfare of minor
children, provision for fair and adequate alimony for the wife, and
 SHILPA SAILESH v. VARUN SREENIVASAN 1991

economic rights of the children and other pending matters, if any,

are relevant considerations. This Court would not like to codify the
factors so as to curtail exercise of jurisdiction under Article 142(1)
of the Constitution of India, which is situation specific. Some of
the factors mentioned can be taken as illustrative, and worthy of
consideration. [Para 33]
9. This Court, in exercise of power under Article 142(1) of the
Constitution of India, has the discretion to dissolve the marriage
on the ground of its irretrievable breakdown. This discretionary
power is to be exercised to do ‘complete justice’ to the parties,
wherein this Court is satisfied that the facts established show that
the marriage has completely failed and there is no possibility that
the parties will cohabit together, and continuation of the formal
legal relationship is unjustified. The Court, as a court of equity,
is required to also balance the circumstances and the background
in which the party opposing the dissolution is placed. [Para 42]
10. This Court is of the opinion that the decisions of this Court in
Manish Goel , Neelam Kumar , Darshan Gupta , Hitesh Bhatnagar,
Savitri Pandey and others have to be read down in the context
of the power of this Court given by the Constitution of India to
do ‘complete justice’ in exercise of the jurisdiction under Article
142(1) of the Constitution of India. In consonance with our findings
on the scope and ambit of the power under Article 142(1) of the
Constitution of India, in the context of matrimonial disputes
arising out of the Hindu Marriage Act, this Court hold that the
power to do ‘complete justice’ is not fettered by the doctrine of
fault and blame, applicable to petitions for divorce under Section
13(1)(i-a) of the Hindu Marriage Act. As held above, this Court’s
power to dissolve marriage on settlement by passing a decree of
divorce by mutual consent, as well as quash and set aside other
proceedings, including criminal proceedings, remains and can be
exercised. [Para 40]
11. Lastly, this Court must express its opinion on whether a party
can directly canvass before this Court the ground of irretrievable
breakdown by filing a writ petition under Article 32 of the
Constitution. In Poonam v. Sumit Tanwar, a two judges’ bench of
this Court has rightly held that any such attempt must be spurned
and not accepted, as the parties should not be permitted to file a
1992 SUPREME COURT REPORTS [2023] 5 S.C.R. 165

writ petition under Article 32 of the Constitution of India, or for

that matter under Article 226 of the Constitution of India before
the High Court, and seek divorce on the ground of irretrievable
breakdown of marriage. The reason is that the remedy of a person
aggrieved by the decision of the competent judicial forum is to
approach the superior tribunal/forum for redressal of his/her
grievance. The parties should not be permitted to circumvent the
procedure by resorting to the writ jurisdiction under Article 32
or 226 of the Constitution of India, as the case may be. Secondly,
and more importantly, relief under Article 32 of the Constitution
of India can be sought to enforce the rights conferred by Part
III of the Constitution of India, and on the proof of infringement
thereof. Judicial orders passed by the court in, or in relation to,
the proceedings pending before it, are not amenable to correction
under Article 32 of the Constitution of India. Therefore, a party
cannot file a writ petition under Article 32 of the Constitution of
India and seek relief of dissolution of marriage directly from this
Court. [Para 41]

M. Siddiq (Dead) Through Legal Representatives (Ram

Janmabhumi Temple Case) v. Mahant Suresh Das and Others
(2020) 1 SCC 1 : [2019] 18 SCR 1; Prem Chand Garg and
Another v. The Excise Commissioner, U.P. and Others AIR
1963 SC 996 : [1963] Suppl. SCR 885; Supreme Court Bar
Association v. Union of India and Another (1998) 4 SCC
409 : [1998] 2 SCR 795 – followed.
Union Carbide Corporation and Others v. Union of India
and Others (1991) 4 SCC 584 : [1991] 1 Suppl. SCR 251;
Amardeep Singh v. Harveen Kaur (2017) 8 SCC 746 :
[2017] 8 SCR 925; Amit Kumar v. Suman Beniwal (2021)
SCC Online SC 1270 – relied on.
Poonam v. Sumit Tanwar (2010) 4 SCC 460 : [2010] 3 SCR
557 – affirmed.
Manish Goel v. Rohini Goel (2010) 4 SCC 393 : [2010]
2 SCR 414; Anjana Kishore v. Puneet Kishore (2002) 10
SCC 194; Pradip Chandra Parija and Others v. Pramod
Chandra Patnaik and Others (2002) 1 SCC 1 : [2001]
 SHILPA SAILESH v. VARUN SREENIVASAN 1993

5 Suppl. SCR 460; State (Through Central Bureau of

Investigation) v. Kalyan Singh (Former Chief Minister of
Uttar Pradesh) and Others (2017) 7 SCC 444 : [2017] 6
SCR 946; I. C. Golak Nath and Others v. State of Punjab
and Another AIR 1967 SC 1643 : [1967] SCR 762;
B.S. Joshi and Others v. State of Haryana and Another
(2003) 4 SCC 675 : [2003] 2 SCR 1104; Gian Singh v.
State of Punjab and Another (2012) 10 SCC 303 : [2012]
8 SCR 753; Jitendra Raghuvanshi and Others v. Babita
Raghuvanshi and Another (2013) 4 SCC 58 : [2013] 2 SCR
921; State of Madhya Pradesh v. Laxmi Narayan and Others
(2019) 5 SCC 688 : [2019] 2 SCR 864; N.G. Dastane
v. S. Dastane (1975) 2 SCC 326 : [1975] 3 SCR 967;
V. Bhagat v. D. Bhagat (1994) 1 SCC 337 : [1993] 3 Suppl.
SCR 796; Ashok Hurra v. Rupa Bipin Zaveri (1997) 4 SCC
226 : [1997] 2 SCR 875; Naveen Kohli v. Neelu Kohli
(2006) 4 SCC 558 : [2006] 3 SCR 53; Munish Kakkar v.
Nidhi Kakkar (2020) 14 SCC 657 : [2019] 15 SCR 169;
Sivasankaran v. Santhimeenal 2021 SCC OnLine SC 702;
R. Srinivas Kumar v. R. Shametha (2019) 9 SCC 409 :
[2019] 12 SCR 873; Hitesh Bhatnagar v. Deepa Bhatnagar
(2011) 5 SCC 234 : [2011] 6 SCR 118; Sureshta Devi v.
Om Prakash (1991) 2 SCC 25 : [1991] 1 SCR 274; Smruti
Pahariya v. Sanjay Pahariya (2009) 13 SCC 338 : [2009] 8
SCR 631; Shyam Sundar Kohli v. Sushma Kohli Alias Satya
Devi (2004) 7 SCC 747; Darshan Gupta v. Radhika Gupta
(2013) 9 SCC 1 : [2013] 10 SCR 937; Gurbux Singh v.
Harminder Kaur (2010) 14 SCC 301 : [2010] 12 SCR 275;
Neelam Kumar v. Dayarani (2010) 13 SCC 298; Satish
Sitole v. Ganga (2008) 7 SCC 734 : [2008] 10 SCR 767;
Vishnu Dutt Sharma v. Manju Sharma (2009) 6 SCC 379 :
[2009] 3 SCR 891; Savitri Pandey v. Prem Chandra Pandey
(2002) 2 SCC 73 : [2002] 1 SCR 50; Jorden Diengdeh v.
S.S. Chopra (1985) 3 SCC 62 : [1985] 1 Suppl. SCR 704
– referred to.
Horton v. Horton [1940] P.187; Owens v. Owens (2018)
UKSC 41 – referred to.
 [2023] 8 S.C.R. 581

KAUSHAL KISHOR
v.
STATE OF UTTAR PRADESH & ORS.
(Writ Petition (Criminal) No. 113 of 2016)

JANUARY 03, 2023

[S. ABDUL NAZEER, B. R. GAVAI, A. S. BOPANNA,

V. RAMASUBRAMANIAN* AND B. V. NAGARATHNA, JJ.]

Constitution of India – Arts. 19(1)(a) and 19(2) – Are the grounds specified
in Article 19(2) in relation to which reasonable restrictions on the right to
free speech can be imposed by law, exhaustive, or can restrictions on the
right to free speech be imposed on grounds not found in Article 19(2) by
invoking other fundamental rights – Held: The grounds lined up in Art.19(2)
for restricting the right to free speech are exhaustive – Under the guise of
invoking other fundamental rights or under the guise of two fundamental
rights staking a competing claim against each other, additional restrictions
not found in Article 19(2), cannot be imposed on the exercise of the right
conferred by Article 19(1)(a) upon any individual.
Constitution of India – Arts. 19 and 21 – Can a fundamental right
under Article 19 or 21 be claimed other than against the ‘State’ or its
instrumentalities – Held (per V. Ramasubramanian, J.) (for S. Abdul Nazeer,
B.R. Gavai and A.S. Bopanna, JJ., and himself): A fundamental right under
Article 19/21 can be enforced even against persons other than the State or its
instrumentalities – Held (per B.V. Nagarathna, J.): The rights in the realm
of common law, which may be similar or identical in their content to the
Fundamental Rights under Article 19/21, operate horizontally – However,
the Fundamental Rights under Arts. 19 and 21, may not be justiciable
horizontally before the Constitutional Courts except those rights which have
been statutorily recognised and in accordance with the applicable law –
However, they may be the basis for seeking common law remedies – But a
remedy in the form of writ of Habeas Corpus, if sought against a private
person on the basis of Article 21 can be before a Constitutional Court i.e.,
by way of Article 226 before the High Court or Article 32 read with Article
142 before the Supreme Court.
Constitution of India – Art. 21 – Whether the State is under a duty to

1994
 KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 1995

affirmatively protect the rights of a citizen under Art.21 even against a

threat to the liberty of a citizen by the acts or omissions of another citizen or
private agency – Held (per V. Ramasubramanian, J.) (for S. Abdul Nazeer,
B.R. Gavai and A.S. Bopanna, JJ., and himself): The State is under a duty
to affirmatively protect the rights of a person under Article 21, whenever
there is a threat to personal liberty, even by a non-State actor – Held (per
B.V. Nagarathna, J.): The duty cast upon the State under Article 21 is a
negative duty not to deprive a person of his life and personal liberty except
in accordance with law – The State has an affirmative duty to carry out
obligations cast upon it under statutory and constitutional law, which
are based on the Fundamental Right guaranteed under Article 21 of the
Constitution – Such obligations may require interference by the State where
acts of a private actor may threaten the life or liberty of another individual
–Failure to carry out the duties enjoined upon the State under statutory law
to protect the rights of a citizen, could have the effect of depriving a citizen
of his right to life and personal liberty – When a citizen is so deprived of
his right to life and personal liberties, the State would have breached the
negative duty cast upon it under Art.21.
Doctrines / Principles – Principle of Collective Responsibility – Can
a statement made by a Minister, traceable to any affairs of State or for
protecting the Government, be attributed vicariously to the Government
itself, especially in view of the principle of Collective Responsibility –
Held (per V. Ramasubramanian, J.) (for S. Abdul Nazeer, B.R. Gavai and
A.S. Bopanna, JJ., and himself) : A statement made by a Minister even if
traceable to any affairs of the State or for protecting the Government, cannot
be attributed vicariously to the Government by invoking the principle of
collective responsibility – Held (per B.V. Nagarathna, J.): A statement made
by a Minister if traceable to any affairs of the State or for protecting the
Government, can be attributed vicariously to the Government by invoking
the principle of collective responsibility, so long as such statement represents
the view of the Government also – If such a statement is not consistent with
the view of the Government, then it is attributable to the Minister personally.
Tort – Constitutional Tort – Whether a statement by a Minister,
inconsistent with the rights of a citizen under Part III of the Constitution,
constitutes a violation of such constitutional rights and is actionable as
‘Constitutional Tort” – Held (per V. Ramasubramanian, J.) (for S. Abdul
Nazeer, B.R. Gavai and A.S. Bopanna, JJ., and himself) : A mere statement
1996 SUPREME COURT REPORTS [2023] 8 S.C.R. 581

made by a Minister, inconsistent with the rights of a citizen under Part III of
the Constitution, may not constitute a violation of the constitutional rights
and become actionable as Constitutional tort – But if as a consequence
of such a statement, any act of omission or commission is done by the
officers resulting in harm or loss to a person/citizen, then the same may
be actionable as a constitutional tort – Held (Per B.V. Nagarathna, J.): A
proper legal framework is necessary to define the acts or omissions which
would amount to constitutional tort and the manner in which the same would
be redressed or remedied on the basis of judicial precedent.

Answering the Reference, the Court

Per V. Ramasubramanian, J. (For S. Abdul Nazeer, B.R. Gavai,
and A.S. Bopanna, JJ. and himself) (Majority opinion)

HELD:
1. The restrictions under clause (2) of Article 19 are comprehensive
enough to cover all possible attacks on the individual, groups/classes
of people, the society, the court, the country and the State. This is
why this Court repeatedly held that any restriction which does not
fall within the four corners of Article 19(2) will be unconstitutional.
[Para 28]
2. That the Executive cannot transgress its limits by imposing an
additional restriction in the form of Executive or Departmental
instruction was emphasised by this Court in Bijoe Emmanuel
vs. State of Kerala. The Court made it clear that the reasonable
restrictions sought to be imposed must be through “a law”
having statutory force and not a mere Executive or Departmental
instruction. The restraint upon the Executive not to have a back-door
intrusion applies equally to Courts. While Courts may be entitled
to interpret the law in such a manner that the rights existing in
blue print have expansive connotations, the Court cannot impose
additional restrictions by using tools of interpretation. [Para 29]
3. Since the eight heads of restrictions contained in clause (2) of Article
19 seek to protect: (i) the individual – against the infringement of
his dignity, reputation, bodily autonomy and property; (ii) different
sections of society professing and practicing, different religious
 KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 1997

beliefs/sentiments against offending their beliefs and sentiments;

(iii) classes/groups of citizens belonging to different races, linguistic
identities etc.­ against an attack on their identities; (iv) women
and children – against the violation of their special rights; (v) the
State against the breach of its security; (vi) the country against an
attack on its sovereignty and integrity; (vii) the Court – against an
attempt to undermine its authority, and therefore the restrictions
contained in clause (2) of Article 19 are exhaustive and no further
restriction need to be incorporated. [Para 32]
4. In any event, the law imposing any restriction in terms of clause (2)
of Article 19 can only be made by the State and not by the Court.
The role envisaged in the Constitutional scheme for the Court, is
to be a gate­keeper (and a conscience keeper) to check strictly the
entry of restrictions, into the temple of fundamental rights. The
role of the Court is to protect fundamental rights limited by lawful
restrictions and not to protect restrictions and make the rights
residual privileges. Clause (2) of Article 19 saves (i) the operation
of any existing law; and (ii) the making of any law by the State.
Therefore, it is not for the court to add one or more restrictions
than what is already found. [Para 33]
5. The exercise of all fundamental rights by all citizens is possible
only when each individual respects the other person’s rights. This
Court has always struck a balance whenever it was found that the
exercise of fundamental rights by an individual, caused inroads
into the space available for the exercise of fundamental rights
by another individual. The emphasis even in the Preamble on
“fraternity” is an indication that the survival of all fundamental
rights and the survival of democracy itself depends upon mutual
respect, accommodation and willingness to co­exist in peace and
tranquility on the part of the citizens. The Fundamental Duty
enjoined upon every citizen of the country under Article 51­A(e) to
“promote harmony and the spirit of common brotherhood amongst
all the people of India transcending religious, linguistic and regional
or sectional diversities and to renounce practices derogatory to the
dignity of women”, is also an indicator that no one can exercise his
fundamental right in a manner that infringes upon the fundamental
right of another. [Para 40]
1998 SUPREME COURT REPORTS [2023] 8 S.C.R. 581

6. The grounds lined up in Article 19(2) for restricting the right

to free speech are exhaustive. Under the guise of invoking other
fundamental rights or under the guise of two fundamental rights
staking a competing claim against each other, additional restrictions
not found in Article 19(2), cannot be imposed on the exercise of the
right conferred by Article 19(1)(a) upon any individual. [Para 45]
7. Wherever Constitutional rights regulate and impact only the
conduct of the Government and Governmental actors, in their
dealings with private individuals, they are said to have “a verti-
cal effect”. But wherever Constitutional rights impact even the
relations between private individuals, they are said to have “a
horizontal effect”. [Para 47]
8. After defining the expression “the State” in Article 12 and after
declaring all laws inconsistent with or in derogation of the fun-
damental rights to be void under Article 13, Part ­III of the Con-
stitution proceeds to deal with rights. There are some Articles in
Part­III where the mandate is directly to the State and there are
other Articles where without injuncting the State, certain rights
are recognized to be inherent, either in the citizens of the country
or in persons. In fact, there are two sets of dichotomies that are
apparent in the Articles contained in Part III. One set of dichotomy
is between (i) what is directed against the State; and (ii) what is
spelt out as inhering in every individual without reference to the
State. The other dichotomy is between (i) citizens; and (ii) persons.
The Articles of Part-III are in the form of a directive to the State,
while others are not. This is an indication that some of the rights
conferred by Part ­III are to be honored by and also enforceable
against, non­-State actors. [Para 73, 74]
9. The original thinking of this Court that these rights can be enforced
only against the State, changed over a period of time. The trans-
formation was from “State” to “Authorities” to “instrumentalities
of State” to “agency of the Government” to “impregnation with
Governmental character” to “enjoyment of monopoly status con-
ferred by State” to “deep and pervasive control” to the “nature of
the duties/functions performed”. Therefore “A fundamental right
under Article 19/21 can be enforced even against persons other
than the State or its instrumentalities”. [Para 78]
 KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 1999

10. The expression “the State” is not used in Article 21. This Article
21 guarantees every person that he shall not be deprived of his
life and liberty except according to the procedure established by
law. Going by the scheme of Part ­III it is clear that the State has
two obligations, (i) not to deprive a person of his life and liberty
except according to procedure established by law; and (ii) to ensure
that the life and liberty of a person is not deprived even otherwise.
Article 21 does not say “the State shall not deprive a person of his
life and liberty”, but says that “no person shall be deprived of his
life or personal liberty”. [Para 81]
11. The understanding of this Court in A.K. Gopalan, that deprivation
of personal liberty required a physical restraint, underwent
a change in Kharak Singh and Gobind . From there, the law
marched to the next stage in Satwant Singh Sawhney vs. D.
Ramarathnam, Assistant Passport Officer, New Delhi where a
Constitution Bench of this Court held by a majority, that the right
to personal liberty included the right of locomotion and right to
travel abroad. It was held in the said decision that “liberty” in our
Constitution bears the same comprehensive meaning as is given
to the expression “liberty” by the 5th and 14th Amendments to
the U.S. Constitution and the expression “personal liberty” in
Article 21 only excludes the ingredients of “liberty” enshrined
in Article 19 of the Constitution. The Court went on to hold
that “the expression “personal liberty” in Art. 21 takes in the
right of loco­motion and to travel abroad, but the right to move
throughout the territories of India is not covered by it inasmuch
as it is specially provided in Art. 19. [Para 88]
12. Technological eavesdropping except in accordance with the
procedure established by law was frowned upon by the Court.
This was at a time when mobile phones had not become the order
of the day and the State monopoly was yet to be replaced by
private players such as intermediaries/service providers. Today, the
infringement of the right to privacy is mostly by private players
and if fundamental rights cannot be enforced against non-­State
actors, this right will go for a toss. [Para 97]
13. The expression “collective responsibility” can be traced to some
extent, to Article 75(3) insofar as the Union is concerned and to
2000 SUPREME COURT REPORTS [2023] 8 S.C.R. 581

Article 164(2) insofar as the States are concerned. But in both the
Articles, it is the Council of Ministers who are stated to be collectively
responsible to the House of the People/Legislative Assembly of the
State. Generally collective responsibility of the Council of Ministers
either to the House of the People or to the Assembly should be
understood to correlate to the decisions and actions of the Council
of Ministers and not to every statement made by every individual
Minister. [Para 112]
14. What follows from the discussion is, (i) that the concept of
collective responsibility is essentially a political concept; (ii) that
the collective responsibility is that of the Council of Ministers; and
(iii) that such collective responsibility is to the House of the People/
Legislative Assembly of the State. Generally, such responsibility
correlates to (i) the decisions taken; and (ii) the acts of omission
and commission done. It is not possible to extend this concept of
collective responsibility to any and every statement orally made by
a Minister outside the House of the People/Legislative Assembly.
A statement made by a Minister even if traceable to any affairs of
the State or for protecting the Government, cannot be attributed
vicariously to the Government by invoking the principle of collective
responsibility. [Para 126, 137]
15. This Court and the High Courts have been consistent in invoking
Constitutional tort whenever an act of omission and commission
on the part of a public functionary, including a Minister, caused
harm or loss. But the matter pre-eminently deserves a proper legal
framework so that the principles and procedure are coherently set
out without leaving the matter open ended or vague. In fact, the
First Report of the Law Commission submitted a draft bill way
back in 1956. This Court recommended a legislative measure in
Kasturi Lal in 1965 and a bill called Government (Liability in Torts)
Bill was introduced in 1967. But nothing happened in the past 55
years. In such circumstances, courts cannot turn a blind eye but
may have to imaginatively fashion the remedy to be provided to
persons who suffer injury or loss, without turning them away on
the ground that there is no proper legal frame work. Therefore,
“A mere statement made by a Minister, inconsistent with the rights
of a citizen under Part I­II of the Constitution, may not constitute
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 2001

a violation of the constitutional rights and become actionable as

Constitutional tort. But if as a consequence of such a statement,
any act of omission or commission is done by the officers resulting
in harm or loss to a person/citizen, then the same may be actionable
as a constitutional tort”. [Para 153, 154]

Sahara India Real Estate Corporation Limited v. Securities

and Exchange Board of India (2012) 10 SCC 603 : [2012]
12 SCR 256; Justice K.S. Puttaswamy v. Union of India
(2017) 10 SCC 1 : [2017] 10 SCR 569; A. Sanjeevi Naidu v.
State of Madras (1970) 1 SCC 443 : [1970] 3 SCR 505 and
State of Karnataka v. Union of India. (1977) 4 SCC 608 :
[1978] 2 SCR 1 – followed.

Express Newspapers (Private) Ltd. v. The Union of India

[1959] SCR 12; Sakal Papers (P) Ltd. v. The Union of
India [1962] 3 SCR 842; Bijoe Emmanuel v. State of Kerala
(1986) 3 SCC 615 : [1986] 3 SCR 518; Ram Jethmalani
v. Union of India (2011) 8 SCC 1 : [2011] 8 SCR 725;
Secretary, Ministry of Information & Broadcasting, Govt.
of India v. Cricket Association of Bengal (1995) 2 SCC
161 : [1995] 1 SCR 1036; Ramlila Maidan Incident, in re.
(2012) 5 SCC 1 : [2012] 4 SCR 971; R. Rajagopal alias R.
R. Gopal v. State of T.N (1994) 6 SCC 632 : [1994] 4 Suppl.
SCR 353; People’s Union for Civil Liberties (PUCL) v.
Union of India (2003) 4 SCC 399 : [2003] 2 SCR 1136;
Noise Pollution (V.), in Re (2005) 5 SCC 733 : [2005] 1
Suppl. SCR 624; Thalappalam Service Cooperative
Bank Ltd. v. State of Kerala (2013) 16 SCC 82 : [2013]
14 SCR 475; Subramanian Swamy v. Union of India,
Ministry of Law (2016) 7 SCC 221 : [2016] 3 SCR 865;
Asha Ranjan v. State of Bihar (2017) 4 SCC 397 : [2017] 1
SCR 945; Railway Board representing the Union of India
v. Niranjan Singh (1969) 1 SCC 502 : [1969] 3 SCR 548;
Life Insurance Corporation of India v. Prof. Manubhai D.
Shah (1992) 3 SCC 637 : [1992] 3 SCR 595; S. Krishnan
v. State of Madras AIR 1951 SC 301 : [1951] SCR 621;
Pt. Parmanand Katara v. Union of India (1989) 4 SCC
2002 SUPREME COURT REPORTS [2023] 8 S.C.R. 581

286 : [1989] 3 SCR 997; Shakti Vahini v. Union of India

& Ors. (2018) 7 SCC 192 : [2018] 3 SCR 770; R.K. Jain
v. Union of India (1993) 4 SCC 119 : [1993] 3 SCR 802;
Secretary, Jaipur Development Authority, Jaipur v. Daulat
Mal Jain (1997) 1 SCC 35 : [1996] 6 Suppl. SCR 584;
Vineet Narain v. Union of India (1998) 1 SCC 226 : [1997]
6 Suppl. SCR 595; Common Cause, A Registered Society v.
Union of India (1999) 6 SCC 667 : [1999] 3 SCR 1279 and
State (NCT of Delhi) v. Union of India (2018) 8 SCC 501 :
[2018] 7 SCR 1 – relied on.

Amish Devgan v. Union of India (2021) 1 SCC 1 –

distinguished.

Romesh Thappar v. State of Madras AIR 1950 SC 124 :

[1950] SCR 594; Rustom Cavasjee Cooper v. Union of
India (1970) 1 SCC 248 : [1970] 3 SCR 530; Satwant Singh
Sawhney v. D. Ramarathna m, Assistant Passport Officer,
New Delhi AIR 1967 SC 1836 : [1967] 2 SCR 525; Maneka
Gandhi v. Union of India (1978) 1 SCC 248 : [1978] 2
SCR 621; Bandhua Mukti Morcha v. Union of India & Ors.
(1984) 3 SCC 161 : [1984] 2 SCR 67; National Human
Rights Commission v. State of Arunachal Pradesh & Anr.
(1996) 1 SCC 742 : [1996] 1 SCR 278; Mr. ‘X’ v. Hospital
‘Z’ (1998) 8 SCC 296 : [1998] 1 Suppl. SCR 723; People’s
Union for Civil Liberties (PUCL) v. Union of India (1997)
1 SCC 301 : [1996] 10 Suppl. SCR 321; M/s. Kasturi Lal
Ralia Ram Jain v. The State of Uttar Pradesh, AIR 1965
SC 1039 : [1965] 1 SCR 375; State of Rajasthan v. Mst.
Vidhyawati AIR 1962 SC 933 : [1962] Suppl. SCR 989;
Rudul Sah v. State of Bihar (1983) 4 SCC 141 : [1983]
3 SCR 508; Nilabati Behera (Smt.) Alias Lalita Behera
(Through the Supreme Court Legal Aid Committee) v. State
of Orissa (1993) 2 SCC 746 : [1993] 2 SCR 581; Jumuna
Prasad Mukhariya v. Lachhi Ram [1955] 1 SCR 608;
People’s Union for Democratic Rights v. Union of India
(1982) 3 SCC 235 : [1983] 1 SCR 456; Bodhisattwa Gautam
v. Subhra Chakraborty (Ms.) (1996) 1 SC 490 : [1995] 6
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 2003

Suppl. SCR 731; M. C. Mehta v. Kamal Nath (2000) 6

SCC 213 : [2000] 1 Suppl. SCR 389; P. D. Shamdasani v.
Central Bank of India Ltd. [1952] SCR 391; State of West
Bengal v. Committee for Protection of Democratic Rights,
West Bengal (2010) 3 SCC 571 : [2010] 2 SCR 979; S.
Rangarajan v. P. Jagjivan Ram (1989) 2 SCC 574 : [1989]
2 SCR 204; Union of India v. K.M. Shankarappa (2001)
1 SCC 582 : [2000] 5 Suppl. SCR 117; Indibly Creative
Private Limited v. Government of West Bengal (2020) 12
SCC 436 : [2019] 5 SCR 679; State of Maharashtra vs.
Sarangdharsingh Shivdassingh Chavan (2011) 1 SCC
577 : [2010] 15 SCR 1145; Manoj Narula v. Union of India
(2014) 9 SCC 1 : [2014] 9 SCR 965; R. Sai Bharathi v. J.
Jayalalitha (2004) 2 SCC 9 : [2003] Suppl. SCR 85; Praga
Tools Corporation v. Shri C.A. Imanual (1969) 1 SCC 585 :
[1969] 3 SCR 773; Andi Mukta Sadguru Shree Muktajee
Vandas Swami Suvarna Jayanti Mahotasav Smarak Trust
v. V. R. Rudani (1989) 2 SCC 691 : [1989] 2 SCR 697; M.
C. Mehta v. Union of India AIR 1987 SC 1086 : [1987]
1 SCR 819; Binny Ltd. v. V. Sadasivan (2005) 6 SCC 657 :
[2005] 2 Suppl. SCR 421; Society for Unaided Private
Schools of Rajasthan v. Union of India (2012) 6 SCC 1 :
[2012] 2 SCR 715; Pravasi Bhalai Sangathan v. Union of
India (2014) 11 SCC 477 : [2014] 4 SCR 446; Kodungallur
Film Society v. Union of India (2018) 10 SCC 713 : [2018]
12 SCR 695; Brij Bhushan v. The State of Delhi AIR 1950
SC 129 : [1950] SCR 605; State of Madras v. V. G. Row
(1952) 1 SCC 410; Smt. Vidya Varma v. Dr. Shiv Narain
Varma AIR 1956 SC 108 : [1955] 2 SCR 983; Sukhdev
Singh v. Bhagatram Sardar Singh Raghuvanshi (1975)
1 SCC 421 : [1975] 3 SCR 619; Lucknow Development
Authority v. M.K. Gupta (1994) 1 SCC 243 : [1993] 3
Suppl. SCR 615; Chairman, Railway Board & Ors. v.
Chandrima Das (Mrs.) & Ors. (2000) 2 SCC 465 : [2000]
1 SCR 480; M. C. Mehta v. Kamal Nath (1997) 1 SCC
388 : [1996] 10 Suppl. SCR 12; Vellore Citizens’ Welfare
Forum v. Union of India (1996) 5 SCC 647 : [1996] 5
Suppl. SCR 241; Indian Council for Enviro-Legal Action
2004 SUPREME COURT REPORTS [2023] 8 S.C.R. 581

v. Union of India (1996) 3 SCC 212 : [1996] 2 SCR 503;

Consumer Education & Research Centre & Ors. v. Union of
India & Ors. (1995) 3 SCC 42 : [1995] 1 SCR 626; Vishaka
v. State of Rajasthan (1997) 6 SCC 241 : [1997] 3 Suppl.
SCR 404; Medha Kotwal Lele & Ors. v. Union of India
(2013) 1 SCC 297 : [2012] 9 SCR 895; Githa Hariharan
(Ms.) & Anr. v. Reserve Bank of India & Anr. (1999) 2 SCC
228 : [1999] 1 SCR 669; Indian Medical Association v.
Union of India (2011) 7 SCC 179 : [2011] 6 SCR 599;
Jeeja Ghosh v. Union of India (2016) 7 SCC 761 : [2016]
4 SCR 638; Zee Telefilms Ltd. v. Union of India (2005)
4 SCC 649 : [2005] 1 SCR 913; Janet Jeyapaul v. SRM
University (2015) 16 SCC 530 76; A. K. Gopalan v. State of
Madras AIR 1950 SC 27 : [1950] SCR 88; R. D. Shetty v.
International Airport Authority (1979) 3 SCC 489 : [1979]
3 SCR 1014; Andi Mukta v. V. R. Rudani (1989) 2 SCC
691 : [1989] 2 SCR 697; Siddharam Satlingappa Mhetre
v. State of Maharashtra (2011) 1 SCC 694 : [2010] 15
SCR 201; Kharak Singh v. State of U.P. AIR 1963 SC 1295
: [1964] 1 SCR 332; Mohd. Arif Alias Ashfaq v. Registrar,
Supreme Court of India & Ors. (2014) 9 SCC 737 : [2014]
11 SCR 1009; Gobind v. State of Madhya Pradesh (1975) 2
SCC 148 : [1975] 3 SCR 946; Suchita Srivastava & Anr. v.
Chandigarh (2009) 9 SCC 1 : [2009] 13 SCR 989; Devika
Biswas v. Union of India (2016) 10 SCC 726; District
Registrar and Collector, Hyderabad & Anr. v. Canara Bank
& Ors. (2005) 1 SCC 496 : [2004] 5 Suppl. SCR 833;
Indian Woman says Gang-raped on orders of village Court
published in Business and Financial News dated 23-1-2014,
in Re (2014) 4 SCC 786 : [2014] 4 SCR 264; Lata Singh v.
State of U.P. (2006) 5 SCC 475 : [2006] 3 Suppl. SCR 350;
Arumugam Servai v. State of Tamil Nadu (2011) 6 SCC 405
: [2011] 5 SCR 488; The State of Bihar v. Abdul Majid AIR
1954 SC 245 : [1954] SCR 786 and Khatri (II) vs. State of
Bihar (1981) 1 SCC 627 : [1981] 2 SCR 408 – referred to.

John Meskell v. Córas Iompair Éireann 1973 IR 121 1972

IR 330; Murtagh Properties Limited v. Cleary 121 1972 IR
 KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 2005

330; Shelly v. Kraemer 334 U.S. 1 (1948); Lûth Luth (1958)

BVerfGE 7, 198; Gitlow v. New York 286 US 652 (1925);
“Civil Rights Cases” 109 US 3 (1883); Jones v. Alfred H.
Mayer Co 392 US 409 (1968); New York Times v. Sullivan
376 U.S. 254 (1964); Du Plessis and Others v. De Klerk
and Another 1996 ZACC 10; Khumalo v. Holomisa (2002)
ZACC 12; Governing Body of the Juma Musjid Primary
School & Others v. Essay N.O. and Others (CCT 29/10)
[2011] ZACC 13; 2011 (8) BCLR 761 (CC); Douglas v.
Hello! Ltd. [2001] QB 967; X v. Y [2004] EWCA Civ 662;
Plattform “Ärzte Für Das Leben” v. Austria [1988] ECHR
15 X and Y v. The Netherlands [1985] ECHR 4 Marsh v.
Alabama 326 US 501 (1946) – referred to.

Anup Surendranath - Article on “Life and Personal Liberty”

in The Oxford Handbook of the Indian Constitution (South
Asia Edition), 2016 and Frances Kamm, Morality, Mortality
Vol.2, Oxford University Press, 1996 – referred to.

Per B. V. NAGARATHNA, J. (Partly dissenting)

HELD:
1. The freedom of speech and expression as envisaged under Article
19(1)(a) of the Constitution means the right to free speech and
to express opinions through various media such as by word of
mouth, through the print or electronic media, through pictographs,
writings, graphics or any other manner that can be discerned by
the mind. The right includes the freedom of press. The content of
this right also includes propagation of ideas through publication
and circulation, the right to seek information and to acquire or
impart ideas. In short, the right to free speech would include every
nature of right that would come within the scope and ambit of free
speech. Hence, Article 19(1)(a) in very broad and in wide terms
states that all citizens shall have the right to freedom of speech
and expression. The said right can be curtailed only by reasonable
restrictions which are enumerated in Article 19(2) thereof which
can be imposed by the State under the authority of law but not by
2006 SUPREME COURT REPORTS [2023] 8 S.C.R. 581

exercise of executive power in the absence of any law. Further, the

nature of restrictions on right to free speech must be reasonable,
and in the interest of the sovereignty and integrity of India, security
of the State, friendly relations with foreign States, public order,
decency or morality or in relation to contempt of court, defamation
or incitement to an offence. (Article 19(2)). For a country like
ours which is a Parliamentary Democracy, freedom of speech
and expression is a necessary right as well as a concomitant for
the purpose of not only ensuring a healthy democracy but also to
ensure that the citizens could be well informed and educated on
governance. The dissemination of information through various
media, including print and electronic media or audio visual form,
is to ensure that the citizens are enlightened about their rights and
duties, the manner in which they should conduct themselves in a
democracy and for enabling a debate on the policies and actions of
the Governments and ultimately for the development of the Indian
society in an egalitarian way. The right to freedom of speech and
expression in Article 19(1)(a) of the Constitution has its genesis in
the Preamble of the Constitution which, inter alia, speaks of liberty
of thought, expression, belief. Since, India is a sovereign democratic
republic and we follow a parliamentary system of democracy, liberty
of thought and expression is a significant freedom and right under
our constitutional setup. [Para 12.3, 12.4, 12.5]
2. The Constitution of India confers under Article 19(1)(a), the right
to freedom of speech and expression to all its citizens. The State
has a corelative duty to abstain from interference with such right
except as provided in Article 19(2) of the Constitution which are
reasonable restrictions on the right conferred under Article 19(1)
(a). The extent of such duty depends upon the content of speech.
For instance, in respect of speech that is likely to be adverse to the
interests of sovereignty and integrity of India, the security of the
State, friendly relations with foreign States, public order, decency or
morality; or speech that constitutes contempt of court, defamation
or is of such nature as would be likely to incite the commission of
an offence, the duty of the State to abstain from interference, is
nil. This principle is Constitutionally reflected under Article 19(2)
which enables the State to enact law which would impose reasonable
 KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 2007

restrictions on such speech as described under eight grounds which

are the basis for reasonable restrictions. [Para 14.1]
3. The extent of protection of speech would depend on whether,
such speech would constitute a ‘propagation of ideas’ or would
have any social value. If the answer to the said question is in the
affirmative, such speech would be protected under Article 19(1)(a);
if the answer is in the negative, such speech would not be protected
under Article 19(1)(a). In respect of speech that does not form the
content of Article 19(1)(a), the State has no duty to abstain from
interference having regard to Article 19(2) of the Constitution and
only the grounds mentioned therein. [Para 14.1]
4. Having noted that the protective perimeter within which a person
can exercise his/her rights depends on the degree to which the
State is duty bound to protect the right, it may also be said as a
corollary that in respect of speech that does not form the content of
Article 19(1)(a), the State has no duty to abstain from interference
and therefore, speech such as hate speech, defamatory speech, etc.
would lie outside the protective perimeter within which a person
can exercise his right to freedom of speech. Such speech can be
subjected to restrictions or restraints. While restrictions on the right
to freedom of speech and expression are required to be made only
under the grounds listed under Article 19(2), by the State, restraints
on the said right, do not gather their strength from Article 19(2).
Restraints on the right to freedom of speech and expression are
governed by the content of Article 19(1)(a) itself; i.e., any kind of
speech, which does not conform to the content of the right under
Article 19(1)(a), may be restrained. Questions pertaining to the
voluntary or binding nature of such restraint, the force behind the
same, the persons on whom such restraints are to be imposed, the
manner in which compliance thereof could be achieved, etc., are
aspects left to be deliberated upon and answered by the Parliament.
However, the finding made hereinabove is only to the extent of
clarifying that any kind of speech, which does not form the content
of Article 19(1)(a), may be restrained as such speech does not
constitute an exchange of ideas, in a manner compatible with the
ethos cultivated in a civilised society. Such restraints need not be
traceable only to Article 19(2), which exhaustively lists eight grounds
2008 SUPREME COURT REPORTS [2023] 8 S.C.R. 581

on which restrictions may be imposed on the right to freedom of

speech and expression by the state. [Para 14.1]
5. Article 19(1)(a) serves as a vehicle through which dissent can be
expressed. The right to dissent, disagree and adopt varying and
individualistic points of view inheres in every citizen of this Country.
In fact, the right to dissent is the essence of a vibrant democracy,
for it is only when there is dissent that different ideas would
emerge which may be of help or assist the Government to improve
or innovate upon its policies so that its governance would have a
positive effect on the people of the country which would ultimately
lead to stability, peace and development which are concomitants
of good governance. [Para 15.2]
6. Equality, liberty and fraternity are the foundational values
embedded in the Preamble of our Constitution. ‘Hate speech’, in
the sense discussed, strikes at each of these foundational values, by
marking out a society as being unequal. It also violates fraternity of
citizens from diverse backgrounds, the sine-qua-non of a cohesive
society based on plurality and multi-culturalism such as in India
that is, Bharat. Democracy, being one of the basic features of our
Constitution, it is implicit that in a rule by majority there would
be a sense of security and inclusiveness. Further, the Preamble
of the Constitution which envisages, inter alia, fraternity, assures
that the dignity of individuals cannot be dented by means of
unwarranted speech being made by fellow citizens, including
public functionaries. Thus, the Preamble of the Constitution and
the values thereof assuring the people of India not only justice,
liberty, equality but also fraternity and unity and integrity of the
nation, must remind every citizen of this Country irrespective of
the office or position or power that is held, of the sublime ideals of
the Constitution and to respect them in their true letter and spirit.
There is an inbuilt constitutional check to ensure that the values
of the Constitution are not in any way undermined or violated.
It is high time that we, as a society in general and as individuals
in particular, re-dedicate ourselves to the sacred values of the
Constitution and promote them not only at our individual level
but at the macro level. Any kind of speech which undermines the
 KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 2009

values for which our Constitution stands would cause a dent on

our social and political values. [Para 26, 27.3]
7. The status of the violator of the right, is also an essential parameter
for distinction between the two rights and corresponding remedies.
Where the interference with a recognized right is by the State
or any other entity recognized under Article 12, a claim for the
violation of a fundamental right would lie under Articles 32 and
226 of the Constitution before this Court or before the High Court
respectively. Where interference is by an entity other than State or
its instrumentalities, an action would lie under common law and
to such extent, the legal scheme recognises horizontal operation of
such rights. Though the content of the Fundamental Right may be
identical under the Constitution with the common law right, it is
only the common law right that operates horizontally except when
those Fundamental Rights have been transformed into statutory
rights under specific enactments or where horizontal operation has
been expressly recognised under the Constitution. [Para 42, 43]
8. Recognising a horizontal approach of Fundamental Rights between
citizens inter se would set at naught and render redundant, all the
tests and doctrines forged by this Court to identify “State” for the
purpose of entertaining claims of fundamental rights violations.
Had the intention of this Court been to allow Fundamental Rights,
including the rights under Articles 19 and 21, to operate horizontally,
this Court would not have engaged in evolving and refining tests
to determine the true meaning and scope of “State” as defined
under Article 12. This Court would have simply entertained claims
of fundamental rights violations against all persons and entities,
without deliberating on fundamental questions as to maintainability
of the writ petitions. Although this Court has significantly expanded
the scope of “State” as defined under Article 12, such expansion is
based on considerations such as the nature of functions performed
by the entity in question and the degree of control exercised over it
by the State as such. This is significantly different from recognising
horizontality of the fundamental rights under Articles 19 and 21,
except while seeking a writ in the nature of habeas corpus. Such a
recognition would amount to disregarding the jurisprudence evolved
by this Court as to the scope of Article 12 of the Constitution.
2010 SUPREME COURT REPORTS [2023] 8 S.C.R. 581

Another aspect that needs consideration is that a Writ Court, does

not ordinarily adjudicate to issue Writs in cases where alternate
and efficacious remedies exist under common law or statutory law
particularly against private persons. Therefore, even if horizontal
operation of the Fundamental Rights under Article 19/21 is
recognised, such recognition would be of no avail because the claim
before a Writ Court of fundamental rights violations would fail on
the ground that the congruent common law right which is identical
in content to the Fundamental Right, may be enforced by having
recourse to common law remedies. Therefore, on the ground that
there exists an alternate and efficacious remedy in common law,
the horizontal claim for fundamental rights violations would fail
before a Writ Court. [Para 43]
9. The duty cast upon the State under Article 21 is a negative duty
not to deprive a person of his life and personal liberty except in
accordance with law. The State has an affirmative duty to carry
out obligations cast upon it under statutory and constitutional law,
which are based on the Fundamental Right guaranteed under Article
21 of the Constitution. Such obligations may require interference
by the State where acts of a private actor may threaten the life
or liberty of another individual. Failure to carry out the duties
enjoined upon the State under statutory law to protect the rights
of a citizen, could have the effect of depriving a citizen of his right
to life and personal liberty. When a citizen is so deprived of his
right to life and personal liberties, the State would have breached
the negative duty cast upon it under Article 21. [Para 44]
10. A statement made by a Minister if traceable to any affairs of
the State or for protecting the Government, can be attributed
vicariously to the Government by invoking the principle of collective
responsibility, so long as such statement represents the view of
the Government also. If such a statement is not consistent with
the view of the Government, then it is attributable to the Minister
personally. [Para 45]
11. A proper legal framework is necessary to define the acts or omissions
which would amount to constitutional tort and the manner in which
the same would be redressed or remedied on the basis of judicial
precedent. Particularly, it is not prudent to treat all cases where a
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 2011

statement made by a public functionary resulting in harm or loss

to a person/citizen, as a constitutional tort, except in the context of
the answer given to Question No. 4 . It is for the Parliament in its
wisdom to enact a legislation or code to restrain, citizens in general
and public functionaries, in particular, from making disparaging
or vitriolic remarks against fellow citizens, having regard to the
strict parameters of Article 19(2) and bearing in mind the freedom
under Article 19(1) (a) of the Constitution of India. [Para 66, 67]

Pravasi Bhalai Sangathan v. Union of India (2014) 11

SC 477 : [2014] 4 SCR 446; K. S. Puttaswamy (Retd.)
v. Union of India (2019) 1 SCC 1 : [2018] 8 SCR 1;
Subramanian Swamy v. Union of India (2016) 7 SCC 221 :
[2016] 3 SCR 865; His Holiness Kesavananda Bharati
Sripadagalvaru v. State of Kerala (1973) 4 SCC 225;
People’s Union for Civil Liberties v. Union of India (2005) 2
SCC 436 : [2005] 1 SCR 494; P. D. Shamdasani v. Central
Bank of India Ltd. A.I.R. 1952 SC 59 : [1952] SCR 391;
Zoroastrian Cooperative Housing Society Limited v.
District Registrar, Cooperative Societies (Urban) (2005)
5 SCC 632 : [2005] 3 SCR 592; Ramakrishna Mission
v. Kago Kunya (2019) 16 SCC 303 : [2019] 5 SCR 452;
Parmanand Katara v. Union of India A.I.R. 1989 SC 2039 :
[1989] 3 SCR 997; National Human Rights Commission v.
State of Arunachal Pradesh (1996) 1 SCC 742 : [1996] 1
SCR 278; Gaurav Kumar Bansal v. Union of India (2015) 2
SCC 130 : [2014] 7 SCR 725 and Swaraj Abhiyan v. Union
of India (2016) 7 SCC 498 – relied on.

Romesh Thappar v. State of Madras A.I.R. 1950 SC 124 :

[1950] SCR 594; S. Khushboo v. Kanniammal (2010) 5
SCC 600 : [2010] 5 SCR 322; Shreya Singhal v. Union of
India (2015) 5 SCC 1 : [2015] 5 SCR 963; Sakal Papers
(P) Ltd. v. Union of India A.I.R. 1962 SC 305 : [1962] 3
SCR 842; Life Insurance Corporation vs. Prof. Manubhai
D. Shah (1992) 3 SCC 637 : [1992] 3 SCR 595; Kedar Nath
Singh v. State of Bihar A.I.R. 1962 SC 955 : [1962] Suppl.
SCR 769; Directorate General of Doordarshan v. Anand
2012 SUPREME COURT REPORTS [2023] 8 S.C.R. 581

Patwardhan (2006) 8 SCC 433 : [2006] 5 Suppl. SCR 403;

Hamdard Dawakhana (Wakf) Lal Kuan v. Union of India
A.I.R 1960 SC 554 : [1960] 2 SCR 671; Indian Express
Newspaper (Bombay) Pvt. Ltd. v. Union of India (1985)
1 SCC 641 : [1985] 2 SCR 287; Tata Press Limited v.
Mahanagar Telephone Nigam Limited (1995) 5 SCC 139 :
[1995] 2 Suppl. SCR 467; Union of India v. Motion Picture
Association A.I.R. 1999 SC 2334 : [1999] 3 SCR 875;
National Legal Services Authority v. Union of India (2014)
5 SCC 438 : [2014] 5 SCR 119; Prabha Dutt v. Union
of India (1982) 1 SCC 1 : [1982] 1 SCR 1184; Swapnil
Tripathi v. Supreme Court of India (2018) 10 SCC 639 :
[2018] 11 SCR 57; Union of India v. Naveen Jindal (2004)
2 SCC 510 : [2004] 1 SCR 1038; Bijoe Emmanuel v. State
of Kerala (1986) 3 SCC 615 : [1986] 3 SCR 518; Amish
Devgan v. Union of India (2021) 1 SCC 1; Charu Khurana
v. Union of India (2015) 1 SCC 192 : [2014] 12 SCR 259;
In Re. Noise Pollution (V) (2005) 5 SCC 733 : [2005] 1
Suppl. SCR 624; Additional District Magistrate, Jabalpur
vs. Shivkant Shukla A.I.R. 1976 SC 1207 : [1976] Suppl.
SCR 172; Pradeep Kumar Biswas v. Indian Institute of
Chemical Biology (2002) 5 SCC 111 : [2002] 3 SCR 100;
Zee Telefilms Ltd. v. Union of India (2005) 4 SCC 649 :
[2005] 1 SCR 913; Janet Jeyapaul v. S.R.M. University
(2015) 16 SCC 530; Union of India v. Paul Manickam
(2003) 8 SCC 342 : [2003] 4 Suppl. SCR 618; Mohd. Ikram
Hussain v. State of Uttar Pradesh A.I.R. 1964 SC 1625 :
[1964] 5 SCR 86; Nirmaljit Kaur (2) v. State of Punjab
(2006) 9 SCC 364 : [2005] 5 Suppl. SCR 514; Union
of India v. Paul Manickam (2003) 8 SCC 342 : [2003] 4
Suppl. SCR 618; Pt. Rudul Sah v. State of Bihar (1983)
4 SCC 141 : [1983] 3 SCR 508; Sebastian M. Hongray v.
Union of India (1984) 3 SCC 82 : [1984] 3 SCR 544; Bhim
Singh v. State of J&K (1985) 4 SCC 677; People’s Union
for Democratic Rights v. Police Commissioner (1989) 4
SCC 730; Saheli v. Commissioner of Police (1990) 1 SCC
422 : [1989] 2 Suppl. SCR 488; State of Maharashtra v.
Ravikant S. Patil (1991) 2 SCC 373; Kumari v. State of
KAUSHAL KISHOR v. STATE OF UTTAR PRADESH & ORS. 2013

Tamil Nadu (1992) 2 SCC 223; Shakuntala Devi v. Delhi

Electric Supply Undertaking (1995) 2 SCC 369; Tamil Nadu
Electricity Board v. Sumanth (2000) 4 SCC 543 : [2000] 3
SCR 708; Railway Board v. Chandrima Das (2000) 2 SCC
465 : [2000] 1 SCR 480; Sabastian M. Hongray v. Union
of India A.I.R. 1984 SC 1026 : [1984] 3 SCR 544; Bhim
Singh, MLA v. State of Jammu and Kashmir A.I.R. 1986
SC : 494; Nilabati Behera v. State of Orissa (1993) 2 SCC
746 : [1993] 2 SCR 581; D. K. Basu v. State of West Bengal
(1997) 1 SCC 416 : [1996] 10 Suppl. SCR 284; Hindustan
Paper Corporation Ltd. v. Ananta Bhattacharjee (2004) 6
SCC 213; Chairman, Railway Board v. Chandrima Das
(2000) 2 SCC 465 : [2000] 1 SCR 480; Kumari v. State
of Tamil Nadu (1992) 2 SCC 223; Tamil Nadu Electricity
Board v. Sumathi Das (2000) 4 SCC 543 : [2000] 3 SCR
708; and Delhi Jal Board v. National Campaign for Dignity
& Rights of Sewerage & amp; Allied Workers (2011) 8
SCC 568 : [2011] 12 SCR 34 – referred to.

Chaplinsky v. State of New Hampshire 315 U.S.568 (1942);

R v. James Keegstra [1990] 3 SCR 697; Canada Human
Rights Commission v. Taylor [1990] 3 SCR 892; Pat Eatock
v. Andrew Bolt (2011) FCA and Peninsular; Oriental Steam
Navigation Co. v. Secy. of State (1868-69) 5 Bom HCR APP
1 and Saskatchewan Human Rights Commission v. William
Whatcott 2013 SCC 11 – referred to.
 [2023] 8 S.C.R. 857

SUBHASH DESAI
v.
PRINCIPAL SECRETARY,
GOVERNOR OF MAHARASHTRA & ORS.
(Writ Petition (C) No. 493 of 2022)

MAY 11, 2023

[DR. DHANANJAYA Y CHANDRACHUD*, CJI,

M. R. SHAH, KRISHNA MURARI, HIMA KOHLI
AND PAMIDIGHANTAM SRI NARASIMHA, JJ.]

Constitution of India: Art.191(2) – Maharashtra Legislative Assembly Rules

– r.95 – Coalition Government – Split in Political Party – Losing Confidence
of the House – Power of the Governor to call for Floor Test – After the State
elections in 2019, a coalition government of Maha Vikas Agadi (MVA) [a
post-poll alliance of Shiv Sena, Nationalist Congress Party (NCP), Indian
National Congress (INC) and some independent MLAs] was formed in
Maharashtra, with Mr. Thackeray of Shiv Sena as the Chief Minister –
However, certain events transpired in mid-2022 which led to split in Shiv
Sena into two factions, one led by Mr. Thackeray and the other led by Mr.
Shinde – 34 Shiv Sena MLAs (of Shinde Group) issued notice to Deputy
Speaker stating that he no longer enjoyed their support and calling upon
him to move a motion for his own removal – In the meanwhile, notices
were issued by the Deputy Speaker on petition filed by the Chief Whip of
petitioners (Thackeray Group) under Tenth Schedule to the Constitution for
disqualification of MLAs of Shinde Group – Governor, pursuant to letter
addressed by the Opposition Party, called upon the Thackeray Group to
prove majority on the floor of the House – Thackeray resigned on the very
next day and thereafter a new Govt. was formed by a coalition consisting
of BJP MLAs and rebel MLAs of Shiv Sena, with Mr. Shinde as the Chief
Minister –Discretion and power of governor to invite a person to form the
Government – Extent of – Held: The discretion to call for a floor test is not
an unfettered discretion but one that must be exercised with circumspection,
in accordance with the limits placed on it by law – The Governor had no
objective material on the basis of which he could doubt the confidence of
the incumbent government – The resolution on which the Governor relied

2014
 SUBHASH DESAI v. PRINCIPAL SECRETARY, 2015
GOVERNOR OF MAHARASHTRA & ORS.

did not contain any indication that the MLAs wished to exit from the MVA
government – Communication expressing discontent on the part of some
MLAs is not sufficient for the Governor to call for a floor test – The Governor
ought to apply his mind to the communication or other material before
him to assess whether the Government seemed to have lost the confidence
of the House – The 34 Shiv Sena MLAs did not express their desire to
withdraw support from the MVA Government in the resolution – The floor
test cannot be used as a medium to resolve internal party disputes or intra
party disputes – In the present case, the Governor did not have any objective
material before him to indicate that the incumbent government had lost the
confidence of the House and that he should call for a floor test – Hence,
exercise of discretion by the Governor in this case was not in accordance
with law – The Governor was not justified in calling upon Mr. Thackeray to
prove his majority on the floor of the House because he did not have reasons
based on objective material before him, to reach the conclusion that Mr.
Thackeray had lost the confidence of the House – However, the status quo
ante cannot be restored because Mr. Thackeray did not face the floor test and
tendered his resignation – The Governor was justified in inviting Mr. Shinde
to form the government.
Constitution of India – Art.153 – Position of Governor – In Internal
Disputes of a Political Party – Split in Political Party – Held: The Governor
is the titular head of the State Government – He is a constitutional functionary
who derives his authority from the Constitution and he cannot exercise a
power that is not conferred on him by the Constitution or a law made under
it – Neither the Constitution nor the laws enacted by Parliament provide for
a mechanism by which disputes amongst members of a particular political
party can be settled – They certainly do not empower the Governor to enter
the political arena and play a role (however minute) either in inter-party
disputes or in intra-party disputes.
Constitution of India: Tenth Schedule and Arts.32 & 226 – Power and
Jurisdiction of Court – To adjudicate upon Disqualifications of Legislative
Members – Held: Disqualification of a person for being a member of the
House has drastic consequences for the member concerned and by extension,
for the citizens of that constituency – Supreme Court should normally refrain
from deciding disqualification petitions at the first instance, having due
regard to constitutional intendment – The question of disqualification ought
2016 SUPREME COURT REPORTS [2023] 8 S.C.R. 857

to be adjudicated by the constitutional authority concerned, namely the

Speaker of the Legislative Assembly, by following the procedure prescribed
– The Speaker must decide disqualification petitions within a reasonable
period.
Constitution of India: Art.181 – Reference to Larger Bench – Whether
a notice for removal of a Speaker restricts them from continuing with
disqualification proceedings under Tenth Schedule as held by this Court
in Nabam Rebia – Held: Although the decision in Nabam Rebia is not
applicable to the factual scenario, however, Nabam Rebia is in conflict with
the judgement in Kihoto Hollohan – It appears that the majority in Nabam
Rebia did not consider the effect and import of Article 181 of Constitution
of India – Hence, the decision in Nabam Rebia merits reference to a larger
Bench because a substantial question of law remains to be settled.
Constitution of India: Tenth Schedule – Maharashtra Legislative
Members (Removal of Disqualification) Act, 1956 – s.23 – Maharashtra
Legislative Assembly (Disqualification on Ground of Defection) Rules 1986
– Rule 3(1)(a) & 6 – Appointment of Whip – Difference between Political
Party and Legislature Party – Held: The political party and not the legislature
party appoints the Whip and the Leader – The Tenth Schedule would become
unworkable if the term ‘political party’ is read as the ‘legislature party’ – A
clear demarcation is made between political party and legislature party for
the purpose of a merger under Paragraph 4 – To read the term ‘political
party’ as ‘legislature party’ would be contrary to the plain language of the
Tenth Schedule – Direction to vote in a particular manner or to abstain from
voting is issued by the political party and not the legislature party – The
Speaker must recognize the Whip and the Leader who are duly authorised by
the political party after conducting an enquiry in this regard.
Constitution of India – Arts. 189(2) and 190(3) – Decision of Speaker
– Disqualification of Member – Validity of Proceedings of the Legislature
– Held: An MLA has the right to participate in proceedings of the House
regardless of the pendency of any petitions for their disqualification –
Validity of proceedings of the House in the interregnum is not “subject to”
outcome of the disqualification petitions – Decision of the Speaker does
not relate back to the date when the MLA indulged in prohibitory conduct
– The decision of the Speaker and the consequences of disqualification are
 SUBHASH DESAI v. PRINCIPAL SECRETARY, 2017
GOVERNOR OF MAHARASHTRA & ORS.

prospective – If a member incurs disqualification under the Tenth Schedule,

it does not automatically result in their expulsion from the political party to
which they belong.
Constitution of India – Tenth Schedule – Election Symbols (Reservation
and Allotment) Order, 1968 – Para 15 – Held: The Speaker and the ECI are
empowered to concurrently adjudicate on the petitions before them under the
Tenth Schedule and under Paragraph 15 of the Symbols Order respectively.
Election Symbols (Reservation and Allotment) Order, 1968 – Para 15 –
Held: While adjudicating petitions under Paragraph 15 of the Symbols Order,
the ECI may apply a test that is best suited to the facts and circumstances of
the case before it.
Constitution of India – Tenth Schedule – Para 2(1) and Para 3 –Deletion
of Paragraph 3 of the Tenth Schedule – Effect of – Held: Is that the defence of
‘split’ is no longer available to members facing disqualification proceedings
– The Speaker would prima facie determine who the political party is for
the purpose of adjudicating disqualification petitions under Paragraph 2(1)
of the Tenth Schedule, where two or more factions claim to be that political
party – When there are two Whips appointed by two or more factions of the
political party, the Speaker decides which of the two Whips represents the
political party
Constitution of India – Tenth Schedule – Para 2 & 3 – Election Symbols
(Reservation and Allotment) Order, 1968 – Para 15 – Determination of, by
Election Commission of India – Which group constitutes the political party
– Allotment of Symbol – Held: The test of majority in the legislative and
organisational wings of the party is not the only or primary test – The ECI is
free to fashion a test suited to the facts and complexities of the specific case
before it – In some cases, it is futile to assess which group enjoys a majority
in the legislature – Other tests include an evaluation of the majority in the
organisational wings of the political party, an analysis of the provisions of
the party constitution, or any other appropriate test – ECI to refrain from
passing a subjective judgment on the approaches preferred by rival factions
by applying the test of whether rival groups are adhering to the aims and
objects of the party as incorporated in its constitution – Decision of ECI
need not be consistent with the decision of the Speaker – Decision of the ECI
has prospective effect – Disqualification proceedings before the Speaker
cannot be stayed in anticipation of the decision of the ECI.
2018 SUPREME COURT REPORTS [2023] 8 S.C.R. 857

Constitution of India – Art.164(1B) – Appointment of Chief Minister –

Pending disqualification petitions – Held: Disqualification is triggered only
if disqualification incurred under the Tenth Schedule – Mere institution of
a disqualification petition does not trigger some or all of the consequences
which flow from the disqualification itself.

Disposing of the Writ Petitions, the Court

HELD:
1.1 The decision in Nabam Rebia merits reference to a larger Bench
because a substantial question of law remains to be settled. To give
quietus to the issue, the following question (and any allied issues
which may arise) are referred to a larger Bench: whether the issuance
of a notice of intention to move a resolution for the removal of the
Speaker restrains them from adjudicating disqualification petitions
under the Tenth Schedule of the Constitution. [Para 70 & 71]
1.2 This Court should normally refrain from deciding disqualification
petitions at the first instance, having due regard to constitutional
intendment. The question of disqualification ought to be adjudicated
by the constitutional authority concerned, namely the Speaker of
the Legislative Assembly, by following the procedure prescribed.
Disqualification of a person for being a member of the House
has drastic consequences for the member concerned and by
extension, for the citizens of that constituency. Therefore, any
question of disqualification ought to be decided by following the
procedure established by law. Absent exceptional circumstances,
the Speaker is the appropriate authority to adjudicate petitions for
disqualification under the Tenth Schedule. The Speaker is expected
to act fairly, independently, and impartially while adjudicating the
disqualification petitions under the Tenth Schedule. Ultimately,
the decision of the Speaker on the question of disqualification
is subject to judicial review. Therefore, the Speaker of the
Maharashtra Legislative Assembly is the appropriate constitutional
authority to decide the question of disqualification under the Tenth
Schedule. [Para 80 & 85]
1.3 The plain meaning of the provisions of the Tenth Schedule, 1986
Rules, and Act of 1956 indicate that the Whip and the Leader
 SUBHASH DESAI v. PRINCIPAL SECRETARY, 2019
GOVERNOR OF MAHARASHTRA & ORS.

must be appointed by the political party. To hold that it is the

legislature party which appoints the Whip would be to sever the
figurative umbilical cord which connects a member of the House to
the political party. It would mean that legislators could rely on the
political party for the purpose of setting them up for election, that
their campaign would be based on the strengths (and weaknesses)
of the political party and its promises and policies, that they could
appeal to the voters on the basis of their affiliation with the party,
but that they can later disconnect themselves entirely from that
very party and be able to function as a group of MLAs which no
longer owes even a hint of allegiance to the political party. This is
not the system of governance that is envisaged by the Constitution.
In fact, the Tenth Schedule guards against precisely this outcome.
That a Whip be appointed by the political party is crucial for the
sustenance of the Tenth Schedule. The entire structure of the Tenth
Schedule which is built on political parties would crumble if this
requirement is not complied with. It would render the provisions
of the Tenth Schedule otiose and have wider ramifications for
the democratic fabric of this country. Thus, the Courts cannot
be excluded by Article 212 from inquiring into the validity of the
action of the Speaker recognizing the Whip. [Para 111, 113 & 114]
1.4 The decision of the ECI under Symbol Order has prospective effect.
A declaration that one of the rival groups is that political party
takes effect prospectively from the date of the decision. In the event
that members of the faction which has been awarded the symbol
are disqualified from the House by the Speaker, the members of
the group which continues to be in the House will have to follow
the procedure prescribed in the Symbols Order and in any other
relevant law(s) for the allotment of a fresh symbol to their group.
The disqualification proceedings before the Speaker cannot be
stayed in anticipation of the decision of the ECI. In cases where
a petition under Paragraph 15 of the Symbols Order is filed after
the (alleged) commission of prohibitory conduct, the decision of
the ECI cannot be relied upon by the Speaker for adjudicating
disqualification proceedings. If the disqualification petitions are
adjudicated based on the decision of the ECI in such cases, the
decision of the ECI would have retrospective effect. This would
be contrary to law. [Para 155 & 156]
2020 SUPREME COURT REPORTS [2023] 8 S.C.R. 857

1.5 The Governor had no objective material on the basis of which

he could doubt the confidence of the incumbent government.
The resolution on which the Governor relied did not contain any
indication that the MLAs wished to exit from the MVA government.
The communication expressing discontent on the part of some
MLAs is not sufficient for the Governor to call for a floor test.
The Governor ought to apply his mind to the communication (or
any other material) before him to assess whether the Government
seemed to have lost the confidence of the House. The term ‘opinion’
is used to mean satisfaction based on objective criteria as to whether
he possessed relevant material, and not to mean the subjective
satisfaction of the Governor. Once a government is democratically
elected in accordance with law, there is a presumption that it enjoys
the confidence of the House. There must exist some objective
material to dislodge this presumption. The Governor is the titular
head of the State Government. He is a constitutional functionary
who derives his authority from the Constitution. This being the
case, the Governor must be cognizant of the constitutional bounds
of the power vested in him. He cannot exercise a power that is
not conferred on him by the Constitution or a law made under
it. Neither the Constitution nor the laws enacted by Parliament
provide for a mechanism by which disputes amongst members of
a particular political party can be settled. They certainly do not
empower the Governor to enter the political arena and play a role
(however minute) either in inter-party disputes or in intra-party
disputes. It follows from this that the Governor cannot act upon an
inference that he has drawn that a section of the Shiv Sena wished
to withdraw their support to the Government on the floor of the
House. [Para 186 & 189]
2. In view of the discussion above, it is concluded as follows: (a)
The correctness of the decision in Nabam Rebia is referred to a
larger Bench of seven judges; (b) This Court cannot ordinarily
adjudicate petitions for disqualification under the Tenth Schedule
in the first instance. There are no extraordinary circumstances in
the instant case that warrant the exercise of jurisdiction by this
Court to adjudicate disqualification petitions. The Speaker must
decide disqualification petitions within a reasonable period; (c) An
 SUBHASH DESAI v. PRINCIPAL SECRETARY, 2021
GOVERNOR OF MAHARASHTRA & ORS.

MLA has the right to participate in the proceedings of the House

regardless of the pendency of any petitions for their disqualification.
The validity of the proceedings of the House in the interregnum is
not “subject to” the outcome of the disqualification petitions; (d)
The political party and not the legislature party appoints the Whip
and the Leader of the party in the House. Further, the direction
to vote in a particular manner or to abstain from voting is issued
by the political party and not the legislature party. The decision
of the Speaker as communicated by the Deputy Secretary to the
Maharashtra Legislative Assembly dated 3 July 2022 is contrary
to law. The Speaker shall recognize the Whip and the Leader who
are duly authorised by the Shiv Sena political party with reference
to the provisions of the party constitution, after conducting an
enquiry in this regard and in keeping with the principles discussed
in this judgement; (e) The Speaker and the ECI are empowered
to concurrently adjudicate on the petitions before them under the
Tenth Schedule and under Paragraph 15 of the Symbols Order
respectively; (f) While adjudicating petitions under Paragraph 15
of the Symbols Order, the ECI may apply a test that is best suited
to the facts and circumstances of the case before it; (g) The effect of
the deletion of Paragraph 3 of the Tenth Schedule is that the defence
of ‘split’ is no longer available to members facing disqualification
proceedings. The Speaker would prima facie determine who the
political party is for the purpose of adjudicating disqualification
petitions under Paragraph 2(1) of the Tenth Schedule, where two or
more factions claim to be that political party; (h) The Governor was
not justified in calling upon Mr. Thackeray to prove his majority
on the floor of the House because he did not have reasons based
on objective material before him, to reach the conclusion that Mr.
Thackeray had lost the confidence of the House. However, the status
quo ante cannot be restored because Mr. Thackeray did not face the
floor test and tendered his resignation; and (i) The Governor was
justified in inviting Mr. Shinde to form the government. [Para 206]

Nabam Rebia & Bamang Felix v. Deputy Speaker, Arunachal

Pradesh Legislative Assembly (2016) 8 SCC 1 : [2016]
6 SCR 1 – referred to larger bench.
2022 SUPREME COURT REPORTS [2023] 8 S.C.R. 857

Rajendra Singh Rana v. Swami Prasad Maurya (2007)

4 SCC 270 : [2007] 2 SCR 591 and Speaker, Haryana
Vidhan Sabha v. Kuldeep Bishnoi, (2015) 12 SCC 381 :
[2012] 10 SCR 672 – held inapplicable.

Kihoto Hollohan v. Zachillhu (1992) Supp (2) SCC 651 :

[1992] 1 SCR 686 and Shrimanth Balasaheb Patil v.
Speaker, Karnataka Legislative Assembly (2020) 2 SCC
595 : [2019] 16 SCR 886 – relied on.

Ramdas Athawale v. Union of India,(2010) 4 SCC 1: [2010]

3 SCR 1059 – explained.

Special Reference No. 1 of 1964 (Powers, Privileges and

Immunities of State Legislatures) AIR 1965 SC 745 :
[1965] 1 SCR 413; SR Bommai v. Union of India (1994)
3 SCC 1 : [1994] 2 SCR 644; Mayawati v. Markandeya
Chand (1998) 7 SCC 517 : [1998] 2 Suppl. SCR 204; Sadiq
Ali v. Election Commission of India (1972) 4 SCC 664 :
[1972] 2 SCR 318; Raja Ram Pal v. Hon’ble Speaker, Lok
Sabha (2006) 2 SCC 1 : [2006] 1 SCR 562; Rameshwar
Prasad v. Union of India (2007) 3 SCC 184 : [2007] 1
SCR 317; Indore Development Authority v. Manohar Lal
(2020) 8 SCC 129 : [2020] 3 SCR 1 Pratap Gouda Patil
v. State of Karnataka (2019) 7 SCC 463; Shivraj Singh
Chouhan v. Union of India (2020) 17 SCC 1 : [2020] 9
SCR 787; Kshetrimayum Biren Singh v. Hon’ble Speaker,
Manipur Legislative Assembly (2022) 2 SCC 759; Keisham
Meghachandra Singh v. Hon’ble Speaker Manipur
Legislative Assembly (2020) SCC OnLine SC 55; Justice
KS Puttaswamy v. Union of India (Aadhar 5J) (2019) 1
SCC 1 : [2018] 8 SCR 1; Rojer Mathew v. South Indian
Bank Ltd. (2020) 6 SCC 1 : [2019] 16 SCR 1; State of UP
v. Desh Raj, (2007) 1 SCC 257 : [2006] 9 Suppl. SCR 352;
Kuldip Nayar v. Union of India (2006) 7 SCC 1 : [2006] 5
Suppl. SCR 1; Delhi Admn. v. Gurdip Singh Uban, (2000)
7 SCC 296 : [2000] 2 Suppl. SCR 496 and Taxi Owners
United Transport v. State Transport Authority (Orissa),
(1983) 4 SCC 34 – referred to.
 [2023] 15 S.C.R. 621 : 2023 INSC 1051

COX AND KINGS LTD.

v.
SAP INDIA PVT. LTD. & ANR.
(Arbitration Petition (Civil) No. 38 of 2020)

DECEMBER 06, 2023

[DR DHANANJAYA Y CHANDRACHUD, CJI,

HRISHIKESH ROY, PAMIDIGHANTAM SRI NARASIMHA,
J B PARDIWALA AND MANOJ MISRA, JJ.]

Issues for consideration:

The primary issue for consideration of the present Constitution Bench of Five
Judges was determination of the validity of the ‘Group of companies doctrine’
in Indian arbitration jurisprudence and its applicability to proceedings under
the Arbitration and Conciliation Act, 1996. Earlier, the Group of Companies
doctrine had been adopted and applied in Indian arbitration jurisprudence in
Chloro Controls case, where a three Judge Bench of the Supreme Court had
read the said doctrine into the phrase “claiming through or under” in Section
45 of the Arbitration and Conciliation Act, 1996.
The ‘Group of companies doctrine’ provides that an arbitration
agreement which is entered into by a company within a group of companies
may bind non-signatory affiliates, if the circumstances are such as to
demonstrate the mutual intention of the parties to bind both signatories and
non-signatories. This doctrine was called into question purportedly on the
ground that it interfered with the established legal principles such as party
autonomy, privity of contract, and separate legal personality.
Also, there were ancillary issues such as: (i) whether the Arbitration
and Conciliation Act, 1996 allows joinder of a non-signatory as a party
to an arbitration agreement; (ii) whether Section 7 of the Arbitration and
Conciliation Act, 1996 allows for determination of an intention to arbitrate
on the basis of the conduct of the parties; and (iii) interpretation of the phrase
“claiming through or under” appearing under Sections 8, 35 and 45 of the
Arbitration and Conciliation Act, 1996.

2023
2024 SUPREME COURT REPORTS [2023] 15 S.C.R. 621

Arbitration – Arbitration agreement – Consent as the basis for arbitration:

Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself, Hrishikesh
Roy, J B Pardiwala and Manoj Misra, JJ.): Consensus ad idem between the
parties forms the essential basis to constitute a valid arbitration agreement
– Since consent forms the cornerstone of arbitration, a non-signatory cannot
be forcibly made a “party” to an arbitration agreement as doing so would
violate the sacrosanct principles of privity of contract and party autonomy.
[Paras 60, 63]

Arbitration and Conciliation Act, 1996 – s.2(1)(h) r/w s.7 – Definition

of “parties”:
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself, Hrishikesh
Roy, J B Pardiwala and Manoj Misra, JJ.): The definition of “parties”
under Section 2(1)(h) read with Section 7 of the Arbitration Act includes
both the signatory as well as non-signatory parties. [Para 165]

Arbitration – Parties to an arbitration Agreement – Method to figure out:

Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself, Hrishikesh
Roy, J B Pardiwala and Manoj Misra, JJ.): The signature of a party on
the agreement is the most profound expression of the consent of a person
or entity to submit to the jurisdiction of an arbitral tribunal – However, the
corollary that persons or entities who have not signed the agreement are
not bound by it may not always be correct – The issue of who is a “party”
to an arbitration agreement is primarily an issue of consent. [Para 66]

Words and Phrases – Arbitration agreement – Term “non-signatories”

– Meaning of:
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself, Hrishikesh
Roy, J B Pardiwala and Manoj Misra, JJ.): The term “non-signatories”,
instead of the traditional “third parties”, seems the most suitable to describe
situations where consent to arbitration is expressed through means other
than signature – A non-signatory is a person or entity that is implicated in
a dispute which is the subject matter of an arbitration, although it has not
formally entered into an arbitration agreement – Non-signatories, by virtue
of their relationship with the signatory parties and active involvement in
the performance of commercial obligations which are intricately linked to
 COX AND KINGS LTD. v. SAP INDIA PVT. LTD. & ANR. 2025

the subject matter, are not actually strangers to the dispute between the
signatory parties. [Paras 66, 127]

Arbitration – Group of companies doctrine in Indian arbitration

jurisprudence – Relevance –Doctrines / Principles:
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself, Hrishikesh
Roy, J B Pardiwala and Manoj Misra, JJ.): The group of companies
doctrine is a consent-based doctrine which has been applied, for identifying
the real intention of the parties to bind a non-signatory to an arbitration
agreement – The group of companies doctrine should be retained in the
Indian arbitration jurisprudence considering its utility in determining the
intention of the parties in the context of complex transactions involving
multiple parties and multiple agreements. [Paras 81, 165]

Corporate Law – Principle of corporate separateness – Separate legal

personality:
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself, Hrishikesh
Roy, J B Pardiwala and Manoj Misra, JJ.): The entities within a corporate
group have separate legal personality, which cannot be ignored save in
exceptional circumstances such as fraud – The distinction between a parent
company and its subsidiary is fundamental, and cannot be easily abridged by
taking recourse to economic convenience – Legally, the rights and liabilities
of a parent company cannot be transferred to the subsidiary company,
and vice versa, unless, there is a strong legal basis for doing so – The
underlying basis for the application of the group of companies doctrine rests
on maintaining the corporate separateness of the group companies while
determining the common intention of the parties to bind the non-signatory
party to the arbitration agreement. [Paras 89, 165]

Arbitration – Group of companies doctrine – Adopting a pragmatic

approach to consent:
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself, Hrishikesh
Roy, J B Pardiwala and Manoj Misra, JJ.): Corporate structures may take the
form of groups based on equity, joint ventures, and informal alliances – In the
context of arbitration law, the challenge arises when only one member of the
group signs the arbitration agreement, to the exclusion of other members
– Should the non-signatories be excluded from the arbitration proceedings,
2026 SUPREME COURT REPORTS [2023] 15 S.C.R. 621

even though they were implicated in the dispute which forms the subject
matter of arbitration? – As a response to this challenge, arbitration law
has developed and adopted the group of companies doctrine, to allow or
compel a non-signatory party to be bound by an arbitration agreement
– The group of companies doctrine is applied to ascertain the intentions
of the parties by analysing the factual circumstances surrounding the
contractual arrangements. [Paras 96 and 97]

Arbitration – Group of companies doctrine – International

perspectives – Precedents on applicability of the doctrine in France,
England, Switzerland, Singapore and the USA – Discussed:
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself,
Hrishikesh Roy, J B Pardiwala and Manoj Misra, JJ.): The international
jurisdictions, in some form or the other, have moved beyond the formalistic
requirement of consent to bind a non-signatory to an arbitration
agreement – The issue of binding a non-signatory to an arbitration
agreement is more of a fact-specific aspect – In jurisdictions such
as France and Switzerland, there is a broad consensus that consent
or subjective intention of a non-signatory to arbitrate may be proved
by conduct – Such subjective intention could be derived from the
objective evidence in the form of participation of the nonsignatory in
the negotiation, performance, or termination of the underlying contract
containing the arbitration agreement – However, the group of companies
doctrine has not been universally accepted by all jurisdictions – In
jurisdictions such as France where the doctrine has gained acceptance,
group of companies is one of the several factors that a court or tribunal
considers to determine the mutual intention of all the parties to join the
nonsignatory to the arbitration agreement. [Para 58]

Arbitration – Group of companies doctrine, a fact based doctrine:

Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself, Hrishikesh
Roy, J B Pardiwala and Manoj Misra, JJ.): The existence of a group of
companies is a factual element that the court or tribunal has to consider
when analysing the consent of the parties – It inevitably adds an extra
layer of criteria to an exercise which at its core is preponderant on
determining the consent of the parties in case of complex transactions
involving multiple parties and agreements. [Para 102]
 COX AND KINGS LTD. v. SAP INDIA PVT. LTD. & ANR. 2027

Arbitration – Group of companies doctrine – Mutual intention of all

the parties to bind the non-signatory to the arbitration agreement –
The determination of mutual intention:
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself, Hrishikesh
Roy, J B Pardiwala and Manoj Misra, JJ.): The primary test to apply the
group of companies doctrine is by determining the intention of the parties
on the basis of the underlying factual circumstances – The application of
the group of companies doctrine will serve to stymie satellite litigation
by non-signatory members of the corporate group, thereby ensuring the
efficacy of the agreement between the parties – Avoiding multiplicity of
proceedings and fragmentation of disputes is certainly in the interests
of justice –However, it can never be the sole consideration to invoke the
group of companies doctrine. [Para 109]

Arbitration – Group of companies doctrine – Applicability – Threshold

standard of evidence:
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself, Hrishikesh
Roy, J B Pardiwala and Manoj Misra, JJ.): In Discovery Enterprises
case, the Supreme Court refined and clarified the cumulative factors that
the courts and tribunals should consider in deciding whether a company
within a group of companies is bound by the arbitration agreement – All
the cumulative factors laid down in Discovery Enterprises case must be
considered while determining the applicability of the group of companies
doctrine – However, the application of the above factors has to be fact-
specific, and onecannot tie the hands of the courts or tribunals by laying
down how much weightage they ought to give to the above factors – The
principle of single economic unit cannot be the sole basis for invoking the
group of companies doctrine. [Paras 110, 128 and 165]

Arbitration and Conciliation Act, 1996 – ss.8 and 45 – Phrase “claiming

through or under” as appearing under ss.8 and 45 of the Arbitration
Act – Party to arbitration agreement and Persons “claiming through
or under” a party to the arbitration agreement are different:
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself, Hrishikesh
Roy, J B Pardiwala and Manoj Misra, JJ.): A person “claiming through or
under” is asserting their legal demand or cause of action in an intermediate
or derivative capacity – A person “claiming through or under” has inferior
2028 SUPREME COURT REPORTS [2023] 15 S.C.R. 621

or subordinate rights in comparison to the party from which it is deriving

its claim or right – Therefore, a person “claiming through or under” cannot
be a “party” to an arbitration agreement on its own terms because it only
stands in the shoes of the original signatory party – Under the Arbitration
Act, the concept of a “party” is distinct and different from the concept of
“persons claiming through or under” a party to the arbitration agreement
– The persons “claiming through or under” can only assert a right in a
derivative capacity. [Paras 137, 165]
Words and Phrases – “Claiming through or under”; “claim”; “through”
and “claiming under”. [Para 137]

Arbitration and Conciliation Act, 1996 – s.9 – Power of the Courts to

issue directions u/s.9:
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself, Hrishikesh
Roy, J B Pardiwala and Manoj Misra, JJ.): The group of companies doctrine
is based on determining the mutual intention to join the non-signatory as a
“veritable” party to the arbitration agreement – Once a tribunal comes to the
determination that a non-signatory is a party to the arbitration agreement,
such non-signatory party can apply for interim measures under s.9 of the
Arbitration and Conciliation Act, 1996. [Para 153]

Arbitration and Conciliation Act, 1996 – ss.8 and 11 – Standard of

determination at the referral stage – Stage of applicability of the group
of companies doctrine under the Arbitration Act:
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself, Hrishikesh
Roy, J B Pardiwala and Manoj Misra, JJ.): When a non-signatory person
or entity is arrayed as a party at Section 8 or Section 11 stage, the referral
court should prima facie determine the validity or existence of the arbitration
agreement, as the case may be, and leave it for the arbitral tribunal to decide
whether the non-signatory is bound by the arbitration agreement – At the
referral stage, the referral court should leave it for the arbitral tribunal to
decide whether the non-signatory is bound by the arbitration agreement.
[Paras 163, 165]

Arbitration and Conciliation Act, 1996 – s.7 – Requirement of a written

arbitration agreement u/s.7 – Effect:
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself, Hrishikesh
 COX AND KINGS LTD. v. SAP INDIA PVT. LTD. & ANR. 2029

Roy, J B Pardiwala and Manoj Misra, JJ.): The requirement of a written

arbitration agreement u/s.7 does not exclude the possibility of binding non-
signatory parties. [Para 165]

Arbitration – Group of companies doctrine – Whether the principle of

alter ego or piercing the corporate veil can be the basis for application
of the group of companies doctrine:
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself, Hrishikesh
Roy, J B Pardiwala and Manoj Misra, JJ.): The principle of alter ego
disregards the corporate separateness and the intentions of the parties in view
of the overriding considerations of equity and good faith – In contrast, the
group of companies doctrine facilitates the identification of the intention of
the parties to determine the true parties to the arbitration agreement without
disturbing the legal personality of the entity in question – The principle of
alter ego or piercing the corporate veil cannot be the basis for the application
of the group of companies doctrine. [Paras 104, 165]

Arbitration – Group of companies doctrine – Factors to be considered

for application of the doctrine – Conduct of the non-signatory parties
– Relevance:
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself, Hrishikesh
Roy, J B Pardiwala and Manoj Misra, JJ.): The participation of the non-
signatory in the performance of the underlying contract is the most important
factor to be considered by the courts and tribunals – The intention of the
parties to be bound by an arbitration agreement can be gauged from the
circumstances that surround the participation of the non-signatory party in
the negotiation, performance, and termination of the underlying contract
containing such agreement – The non-signatory’s participation in the
negotiation, performance, or termination of the contract can give rise to
the implied consent of it being bound by the contract – Conduct of the non-
signatory parties could be an indicator of their consent to be bound by the
arbitration agreement. [Paras 118, 125 and 165]

Arbitration – Arbitration and Conciliation Act, 1996 – s.2(1)(h) and

s.7 – Group of companies doctrine – Has independent existence:
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself, Hrishikesh
Roy, J B Pardiwala and Manoj Misra, JJ.): The group of companies
2030 SUPREME COURT REPORTS [2023] 15 S.C.R. 621

doctrine has an independent existence as a principle of law which stems

from a harmonious reading of s.2(1)(h) along with s.7 of the Arbitration
Act. [Para 165]

Arbitration and Conciliation Act, 1996 – Group of Companies doctrine

– In Chloro Controls case, a three Judge Bench of Supreme Court read
the said doctrine into the phrase “claiming through or under” in s.45
of the Arbitration Act – Challenge to.
Held (per Dr. Dhananjaya Y Chandrachud, CJI) (for himself, Hrishikesh
Roy, J B Pardiwala and Manoj Misra, JJ.): The approach of the Supreme
Court in Chloro Controls case to the extent that it traced the group of
companies doctrine to the phrase “claiming through or under” is erroneous
and against the well-established principles of contract law and corporate
law. [Para 165]

Arbitration – Group of companies doctrine – Applicability – Non-

signatory, if party to arbitration agreement – Determination – Arbitration
and Conciliation Act, 1996 – s.7(4)(b).
Held (per Pamidighantam Sri Narasimha, J.) (Concurring with Dr.
Dhananjaya Y Chandrachud, CJI): An agreement to refer disputes to
arbitration must be in a written form, as against an oral agreement, but
need not be signed by the parties – Under s.7(4)(b), a court or arbitral
tribunal will determine whether a non-signatory is a party to an arbitration
agreement by interpreting the express language employed by the parties in
the record of agreement, coupled with surrounding circumstances of the
formation, performance, and discharge of the contract – While interpreting
and constructing the contract, courts or tribunals may adopt well-established
principles, which aid and assist proper adjudication and determination – The
Group of Companies doctrine is one such principle. [Para 56]

Arbitration – Group of companies doctrine – Arbitration agreement –

Ascertaining the intention of the non-signatory.
Held (per Pamidighantam Sri Narasimha, J.) (Concurring with Dr.
Dhananjaya Y Chandrachud, CJI): The Group of Companies doctrine
is also premised on ascertaining the intention of the non-signatory to be
party to an arbitration agreement – The doctrine requires the intention to
be gathered from additional factors such as direct relationship with the
 COX AND KINGS LTD. v. SAP INDIA PVT. LTD. & ANR. 2031

signatory parties, commonality of subject-matter, composite nature of the

transaction, and performance of the contract. [Para 56]

Arbitration and Conciliation Act, 1996 – s.7(4)(b) – Inquiry by a court

or arbitral tribunal under s.7(4)(b) and Group of companies doctrine.
Held (per Pamidighantam Sri Narasimha, J.) (Concurring with Dr.
Dhananjaya Y Chandrachud, CJI): Since the purpose of inquiry by a court or
arbitral tribunal u/s.7(4)(b) and the Group of Companies doctrine is the same,
the doctrine can be subsumed within s.7(4)(b) to enable a court or arbitral
tribunal to determine the true intention and consent of the non-signatory
parties to refer the matter to arbitration – The doctrine is subsumed within
the statutory regime of s.7(4)(b) for the purpose of certainty and systematic
development of law. [Para 56]

Arbitration and Conciliation Act, 1996 – ss.2(1)(h), 7, 8 and 45 –

Expression “claiming through or under” in ss.8 and 45 – Difference
from expression ‘party’ in s.2(1)(h) and 7.
Held (per Pamidighantam Sri Narasimha, J.) (Concurring with Dr.
Dhananjaya Y Chandrachud, CJI): The expression “claiming through or
under” in ss.8 and 45 is intended to provide a derivative right; and it does
not enable a non-signatory to become a party to the arbitration agreement
– The decision in Chloro Controls tracing the Group of Companies doctrine
through the phrase “claiming through or under” in ss.8 and 45 is erroneous –
The expression ‘party’ in s.2(1)(h) and s.7 is distinct from “persons claiming
through or under them”.[Para 56]

In the judgment of Dr. Dhananjaya Y Chandrachud, CJI

Chloro Controls India (P) Ltd v. Severn Trent Water

Purification Inc (2013) 1 SCC 641 : [2012] 13 SCR 402 –
held, erroneous to an extent.
Oil and Natural Gas Corporation Ltd v. Discovery
Enterprises Pvt. Ltd., (2022) 8 SCC 42 : [2022] 4 SCR
926 – affirmed.
Cheran Properties Ltd v. Kasturi and Sons Ltd. (2018) 16
SCC 413 : [2018] 4 SCR 1063; Mahanagar Telephone
2032 SUPREME COURT REPORTS [2023] 15 S.C.R. 621

Nigam Ltd. v. Canara Bank (2020) 12 SCC 767 : [2019] 11

SCR 660; Sukanya Holdings (P) Ltd v. Jayesh H Pandya
(2003) 5 SCC 531 : [2003] 3 SCR 558; Indowind Energy
Ltd v. Wescare (I) Ltd. (2010) 5 SCC 306 : [2010] 5 SCR
284; Bhaven Construction v. Executive Engineer, Sardar
Sarovar Narmada Nigam Ltd. (2022) 1 SCC 75; Sumitomo
Corporation v. CDC Financial Services (Mauritius) Ltd,
(2008) 4 SCC 91 : [2008] 3 SCR 309; S N Prasad v.
Monnet Finance Ltd. (2011) 1 SCC 320 : [2010] 13 SCR
207; Ameet Lalchand Shah v. Rishabh Enterprises, (2018)
15 SCC 678 : [2018] 6 SCR 1001; Reckitt Benckiser
(India) Private Limited v. Reynders Label Printing India
Private Limited, (2019) 7 SCC 62 : [2019] 8 SCR 966;
Bharat Aluminium Company v Kaiser Aluminium Technical
Services, (2016) 4 SCC 126 : [2016] 1 SCR 364; Satish
Kumar v. Surinder Kumar [1969] 2 SCR 244; Bihar State
Mineral Development Corporation v. Encon Builders (I)
Pvt. Ltd. (2003) 7 SCC 418 : [2003] 2 Suppl. SCR 812;
Dhulabhai v. State of Madhya Pradesh [1968] 3 SCR 662;
Vidya Drolia v. Durga Trading Corporation, (2021) 2 SCC
1 : [2020] 11 SCR 1001; M C Chacko v. State Bank of
Travancore (1969) 2 SCC 343 : [1970] 1 SCR 658; Haji
Mohammed Ishaq v. Mohamad Iqbal (1978) 2 SCC 493 :
[1978] 3 SCR 571; Shakti Bhog Foods Limited v. Kola
Shipping Ltd. (2009) 2 SCC 134 : [2008] 13 SCR 925;
Trimex International FZE Ltd v. Vedanta [2022] 4 SCR
926; Aluminium Ltd. (2010) 3 SCC 1 : [2010] 1 SCR 820;
Great Offshore Ltd. v. Iranian Offshore Engineering and
Construction Company, (2008) 14 SCC 240 : [2008] 12
SCR 515; S N Prasad v. Monnet Finance Limited (2011) 1
SCC 320 : [2010] 13 SCR 207; Govind Rubber Ltd v. M/s
Louis Dreyfus Commodities, (2015) 13 SCC 477 : [2014]
12 SCR 488; Sundaram Finance Ltd v. NEPC India Ltd.
(1999) 2 SCC 479 : [1999] 1 SCR 89; P Manohar Reddy
and Bros v. Maharashtra Krishna Valley Development
Corporation, (2009) 2 SCC 494 : [2008] 17 SCR 1217;
Tata Engineering and Locomotive Co Ltd. v. State of Bihar
[1964] 6 SCR 885; LIC v. Escorts Ltd. (1986) 1 SCC 264 :
COX AND KINGS LTD. v. SAP INDIA PVT. LTD. & ANR. 2033

[1985] 3 Suppl. SCR 909; Delhi Development Authority

v. Skipper Construction Co. (P) Ltd. (1996) 4 SCC 662 :
[1996] 2 Suppl. SCR 295; Kapila Hingorani v. State of
Bihar (2003) 6 SCC 1 : [2003] 1 Suppl. SCR 175; Balwant
Rai Saluja v. Air India (2014) 9 SCC 407 : [2014] 14 SCR
1512; Vodafone International Holding BV v. Union of India
(2012) 6 SCC 613 : [2012] 1 SCR 573; Kamla Devi v.
Takhatmal Land, AIR 1964 SC 859 : [1964] 2 SCR 152;
Bangalore Electricity Supply Co Ltd v. E S Solar Power
(P) Ltd. (2021) 6 SCC 718 : [2021] 1 SCR 453; Bank of
India v. K Mohandas (2009) 5 SCC 313 : [2009] 1 SCR
1045; M Dayanand Reddy v. A P Industrial Infrastructure
Corporation Ltd. (1993) 3 SCC 137 : [1993] 2 SCR 629; A
Ayyasamy v. A Paramsivam, (2016) 10 SCC 386 : [2016] 11
SCR 521; Union of India v. D N Revri, (1976) 4 SCC 147 :
[1977] 1 SCR 483; Roop Kumar v. Mohan Thedani, (2003)
6 SCC 595 : [2003] 3 SCR 292; Olympus Superstructures
(P) Ltd v. Meena Vijay Khetan, (1999) 5 SCC 651 : [1999]
3 SCR 490; Reliance Industries Ltd v. Union of India,
(2014) 7 SCC 603 : [2014] 6 SCR 456; Enercon (India)
Ltd v. Enercon Gmbh, (2014) 5 SCC 1: [2014] 2 SCR
855; Agri Gold Exims Ltd v. Sri Lakshmi Knits & Wovens,
(2007) 3 SCC 686 : [2007] 1 SCR 1161; SBP & Co v.
Patel Engineering Ltd. (2005) 8 SCC 618 : [2005] 4 Suppl.
SCR 688; Uttarakhand Purv Sainik Kalyan Nigam Ltd. v.
Northern Coal Field, (2020) 2 SCC 455; Pravin Electricals
Pvt Ltd v. Galaxy Infra and Engineering Pvt Ltd. (2021) 5
SCC 671: [2021] 1 SCR 1162; Shin-Etsu Chemical Co Ltd.
v. Aksh Optifibre Ltd. (2005) 7 SCC 234 : [2005] 2 Suppl.
SCR 699 and Deutsche Post Bank Home Finance Ltd. v.
Taduri Sridhar (2011) 11 SCC 375 : [2011] 5 SCR 674 –
referred to.

Dow Chemical v. Isover Saint Gobain, Interim Award, ICC

Case No. 4131, 23 September 1982; Paris Court of Appeal,
7 December 1994, V 2000 (formerly Jaguar France) v.
Project XS, Rev. Arb. (1996) 67; A, B, C v. D and State
of Libya, 4 A 636/2018; 5 Saudi Butec Ltd et Al Fouzan
2034 SUPREME COURT REPORTS [2023] 15 S.C.R. 621

Trading v. Saudi Arabian Saipem Ltd, unpublished ICC

Interim Award of 25 October 1994, confirmed by DFT on
29 January 1996, ASA Bulletin (1996) Vol 3 p 496;X v. Y
Engineering S.p.A. and Y S.p.A., 4A_450/2013, ASA Bull.,
160 (2015); Peterson Farms INC v. C & M Farming Limited,
[2004] EWHC 121; Roussel-Uclaf v. G D Searle and Co
Ltd. [1978] 1 Lloyd’s Rep; The Mayoralty and Commonalty
& Citizens of the City of London v. Ashok Sancheti, [2008]
EWCA Civ 1283; Blackpool and Fylde Aero Club Ltd. v.
Blackpool Borough Council, [1990] 1 WLR 1195; Dallah
Real Estate and Tourism Holding Company v. The Ministry
of Religious Affairs, Government of Pakistan [2010] UKSC
46; Manuchar Steel Hong Kong Limited v. Star Pacific Line
Pte Ltd. [2014] SGHC 181; G E Energy Power Conversion
France SAS v. Outokumpu Stainless, 140 S. Ct. 1637 (2020);
American Fuel Corp v. Utah Energy Development Co,
Inc, 122 F.3d 130, 134 (2d Cir 1997); American Bureau,
Shipping v. Tencara Shipyard, 170 F.3d 349, 353 (2d Cir
1999); Sunkist Soft Drinks, Inc v. Sunkist Growers, Inc, 10
F.3d 753, 757 (11th Cir 1993) and Grigson v. Creative Artists
Agency, LLC, 210 F.3d 524 (2000); United Steelworkers of
America v. Warrior and Gulf Navigation, (1960) 363 US 574,
582; Fiona Trust and Holding Company v. Privalov [2007]
UKHL 40; Salomon v. Salomon [1897] AC 22; D H N Food
Distributors Ltd v. Tower Hamlets London Borough Council
[1976] 1 WLR 852; Bank of Tokyo v. Karoon, (1986) 3 All
ER 468; Schiffahrts–gesellschaft Detlev von Appen v Voest
Alpine Intertrading, [1997] EWCA Civ 1420; Through
Transport Mutual Insurance Association (Eurasia) Ltd v.
New India Assurance Co Ltd. [2005] EWHC 455 (Comm);
West Tankers Inc. v. Allianz Spa, [2012] EWCA Civ 27;
Tanning Research Laboratories Inc v. O’Brien, [1990] HCA
8; Rinehart v. Hancock Prospecting Pty Ltd. [2019] HCA
13 – referred to.

Law Commission of India, ‘Amendments to the Arbitration

and Conciliation Act 1996’, Report No. 246 (August
COX AND KINGS LTD. v. SAP INDIA PVT. LTD. & ANR. 2035

2014); Bernard Hanotiau and Leonardo Ohlrogge, ‘40th

Year Anniversary of the Dow Chemical Award’ 40(2)
ASA Bulletin 300-308; Yves Derains, ‘Is there a Group
of Companies Doctrine?’ in Bernard Hanotiau and Eric
Schwartz (eds) in Dossier of the ICC Institute of World
Business Law, Volume 7, 131-145;Audley William Sheppard,
‘Third Party Non-Signatories in English Arbitration
Law’ in Stavros Brekoulakis, Julian Lew, et al (eds) The
Evolution and Future of International Arbitration (Kluwer
Law International, 2016) 183-198; Chitty on Contracts,
Hugh Beale (ed), (32nd edn, Sweet and Maxwell, 2015) para
2-169 and para 1-104; Andrijana Misovic, ‘Binding non-
signatories to arbitrate: the United States approach’ (2021)
37(3) Arbitration International 749-768; Bernard Hanotiau,
‘May an Arbitration Clause be Extended to Non-signatories:
Individuals, States or Other Companies of the Group?’ in
Complex Arbitrations: Multi-party, multi-contract, Multi-
issue – A comparative study’ Bernard Hanotiau (eds) (2nd
edn, 2020) 95, 194; Gary Born, International Arbitration
Law and Practice (3rd ed, 2021);Pollock and Mulla,
The Indian Contract and Specific Reliefs Act (14th edn,
2016) 235; Stavros Brekoulakis, ‘Rethinking Consent in
International Commercial Arbitration: A General Theory
for Non-signatories’ (2017) 8 Journal of International
Dispute Settlement 610, 621; UNCITRAL Model Law on
International Commercial Arbitration, Recommendation
regarding the interpretation of article II, paragraph 2, and
article VII, paragraph 1, of the Convention on the Recognition
and Enforcement of Foreign Arbitral Awards, done in New
York, 10 June 1958, (adopted by the UNCITRAL on 7 July
2006) 39; Redfern and Hunter on International Arbitration
(7th edn, Oxford University Press, 2023) para 2.23; Jayati
Sarkar, ‘Business Groups in India’ in Asli Coplan, Takashi
Hikino, and James Lincoln (eds) The Oxford Handbook
of Business Groups (2010) 299; Bernard Hanotiau,
‘Consent to Arbitration: Do We Share a Common Vision?’
(2011) 27(4) Arbitration International 539, 554; Stavros
Brekoulakis, ‘Parties in International Arbitration: Consent
2036 SUPREME COURT REPORTS [2023] 15 S.C.R. 621

v. Commercial Reality’ in Stavros Brekoulakis, Julian DM

Lew, et al (eds) in ‘The Evolution and Future of International
Arbitration’ (2016) 119, 120; UNCITRAL, ‘Settlement of
Commercial Disputes: Possible uniform rules on certain
issues concerning settlement of commercial disputes:
conciliation, interim measures of protection, written form
of arbitration agreement: Report of the Secretary General’
A/CN.9/WG.II/WP.108/Add.1 (26 January 2000); Stavros
Brekoulakis, ‘Parties in International Arbitration: Consent
v. Commercial Reality’ in Stavros Brekoulakis, Julian DM
Lew, et al (eds) ‘The Evolution and Future of International
Arbitration’ (2016) 119, 137, 148; UNIDROIT Principles
of International Commercial Contracts, 2016, Article 4.3;
Stavros Brekoulakis, ‘Rethinking Consent in International
Commercial Arbitration: A General Theory for Non-
signatories’ (2017) 8 Journal of International Dispute
Settlement 610, 621; Karim Youssef, ‘The Limits of Consent:
The Right or Obligation to Arbitrate of Non-Signatories in
Group of Companies’ in Multiparty Arbitration: Dossiers of
the ICC Institute of Worlds Business Law, Volume 7 (2010)
71, 79; Russel on Arbitration (23rd edn, 2007) 99 para 3-018;
Vicky Priskich, ‘Binding non-signatories to arbitration
agreements – who are person ‘claiming through or under’
a party?’ (2019) 35(3) Arbitration International 375-386;
Black’s Law Dictionary (5th edn, 1979) 224; P Ramanatha
Aiyar’s, The Law Lexicon (1997) 330, 331; Black’s Law
Dictionary (5th edn, 1979) 1328; Ronald Dworkin, Law’s
Empire (Belknap Press, Harvard University Press 1986)
229 – referred to.

In the judgment of Pamidighantam Sri Narasimha, J.

Chloro Controls India (P) Ltd. v. Severn Trent Water

Purification Inc., (2013) 1 SCC 641 : [2012] 13 SCR 402
– held erroneous.

Cox and Kings Ltd v. SAP India Pvt Ltd. (2022) 8 SCC
1; Vidya Drolia v. Durga Trading Corporation, (2021) 2
COX AND KINGS LTD. v. SAP INDIA PVT. LTD. & ANR. 2037

SCC 1 : [2020] 11 SCR 1001; Gemini Bay Transcription

Pvt Ltd v. Integrated Sales Service Ltd. (2022) 1 SCC 753;
Jugal Kishore Rameshwardas v. Goolbai Hormusji [1955]
2 SCR 857; Caravel Shipping Services (P) Ltd v. Premier
Sea Foods Exim (P) Ltd. (2019) 11 SCC 461 : [2018]
14 SCR 289; Rickmers Verwaltung Gmbh v. Indian Oil
Corporation Ltd. (1999) 1 SCC 1 : [1998] 3 Suppl. SCR
42; MTNL v. Canara Bank, (2020) 12 SCC 767 : [2019] 11
SCR 660; Babanrao Rajaram Pund v. Samarth Builders
and Developers, (2022) 9 SCC 691; KK Modi v. KN Modi,
(1998) 3 SCC 573 : [1998] 1 SCR 601; Bihar State Mineral
Development Corporation v. Encon Builders (I) Pvt Ltd.
(2003) 7 SCC 418 : [2003] 2 Suppl. SCR 812; Shakti Bhog
Foods v. Kola Shipping Ltd. (2009) 2 SCC 134 : [2008] 13
SCR 925; Smita Conductors v. Euro Alloys, (2001) 7 SCC
728 : [2001] 2 Suppl. SCR 477; Unissi (India) Pvt Ltd v.
Post Graduate Institute of Medical Education and Research
(2009) 1 SCC 107 : [2008] 14 SCR 108; Powertech World
Wide Ltd v. Delvin international General Trading LLC
(2012) 1 SCC 361 : [2011] 13 SCR 122; Govind Rubber
v. Louids Dreyfus Commodities Asia Pvt Ltd. (2015) 13
SCC 477: [2014] 12 SCR 488; Nimet Resources Inc v.
Essar Steels Ltd, (2000) 7 SCC 497; Bangalore Electricity
Supply Company Ltd (BESCOM) v. E.S. Solar Power Pvt
Ltd. (2021) 6 SCC 718; Food Corporation of India v.
Abhijit Paul 2022 SCC OnLine SC 1605; Bank of India
v. K. Mohandas (2009) 5 SCC 313 : [2009] 5 SCR 118;
Godhra Electricity Co Ltd v. State of Gujarat (1975) 1
SCC 199 : [1975] 2 SCR 42; McDermott International
Inc v. Burn Standard Co Ltd. (2006) 11 SCC 181 : [2006]
2 Suppl. SCR 409; ONGC v. Saw Pipes Ltd. (2003) 5 SCC
705 : [2003] 3 SCR 691; Roop Kumar v. Mohan Thedani
(2003) 6 SCC 595 : [2003] 3 SCR 292; Sukanya Holdings
v. Jayesh H Pandya (2003) 5 SCC 531 : [2003] 3 SCR
558; Indowind Energy Ltd v. Wescare (India) Ltd. (2010)
5 SCC 306 : [2010] 5 SCR 284; Duro Felguera, S.A. v.
Gangavaram Port Ltd. (2017) 9 SCC 729 : [2017] 10 SCR
285; Cheran Properties Ltd v. Kasturi and Sons Ltd. (2018)
16 SCC 413 : [2018] 4 SCR 1063; Ameet Lalchand Shah
2038 SUPREME COURT REPORTS [2023] 15 S.C.R. 621

v. Rishabh Enterprises (2018) 15 SCC 678 : [2018] 6 SCR

1001; ONGC v. Discovery Enterprises Pvt Ltd. (2022) 8
SCC 42; Reckitt Benckiser (India) Pvt Ltd v. Reynders
Label Printing India Pvt Ltd. (2019) 7 SCC 62 : [2019]
8 SCR 966; MTNL v. Canara Bank (2020) 12 SCC 767:
[2019] 11 SCR 660 – referred to.

Dow Chemical v. Isover Saint Gobain. ICC Case No.

4131, 23 September 1982; Dallah Real Estate and Tourism
Holding Co. v. Ministry of Religious Affairs, Government of
Pakistan Case No. 9-28533, dated 17 February 2011 (Paris
Cour d’Appel), [2010] UKSC 46; Malakoff Corporation
Berhad and TLEMCEN Desalination Investment Company
v. Algerian Energy Company SA and Hyflux Limited, Case
No. 21-07296, dated 13 June 2023 (Paris Cour d’Appel);
Peterson Farms Inc v. C&M Farming Ltd. [2004] EWHC
121 (Comm); Mayor and Commonalty & Citizens of the
City of London v. Ashok Sancheti, [2008] EWCA Civ 1283;
Bank of Tokyo Ltd v. Karoon, [1987] AC 45; Kabab-Ji SAL
(Lebanon) v. Kout Food Group (Kuwait), [2021] UKSC 48;
Manuchar Steel Hong Kong Ltd v. Star Pacific Line Pte Ltd.
[2014] SGHC 181; GE Energy Power Conversion France
SAS Corp., FKA Converteam SAS v. Outokumpu Stainless
USA, LLC, et al., Case No. 18-1048 (1 June 2020); McBro
Planning & Dev. Co. v. Triangle Elec. Constr. Co. Inc., 741
F.2d 342 (11th Cir. 1984); Nauru Phosphate Royalties, Inc.
v. Drago Daic Interests, Inc. 138 F.3d 160 (5th Cir. 1998);
Sarhank Group v. Oracle Corp, 404 F. 3d 657 (2nd Cir.
2005) – referred to.

Lewison, The Interpretation of Contracts (6th edn, Sweet

and Maxwell 2016) para 2.01, 27; Gary Born, International
Commercial Arbitration, vol 1 (3rd edn, Kluwer Law
International 2021) 1531; Bernard Hanotiau, ‘Chapter
14: Group of Companies in International Arbitration’ in
Loukas A. Mistelis and Julian D.M. Lew (ed), Pervasive
Problems in International Arbitration, vol 15 (Kluwer Law
International 2006), 286; Bernard Hanotiau, ‘Consent to
Arbitration: Do We Share a Common Vision?’ (2011) 27(4)
Arbitration International 539 – referred to.
 [2023] 15 S.C.R. 1081 : 2023 INSC 1066

IN RE: INTERPLAY BETWEEN ARBITRATION

AGREEMENTS UNDER THE ARBITRATION AND
CONCILIATION ACT 1996 AND THE INDIAN
STAMP ACT 1899
(Curative Petition (C) No. 44 of 2023)
In
(Review Petition (C) No. 704 of 2021)
In
(Civil Appeal No. 1599 of 2020)

DECEMBER 13, 2023

[DR. DHANANJAYA Y CHANDRACHUD, CJI,

SANJAY KISHAN KAUL, SANJIV KHANNA,
B R GAVAI, SURYA KANT, J B PARDIWALA
AND MANOJ MISRA, JJ.]

Issue for consideration: The issue at hand arose in the context of

three statutes; the Arbitration and Conciliation Act 1996, the Indian Stamp
Act, 1899, and the Indian Contract Act, 1872. The Stamp Act imposes duty
on “instruments”. Arbitration agreements are often embedded in underlying
instruments or substantive contracts. The primary issue for consideration was
whether such arbitration agreements would be non-existent, unenforceable,
or invalid if the underlying contract is not stamped. The challenge before
the Supreme Court was to harmonize the provisions of the Arbitration and
Conciliation Act, 1996 and the Stamp Act, 1899.

Arbitration and Conciliation Act 1996 – ss.8 and 11 – Arbitration

agreements embedded in underlying instruments or substantive
contracts – Whether such arbitration agreements would be non-existent,
unenforceable, or invalid if the underlying contract is not stamped –
Interplay between Arbitration Agreements under the Arbitration and
Conciliation Act, 1996 and the Indian Stamp Act, 1899 – Unstamped or
insufficiently stamped instruments – If admissible in evidence – Non-
stamping or inadequate stamping – If curable.
Held (per Dr. D.Y. Chandrachud, CJI) (for himself, Sanjay
Kishan Kaul, B.R Gavai, Surya Kant, J B Pardiwala and Manoj Misra,
JJ.): Agreements which are not stamped or are inadequately stamped are

2039
2040 SUPREME COURT REPORTS [2023] 15 S.C.R. 1081

inadmissible in evidence u/s.35 of the Stamp Act – Such agreements are not
rendered void or void ab initio or unenforceable – Non-stamping or inadequate
stamping is a curable defect – The Stamp Act itself provides for the manner
in which the defect may be cured and sets out a detailed procedure for it – An
objection as to stamping does not fall for determination u/ss.8 or 11 of the
Arbitration Act – The concerned court must examine whether the arbitration
agreement prima facie exists – Any objections in relation to the stamping of
the agreement fall within the ambit of the arbitral tribunal. [Paras 48 and 224]
– Held (per Sanjiv Khanna, J.) (Concurring): Unstamped or insufficiently
stamped instruments inadmissible in evidence in terms of s.35 of the Indian
Stamp Act, 1899, are not rendered void and void ab initio – An objection as to
the under-stamping or non-stamping of the underlying contract will not have
any bearing when the prima facie test, “the existence of arbitration agreement”,
is applied by the courts while deciding applications under Sections 8 or 11 of
the Arbitration and Conciliation Act, 1996 – An objection as to insufficient
stamping of the underlying agreement can be examined and decided by the
arbitral tribunal. [Para 1]

Evidence – Admissibility of documents – Difference between

inadmissibility and voidness – Contract Act, 1872 – s.2(g).
Held (per Dr. D.Y. Chandrachud, CJI) (for himself, Sanjay Kishan
Kaul, B.R Gavai, Surya Kant, J B Pardiwala and Manoj Misra, JJ.):
The admissibility of an instrument in evidence is distinct from its validity or
enforceability in law – An agreement can be void without its nature as a void
agreement having an impact on whether it may be introduced in evidence –
Similarly, an agreement can be valid but inadmissible in evidence – When
an agreement is void, one is speaking of its enforceability in a court of law –
When it is inadmissible, one is referring to whether the court may consider or
rely upon it while adjudicating the case – This is the essence of the difference
between voidness and admissibility. [Paras 44, 45 and 46]

Indian Stamp Act, 1899 – Purpose of.

Held (per Dr. D.Y. Chandrachud, CJI) (for himself, Sanjay Kishan
Kaul, B.R Gavai, Surya Kant, J B Pardiwala and Manoj Misra, JJ.):
The Stamp Act is a fiscal legislation which is intended to raise revenue for
the government – It is a mandatory statute. [Para 58]
IN RE: INTERPLAY BETWEEN ARBITRATION AGREEMENTS 2041
UNDER THE ARBITRATION AND CONCILIATION ACT 1996
AND THE INDIAN STAMP ACT 1899
Arbitration – Principle of arbitral autonomy – Doctrines / Principles.
Held (per Dr. D.Y. Chandrachud, CJI) (for himself, Sanjay Kishan
Kaul, B.R Gavai, Surya Kant, J B Pardiwala and Manoj Misra, JJ.):
The principle of arbitral autonomy is an integral element of the ever-evolving
domain of arbitration law – Arbitral autonomy means that the parties to an
arbitration agreement can exercise their contractual freedom to bestow the
arbitral tribunal with the authority to decide disputes that may arise between
them – The basis of arbitral autonomy is to give effect to the true intention of
parties to distance themselves from the “risk of domestic judicial parochialism.
[Para 66]

Doctrines / Principles – Principle of judicial interference in

arbitration proceedings – Scope of non-obstante clause contained in s.5
of the Arbitration and Conciliation Act 1996 – Legislative intention.
Held (per Dr. D.Y. Chandrachud, CJI) (for himself, Sanjay Kishan
Kaul, B.R Gavai, Surya Kant, J B Pardiwala and Manoj Misra, JJ.):
The principle of judicial non-interference in arbitral proceedings serves to
proscribe judicial interference in arbitral proceedings, which would undermine
the objective of the parties in agreeing to arbitrate their disputes, their desire
for less formal and more flexible procedures, and their desire for neutral
and expert arbitral procedures – The principle of judicial non-interference
in arbitral proceedings respects the autonomy of the parties to determine the
arbitral procedures – This principle has also been incorporated in international
instruments – s.5 of the Arbitration Act is of aid in interpreting the extent of
judicial interference under ss.8 and 11 of the Arbitration Act – s.5 contains
a general rule of judicial non-interference – Therefore, every provision of
the Arbitration Act ought to be construed in view of s.5 to give true effect to
the legislative intention of minimal judicial intervention. [Paras 69 and 82]

Arbitration and Conciliation Act, 1996 – Is a self-contained code

– Provisions of other statutes cannot interfere with the working of the
Arbitration Act, unless specified otherwise. [Para 85 in judgment of Dr.
D.Y. Chandrachud, CJI]

Arbitration – Arbitration agreement – Is the foundation of

2042 SUPREME COURT REPORTS [2023] 15 S.C.R. 1081

arbitration as it records the consent of the parties to submit their

disputes to arbitration. [Para 88 in judgment of Dr. D.Y. Chandrachud, CJI]

Arbitration – Arbitration agreement – Separability of the arbitration

agreement from the underlying contract in which it is contained.
Held (per Dr. D.Y. Chandrachud, CJI) (for himself, Sanjay Kishan
Kaul, B.R Gavai, Surya Kant, J B Pardiwala and Manoj Misra, JJ.):
An arbitration agreement is juridically independent from the underlying
contract in which it is contained – The concept of separability reflects the
presumptive intention of the parties to distinguish the underlying contract,
which captures the substantive rights and obligations of the parties, from
an arbitration agreement which provides a procedural framework to resolve
the disputes arising out of the underlying contract – This presumption has
various consequences in theory and practice, the most important being that an
arbitration agreement survives the invalidity or termination of the underlying
contract – The separability presumption gives effect to the doctrine of
competence-competence. [Paras 90 and 112]

Doctrines / Principles – Doctrine of competence-competence –

Comparative analysis – Arbitration and Conciliation Act 1996 – s.16.
Held (per Dr. D.Y. Chandrachud, CJI) (for himself, Sanjay Kishan
Kaul, B.R Gavai, Surya Kant, J B Pardiwala and Manoj Misra, JJ.): The
doctrine of kompetenz-kompetenz (also known as competence competence),
as originally developed in Germany, was traditionally understood to imply that
arbitrators are empowered to make a final ruling on their own jurisdiction, with
no subsequent judicial review of the decision by any court – However, many
jurisdictions allow an arbitral tribunal to render a decision on its jurisdiction,
subject to substantive judicial review – The UK position is that although the
arbitral tribunal is empowered to consider whether it has jurisdiction, its
determination is subject to the examination of the courts – The courts in the
United States have considered the principle of competence-competence to be
intertwined with the separability presumption – The Singapore High Court
has given full effect to the doctrine of competence-competence since the
arbitral tribunal gets the first priority to determine issues even with respect
to the very existence of the arbitration agreement, while the jurisdiction of
IN RE: INTERPLAY BETWEEN ARBITRATION AGREEMENTS 2043
UNDER THE ARBITRATION AND CONCILIATION ACT 1996
AND THE INDIAN STAMP ACT 1899
the courts is limited to a prima facie determination – s.16 of the Arbitration
Act recognizes the doctrine of competence-competence in Indian arbitration
law. [Paras 115, 117, 118, 119, 120]

Doctrines / Principles – Doctrine of competence-competence –

Positive and negative aspects of the doctrine – Negative competence-
competence – Discussed.
Held (per Dr. D.Y. Chandrachud, CJI) (for himself, Sanjay Kishan
Kaul, B.R Gavai, Surya Kant, J B Pardiwala and Manoj Misra, JJ.): The
international arbitration law as well as domestic law prioritize the arbitral
tribunal by permitting them to initially decide challenges to their authority
instead of the courts – The policy consideration behind this approach is
twofold: first, to recognize the mutual intention of the parties of choosing
the arbitrator to resolve all their disputes about the substantive rights and
obligations arising out of contract; and second, to prevent parties from
initiating parallel proceedings before courts and delaying the arbitral process
– This is the positive aspect of the doctrine of competence-competence –
The negative aspect, in contrast, speaks to the national courts – It instructs
the courts to limit their interference at the referral stage by deferring to the
jurisdiction of the arbitral tribunal in issues pertaining to the existence and
validity of an arbitration agreement – Allowing arbitral tribunals to first rule on
their own jurisdiction and later allowing the courts to determine if the tribunal
exercised its powers properly safeguards both the power and authority of the
arbitral tribunal as well as the courts – The negative aspect of the doctrine has
been expressly recognized by Indian courts – Considering both the positive
and negative facets, the principle can be defined as a rule whereby arbitrators
must have the first opportunity to hear challenges relating to their jurisdiction,
which is subject to subsequent review by courts. [Paras 129, 130]

Arbitration and Conciliation Act, 1996 – Arbitration Act is a

legislation enacted to inter alia consolidate the law relating to arbitration
in India – It will have primacy over the Stamp Act and the Contract Act
in relation to arbitration agreements. [Para 166 in judgment of Dr. D.Y.
Chandrachud, CJI]
2044 SUPREME COURT REPORTS [2023] 15 S.C.R. 1081

Interpretation of Statutes – Harmonious construction – Provisions

contained in two statutes must be, if possible, interpreted in a harmonious
manner to give full effect to both the statutes – In providing a harmonious
interpretation, the Court has to be cognizant of the fact that it does not
defeat the purpose of the statutes or render them ineffective. [Para 165 in
judgment of Dr. D.Y. Chandrachud, CJI]

Interpretation of Statutes – Non-obstante clause – Held: Although a

non-obstante clause must be allowed to operate with full vigour, its effect
is limited to the extent intended by the legislature. [Para 77 in judgment
of Dr. D.Y. Chandrachud, CJI]

Words and Phrases – “admissible”. [Para 44 in judgment of Dr. D.Y.

Chandrachud, CJI]

Words and Phrases – Word “shall” – In ss.33 and 35 of the Stamp Act
– Meaning and effect of. [Para 189 in judgment of Dr. D.Y. Chandrachud, CJI]

LIST OF CITATIONS AND OTHER REFERENCES

In the judgment of Dr D.Y. Chandrachud, CJI

N N Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd.

(2023) 7 SCC 1 and SMS Tea Estates (P) Ltd. v. Chandmari
Tea Co. (P) Ltd (2011) 14 SCC 66 : [2011] 9 SCR 382 –
overruled.

Garware Wall Ropes Ltd. v. Coastal Marine Constructions

& Engg. Ltd. (2019) 9 SCC 209 : [2019] 5 SCR 579 –
overruled to an extent.

Uttarakhand Purv Sainik Kalyan Nigam Ltd v. Northern

Coal Field (2020) 2 SCC 455 – relied on.

Vidya Drolia v. Durga Trading Corporation (2021) 2 SCC

1 : [2020] 11 SCR 1001 – clarified.
IN RE: INTERPLAY BETWEEN ARBITRATION AGREEMENTS 2045
UNDER THE ARBITRATION AND CONCILIATION ACT 1996
AND THE INDIAN STAMP ACT 1899
N N Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd.
(2021) 4 SCC 379; Dharmaratnakara Rai Bahadur Arcot
Narainswamy Mudaliar Chattram v. Bhaskar Raju and
Brothers (2020) 4 SCC 612 : [2020] 3 SCR 798; Rupa
Ashok Hurra v. Ashok Hurra (2002) 4 SCC 388 : [2002]
2 SCR 1006; Bharat Petroleum Corporation v. Mumbai
Shramik Sangha (2001) 4 SCC 448: [2001] 3 SCR 208;
Pradip Chandra Parija v. Pramod Chandra Patnaik (2002)
1 SCC 1: [2001] 5 Suppl. SCR 460; Union of India v.
Hansoli Devi (2002) 7 SCC 273: [2002] 2 Suppl. SCR 324;
Central Board of Dawoodi Bohra Community v. State of
Maharashtra (2005) 2 SCC 673: [2004] 6 Suppl. SCR 1054;
Shilpa Sailesh v. Varun Sreenivasan 2023 SCC OnLine
SC 544; Kantaru Rajeevaru v. Indian Young Lawyers
Association (2020) 9 SCC 121; Ganga Sugar Corporation
Ltd. v. State of Uttar Pradesh (1980) 1 SCC 223: [1980]
1 SC 769; Thiruvengadam Pillai v. Navaneethammal,
(2008) 4 SCC 530: [2008] 3 SCR 23; Hindustan Steel
Ltd. v. Dilip Construction Co. (1969) 1 SCC 597: [1969]
3 SCR 736; Union of India v. Popular Construction Co.,
(2001) 8 SCC 470: [2001] 3 Suppl. SCR 619; P Anand
Gajapathi Raju v. P.V.G. Raju (2000) 4 SCC 539: [2000]
2 SCR 684; Food Corporation of India v. Indian Council
of Arbitration (2003) 6 SCC 564: [2003] 1 Suppl. SCR
568; Union of India v. Popular Construction Co. (2001) 8
SCC 470; Swiss Timing Ltd. v. Commonwealth Games 2010
Organising Committee (2014) 6 SCC 677:[ 2014] 6 SCR
514; State of Bihar v. Bihar Rajya M.S.E.S.K.K. Mahasangh
(2005) 9 SCC 129:[2004] 5 Suppl. SCR 376; Owners
and Parties Interested in the Vessel M.V. Polaris Galaxy
v. Banque Cantonale De Geneva, 2022 SCC OnLine SC
1293; Chandavarkar Sita Ratna Rao v. Ashalata S. Guram
(1986) 4 SCC 447: [1986] 3 SCR 866; ICICI Bank Ltd v.
SIDCO Leathers Ltd, (2006) 10 SCC 452: [2006] 1 Suppl.
SCR 528; JIK Industries Ltd. v. Amarlal V. Jumani, (2012)
3 SCC 255: [2012] 3 SCR 114; Morgan Securities & Credit
2046 SUPREME COURT REPORTS [2023] 15 S.C.R. 1081

(P) Ltd. v. Modi Rubber Ltd. (2006) 12 SCC 642:[2006]

10 Suppl. SCR 1022; Secur Industries Ltd v. Godrej &
Boyce Mfg. Co. Ltd, (2004) 3 SCC 447: [2004] 2 SCR
705; Bhaven Construction v. Sardar Sarovar Narmada
Nigam Ltd, (2022) 1 SCC 75: [2021] 1 SCR 1; Girnar
Traders v. State of Maharashtra (2011) 3 SCC 1: [2011]
3 SCR 1; Fuerst Day Lawson Ltd. v. Jindal Exports Ltd,
(2011) 8 SCC 333: [2011] 11 SCR 1; Pasl Wind Solutions
(P) Ltd v. GE Power Conversion (India) (P) Ltd., (2021) 7
SCC 1; Kandla Export Corporation v. OCI Corporation,
(2018) 14 SCC 715: [2018] 1 SCR 915; Subal Paul v.
Malina Paul, (2003) 10 SCC 361: [2003] 1 SCR 1092;
Bihar State Mineral Development Corporation v. Encon
Builders (2003) 7 SCC 418: [2003] 2 Suppl. SCR 812;
Union of India v. Kishorilal Gupta, 1959 SCC OnLine SC
6; Damodar Valley Corporation v. K K Kar (1974) 1 SCC
141: [1974] 2 SCR 240; Firm Ashok Traders v. Gurumukh
Das Saluja (2004) 3 SCC 155: [2004] 1 SCR 404; National
Agricultural Coop. Marketing Federation India Ltd. v.
Gains Trading Co. (2007) 5 SCC 692; P Manohar Reddy
& Bros. v. Maharashtra Krishna Valley Development Corp.
(2009) 2 SCC 494: [2008] 17 SCR 1217; Magma Leasing
& Finance Ltd. v. Potluri Madhavilata, (2009) 10 SCC
103: [2009] 14 SCR 815; Arcelor Mittal Nippon Steel
(India) Ltd. v. Essar Bulk Terminal Ltd. (2022) 1 SCC 712;
A Ayyasamy v. A Paramsivam, (2016) 10 SCC 386: [2016]
11 SCR 521; SPB & Co. v. Patel Engineering Ltd. (2005)
8 SCC 618: [2005] 4 Suppl. SCR 688; National Insurance
Co. Ltd. v. Boghara Polyfab Pvt. Ltd. (2009) 1 SCC 267:
[2008] 13 SCR 638; Duro Felguera, S A v. Gangavaram
Port Ltd. (2017) 9 SCC 729: [2017] 10 SCR 285; Mayavati
Trading (P) Ltd. v. Pradyuat Deb Burman (2019) 8 SCC
714: [2019] 12 SCR 123; Shin-Etsu Chemical Co. Ltd. v.
Aksh Optifibre Ltd. (2005) 7 SCC 234: [2005] 2 Suppl.
SCR 699; CIT v. Hindustan Bulk Carriers, (2003) 3 SCC
57: [2002] 5 Suppl. SCR 387; Sultana Begum v. Prem
IN RE: INTERPLAY BETWEEN ARBITRATION AGREEMENTS 2047
UNDER THE ARBITRATION AND CONCILIATION ACT 1996
AND THE INDIAN STAMP ACT 1899
Chand Jain (1997) 1 SCC 373: [1996] 9 Suppl. SCR 707;
Kandla Export Corporation v. OCI Corporation (2018) 14
SCC 715: [2018] 1 SCR 915; Silpi Industries v. Kerala
State Road Transport Corporation 2021 SCC OnLine SC
439; LIC v. D.J. Bahadur (1981) 1 SCC 315: [1981] 1
SCR 1083; Sundaram Finance Ltd. v. T. Thankam (2015)
14 SCC 444: [2015] 2 SCR 228; CDC Financial Services
(Mauritius) Ltd. v. BPL Communications Ltd., (2003) 12
SCC 140; Empire Jute Co. Ltd. v. Jute Corpn. of India
Ltd., (2007) 14 SCC 680: [2007] 11 SCR 388; Associate
Builders v. DDA, (2015) 3 SCC 49: [2014] 13 SCR 895;
Bhaven Construction v. Sardar Sarovar Narmada Nigam
Ltd., (2022) 1 SCC 75: [2021] 1 SCR 1; Hameed Joharan
v. Abdul Salam (2001) 7 SCC 573: [2001] 1 Suppl. SCR
469; A. Ayyasamy v. A. Paramasivam (2016) 10 SCC 386:
[2016] 11 SCR 52; State of U.P. v. Babu Ram Upadhya
1960 SCC OnLine SC 5; Emmar MGF Land Ltd. v. Aftab
Singh (2019) 12 SCC 751; Intercontinental Hotels Group
(India) (P) Ltd v. Waterline Hotels (P) Ltd. (2022) 7 SCC
662; Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao
(1971) 1 SCC 545; Hariom Agrawal v. Prakash Chand
Malviya (2007) 8 SCC 514; United India Insurance Co.
Ltd. v. Hyundai Engg. & Construction Co. Ltd. (2018) 17
SCC 607; Career Institute Educational Society v. Om Shree
Thakurji Educational Society 2023 SCC OnLine SC 586;
Indian Farmers Fertilizer Cooperative Limited v. Bhadra
Products (2018) 2 SCC 534: [2018] 1 SCR 848; Official
Trustee, West Bengal v. Sachindra Nath Chatterjee [1969]
3 SCR 92; NTPC v. Siemens Atkeingesllchaft (2007) 4
SCC 451: [2007] 3 SCR 399; Chloro Controls India (P)
Ltd. v. Severn Trent Water Purification Inc. (2013) 1 SCC
641: [2012] 3 SCR 402 and Seka Dobric v. SA Eonsoftech
Private Limited (Decision of Supreme Court of India in
Arbitration Petition No. 25 of 2023) – referred to.

Sukh Lal Sheikh v. Tara Chand Ta, 1905 SCC OnLine Cal
164; Gulzari Lal Marwari v. Ram Gopal 1936 SCC OnLine
2048 SUPREME COURT REPORTS [2023] 15 S.C.R. 1081

Cal 275; Boottam Pitchiah v. Boyapati Koteswara Rao

1964 SCC OnLine AP 5; Mulheim Pipecoatings GmbH
v. Welspun Fintrade Ltd., 2013 SCC OnLine Bom 1048 –
referred to.

Rio Algam v. Sammi Steel Co., Ontario Court of Justice,

Canada, 1 March 1991 [1991] O.J. No. 268; Heyman v.
Darwins [1942] AC 356; Harbour Assurance Co. (U.K.) Ltd.
v. Kansa General International Insurance Co. Ltd. [1993]
Q.B. 701; Premium Nafta Products Limited v. Fili Shipping
Co. Ltd. [2007] UKHL 40; Prima Paint Corporation v.
Flood & Conklin Mfg. Co., 388 US 395 (1967); Buckeye
Check Cashing Inc v. Cardegna 546 U.S. 440, 440 (2006);
Rent-A-Center, West, Inc. v. Jackson 2 561 U.S. 63 (2010);
Dallah Real Estate and Tourism Holding Company v. The
Ministry of Religious Affairs, Government of Pakistan
[2010] UKSC 46; Malini Ventura v. Knight Capital Pte Ltd
[2015] SGHC 225; Tobler v. Justizkommission des Kantons
Schwyz, DFT 59 | 177 (1933) – referred to.

Gary Born, The Principle of Judicial Non-Interference in

International Arbitration Proceedings’ (2009) 30 University
of Pennsylvania Journal of International Law 999, 1002;
Gary Born, International Arbitration Law and Practice
(3rd ed, 2021) 2361; Digest of Case Law on the Model
Law on International Commercial Arbitration (2012)
21, 60; Richard Garnett, ‘Article 5 of the Model Law:
Protector of the Arbitral Process?’ (2021) 38(2) Journal
of International Arbitration 127-146; Redfern and Hunter
on International Arbitration (7th edn, Oxford University
Press, 2023) 3; Stephen Schwebel, Luke Sobota, and Ryan
Manton, International Arbitration: Three Salient Problems
(Cambridge University Press, 2nd edn, 2020) 4; Henry
Horwitz and James Oldham, ‘John Locke, John Mansfield,
and Arbitration during the Eighteenth Century’ (1993)
36(1) The Historical Journal 137, 139; Earl Wolaver, ‘The
Historical Background of Commercial Arbitration’ (1934)
IN RE: INTERPLAY BETWEEN ARBITRATION AGREEMENTS 2049
UNDER THE ARBITRATION AND CONCILIATION ACT 1996
AND THE INDIAN STAMP ACT 1899
83 University of Pennsylvania Law Review 132, 142; Julian
D M Lew, ‘Achieving the Dream: Autonomous Arbitration’
(2006) 22(2) Arbitration International 179, 183 and P
Ramanatha Aiyar’s The Law Lexicon – referred to.

In the judgment of Sanjiv Khanna, J.

N N Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd.

(2023) 7 SCC 1 – overruled.

Vidya Drolia and Others v. Durga Trading Corporation

(2021) 2 SCC 1: [2020] 11 SCR 1001 – clarified.

Javer Chand and Others. v. Pukhraj Surana AIR 1961 SC

1655: [1962] 2 SCR 333; State of Bihar v. M/s Karam Chand
Thapar and Brothers Ltd. AIR 1962 SC 110: [1962] 1 SCR
827; Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao
and Others (1971) 1 SCC 545: [1971] 3 SCR 590; Hameed
Joharan (Dead) and Others v. Abdul Salam (Dead) by LRs.
and Others (2001) 7 SCC 573: [2001] 1 Suppl. SCR 469;
Dr. Chiranji Lal (D) by LRs. v. Hari Das (D) by LRs. (2005)
10 SCC 746: [2005] 1 Suppl. SCR 359; Hariom Agrawal
v. Prakash Chand Malviya (2007) 8 SCC 514: [2007] 10
SCR 772; Shyamal Kumar Roy v. Sushil Kumar Agarwal
(2006) 11 SCC 331: [2006] 8 Suppl. SCR 47; Avinash
Kumar Chauhan v. Vijay Krishna Mishra (2009) 2 SCC 532:
[2008] 17 SCR 944; Keshav Mills Co. Ltd. v. Commissioner
of Income Tax, Bombay North, Ahmedabad, AIR 1965 SC
1636: [1965] 2 SCR 908; Government of Andhra Pradesh
and Others v. A.P. Jaiswal and Others, (2001) 1 SCC 748;
Total Environment Building Systems Pvt. Ltd. v. Deputy
Commissioner of Commercial Taxes and Others, 2022 SCC
OnLine SC 953; Union of India and Another v. Raghubir
Singh (Dead) by LRs. etc., (1989) 2 SCC 754: [1989] 3
SCR 316; Caravel Shipping Services (P) Ltd. v. Premier Sea
Foods Exim (P) Ltd. (2019) 11 SCC 461: [2018] 14 SCR
289; Govind Rubber Ltd. v. Louis Dreyfus Commodities Asia
2050 SUPREME COURT REPORTS [2023] 15 S.C.R. 1081

Pvt. Ltd. (2015) 13 SCC 477: [2014] 12 SCR 488; B.O.I.

FinanceLtd. v. Custodian and Others (1997) 10 SCC 488:
[1997] 3 SCR 51; Canara Bank and Others v. Standard
Chartered Bank (2002) 10 SCC 697; Swiss Timing Ltd. v.
Commonwealth Games 2010 Organising Committee (2014)
6 SCC 677: [2014] 6 SCR 514; Avitel Post Studioz Ltd.
v. HSBC PI Holdings (Mauritius) Ltd. (2021) 4 SCC 713:
[2020] 10 SCR 791; Career Institute Educational Society v.
Om Shree Thakurji Educational Society 2023 SCC OnLine
SC 586 and Garware Wall Ropes Ltd. v. Coastal Marine
Constructions & Engg. Ltd. (2019) 9 SCC 209: [2019] 5
SCR 579 – referred to.

Ram Rattan v. Parma Nand AIR 1946 PC 51– referred to.

BNA v. BNB and Another [2019] SGHC 142 and Insigma

Technology Co Ltd v. Alstom Technology Ltd [2009] SGCA
24 – referred to.
 [2023] 16 S.C.R. 1 : 2023 INSC 1058

IN RE: ARTICLE 370 OF THE CONSTITUTION

(Writ Petition (Civil) No. 1099 of 2019)

DECEMBER 11, 2023

[DR. DHANANJAYA Y CHANDRACHUD, CJI,

SANJAY KISHAN KAUL, SANJIV KHANNA,
B. R. GAVAI AND SURYA KANT, JJ.]

Issues for consideration: Article 370 of the Constitution of India

incorporated special arrangements for the governance of the State of Jammu
and Kashmir. The President issued Constitutional Orders 272 and 273 during
the subsistence of a Proclamation under Article 356(1)(b) which orders had
the effect of applying the entire Constitution of India to the State of Jammu
and Kashmir and abrogating Article 370. Contemporaneously, the Parliament
enacted the Jammu and Kashmir Reorganisation Act 2019 which bifurcated
the State into two Union territories, namely, the Union Territory of Jammu and
Kashmir and the Union Territory of Ladakh. The petitioners challenged the
constitutionality of these actions. CO 272 was issued under Article 370(1)(d)
and sought to amend clause (3) of Article 370. The petitioners challenged CO
272 as being ultra vires Article 370(1)(d) on the grounds that: a. It modified
Article 370, which could only be done on exercise of power under Article
370(3); and b. Only the State Government may accord “concurrence” to the
President under the second proviso to Article 370(1)(d). Further, the exercise of
power under Article 370(3) in issuing CO 273 was challenged. The questions
for determination were:
a. Whether the provisions of Article 370 of the Constitution were
temporary in nature or whether they acquired a status of permanence in the
Constitution;
b. Whether the amendment to Article 367 of the Constitution in exercise
of the power under Article 370(1)(d) so as to substitute the reference to the
“Constituent Assembly of the State referred to in clause (3) of Article 370
by the words “Legislative Assembly of the State” was constitutionally valid;
c. Whether the entire Constitution of India could have been applied to the
State of Jammu and Kashmir in exercise of the power under Article 370(1)(d);

2051
2052 SUPREME COURT REPORTS [2023] 16 S.C.R. 1

d. Whether the abrogation of Article 370 by the President in exercise of

the power under Article 370(3) was constitutionally invalid in the absence of
a recommendation of the Constituent Assembly of the State of Jammu and
Kashmir as mandated by the proviso to clause (3);
e. Whether the proclamation of the Governor dated 20 June 2018 in
exercise of power conferred by Section 92 of the Constitution of Jammu
and Kashmir and the subsequent exercise of power on 21 November 2018,
under Section 53(2) of the Constitution of Jammu and Kashmir to dissolve
the Legislative Assembly were constitutionally valid;
f. Whether the Proclamation which was issued by the President under
Article 356 of the Constitution on 19 December 2018 and the subsequent
extensions were constitutionally valid;
g. Whether the Jammu and Kashmir Reorganisation Act 2019 by which
the State of Jammu and Kashmir was bifurcated into two Union Territories
(Union Territory of Jammu and Kashmir and Union Territory of Ladakh)
was constitutionally valid bearing in mind: (i) The first proviso to Article 3
which requires that a Bill affecting the area, boundaries or name of a State
has to be referred to the legislature of the State for its views; and (ii.) The
second proviso to Article 3 which requires the consent of the State legislature
for increasing or diminishing the area of the State of Jammu and Kashmir
or altering the name of boundary of the State before the introduction of the
Bill in Parliament;
h. Whether during the tenure of a Proclamation under Article 356,
and when the Legislative Assembly of the State is either dissolved or is in
suspended animation the status of the State of Jammu and Kashmir as a State
under Article 1(3)(a) of the Constitution and its conversion into a Union
Territory under Article 1(3)(b) constitutes a valid exercise of power.

Federalism – Asymmetric federalism – Constitutional integration

of Indian States – Accession of Jammu and Kashmir – Article 370 of
the Constitution of India incorporated special arrangements for the
governance of the State of Jammu and Kashmir – Whether the State of
Jammu and Kashmir possessed sovereignty – Meaning of sovereignty.
Held (per Dr. D.Y. Chandrachud, CJI) (for himself, B.R. Gavai
and Surya Kant, JJ.): The State of Jammu and Kashmir does not retain any
 IN RE: ARTICLE 370 OF THE CONSTITUTION 2053

element of sovereignty after the execution of the Instrument of Accession

(IoA) and the issuance of the Proclamation dated 25 November 1949 by which
the Constitution of India was adopted – The State of Jammu and Kashmir
does not have ‘internal sovereignty’ which is distinguishable from the powers
and privileges enjoyed by other States in the country – Article 370 was a
feature of asymmetric federalism and not sovereignty. [Para 514] – Held (per
Sanjay Kishan Kaul, J.): In light of the Supreme Court’s prior finding in
Prem Nath Kaul case, the State of Jammu and Kashmir retained an element
of internal sovereignty despite Maharaja Hari Singh signing the IoA with the
Dominion – Art.370 of the Constitution recognized this internal sovereignty
by recognizing the Constituent Assembly of the State. [Para 112] – Held
(per Sanjiv Khanna, J.): The abrogation of Article 370 does not negate the
federal structure, as the citizens living in Jammu and Kashmir do and will
enjoy same status and rights as given to citizens residing in other parts of the
country. [Para 2]

Constitution of India – Art. 356 – Constitution of Jammu and

Kashmir – s.92 – Proclamations issued under Article 356 of the
Constitution of India and s.92 of the Constitution of Jammu and Kashmir
– Constitutional validity of.
Held (per Dr. D.Y. Chandrachud, CJI) (for himself, B.R. Gavai
and Surya Kant, JJ.): The petitioners did not challenge the issuance of the
Proclamations under Section 92 of the Jammu and Kashmir Constitution and
Article 356 of the Indian Constitution until the special status of Jammu and
Kashmir was abrogated – The challenge to the Proclamations does not merit
adjudication because the principal challenge is to the actions which were
taken after the Proclamation was issued. [Para 514]

Constitution of India – Art. 356 – Presidential Proclamation

– Exercise of power by President or Parliament under Article 356 –
Limitations on, if any – Standard to assess actions taken under Article
356 after issuance of Proclamation.
Held (per Dr. D.Y. Chandrachud, CJI) (for himself, B.R. Gavai
and Surya Kant, JJ.): The exercise of power by the President after the
Proclamation under Article 356 is issued is subject to judicial review – The
exercise of power by the President must have a reasonable nexus with the
2054 SUPREME COURT REPORTS [2023] 16 S.C.R. 1

object of the Proclamation – The person challenging the exercise of power

must prima facie establish that it is a mala fide or extraneous exercise of
power – Once a prima facie case is made, the onus shifts to the Union to
justify the exercise of such power – The power of Parliament under Article
356(1)(b) to exercise the powers of the Legislature of the State cannot be
restricted to law-making power thereby excluding non-law making power
of the Legislature of the State – Such an interpretation would amount to
reading in a limitation into the provision contrary to the text of the Article.
[Para 514] – Held (per Sanjay Kishan Kaul, J.) (Concurring with Dr. D.Y.
Chandrachud, CJI): President’s rule can be imposed after the dissolution
of the State Assembly since the Presidential emergency was predicated on
the failure of the constitutional machinery, which took place prior to the
Governor’s rule and the dissolution of the Assembly by the Governor of
Jammu & Kashmir was only a subsequent consequence – Once the Presidential
proclamation has been approved by both Houses of Parliament, so as to reflect
the will of the people, the President has the power under Article 356 to make
irreversible changes, including the dissolution of the State Assembly – The
imposition of an emergency highlights an extraordinary situation and in the
absence of the State Government and State Legislature, the power of these
elected organs must lie with any other competent authority – Article 357 does
not bar the President from exercising the non-legislative powers of the State
Legislature, and Article 356(1)(b) allows the Union Parliament to exercise
all powers of the State Legislature without distinguishing between legislative
and non-legislative powers of the State Legislature – Therefore, the President
is permitted to exercise both legislative and non-legislative functions of the
State Legislature – However, a proclamation of emergency is bound by judicial
and constitutional scrutiny to ensure the exercise of emergency powers is not
unfettered and absolute. [Para 112] – Sanjiv Khanna, J. concurring with
Dr. D.Y. Chandrachud, CJI.

Constitution of India – Art. 370 – Scope and interpretation of –

Art.370 incorporating special arrangements for governance of the State of
Jammu and Kashmir, if a temporary provision – Historical context to the
Article – Placement of Art.370 in Part XXI of the Constitution – Effect of.
Held (per Dr. D.Y. Chandrachud, CJI) (for himself, B.R. Gavai
and Surya Kant, JJ.): It can be garnered from the historical context for the
 IN RE: ARTICLE 370 OF THE CONSTITUTION 2055

inclusion of Article 370 and the placement of Article 370 in Part XXI of the
Constitution that it is a temporary provision. [Para 514] – Held (per Sanjay
Kishan Kaul, J.) (Concurring with Dr. D.Y. Chandrachud, CJI): A
combination of factors, such as Article 370’s historical context, its text, and its
subsequent practice, indicate that Article 370 was intended to be a temporary
provision. [Para 112] – Held (per Sanjiv Khanna, J.) (Concurring with
both Dr. D.Y. Chandrachud, CJI and Sanjay Kishan Kaul, J.): Article
370 was enacted as a transitional provision and did not have permanent
character. [Para 2]

Constitution of India – Art. 370 – Effect of dissolution of the

Constituent Assembly of Jammu and Kashmir on the scope of powers
under Art.370(3).
Held (per Dr. D.Y. Chandrachud, CJI) (for himself, B.R. Gavai and
Surya Kant, JJ.): The power under Article 370(3) did not cease to exist upon
the dissolution of the Constituent Assembly of Jammu and Kashmir – When the
Constituent Assembly was dissolved, only the transitional power recognised
in the proviso to Article 370(3) which empowered the Constituent Assembly
to make its recommendations ceased to exist – It did not affect the power held
by the President under Article 370(3). [Para 514] – Held (per Sanjay Kishan
Kaul, J.) (Concurring with Dr. D.Y. Chandrachud, CJI): Article 370(3)
contained the mechanism to bring the temporary arrangement to an end, and
in turn, to de-recognize the internal sovereignty of the State and apply the
Constitution of India in toto – Since Article 370 is meant to be a temporary
arrangement, it cannot be said that the mechanism under Article 370(3) came
to an end after the State Constituent Assembly was dissolved – The power of
the President under Article 370(3) was unaffected by the dissolution of the
Constituent Assembly of Jammu and Kashmir – The President could exercise
their power anytime after the dissolution of the Constituent Assembly of
Jammu and Kashmir, in line with the aim of full integration of the State.
[Para 112] – Sanjiv Khanna, J. concurring with Sanjay Kishan Kaul, J.

Constitution of India – Art. 370 – Amendment of Art. 370 through

Art. 370(1)(d) – Application of the Constitution of India to the State
of Jammu and Kashmir through exercise of power under Art. 370(1)
(d) – Amendment to Article 367 of the Constitution in exercise of the
2056 SUPREME COURT REPORTS [2023] 16 S.C.R. 1

power under Article 370(1)(d) so as to substitute the reference to the

“Constituent Assembly of the State referred to in clause (3) of Article
370 by the words “Legislative Assembly of the State” – Validity
of modification of Art. 367 – The President issued Constitutional
Orders 272 and 273 during the subsistence of a Proclamation under
Article 356(1)(b) – These orders had the effect of applying the entire
Constitution of India to the State of Jammu and Kashmir and abrogating
Art.370 – Challenge to the Constitutional Orders 272 and 273 (C.Os
272 and 273).
Held (per Dr. D.Y. Chandrachud, CJI) (for himself, B.R. Gavai
and Surya Kant, JJ.): Article 370 cannot be amended by exercise of power
under Article 370(1)(d) – Recourse must have been taken to the procedure
contemplated by Article 370(3) if Article 370 is to cease to operate or is to be
amended or modified in its application to the State of Jammu and Kashmir –
Paragraph 2 of CO 272 by which Article 370 was amended through Article
367 is ultra vires Article 370(1)(d) because it modifies Article 370, in effect,
without following the procedure prescribed to modify Article 370 – An
interpretation clause cannot be used to bypass the procedure laid down for
amendment – However, the exercise of power by the President under Article
370(1)(d) to issue CO 272 is not mala fide – The President in exercise of
power under Article 370(3) can unilaterally issue a notification that Article
370 ceases to exist – The President did not have to secure the concurrence
of the Government of the State or Union Government acting on behalf of
the State Government under the second proviso to Article 370(1)(d) while
applying all the provisions of the Constitution to Jammu and Kashmir because
such an exercise of power has the same effect as an exercise of power under
Article 370(3) for which the concurrence or collaboration with the State
Government was not required – Paragraph 2 of CO 272 issued by the President
in exercise of power under Article 370(1)(d) applying all the provisions of
the Constitution of India to the State of Jammu and Kashmir is valid – Such
an exercise of power is not mala fide merely because all the provisions were
applied together without following a piece-meal approach – The President had
the power to issue a notification declaring that Article 370(3) ceases to operate
without the recommendation of the Constituent Assembly – The continuous
exercise of power under Article 370(1) by the President indicates that the
gradual process of constitutional integration was ongoing – The declaration
 IN RE: ARTICLE 370 OF THE CONSTITUTION 2057

issued by the President under Article 370(3) is a culmination of the process of

integration and as such is a valid exercise of power – Thus, CO 273 is valid
– The Constitution of India is a complete code for constitutional governance
– Following the application of the Constitution of India in its entirety to the
State of Jammu and Kashmir by CO 273, the Constitution of the State of
Jammu and Kashmir is inoperative and is declared to have become redundant.
[Para 514] – Held (per Sanjay Kishan Kaul, J.) (Concurring with Dr.
D.Y. Chandrachud, CJI): The power of the President under Article 370(3)
was unaffected by the dissolution of the Constituent Assembly of Jammu
and Kashmir – The President could exercise their power anytime after the
dissolution of the Constituent Assembly of Jammu and Kashmir, in line with
the aim of full integration of the State – Hence, C.O. 273, which declares that
Article 370 shall cease to operate except as provided, and was issued under
Article 370(3), is valid – The power to issue C.O. 272 without the concurrence
of the Government of the State is valid, as the power of the President is not
limited by the concurrence of the Government of the State in this case – The
power under Article 370(1)(d) read with Article 367 cannot be used to do
indirectly, what cannot be done directly – The power to make modifications
under Article 370(1)(d) cannot be used to amend Article 370 and Article 367,
which is an interpretation clause, cannot be used to alter the character of a
provision – Therefore, Paragraph 2 of C.O. 272, which amends Article 367(4)
is ultra vires Article 370 – However, the President had the power to apply all
provisions of the Constitution of India to Jammu and Kashmir under Article
370(1)(d), which is similar to the power under Article 370(3) – Therefore,
the remainder of Paragraph 2 of C.O. 272 is valid. [Para 112] – Held (per
Sanjiv Khanna, J.) (Concurring with both Dr. D.Y. Chandrachud, CJI
and Sanjay Kishan Kaul, J.): Paragraph (2) of C.O. 272 by which Article
370 was amended by taking recourse to Article 367 is ultra vires and bad in
law, albeit can be sustained in view of the corresponding power under Article
370(1)(d) – Most importantly, Article 370 has been made inoperative in terms
of clause (3) to Article 370 – Lastly, C.O. 273 is valid. [Para 2]

Jammu and Kashmir Reorganisation Act 2019 – s.14 – Parliament

enacted the Jammu and Kashmir Reorganisation Act 2019 which
bifurcated the State of Jammu and Kashmir into two Union territories,
Union Territory of Jammu and Kashmir and Union Territory of
Ladakh – Challenge to the Reorganisation Act on substantive grounds
2058 SUPREME COURT REPORTS [2023] 16 S.C.R. 1

and on procedural grounds – Contours of the power under Art. 3 of the

Constitution of India – Parliament’s exercise of power under the first
proviso to Art.3 – Suspension of the second proviso to Art.3 as applicable
to Jammu and Kashmir – Constitution of India – Art.3.
Held (per Dr. D.Y. Chandrachud, CJI) (for himself, B.R. Gavai
and Surya Kant, JJ.): The views of the Legislature of the State under the
first proviso to Article 3 are recommendatory – Thus, Parliament’s exercise
of power under the first proviso to Article 3 under the Proclamation was
valid and not mala fide – The Solicitor General stated that the statehood of
Jammu and Kashmir will be restored (except for the carving out of the Union
Territory of Ladakh) – In view of the statement, it is not necessary to determine
whether the reorganisation of the State of Jammu and Kashmir into two Union
Territories of Ladakh and Jammu and Kashmir is permissible under Article
3 – However, the validity of the decision to carve out the Union Territory
of Ladakh is upheld in view of Article 3(a) read with Explanation I which
permits forming a Union Territory by separation of a territory from any State
– Steps to be taken by the Election Commission of India to conduct elections
to the Legislative Assembly of Jammu and Kashmir constituted under s.14
of the Reorganisation Act by 30 September 2024 – Restoration of Statehood
shall take place at the earliest and as soon as possible. [Para 514] – Held
(per Sanjay Kishan Kaul, J.) (Concurring with Dr. D.Y. Chandrachud,
CJI): The challenge to Section 4 of the Jammu and Kashmir Reorganization
Act on the touchstone of Article 3 is not required to be debated on account
of the assurance on behalf of the Government of India that the Statehood of
Jammu & Kashmir would be restored on elections being held – It is imperative
to ascertain the ‘views’ of the State Legislature under the first proviso to
Article 3 if the proposed Bill affects the area, boundaries or name of the
State – However, in the instant case since the State of Jammu & Kashmir was
under President’s Rule and the State Legislature was already dissolved, the
functions of the State Legislature were performed by the Union Parliament –
Hence, it was not possible to ascertain the views of the State Legislature – It
follows that Section 3 of the Reorganization Act is valid. [Para 112] – Held
(per Sanjiv Khanna, J.) (Concurring with Dr. D.Y. Chandrachud, CJI):
Union Territories are normally geographically small territories, or may be
created for aberrant reasons or causes – Conversion of a State into Union
Territory has grave consequences, amongst others, it denies the citizens of the
 IN RE: ARTICLE 370 OF THE CONSTITUTION 2059

State an elected state government and impinges on federalism – Conversion/

creation of a Union Territory from a State has to be justified by giving very
strong and cogent grounds – It must be in strict compliance with Article 3 of
the Constitution of India. [Para 6]

Human Rights – Jammu and Kashmir – Held Per Sanjay Kishan

Kaul, J, Recommendation made by for setting up of an impartial truth and
reconciliation Commission to investigate and report on violation of human
rights both by State and non-State actors in Jammu & Kashmir at least since
the 1980s and recommend measures for reconciliation. [Para 120]

LIST OF CITATIONS AND OTHER REFERENCES

In the judgment of Dr. D.Y. Chandrachud, CJI

S.R. Bommai v. Union of India (1994) 3 SCC 1 : [1994] 2

SCR 644 and Raja Ram Pal v. Hon’ble Speaker, Lok Sabha
(2007) 3 SCC 184 : [2007] 1 SCR 317 – relied on.

Krishna Kumar Singh v. State of Bihar (2017) 3 SCC 1 :

[2017] 5 SCR 160; Sampat Prakash v. State of Jammu
& Kashmir [1969] 2 SCR 365; Madhav Rao Jivaji Rao
Scindia v. Union of India (1971) 1 SCC 85 : [1971] 3 SCR
9 and Raghunathrao Ganpatrao v. Union of India (1994) 1
Supp SCC 191 : [1993] 1 SCR 480 – explained.

Dr Shah Faesal v. Union of India (2020) 4 SCC 1 : [2020]

3 SCR 1115; Prem Nath Kaul v. State of Jammu & Kashmir
[1959] Suppl 2 SCR 270; Mohd Maqbool Damnoo v.
State of Jammu and Kashmir (1972) 1 SCC 536 : [1972] 2
SCR 1014; Thiru K.N. Rajagopal v. Thiru M. Karunanidhi,
(1972) 4 SCC 733; State Bank of India v. Santosh Gupta
(2017) 2 SCC 538 : [2016] 9 SCR 985; D.C. Wadhwa v.
State of Bihar (1987) 1 SCC 378 : [1987] 1 SCR 798;
Union of India v. Sukumar Sengupta, (1990) Supp SCC
545 : [1990] 3 SCR 24; Indira Nehru Gandhi v. Raj Narain,
(1975) Supp SCC 1 : [1976] 2 SCR 347; State (NCT of
2060 SUPREME COURT REPORTS [2023] 16 S.C.R. 1

Delhi) v. Union of India (2018) 8 SCC 501 : [2018] 7 SCR

1; State (NCT of Delhi) v. Union of India (2023) 9 SCC 1;
State of Rajasthan v. Union of India (1977) 3 SCC 392;
Bhupendra Kumar Bose v. State of Orissa AIR 1962 SC
945 : [1962] 2 Suppl. SCR 380; T Venkata Reddy v. State
of Andhra Pradesh (1985) 3 SCC 198 : [1985] 3 SCR
509; In re Presidential Poll (1974) 2 SCC 33 : [1975] 1
SCR 504; Virendra Singh v. State of U.P. [1955] 1 SCR
415; C.I.T. v. Ahmedbhai Umarbhai & Co. [1950] SCR
335; Board of Muslim Waqfs, Rajasthan v. Radhakishan
(1979) 2 SCC 468 : [1979] 2 SCR 148; Kalawati Bai v.
Soiryabai (1991) 3 SCC 410 : [1991] 2 SCR 599; Guntaiah
v. Hambamma, (2005) 6 SCC 228 : [2005] 1 Suppl. SCR
770; Uttam Das Chela Sunderdas v. Shiromani Gurdwara
Prabandhak Committee (1996) 5 SCC 71 : [1996] 3 Suppl.
SCR 5; Nalinakhya Bysack v. Shyam Sundar Haddar
[1953] SCR 533; Western India Theatres Ltd. v. Municipal
Corporation, Poona [1959] Supp 2 SCR 71; Nandini
Satpathy v. P.C. Dani (1978) 2 SCC 424 : [1978] 3 SCR
608; Bengal Immunity Company Limited v. State of Bihar
[1955] 2 SCR 603; Kesavananda Bharati Sripadagalvaru
v. State of Kerala (1973) 4 SCC 225: [1973] Suppl. SCR
1; Puranlal Lakhanpal I v. President of India [1955] 2
SCR 1101; Puranlal Lakhanpal II v. The President of India
[1962] 1 SCR 688; In re Delhi Laws Act [1951] SCR 747;
J.N. Ganatra v. Morvi Municipality (1996) 9 SCC 495 :
[1996] 3 Suppl. SCR 742; Commissioner of Income Tax,
Mumbai v. Anjum M.H. Ghaswala, (2002) 1 SCC 633;
State of Uttar Pradesh v. Singhara Singh 1963 AIR 358 :
[1964] 4 SCR 485; Shankari Prasad Singh Deo v. Union
of India (1951) SCC 966 : [1952] SCR 89; Sajjan Singh
v. State of Rajasthan 1964 SCC OnLine SC 25; Kihoto
Hollohan v. Zachillhu (1992) 2 Supp SCC 651: [1992] 1
SCR 686; Union of India v. Rajendra N. Shah 2021 SCC
OnLine SC 474; I.R. Coelho v. State of T.N (2007) 2 SCC
1 : [2007] 1 SCR 706; Indira Nehru Gandhi v. Raj Narain
IN RE: ARTICLE 370 OF THE CONSTITUTION 2061

(1975) Supp SCC 1 : [1976] 2 SCR 347; Kishan Lal

v. State of Rajasthan (1990) Supp SCC 742 : [1990] 2
SCR 142; Feroze N. Dotivala v. P.M. Wadhwani (2003)
1 SCC 433 : [2002] 4 Suppl. SCR 416; CIT v. Sundaram
Spinning Mills (2000) 1 SCC 466 : [1999] 5 Suppl. SCR
365; Kesavananda Bharati v. State of Kerala (1973) 4 SCC
225 : [1973] Suppl. SCR 1; Kuldip Nayar v. Union of India
(2006) 7 SCC 1 : [2006] 5 Suppl. SCR 1; State (NCT of
Delhi) v. Union of India (2023) 9 SCC 1; Swaraj Abhiyan
(V) v. Union of India (2018) 12 SCC 170; Kuldip Nayar v.
Union of India (2006) 7 SCC 1; State of Himachal Pradesh
v. Union of India (2011) 13 SCC 344 : [2011] 11 SCR 527
and Babulal Parate v. State of Bombay AIR 1960 SC 51 :
[1960] 1 SCR 605 – referred to.

Balraj Kunwar v. Jagatpal Singh, ILR 26 All 392 and

Emperor v. Sadashiv AIR 1947 PC 82 – referred to.

Dicey, Law of the Constitution (8th ed. 1915); Austin,

Jurisprudence (4th ed. 1873); John Dickinson, A Working
Theory Of Sovereignty I, Political Science Quarterly,
Volume 42, Issue 4, December 1927, Pages 524–548;
Lester B Orfield, The Amending of the Federal Constitution
(2012); Max Planck Encyclopedia of Public International
Law, ‘Sovereignty’ Oxford Public International Law and
Shiva Rao, The Framing of India’s Constitution, IV, pp.
3-4; Constituent Assembly Debates on November 17, 1948,
Speech by Mr. KT Shah, Book 2, Pgs. 437-438; 25 October
1956, and 7 November 1956, Debates of the Constituent
Assembly of Jammu and Kashmir; “Looking Back” by Shri
Mehr Chand Mahajan, Har-Anand Publications Private
Limited reprint 2023; “The Story of the Integration of the
Indian States” by VP Menon, Orient Longmans (1961); B.
Shiva Rao, The Framing of India’s Constitution; Justice
G P Singh’s “Principles of Statutory Interpretation” –
referred to.
2062 SUPREME COURT REPORTS [2023] 16 S.C.R. 1

In the judgment of Sanjay Kishan Kaul, J.

Prem Nath Kaul v. State of J&K [1969] Supp 2 SCR 270;

State of West Bengal v. Union of India [1964] 1 SCR 371
and Babulal Parate v. State of Bombay [1960] 1 SCR 605
– relied on.

S.R. Bommai v. Union of India (1994) 3 SCC 1 : [1994] 2

SCR 644 – explained.

R.C. Poudyal v. Union of India (1994) 1 Supp SCC 324;

Sampat Prakash v. State of J & K [1969] 2 SCR 365;
Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225 :
[1973] Suppl. SCR 1; Dr. Shah Faesal and Ors. v. Union
of India and Anr. (2020) 4 SCC 1 : [2020] 3 SCR 1115;
Promod Chandra Deb v. State of Orissa [1962] Supp 1
SCR 405; Madhav Rao Jivaji Rao Scindia v. Union of India
(1971) 1 SCC 85 : [1971] 3 SCR 9; State Bank of India
v. Santosh Gupta (2017) 2 SCC 538 : [2016] 9 SCR 985;
Delhi Laws Act, In Re. (1951) SCC 568 : [1951] SCR 747;
Puranlal Lakhanpal v. President of India [1962] 1 SCR
688; Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC
1 : [2017] 5 SCR 160; K.N. Rajgopal v. M. Karunanidhi
(1972) 4 SCC 733; Raghunathrao Ganpatrao v. Union of
India (1994) 1 Supp SCC 191 : [1993] 1 SCR 480; Mohd.
Maqbool Damnoo v. State of Jammu & Kashmir (1972) 1
SCC 536 : [1972] 2 SCR 1014; Haji Abdul Ghani Khan v.
Union of India 2023 SCC OnLine SC 138; Raja Ram Pal
v. Hon’ble Speaker, Lok Sabha (2007) 3 SCC 184 : [2007]
1 SCR 317; Puranlal Lakhanpal v. Union of India [1955]
2 SCR 1101; Thiru K.N. Rajgopal v. Thiru M. Karunanidhi
& Others (1972) 4 SCC 733; Rameshwar Prasad v. Union
of India (2006) 2 SCC 1 : [2006] 1 SCR 562 and Vishaka
and Others v State of Rajasthan (1997) 6 SCC 241 : [1997]
3 Suppl. SCR 404 – referred to.

Manohar Lal v. Union of India AIR 1970 Del 178 – referred

to.
IN RE: ARTICLE 370 OF THE CONSTITUTION 2063

Miller v. Queen (2019) UKSC 41 and Velasquez Rodriguez

v Honduras (Ser. C) No. 4 (IACHR) 1988 – referred to.

Rajatarangini (The River of Kings) of Kalhana and

Nilamatpurana, believed to be composed by Candra
Deva; P.N.K Bamzai, Culture and Political History of
Kashmir: Ancient Kashmir, vol. 1 (M.D. Publications
Pvt. Ltd., New Delhi 1994) 16; A.R. Nazki, ‘In Search of
Roots’ in S.S. Toshkhani & K. Warikwoo (eds.), Cultural
Heritage of Kashmiri Pandits (Pentagon Press 2009) 145;
Iqbal Chand Malhotra & Maroof Raza, Kashmir’s Untold
Story, (Bloomsbury India 2019) 1-2, 46, 80, 98, 100, 102-
103; Walter R. Lawrence, The Valley of Kashmir (Oxford
University Press 1895) 284, 296, 300, 302; Ramachandra
Guha, India After Gandhi: The History of the World’s
Largest Democracy (Picador 2008) 44, 60, 63, 69, 248;
Bipin Chandra, Mridula Mukherjee & Aditya Mukherjee,
India After Independence 1947-2000 (Penguin Books
2007) 92, 93-94, 418-419; Rekha Chowdhary, ‘Kashmir
in the Indian Project of Nationalism’ in Nyla Ali Khan
(ed.), The Parchment of Kashmir: History, Society and
Polity (Palgrave Macmillan 2012) 154, 171-172; A.G.
Noorani, The Kashmir Dispute 1947-2012, vol. 2 (Tulika
Books 2013) 44, 77-80, 401, 543; A.G. Noorani, Article
370: A Constitutional History of Jammu and Kashmir
(Oxford University Press, India 2014) 16-17, 48, 49, 50-
78, 95, 111-113, 117-120, 217-223; V.P. Menon, The Story
of the Integration of the Indian States (Orient Longmans
Pvt. Ltd. 1956) 391; Durgaprasad (ed.), The Rajatarangini
of Kalhana, vol. 2 (1894) 408; Monier-Williams, Modern
India and the Indians (3rd edn., Trübner and Co. 1879)
151; A.R. Nazki, ‘In Search of Roots’ in S.S. Toshkhani &
K. Warikwoo (eds.), Cultural Heritage of Kashmiri Pandits
(Pentagon Press 2009)2; Anita Medhekar & Farooq
Haq, ‘Promoting Kashmir as an Abode of Peace Tourism
Destination by India and Pakistan’ in Alexandru-Mircea
Nedelea & Marilena-Oana Nedelea, Marketing Peace for
Social Transformation and Global Prosperity (IGI Global
2064 SUPREME COURT REPORTS [2023] 16 S.C.R. 1

2019) 34; Justice A.S. Anand, The Constitution of Jammu

& Kashmir: Its Development & Comments (3rd edn.,
Universal Law Publishing Co. Pvt. Ltd. 1998) 41, 42, 44,
50, 51; David E. Lockwood, ‘Kashmir: Sheikh Abdullah’s
Reinstatement’ (1975) 31(6) The World Today, 250; Surinder
Mohan, ‘Democracy in Jammu and Kashmir 1947-2008’
2012 16(3) World Affairs, 112-113, 104; P.N.K Bamzai,
Culture and Political History of Kashmir: Modern Kashmir,
vol. 3 (M.D. Publications Pvt. Ltd., New Delhi 1994) 852;
Black’s Law Dictionary, (VI Edition, 1990); Constituent
Assembly Debates, Vol. VII, Pg 34 and` M. Klinkner and H.
Davis, The Right to the Truth in International Law: Victim’s
Rights in Human Rights and International Criminal Law;
A.Sachs, Strange Alchemy of Life and Law, 155 (OUP, 2009)
and 4 RG Tietel, Transitional Justice and Transformation
of Constitutionalism in Globalizing Transitional Justice,
(OUP, 2014) – referred to.

In the judgment of Sanjiv Khanna, J.

S.R. Bommai and Others v. Union of India and Others.

(1994) 3 SCC 1 : [1994] 2 SCR 644 and Rameshwar Prasad
and Others (VI) v. Union of India and Another (2006) 2
SCC 1 : [2006] 1 SCR 562 – referred to.
 [2024] 2 S.C.R. 420 : 2024 INSC 113

Association for Democratic Reforms & Anr.

v.
Union of India & Ors.
(Writ Petition (C) No. 880 of 2017)

15 February 2024

[Dr Dhananjaya Y Chandrachud,* CJI, Sanjiv Khanna,*

B R Gavai, J B Pardiwala and Manoj Misra, JJ.]

Issue for Consideration

The matter pertains to the constitutional validity of the Electoral Bond Scheme
which introduced anonymous financial contributions to political parties; as
also the constitutional validity of the provisions of the Finance Act 2017
which, among other things, amended the provisions of the Reserve Bank of
India Act 1934, the Representation of the People Act 1951, the Income Tax
Act 1961; as also whether unlimited corporate funding to political parties, as
envisaged by the amendment to s. 182(1) of the Companies Act infringes the
principle of free and fair elections and violates Art. 14 of the Constitution;
and whether the non-disclosure of information on voluntary contributions to
political parties under the Electoral Bond Scheme and the amendments to s.
29C of the RPA, s. 182(3) of the CA and s. 13A(b) of the IT Act are violative
of the right to information of citizens u/Art. 19(1)(a) of the Constitution.

Headnotes

Elections – Electoral process – Electoral Bond Scheme, 2018 – Electoral

Bond Scheme introduced anonymous financial contribution to political
parties – Constitutional validity of:
Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (for himself and for
B R Gavai, J B Pardiwala and Manoj Misra, JJ) Electoral Bond Scheme
is unconstitutional – Directions to the issuing bank to stop the issuance of
Electoral Bonds – SBI to submit: details of Electoral Bonds purchased since
12 April 2019 till date to the ECI including the date of purchase of each
Electoral Bond, the name of the purchaser of the bond and the denomination
of the Electoral Bond purchased; details of political parties which have

2065
2066 SUPREME COURT REPORTS [2024] 2 S.C.R. 420

received contributions through Electoral Bonds since 12 April 2019 till date
to the ECI, and each Electoral Bond encashed by political parties – SBI to
submit the said information to the ECI within the period stipulated – ECI to
publish the information shared by the SBI on its official website – Electoral
Bonds within the validity period of fifteen days but have not been encashed by
the political party yet, to be returned by the political party or the purchaser
to the issuing bank – Constitution of India. [Paras 216, 219] – Held: (per
Sanjiv Khanna, J.) (Concurring with Dr Dhananjaya Y Chandrachud,
CJI.) (Concurring with conclusions albeit with different reasonings)
Electoral Bond Scheme is unconstitutional and is struck down – Directions
to ECI to ascertain the details from the political parties and the State Bank
of India, which issued the Bonds, and the bankers of the political parties
and thereupon disclose the details and names of the donor/purchaser of
the Bonds and the amounts donated to the political party – Henceforth, the
issuance of fresh Bonds is prohibited – Electoral Bonds within the validity
period of fifteen days but have not been encashed by the political party yet,
to be returned by the political party or the purchaser to the issuing bank.
[Para 79]

Elections – Electoral process – Electoral Bond Scheme – Amendment to s.

182 of the Companies Act, 2013 Act, deleting the first proviso thereunder
(as amended by the s. 154 of the Finance Act, 2017) thereby permitting
unlimited corporate funding to political parties – First proviso to s.
182 provided the limit of contribution by the company upto seven and
a half per cent of its average net profits during the three immediately
preceding financial years – Validity of:
Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (for himself and for B
R Gavai, J B Pardiwala and Manoj Misra, JJ): Is arbitrary and violative of
Art. 14 – It infringes the principle of free and fair elections – Amendment to
s. 182 is manifestly arbitrary for treating political contributions by companies
and individuals alike; permitting the unregulated influence of companies in
the governance and political process violating the principle of free and fair
elections; and treating contributions made by profit-making and loss-making
companies to political parties alike [Paras 215, 216] – Held: (per Sanjiv
Khanna, J.) Amendment to s. 182 of the Companies Act, deleting the first
proviso thereunder, is unconstitutional, and is struck down – Principle of
proportionality applied which would subsume the test of manifest arbitrariness
 Association for Democratic Reforms & Anr. v. 2067
Union of India & Ors.

– Furthermore, the claim of privacy by a corporate or a company, especially

a public limited company would be on very limited grounds, restricted
possibly to protect the privacy of the individuals and persons responsible
for conducting the business and commerce of the company – It would be
rather difficult for a public (or even a private) limited company to claim a
violation of privacy as its affairs have to be open to the shareholders and the
public who are interacting with the body corporate/company – Constitution
of India – Art. 14 – Companies Act, 2013 – s. 182. [Para 73]

Elections – Electoral process – Electoral Bond Scheme – Non-disclosure

of information on voluntary contributions to political parties under
the Electoral Bond Scheme and the amendments to s. 29C of the
Representation of the People Act 1951, s. 182(3) of the Companies Act
and s. 13A(b) of the IT Act by the Finance Act, 2017 – If violative of
Art. 19(1)(a):
Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (for himself and for B
R Gavai, J B Pardiwala and Manoj Misra, JJ) Information about funding
to a political party is essential for a voter to exercise their freedom to vote in
an effective manner – Electoral Bond Scheme and the impugned provisions-
proviso to s. 29C(1) of the RPA, s. 182(3) of the CA, and s. 13A(b) of the ITA
to the extent that they infringe upon the right to information of the voter by
anonymizing contributions through electoral bonds are violative of Art 19(1)
(a) and unconstitutional – Union of India was unable to establish that the
measure employed in Clause 7(4) of the Electoral Bond Scheme is the least
restrictive means to balance the rights of informational privacy to political
contributions and the right to information of political contributions – Deletion
of the mandate of disclosing the particulars of contributions in s. 182(3)
violates the right to information of the voter since they would not possess
information about the political party to which the contribution was made
which, is necessary to identify corruption and quid pro quo transactions in
governance – Such information is also necessary for exercising an informed
vote – s. 29C exempts political parties from disclosing information of
contributions received through Electoral Bonds whereas s. 182(3) applies
to all modes of transfer – Both must be read together – Only purpose of
amending s. 182(3) was to bring the provision in tune with the amendment
under the RPA exempting disclosure requirements for contributions through
electoral bonds – Amendment to s. 182(3) becomes otiose in terms of the
2068 SUPREME COURT REPORTS [2024] 2 S.C.R. 420

holding that the Electoral Bond Scheme and relevant amendments to the
RPA and the IT Act mandating non-disclosure of particulars on political
contributions through electoral bonds is unconstitutional [Paras 104, 168,
169, 172-174, 216] – Held: (per Sanjiv Khanna, J.) On application of the
doctrine of proportionality, proviso to s. 29C(1) of the RPA, s. 182(3) of the
CA, 2013, and s. 13A(b) of the ITA, as amended by the Finance Act, 2017,
unconstitutional, and are struck down – Representation of the People Act,
1951 – s. 29C – Companies Act, 2013 – s. 182(3) – Income Tax Act, 1961
– s. 13A(b) – Constitution of India – Art. 19(1)(a). [Para 74]

Elections – Electoral process – Electoral Bond Scheme – s. 31(3) of the

RBI Act added by the Finance Act, 2017 to effectuate the issuance of the
Bonds which, as envisaged, are not to mention the name of the political
party to whom they are payable, and hence are in the nature of bearer
demand bill or note – Challenge to:
Held: Per Sanjiv Khanna, J. Sub-section (3) to s. 31 of the RBI Act,
1934 and the Explanation thereto introduced by the Finance Act, 2017 is
unconstitutional, and are struck down as it permits issuance of Bonds payable
to a bearer on demand by such person – Finance Act, 2017 – Reserve Bank
of India Act, 1934 – s. 31(3). [Para 79]

Elections – Electoral process – Electoral Bonds Scheme, 2018 – Challenge

to the Electoral Bond Scheme and the statutory amendments mandating
non-disclosure of information on electoral financing; and provisions
permitting unlimited corporate funding to political parties – Parameters
to test:
Held: (per Dr Dhananjaya Y Chandrachud, CJI, (for himself and for B
R Gavai, J B Pardiwala and Manoj Misra, JJ): Courts must adopt a less
stringent form of judicial review while adjudicating challenges to legislation
and executive action which relate to economic policy as compared to laws
relating to civil rights such as the freedom of speech or the freedom of religion
– Amendments relate to the electoral process – Correspondence between the
Ministry of Finance and RBI that the Bonds were introduced only to curb black
money in the electoral process, and protect informational privacy of financial
contributors to political parties – Union of India itself classified the amendments
as an “electoral reform” – It cannot be said that the amendments deal with
economic policy [Paras 40, 42] – Held: (per Sanjiv Khanna, J.) Scheme
 Association for Democratic Reforms & Anr. v. 2069
Union of India & Ors.

cannot be tested on the parameters applicable to economic policy – Matters of

economic policy normally pertain to trade, business and commerce, whereas
contributions to political parties relate to the democratic polity, citizens’ right to
know and accountability in the democracy – Primary objective of the Scheme,
and relevant amendments, is electoral reform and not economic reform – To
give the legislation the latitude of economic policy, it would be diluting the
principle of free and fair elections. [Para 15]

Elections – Electoral process – Presumption of constitutionality –

Application, to electoral laws:
Held: (per Dr Dhananjaya Y Chandrachud, CJI, (for himself and
for B R Gavai, J B Pardiwala and Manoj Misra, JJ): Presumption of
constitutionality is based on democratic accountability, that is, the legislators
are elected representatives who are aware of the needs of the citizens and
are best placed to frame policies to resolve them; and that they are privy to
information necessary for policy making which the Courts as an adjudicating
authority are not – However, the policy underlying the legislation must not
violate the freedoms and rights entrenched in Part III of the Constitution and
other constitutional provisions – Presumption of constitutionality is rebutted
when a prima facie case of violation of a fundamental right is established –
Onus then shifts on the State to prove that the violation of the fundamental
right is justified – It cannot be said that the presumption of constitutionality
does not apply to laws which deal with electoral process [Paras 44, 45] –
Held: (per Sanjiv Khanna, J.): Doctrine of presumption of constitutionality
has its limitations when the test of proportionality is applied – Structured
proportionality places an obligation on the State at a higher level, as it is a
polycentric examination, both empirical and normative – While the courts do
not pass a value judgment on contested questions of policy, and give weight
and deference to the government decision by acknowledging the legislature’s
expertise to determine complex factual issues, the proportionality test is not
based on preconceived notion or presumption – Standard of proof is a civil
standard or a balance of probabilities; where scientific or social science
evidence is available, it is examined; and where evidence is inconclusive or
does not exist and cannot be developed, reason and logic may suffice. [Para 18]

Elections – Electoral process – Electoral Bond Scheme, 2018 – Corporate

donations to national parties through electoral bonds – Annual audit
2070 SUPREME COURT REPORTS [2024] 2 S.C.R. 420

reports of political parties from 2017-18 to 2022-23 as available on

website of ECI – Significance – Doctrine of proportionality, application:
Held: (Per Sanjiv Khanna, J.) Data indicative of the quantum of corporate
funding through the anonymous Bonds – It clarifies that majority of
contribution through Bonds has gone to political parties which are ruling
parties in the Centre and the States – More than 50% of the Electoral Bonds
in number, and 94% of the Electoral Bonds in value terms were for Rs.1
crore – This supports the reasoning and conclusion on the application of the
doctrine of proportionality – Based on the analysis of the data available, the
Scheme fails to meet the balancing prong of the proportionality test, however,
the proportionality stricto sensu not applied due to the limited availability
of data and evidence. [Paras 69, 74]

Elections – Electoral Process – Electoral Bond Scheme – Infringement

of the right to information of the voter, if satisfies the proportionality
standard vis-à-vis the purposes of curbing black money; and protecting
donor privacy:
Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (for himself and for B
R Gavai, J B Pardiwala and Manoj Misra, JJ) Purpose of curbing black
money is not traceable to any of the grounds in Art 19(2) – Electoral trusts
are an effective alternative through which the objective of curbing black
money in electoral financing can be achieved – Electoral Bond Scheme not
being the least restrictive means to achieve the purpose of curbing black
money in electoral process, there is no necessity of applying the balancing
prong of the proportionality standard – Electoral Bond Scheme is not the
only means for curbing black money in Electoral Finance – There are other
alternatives which substantially fulfill the purpose and impact the right to
information minimally when compared to the impact of electoral bonds on
the right to information – Constitution of India – Art. 19(1) (a) and 19(2).
[Paras 116, 121, 124, 129, 130]

Elections – Electoral process – Right to informational privacy, if extends

to financial contributions to a political party:
Held : (per Dr Dhananjaya Y Chandrachud, CJI.) (for himself and for B
R Gavai, J B Pardiwala and Manoj Misra, JJ) If the right to informational
privacy extends to financial contributions to a political party, this Court
 Association for Democratic Reforms & Anr. v. 2071
Union of India & Ors.

needs to decide if the Electoral Bond Scheme adequately balances the right
to information and right to informational privacy of political affiliation
– Informational privacy to political affiliation is necessary to protect the
freedom of political affiliation and exercise of electoral franchise – As regards,
right to informational privacy if can be extended to the contributions to
political parties, Electoral Bond Scheme has two manifestations of privacy,
informational privacy by prescribing confidentiality vis-à-vis the political
party; and informational privacy by prescribing non-disclosure of the
information of political contributions to the public – Financial contributions
to political parties are usually made because they may constitute an
expression of support to the political party and that the contribution may be
based on a quid pro quo – Law permits contributions to political parties by
both corporations and individuals – Huge political contributions made by
corporations and companies should not be allowed to conceal the reason for
financial contributions made by another section of the population: a student,
a daily wage worker, an artist, or a teacher – When the law permits political
contributions and such contributions could be made as an expression of
political support which would indicate the political affiliation of a person, it
is the duty of the Constitution to protect them – Contributions made as quid
pro quo transactions are not an expression of political support – However,
to not grant the umbrella of informational privacy to political contributions
only because a portion of the contributions is made for other reasons would
be impermissible – Constitution does not turn a blind eye merely because
of the possibilities of misuse. [Paras 131, 138, 139, 142]

Doctrines/Principles – Principle of proportionality – Proportionality

standard test – Four prongs –– Explanation of:
Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (for himself and
for B R Gavai, J B Pardiwala and Manoj Misra, JJ) Proportionality
standard is laid down to determine if the violation of the fundamental right
is justified – Proportionality standard is-the measure restricting a right
must have a legitimate goal (legitimate goal stage); the measure must be
a suitable means for furthering the goal (suitability or rational connection
stage); the measure must be least restrictive and equally effective (necessity
stage); and the measure must not have a disproportionate impact on the
right holder (balancing stage) – At the legitimate goal stage, the Court is
2072 SUPREME COURT REPORTS [2024] 2 S.C.R. 420

to analyze if the objective of introducing the law is a legitimate purpose for

the infringement of rights – Second prong of the proportionality analysis
requires the State to assess whether the means used are rationally connected
to the purpose – At this stage, the court is required to assess whether the
means, if realised, would increase the likelihood of the purpose – It is not
necessary that the means chosen should be the only means capable of
realising the purpose – Next stage is the necessity stage, wherein the Court
is to determine if the means adopted is the least restrictive means to give
effect to the purpose – The Court is to see, whether there are other possible
means which could have been adopted by the State; whether the alternative
means identified realise the objective in a ‘real and substantial manner’;
whether the alternative identified and the means used by the State impact
fundamental rights differently; and whether on an overall comparison (and
balancing) of the measure and the alternative, the alternative is better suited
considering the degree of realizing the government objective and the impact
on fundamental rights – In the last stage, the Court undertakes a balancing
exercise to analyse if the cost of the interference with the right is proportional
to the extent of fulfilment of the purpose – It is in this step that the Court
undertakes an analysis of the comparative importance of the considerations
involved in the case, the justifications for the infringement of the rights, and
if the effect of infringement of one right is proportional to achieve the goal
[Paras 105, 106, 117, 119, 156] – Held: (per Sanjiv Khanna, J.) Four steps
of test of proportionality are: first step is to examine whether the act/measure
restricting the fundamental right has a legitimate aim, second step is to examine
whether the restriction has rational connection with the aim, third step is to
examine whether there should have been a less restrictive alternate measure
that is equally effective, and last stage is to strike an appropriate balance
between the fundamental right and the pursued public purpose. [Para 25]

Doctrines/Principles – Principle of proportionality – Test of proportionality

– Proportionality standard to balance two conflicting fundamental rights
– Foreign vis-à-vis Indian jurisprudence:
Held: (per Dr Dhananjaya Y Chandrachud, CJI, (for himself and for B
R Gavai, J B Pardiwala and Manoj Misra, JJ): Foreign case *Campbell
v MGM Limited judgment adopts a double proportionality standard – It
employed a three step approach to balance fundamental rights, first step to
analyse the comparative importance of the actual rights claimed, second step
 Association for Democratic Reforms & Anr. v. 2073
Union of India & Ors.

to lay down the justifications for the infringement of the rights, and third
to apply the proportionality standard to both the rights – Said approach
must be slightly tempered to suit Indian jurisprudence on proportionality
– Indian Courts adopt a four prong structured proportionality standard
to test the infringement of the fundamental rights – In the last stage, the
Court undertakes a balancing exercise, wherein the Court undertakes an
analysis of the comparative importance of the considerations involved in
the case, the justifications for the infringement of the rights, and if the effect
of infringement of one right is proportional to achieve the goal – Thus,
the first two steps laid down in Campbell case are subsumed within the
balancing prong of the proportionality analysis. [Paras 154, 156] – Held:
(per Sanjiv Khanna, J.) Test of proportionality employed by courts in
various jurisdictions like Germany, Canada, South Africa, Australia and
the United Kingdom, however, no uniformity on application of test of
proportionality or the method of using the last two prongs – In the third
prong, courts examine whether the restriction is necessary to achieve the
desired end, wherein they consider whether a less intrusive alternative is
available to achieve the same ends, aiming for minimal impairment – As
regards, the fourth prong, the balancing stage, some jurists believe that
balancing is ambiguous and value-based, which stems from the premise of
rule-based legal adjudication, where courts determine entitlements rather
than balancing interests – However, proportionality is a standard-based
review rather than a rule-based one – Balancing stage enables judges to
consider various factors by analysing them against the standards proposed
by the four prongs of proportionality – This ensures that all aspects of a case
are carefully weighed in decision-making – While balancing is integral to the
standard of proportionality, such an exercise should be rooted in empirical
data and evidence as adopted by most of the countries – In the absence
of data and figures, there is a lack of standards by which proportionality
stricto sensu can be determined – However many of the constitutional
courts have employed the balancing stage ‘normatively’ by examining the
weight of the seriousness of the right infringement against the urgency of
the factors that justify it – Findings of empirical legal studies provide a
more solid foundation for normative reasoning and enhance understanding
of the relationship between means and ends – Proportionality analyses
would be more accurate and would lead to better and more democratic
governance. [Paras 29, 31-33, 35]
2074 SUPREME COURT REPORTS [2024] 2 S.C.R. 420

Doctrines/Principles – Doctrine of proportionality – Proportionality

standard test to balance fundamental rights-right to information and
the right to informational privacy:
Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (for himself and for B
R Gavai, J B Pardiwala and Manoj Misra, JJ) Proportionality standard
is an effective standard to test whether the infringement of the fundamental
right is justified – It would prove to be ineffective when the State’s interest
in question is also a reflection of a fundamental right – Proportionality
standard is by nature curated to give prominence to the fundamental right
and minimize the restriction on it – If the single proportionality standard
were employed to the considerations in the instant case, at the suitability
prong, the Court would determine if non-disclosure is a suitable means for
furthering the right to privacy – At the necessity stage, the Court would
determine if non-disclosure is the least restrictive means to give effect to
the right to privacy – At the balancing stage, the Court would determine if
non-disclosure has a disproportionate effect on the right holder – In this
analysis, the necessity and the suitability prongs would inevitably be satisfied
because the purpose is substantial: it is a fundamental right – Balancing
stage will only account for the disproportionate impact of the measure on
the right to information (the right) and not the right to privacy (the purpose)
since the Court is required to balance the impact on the right with the
fulfillment of the purpose through the selected means – Thus, the Court while
applying the proportionality standard to resolve the conflict between two
fundamental rights preferentially frames the standard to give prominence
to the fundamental right which is alleged to be violated by the petitioners
(in this case, the right to information). [Paras 152-153]

Doctrines/Principles – Double proportionality standard – Application

of, to both the rights-right to informational privacy of the contributor
and the right to information of the voter:
Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (for himself and for
B R Gavai, J B Pardiwala and Manoj Misra, JJ) Double proportionality
standard is the proportionality standard to both the rights (as purpose) to
determine if the means used are suitable, necessary and proportionate to the
fundamental rights – First prong of the analysis is whether the means has
a rational connection with both the purposes, that is, informational privacy
of the political contributions and disclosure of information to the voter –
 Association for Democratic Reforms & Anr. v. 2075
Union of India & Ors.

Further, while applying the suitability prong to the purpose of privacy of

political contribution, the court must consider whether the non-disclosure of
information to the voter and its disclosure only when demanded by a competent
court and upon the registration of criminal case has a rational nexus with
the purpose of achieving privacy of political contribution – Undoubtedly, the
measure by prescribing non-disclosure of information about political funding
shares a nexus with the purpose – Non-disclosure of information grants
anonymity to the contributor, thereby protecting information privacy – It is
certainly one of the ways capable of realizing the purpose of informational
privacy of political affiliation – Suitability prong must next be applied to
the purpose of disclosure of information about political contributions to
voters – There is no nexus between the balancing measure adopted with
the purpose of disclosure of information to the voter – According to Clause
7(4) of the Electoral Bond Scheme and the amendments, the information
about contributions made through the Electoral Bond Scheme is exempted
from disclosure requirements – This information is never disclosed to the
voter – Purpose of securing information about political funding can never
be fulfilled by absolute non-disclosure – Measure adopted does not satisfy
the suitability prong vis-à-vis the purpose of information of political funding
– The next stage is the necessity prong, wherein the Court determines if the
measure identified is the least restrictive and equally effective measure –
Court must determine if there are other possible means which could have
been adopted to fulfill the purpose, and whether such alternative means
realize the purpose in a real and substantial manner; impact fundamental
rights differently; and are better suited on an overall comparison of the
degree of realizing the purpose and the impact on fundamental rights - On
an overall comparison of the measure and the alternative, the alternative is
better suited because it realizes the purposes to a considerable extent and
imposes a lesser restriction on the fundamental rights – Having concluded
that Clause 7(4) of the Scheme is not the least restrictive means to balance
the fundamental rights, there is no necessity of applying the balancing prong
of the proportionality standard. [Paras 160-164, 168]

Doctrine/Principles – Doctrine of proportionality, when applied:

Held: (Per Sanjiv Khanna, J.) Proportionality principle is applied by
courts when they exercise their power of judicial review in cases involving
a restriction on fundamental rights – It is applied to strike an appropriate
2076 SUPREME COURT REPORTS [2024] 2 S.C.R. 420

balance between the fundamental right and the pursued purpose and objective
of the restriction. [Para 24]

Doctrine/Principles – Doctrine of proportionality – Application of

proportionality test to Electoral Bond Scheme, 2018 – Legitimate purpose
prong – Retribution, victimisation or retaliation, if can be treated as a
legitimate aim:
Held: (Per Sanjiv Khanna, J.) Retribution, victimisation or retaliation
cannot by any stretch be treated as a legitimate aim – This would not
satisfy the legitimate purpose prong of the proportionality test – Neither the
Scheme nor the amendments to the Finance Act, 2017, rationally connected
to the fulfilment of the purpose to counter retribution, victimisation or
retaliation in political donations – It will also not satisfy the necessity stage
of the proportionality even if the balancing stage is ignored – Retribution,
victimisation or retaliation against any donor exercising their choice to donate
to a political party is an abuse of law and power – This has to be checked
and corrected – As it is a wrong, the wrong itself cannot be a justification
or a purpose – Cloak of secrecy, leads to severe restriction and curtailment
of the collective’s right to information and the right to know – Transparency
and not secrecy is the cure and antidote. [Para 39]

Doctrine/Principles – Doctrine of proportionality – Application of

proportionality test to Electoral Bond Scheme, 2018 – Rational nexus
prong:
Held: (Per Sanjiv Khanna, J.) Donor may like to keep his identity anonymous
is a mere ipse dixit assumption – Plea of infringement of the right to privacy
has no application at all if the donor makes the contribution, that too through
a banking channel, to a political party – Identity of the purchaser of the Bond
can always be revealed upon registration of a criminal case or by an order/
direction of the court – Thus, the fear of reprisal and vindictiveness does
not end – So-called protection exists only on paper but in practical terms is
not a good safeguard even if it is accepted that the purpose is legitimate –
Under the Scheme, political parties in power may have asymmetric access to
information with the authorised bank – They also retain the ability to use their
power and authority of investigation to compel the revelation of Bond related
information – Thus, the entire objective of the Scheme is contradictory and
inconsistent – Rational connection test fails since the purpose of curtailing
 Association for Democratic Reforms & Anr. v. 2077
Union of India & Ors.

black or unaccounted-for money in the electoral process has no connection

or relationship with the concealment of the identity of the donor – Payment
through banking channels is easy and an existing antidote – On the other
hand, obfuscation of the details may lead to unaccounted and laundered
money getting legitimised. [Paras 41, 42, 44]

Doctrine/Principles – Doctrine of proportionality – Application of

proportionality test to Electoral Bond Scheme, 2018 – Necessity prong:
Held: (Per Sanjiv Khanna, J.) As per the Electoral Trust Scheme,
contributions could be made by a person or body corporate to the trust
which would transfer the amount to the political party – Trust is thus, treated
as the contributor to the political party and guidelines were issued by the
ECI to ensure transparency and openness in the electoral process – When
the necessity test is applied, the Trust Scheme achieves the objective of the
Union of India in a real and substantial manner and is also a less restrictive
alternate measure in view of the disclosure requirements, viz. the right to
know of voters – Trust Scheme is in force and is a result of the legislative
process – In a comparison of limited alternatives, it is a measure that best
realises the objective of the Union of India in a real and substantial manner
without significantly impacting the fundamental right of the voter to know.
[Paras 50-51]

Doctrine/Principles – Doctrine of proportionality – Application of

proportionality test to Electoral Bond Scheme, 2018 – Fourth prong-the
balancing prong of proportionality:
Held: (Per Sanjiv Khanna, J.) On application of the balancing prong
of proportionality, the Electoral Bond Scheme falls foul and negates and
overwhelmingly disavows and annuls the voters right in an electoral process
as neither the right of privacy nor the purpose of incentivising donations
to political parties through banking channels, justify the infringement of
the right to voters – Voters right to know and access to information is far
too important in a democratic set-up so as to curtail and deny ‘essential’
information on the pretext of privacy and the desire to check the flow of
unaccounted money to the political parties – While secret ballots are integral
to fostering free and fair elections, transparency-not secrecy-in funding of
political parties is a prerequisite for free and fair elections – Confidentiality
2078 SUPREME COURT REPORTS [2024] 2 S.C.R. 420

of the voting booth does not extend to the anonymity in contributions to

political parties. [Para 57]

Constitution of India – Balancing of conflicting fundamental rights-

right to information and the right to informational privacy – Standard
to be followed:
Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (for himself and for
B R Gavai, J B Pardiwala and Manoj Misra, JJ) First exercise that the
Court must undertake while balancing two fundamental rights is to determine
if the Constitution creates a hierarchy between the two rights in conflict,
if yes, then the right which has been granted a higher status would prevail
over the other right involved – And if not, the following standard must be
employed from the perspective of both the rights where rights A and B are
in conflict, whether the measure is a suitable means for furthering right A
and right B, whether the measure is least restrictive and equally effective to
realise right A and right B, and whether the measure has a disproportionate
impact on right A and right B – Courts have used the collective interest
or the public interest standard, the single proportionality standard, and
the double proportionality standard to balance the competing interests of
fundamental rights – There is no constitutional hierarchy between the right
to information and the right to informational privacy of political affiliation.
[Paras 145-146, 157, 159]

Constitution of India – Fundamental right – Breach of – Burden of proof:

Held: (per Dr Dhananjaya Y Chandrachud, CJI, (for himself and for B
R Gavai, J B Pardiwala and Manoj Misra, JJ): Courts cannot carve out
an exception to the evidentiary principle which is available to the legislature
based on the democratic legitimacy which it enjoys – In the challenge to
electoral law, like all legislation, the petitioners would have to prima facie
prove that the law infringes fundamental rights or constitutional provisions,
upon which the onus would shift to the State to justify the infringement [Para
45] – Held: (per Sanjiv Khanna, J.) Once the petitioners are able to prima
facie establish a breach of a fundamental right, then the onus is on the State
to show that the right limiting measure pursues a proper purpose, has rational
nexus with that purpose, the means adopted were necessary for achieving
that purpose, and lastly proper balance has been incorporated. [Para 17]
 Association for Democratic Reforms & Anr. v. 2079
Union of India & Ors.

Constitution of India – Art. 14 – Doctrine of manifest arbitrariness –

Application of:
Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (for himself and for
B R Gavai, J B Pardiwala and Manoj Misra, JJ) Doctrine of manifest
arbitrariness can be used to strike down a provision where the legislature
fails to make a classification by recognizing the degrees of harm; and the
purpose is not in consonance with constitutional values – Legislative action
can also be tested for being manifestly arbitrary – There is, and ought to be,
a distinction between plenary legislation and subordinate legislation when
they are challenged for being manifestly arbitrary – Manifest arbitrariness
of a subordinate legislation has to be primarily tested vis-a-vis its conformity
with the parent statute – Doctrines/Principles. [Paras 198, 209]

Constitution of India – Art 19(1)(a) – Right to information, scope of –

Evolution of jurisprudence on right to information:
Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (for himself and for B
R Gavai, J B Pardiwala and Manoj Misra, JJ) Right to information can
be divided into two phases – In the first phase, the right to information is
traced to the values of good governance, transparency and accountability –
In the second phase, the importance of information to form views on social,
cultural and political issues, and participate in and contribute to discussions
is recognised – Crucial aspect of the expansion of the right to information in
the second phase is that right to information is not restricted to information
about state affairs, that is, public information – It includes information which
would be necessary to further participatory democracy in other forms – Right
to information has an instrumental exegesis, which recognizes the value of
the right in facilitating the realization of democratic goals – Beyond that, it
has an intrinsic constitutional value; one that recognizes that it is not just
a means to an end but an end in itself. [Paras 60, 64, 65]

Constitution of India – Art. 19(1)(a) – Right to vote – Right to know –

Significance:
Held: (Per Sanjiv Khanna, J.) Right to vote is a constitutional and statutory
right, grounded in Art 19(1)(a), as the casting of a vote amounts to expression
of an opinion by the voter – Citizens’ right to know stems from this very
right, as meaningfully exercising choice by voting requires information –
2080 SUPREME COURT REPORTS [2024] 2 S.C.R. 420

Representatives elected as a result of the votes cast in their favour, enact

new, and amend existing laws, and when in power, take policy decisions
– Access to information which can materially shape the citizens’ choice is
necessary for them to have a say – Thus, the right to know is paramount
for free and fair elections and democracy – Denying voters the right to
know the details of funding of political parties would lead to a dichotomous
situation – Funding of political parties cannot be treated differently from that
of the candidates who contest elections – Democratic legitimacy is drawn
not only from representative democracy but also through the maintenance
of an efficient participatory democracy – In the absence of fair and effective
participation of all stakeholders, the notion of representation in a democracy
would be rendered hollow. [Paras 19, 21, 22]

Constitution of India – Fundamental rights – Conflict of – Voter’s right

to know vis-à-vis right to privacy:
Held: (Per Sanjiv Khanna, J.) Fundamental rights are not absolute,
legislations/policies restricting the rights may be enacted in accordance with
the scheme of the Constitution – Thread of reasonableness applies to all such
restrictions – Furthermore, Art. 14 includes the facet of formal equality and
substantive equality – Thus, the principle ‘equal protection of law’ requires
the legislature and the executive to achieve factual equality – This principle
can be extended to any restriction on fundamental rights which must be
reasonable to the identified degree of harm – If the restriction is unreasonable,
unjust or arbitrary, then the law should be struck down – Further, it is for the
legislature to identify the degree of harm – Voters right to know and access
to information is far too important in a democratic set-up so as to curtail
and deny ‘essential’ information on the pretext of privacy and the desire to
check the flow of unaccounted money to the political parties. [Paras 56, 57]

Elections – Electoral Bond Scheme, 2018 – Clause 7(4), 2(a) – Features

of the Scheme:
Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (for himself and for B
R Gavai, J B Pardiwala and Manoj Misra, JJ) Scheme defines electoral
bond “as a bond issued in the nature of promissory note which shall be a
bearer banking instrument and shall not carry the name of the buyer or
payee” – The Scheme also stipulates that the information furnished by the
buyer shall be treated as confidential which shall not be disclosed by any
 Association for Democratic Reforms & Anr. v. 2081
Union of India & Ors.

authority except when demanded by a competent court or by a law enforcement

agency upon the registration of criminal case – While it is true that the law
prescribes anonymity as a central characteristic of electoral bonds, the de
jure anonymity of the contributors does not translate to de facto anonymity
– The Scheme is not fool-proof – There are sufficient gaps in the Scheme
which enable political parties to know the particulars of the contributions
made to them – Electoral bonds provide economically resourced contributors
who already have a seat at the table selective anonymity vis-à-vis the public
and not the political party. [Paras 102, 103]

Elections – Electoral process – Focal point of the electoral process-

candidate or political party:
Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (for himself and for B
R Gavai, J B Pardiwala and Manoj Misra, JJ) Statutory provisions relating
to elections accord considerable importance to political parties, signifying that
political parties have been the focal point of elections – ‘Political party’ is a
relevant political unit in the democratic electoral process in India – Voters
associate voting with political parties because of the centrality of symbols and
its election manifesto in the electoral process – Form of government where
the executive is chosen from the legislature based on the political party or
coalition of political parties which has secured the majority – Prominence
accorded to political parties by the Tenth Schedule of the Constitution – Law
recognises the inextricable link between a political party and the candidate
though vote is cast for a candidate – Voters casts their votes based on two
considerations: the capability of the candidate as a representative and the
ideology of the political party. [Paras 80, 86, 89, 94]

Elections – Electoral democracy in India – Basis of:

Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (for himself and for
B R Gavai, J B Pardiwala and Manoj Misra, JJ) Electoral democracy
in India is premised on the principle of political equality, guaranteed by the
Constitution in two ways – Firstly, by guaranteeing the principle of “one
person one vote” which assures equal representation in voting, and secondly,
the Constitution ensures that socio-economic inequality does not perpetuate
political inequality by mandating reservation of seats for Scheduled Castes
and Scheduled Tribes in Parliament and State Assemblies – Constitution
guarantees political equality by focusing on the ‘elector’ and the ‘elected’ –
2082 SUPREME COURT REPORTS [2024] 2 S.C.R. 420

However, political inequality continues to persist in spite of the constitutional

guarantees – Difference in the ability of persons to influence political
decisions because of economic inequality is one of the factors – Economic
inequality leads to differing levels of political engagement because of the
deep association between money and politics – It is in light of the nexus
between economic inequality and political inequality, and the legal regime
in India regulating party financing that the essentiality of the information on
political financing for an informed voter must be analyzed. [Paras 96-100]

Elections – Electoral process in India – Nexus between money and

electoral democracy:
Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (for himself and
for B R Gavai, J B Pardiwala and Manoj Misra, JJ) Law does not bar
electoral financing by the public – Both corporates and individuals are
permitted to contribute to political parties which is crucial for the sustenance
and progression of electoral politics – Primary way through which money
directly influences politics is through its impact on electoral outcomes –
One way in which money influences electoral outcomes is through vote
buying – Another way in which money influences electoral outcomes is
through incurring electoral expenditure for political campaigns – Enhanced
campaign expenditure proportionately increases campaign outreach which
influences the voting behavior of voters – Money also creates entry-barriers
to politics by limiting the kind of candidates and political parties which
enter the electoral fray – Challenge to the statutory amendments-provisions
dealing with electoral finance and the Electoral Bond Scheme cannot be
adjudicated in isolation without a reference to the actual impact of money
on electoral politics. [Paras 46-51, 55]

Election Symbols (Reservation and Allotment) Order, 1968 – Allotment

of symbols to political parties – Significance:
Held: (per Dr Dhananjaya Y Chandrachud, CJI.) (for himself and for B
R Gavai, J B Pardiwala and Manoj Misra, JJ) In terms of the provisions
of the Symbols Order, the ECI shall allot a symbol to every candidate
contesting the election – Symbols Order classifies political parties into
recognised political parties and unrecognised political parties – Difference
in the procedure under the Symbols Order for allotting symbols to recognised
political parties, registered but unrecognised political parties and independent
 Association for Democratic Reforms & Anr. v. 2083
Union of India & Ors.

candidates indicates both the relevance and significance of political parties in

elections in India – Purpose of allotting symbols to political parties is to aid
voters in identifying and remembering the political party – Law recognises
the inextricable link between a political party and the candidate though the
vote is cast for a candidate – Most of the voters identified a political party
only with its symbol and this still continues to the day – Symbols also gain
significance when the names of political parties sound similar. [Paras 81,
84, 86, 87]

Words and Phrases – Privacy – Definition:

Held : (per Dr Dhananjaya Y Chandrachud, CJI.) (for himself and for
B R Gavai, J B Pardiwala and Manoj Misra, JJ) Privacy is not limited to
private actions and decisions – Privacy is defined as essential protection for
the exercise and development of other freedoms protected by the Constitution,
and from direct or indirect influence by both State and non-State actors –
Viewed in this manner, privacy takes within its fold, decisions which also
have a ‘public component’. [Para 133]

Case Law Cited

In the Judgment of Dr Dhananjaya Y Chandrachud, CJI

Roger Mathew v. South Bank of India, CA No. 8588/2019;

PUCL v. Union of India, [2003] 2 SCR 1136 : (2003) 4 SCC
399; ADR v. Union of India, [2002] 3 SCR 696 : (2002)
5 SCC 294; Anjali Bhardwaj v. Union of India, [2019] 2
SCR 199 : (2019) 18 SCC 246; Kanwar Lal Gupta v. Amar
Nath Chawla, [1975] 2 SCR 259 : 1975 SCC (3) 646;
Subash Chandra v. Delhi Subordinate Services Selection
Board, [2009] 12 SCR 978 : (2009) 15 SCC 458; Gujarat
Mazdoor Sabha v. State of Gujarat, [2020] 13 SCR 886 :
(2020) 10 SCC 459; Ramesh Chandra Sharma v. State of
Uttar Pradesh, [2023] 2 SCR 422 : (2023) SCC OnLine
SC 162; Shayara Bano v. Union of India, [2017] 9 SCR
797 : (2017) 9 SCC 1; Rustom Cavasjee Cooper v. Union
of India, [1970] 3 SCR 530 : (1970) 1 SCC 248; R.K Garg
2084 SUPREME COURT REPORTS [2024] 2 S.C.R. 420

v. Union of India, [1982] 1 SCR 947 : (1981) 4 SCC 675;

Premium Granites v. State of Tamil Nadu, [1994] 1 SCR
579 : (1994) 2 SCC 691; Peerless General Finance and
Investment Co v. RBI, [1992] 1 SCR 406 : (1992) 2 SCC
343; BALCO Employees Union v. Union of India, [2001]
Suppl. 5 SCR 511 : (2002) 2 SCC 333; DG of Foreign
Trade v. Kanak Exports, [2015] 15 SCR 287 : (2016) 2 SCC
226; Swiss Ribbons v. Union of India, [2019] 3 SCR 535 :
(2019) 4 SCC 17; Pioneer Urban Land and Infrastructure
Limited v. Union of India, [2019] 10 SCR 381 : (2019) 8
SCC 416; State of Bombay v. FN Balsara, [1951] 1 SCR
682; Dharam Dutt v. Union of India, [2003] Suppl. 6 SCR
151 : AIR 2004 SC 1295; Ramlila Maidan Incident, In re,
[2012] 4 SCR 971 : (2012) 5 SCC 1; Ameerunissa Begum
v. Mahboob Begum, [1953] 1 SCR 404 : (1952) 2 SCC
697; Vatal Nagaraj v. R Dayanand Sagar, [1975] 2 SCR
384 : (1975) 4 SCC 127; P Nalla Thampy Terah v. Union of
India, [1985] Supp. 1 SCR 622 : (1985) Supp SCC 189;
Common Cause (A Registered Society) v. Union of India,
[1996] 3 SCR 1208 : (1996) 2 SCC 752; State of Punjab
v. Sodhi Sukhdev Singh, [1961] 2 SCR 371; State of Uttar
Pradesh v. Raj Narain, [1975] 3 SCR 333 : (1975) 4 SCC
428; SP Gupta v. Union of India, (1981) Supp SCC 87;
Dinesh Trivedi v. Union of India, [1997] 3 SCR 93 : (1997)
4 SCC 306; Secy., Ministry of Information & Broadcasting,
Govt. of India v. Cricket Assn. of Bengal, [1995] 1 SCR
1036 : (1995) 2 SCC 161; Indian Express Newspapers v.
Union of India, [1985] 2 SCR 287 : AIR 1986 SC 515;
Romesh Thappar v. State of Madras, [1950] 1 SCR 594 :
AIR 1950 SC 124; DC Saxena v. Hon’ble The Chief Justice
of India, [1996] Suppl. 3 SCR 677 : (1996) 5 SCC 216;
Supriyo v. Union of India, 2023 INSC 920; Union of India
v. Association for Democratic Reforms, [2002] 3 SCR 696
: (2002) 5 SCC 294; Rameshwar Prasad v. Union of India,
[2006] 1 SCR 562 : (2006) 2 SCC 1; Kihoto Hollohon v.
Zachillhu, [1992] 1 SCR 686 : (1992) Supp (2) SCC 651;
 Association for Democratic Reforms & Anr. v. 2085
Union of India & Ors.

Ravi S Naik v. Union of India, [1994] 1 SCR 754 : AIR 1994

SC 1558; Subash Desai v. Principal Secretary, Governor of
Maharashtra, WP (C) No. 493 of 2022; Modern Dental
College & Research Centre v. State of Madhya Pradesh,
[2016] 3 SCR 575 : (2016) 4 SCC 346; Media One v. Union
of India, Civil Appeal No. 8129 of 2022; Sakal Papers v.
The Union of India, [1962] 3 SCR 842 : AIR 1962 SC 305;
Express Newspapers v. Union of India, [1959] 1 SCR 12 :
AIR 1958 SC 578; Sodhi Shamsher v. State of Pepsu, AIR
1954 SC 276; Kaushal Kishor v. State of Uttar Pradesh,
Writ Petition (Criminal) No. 113 of 2016; Superintendent,
Central Prison, Fatehgarh v. Dr Ram Manohar Lohia,
[1960] 2 SCR 821 : AIR 1960 SC 633; Justice KS
Puttaswamy v. Union of India, [2017] 10 SCR 569 : (2017)
10 SCC 1; In Re Noise Pollution, [2005] Suppl. 1 SCR
624 : (2005) 5 SCC 733; Subramanian Swamy v. Union of
India, [2016] 3 SCR 865 : (2016) 7 SCC 221; Asha Ranjan
v. State of Bihar, [2017] 1 SCR 945 : (2017) 4 SCC 397;
Mazdoor Kisan Shakti Sangathan v. Union of India, [2018]
11 SCR 586 : (2018) 17 SCC 324; Sahara India Real
Estate Corporation Limited v. Securities and Exchange
Board of India, [2012] 12 SCR 256 : (2012) 10 SCC 603;
Justice KS Puttaswamy v. Union of India, [2018] 8 SCR
1 : (2019) 1 SCC 1; Central Public Information Officer,
Supreme Court of India v. Subash Chandra Agarwal, [2010]
13 SCR 1120 : Civil Appeal No. 10044 of 2010; Aishat
Shifa v. State of Karnataka, [2022] 5 SCR 426 : (2023) 2
SCC 1; Jayantilal Ranchhoddas Koticha v. Tata Iron and
Steel Co. Ltd., AIR 1958 Bom 155; Basheshar Nath v. CIT,
[1959] Supp 1 SCR 528; State of West Bengal v. Anwar Ali
Sarkar, [1952] 1 SCR 284 : (1951) 1 SCC 1; Kathi Raning
Rawat v. State of Saurashtra, [1952] 1 SCR 435 : (1952) 1
SCC 215; Budhan Chowdhury v. State of Bihar, [1955] 1
SCR 1045; Ram Krishna Dalmia v. S R Tendolkar, [1959]
SCR 279; E P Royappa v. State of Tamil Nadu, [1974] 2
SCR 348 : (1974) 4 SCC 3; Ajay Hasia v. Khalid Mujib
2086 SUPREME COURT REPORTS [2024] 2 S.C.R. 420

Seheravardi, [1981] 2 SCR 79 : (1981) 1 SCC 722; Sharma

Transport v. Government of Andhra Pradesh, [2001] Suppl.
5 SCR 390 : (2002) 2 SCC 188; State of Tamil Nadu v.
Ananthi Ammal, [1994] Suppl. 5 SCR 666 : (1995) 1 SCC
519; Dr. K R Lakshmanan v. State of Tamil Nadu, [1996] 1
SCR 395 : (1996) 2 SCC 226; State of Andhra Pradesh v.
McDowell & Co., [1996] 3 SCR 721 : (1996) 3 SCC 709;
Malpe Vishwanath Acharya v. State of Maharashtra, [1997]
Suppl. 6 SCR 717 : (1998) 2 SCC 1; Mardia Chemicals
Ltd. v. Union of India, [2004] 3 SCR 982 : (2004) 4 SCC
311; Natural Resources Allocation, In Re Special Reference
No. 1 of 2012, [2012] 9 SCR 311 : (2012) 10 SCC 1;
Maneka Gandhi v. Union of India, [1978] 2 SCR 621 :
(1978) 1 SCC 248; Navtej Singh Johar v. Union of India,
[2018] 7 SCR 379 : (2018) 10 SCC 1; Joseph Shine v.
Union of India, [2018] 11 SCR 765 : (2019) 3 SCC 39;
Mohd. Hanif Quareshi v. State of Bihar, [1959] SCR 629 :
AIR 1958 SC 731; Binoy Viswam v. Union of India, [2017]
7 SCR 1 : (2017) 7 SCC 59; Charanjit Lal Chowdhuri v.
Union of India, 1950 SCC 833; In Re Delhi Laws Act 1912,
1951 SCC 568; Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd.
v. Assistant Commissioner of Sales Tax and others, [1974]
2 SCR 879 : (1974) 4 SCC 98; Shri Sitaram Sugar Co.
Ltd. v. Union of India, [1990] 1 SCR 909 : (1990) 3 SCC
223; Khoday Distilleries Ltd. V. State of Karnataka, [1995]
Suppl. 6 SCR 759 : (1996) 10 SCC 304; State of Tamil
Nadu v. P Krishnamurthy, [2006] 3 SCR 396 : (2006) 4 SCC
517; Kesavananda Bharati v. State of Kerala, [1973] Suppl.
1 SCR 1 : (1973) 4 SCC 225; Indira Nehru Gandhi v. Raj
Narain, [1978] 2 SCR 405 : (1975) Supp SCC 1; Digvijay
Mote v. Union of India, [1993] Suppl. 1 SCR 553 : (1993) 4
SCC 175; Kuldip Nayar v. Union of India, [2006] Suppl. 5
SCR 1 : (2006) 7 SCC 1; People’s Union for Civil Liberties
v. Union of India, [2013] 12 SCR 283 : (2013) 10 SCC 1;
Mohinder Singh Gill v. Chief Election Commissioner, [1978]
2 SCR 272 : (1978) 1 SCC 405 – referred to.
 Association for Democratic Reforms & Anr. v. 2087
Union of India & Ors.

FCC v. National Citizens Committee for Broadcasting, 436

US 775 (1978); *Campbell v. MGM Limited, [2004] UKHL
22; Citizens United v. Federal Election Commission, 558
U.S 310 – referred to.

In the Judgment of Sanjiv Khanna, J

Swiss Ribbons (P.) Ltd. and Another v. Union of India and

Others, [2019] 3 SCR 535 : (2019) 4 SCC 17; Pioneer
Urban Land and Infrastructure and Another v. Union of
India and Others, [2019] 10 SCR 381 : (2019) 8 SCC 416
– held inapplicable.

Rojer Matthew v. South Indian Bank Ltd. And Ors., [2019]

16 SCR 1 : Civil Appeal No. 8588 of 2019; R.K. Garg v.
Union of India and Others, [1982] 1 SCR 947 : (1981) 4
SCC 675; Bhavesh D. Parish and Others v. Union of India
and Others, [2000] Suppl. 1 SCR 291 : (2000) 5 SCC 471;
Directorate General of Foreign Trade and Others v. Kanak
Exports and Another, [2015] 15 SCR 287 : (2016) 2 SCC
226; Union of India v. Association for Democratic Reforms
and Another, [2002] 3 SCR 696 : (2002) 5 SCC 294;
People’s Union of Civil Liberties (PUCL) and Another v.
Union of India and Another, [2003] 2 SCR 1136 : (2003) 4
SCC 399; Kanwar Lal Gupta v. Amar Nath Chawla & Ors.,
[1975] 2 SCR 259 : (1975) 3 SCC 646; K. S. Puttaswamy
and Anr. v. Union of India and Ors. [2017] 10 SCR 569
: (2017) 10 SCC 1; Modern Dental College & Research
Centre and Others v. State of Madhya Pradesh and Others,
[2016] 3 SCR 579 : (2016) 7 SCC 353; K. S. Puttaswamy
(Retired) and Anr. v. Union of India and Anr., [2018] 8 SCR
1 : (2019) 1 SCC 1; Gujarat Mazdoor Sabha and Another
v. State of Gujarat, [2020] 13 SCR 886 : (2020) 10 SCC
459; Ramesh Chandra Sharma and Others v. State of U.P.
and Others, 2023 SCC OnLine SC 162; Anuradha Bhasin
v. Union of India and Others, [2020] 1 SCR 812 : (2020)
3 SCC 637; Rustom Cavasjee Cooper v. Union of India,
2088 SUPREME COURT REPORTS [2024] 2 S.C.R. 420

[1970] 3 SCR 530 : (1970) 1 SCC 248; Maneka Gandhi

v. Union of India and Another, [1978] 2 SCR 621 : (1978)
1 SCC 248; Anoop Baranwal v. Union of India, [2023] 9
SCR 1 : (2023) 6 SCC 161; R.C.Poudyal v. Union of India
and Others, [1993] 1 SCR 891 : (1994) Supp 1 SCC 324;
Shayara Bano v. Union of India, [2017] 9 SCR 797 : (2017)
9 SCC 1 – referred to.

Libman v. Quebec (A. G.), [1997] 3 SCR 569; RJR-

MacDonald Inc. v. Canada (Attorney General), [1995] 3
SCR 199; Thomson Newspapers Co. v. Canada (A.G.),
[1998] 1 SCR 877; R. v. Sharpe, [2001] 1 SCR 45; Harper
v. Canada (A.G.), [2004] 1 SCR 827; R. v. Bryan, [2007]
1 SCR 527; Mounted Police Association of Ontario v.
Canada (Attorney General), [2015] 1 SCR 3; Brown v.
Socialist Workers Comm., 459 U.S. 87 (1982); Campbell v.
MGM Limited, [2004] 2 AC 457; My Vote Counts NPC v.
President of the Republic of South Africa and Ors., (2017)
ZAWCHC 105, para 67; Jeffery Raymond McCloy and
Others v. State of New South Wales and Another, (2015)
HCA 34; Bernstein and Ors. v. Bester NO and Others,
(1996) ZACC 2; Federal Election Commission v. National
Right to Work Committee, 459 U.S. 197 (1982); Buckley
v. R Valeo, 424 U.S. 1 (1976); Grosjean v. American
Press Co., 297 U.S. 233 (1936); Nixon, Attorney General
of Missouri, et al v. Shrink Missouri Government PAC et
al, 528 U.S. 377 (2000); In re.S, [2005] 1 AC 593; In
Re. W, [2005] EWHC 1564 (Fam); R. v. Oakes, [1986] 1
SCR 103; Canada (Attorney General) v. JTI-Macdonald
Corp., [2007] 2 S.C.R. 610; Alberta v. Hutterian Brethren
of Wilson Colony, and [2009] 2 S.C.R. 567; Clubb v.
Edwards, (2019) 93 ALJR 448; Associated Provincial
Picture Houses Ltd v. Wednesbury Corporation, (1948) 1
KB 223 – referred to.
 Association for Democratic Reforms & Anr. v. 2089
Union of India & Ors.

Books and Periodicals Cited

In the Judgment of Dr Dhananjaya Y Chandrachud, CJI

Gayatri Devi and Santha Rama Rau, A Princess remembers:

The Memoirs of the Maharani of Jaipur, (Rupa Publications
1995) [301]; Michael A. Collins, Navigating Fiscal
Constraints in “Costs of Democracy: Political Finance
in India” (edited by Devesh Kapur and Milan Vaishnav)
OUP 2018; Neelanjan Sircar, Money in Elections: the
Role of Personal Wealth in Election Outcomes in Costs
of Democracy: Political Finance in India (ed. By Devesh
Kapur and Milan Vaishnav) OUP 2018; Aradhya Sethia,
“Where’s the party?: towards a constitutional biography
of political parties, Indian Law Review, 3:1, 1-32 (2019);
Law Commission of India, 170th Report on the Reform of
the Electoral Laws (1999); Lok Sabha Debates, Companies
Bill (16 May 1985); Santhanam Committee Report on
Prevention of Corruption, 1964 – referred to.

John Hart Ely Democracy and Distrust: A Theory of

Judicial Review (Harvard University Press, 2002); Conrad
Foreman, Money in Politics: Campaign Finance and its
Influence over the Political Process and Public Policy, 52
UIC J. Marshall L. Rev. 185 (2018); D Sunshine Hillygus,
Campaign Effects on Vote Choice in “The Oxford Handbook
of American Elections and Political Behavior” (Ed. Jan E.
Leighley 2010); David P. Baron, Electoral Competition with
informed and uninformed voters, American Political Science
Review, Vol. 88, No. 1 March 1994; Dominik Hangartner,
Nelson A Ruiz, Janne Tukiainen, Open or Closed? How List
Type Affects Electoral Performance, Candidate Selection,
and Campaign Effort, VAT Institute for Economic Research
Working Papers 120 (2019); Ben Ansell and Jean Gingrich
J (2021). Political Inequality. The IFS Deaton Review of
Inequalities, London: Institute for Fiscal Studies; Joshua L.
Kalla and David E. Broockman, “Campaign Contributions
Facilitate Access to Congressional Officials: A Randomized
2090 SUPREME COURT REPORTS [2024] 2 S.C.R. 420

Field Experiment” (2016 60(3)) American Journal of

Political Science; Philip N Howard and Daniel Kreiss,
Political Parties and Voter privacy: Australia, Canada,
the United Kingdom, and United States in Comparative
Perspective, First Monday 15(12) 2010; Colin Bennet,
The politics of privacy and privacy of politics: Parties,
elections, and voter surveillance in Western Democracies.
First Monday, 18(8) 2013; Hon’ble Mr Justice Andrew
Cheung PJ, Conflict of fundamental rights and the double
proportionality test, A lecture in the Common Law Lecture
Series 2019 delivered at the University of Hong Kong (17
September 2019); Report of the Committee on Prevention of
Corruption, 1964 [11.5] – referred to.

In the Judgment of Sanjiv Khanna, J

Suchindran Bhaskar Narayan and Lalit Panda, Money and

Elections-Necessary Reforms in Electoral Finance, Vidhi
2018 at p. 19; Law Commission of India, Electoral Reforms,
Report No. 255, March 2015 – referred to.

John Parkinson and Jane Mansbridge (eds), Deliberative

Systems (1st edn, Cambridge University Press 2012) 11;
James S Fishkin, When the People Speak: Deliberative
Democracy and Public Consultation (Oxford University
Press 2011) 33– 34; Aharon Barak, “Proportionality –
Constitutional Rights and their Limitations”, Cambridge
University Press, 2012; David Bilchitz, “Necessity and
Proportionality: Towards a Balance Approach?“, (Hart
Publishing, Oxford and Portland, Oregon 2016); Aparna
Chandra, “Proportionality: A Bridge to Nowhere?”,
(Oxford Human Rights Journal 2020); Jochen von
Bernstroff, Proportionality Without Balancing: Why
Judicial Ad Hoc Balancing is Unnecessary and Potentially
Detrimental to Realisation of Collective and Individual Self
Determination, Reasoning Rights-Comparative Judicial
 Association for Democratic Reforms & Anr. v. 2091
Union of India & Ors.

Engagement, (Ed. Liaora Lazarus); Bernhard Schlink,

‘Abwägung im Verfassungsrecht’, Duncker & Humblot,
1976, and Francisco J. Urbina, ‘Is It Really That Easy? A
Critique of Proportionality and Balancing as Reasoning’
Canadian Journal of Law and Jurisprudence, 2014; Robert
Alexy, A Theory of Constitutional Rights (Julian Rivers,
trans. Oxford Univ. Press 2002); Cabinet Directive on Law-
making in Guide to Making Federal Acts and Regulations
(2nd edn, Government of Canada; Niels Petersen,
‘Proportionality and judicial Activism: Fundamental
Rights Adjudication in Canada, Germany and South Africa,
(CUP 2017); Yun-chien Chand & Peng-Hsiang Wang, The
Empirical Foundation of Normative Arguments in Legal
Reasoning (Univ. Chicago Coase-Sandor Inst. For L. &
Econ., Res. Paper No. 745, 2016); Lee Epstein & Andrew
D. Martin, An Introduction to Empirical Legal Research 6
(2014); Joshua B. Fischman, Reuniting “Is” and “Ought”
in Empirical Legal Scholarship, 162 U. Pa. L. Rev. 117
(2013); Marilyn Strathern, Improving Ratings: Audit in the
British University System, European review, Vol. 5 Issue 3,
pp. 305-321 (1997); Lord Neill of Bladen, QC, ‘Fifth Report
of the Committee on Standards in Public Life: The Funding
of Political Parties in the United Kingdom’, 1998 pp 61-
62; Francisco J. Urbina, A Critique of Proportionality,
American Journal of Jurisprudence, Vol 57, 2012; Ronald
Dworkin, Taking Rights Seriously (Bloomsbury 2013), pp
41-42; Robert Alexy, A Theory of Constitutional Rights,
(translated by Julian Rivers, first published 2002, OUP
2010), pp. 47-48; Robert Alexy, A Theory of Constitutional
Rights (Julian Rivers, trans. Oxford Univ. Press 2002);
David Bilchitz, Necessity and Proportionality: Towards a
Balance Approach?, (Hart Publishing, Oxford and Portland,
Oregon 2016); Adrienne Stone, Proportionality and its
Alternatives, Melbourne Legal Studies Research Paper
Series No. 848; John Braithwaite, Rules and Principles:
a Theory of Legal Certainty, Australian Journal of Legal
Philosophy 47 (2002); Harrison Moore, The Constitution of
2092 SUPREME COURT REPORTS [2024] 2 S.C.R. 420

the Commonwealth of Australia; Jennifer L. Greenblatt,

Putting the Government to the (Heightened, Intermediate,
or Strict) Scrutiny Test: Disparate Application Shows Not
All Rights and Powers Are Created Equal, (2009) 10 Fla
Coastal L Rev 421 – referred to.

Website

In the Judgment of Dr Dhananjaya Y Chandrachud, CJI

Election Commission of India, Instructions to political

parties on manifestos dated 24.04.2015, https://www.
eci.gov.in/election-manifestos/; Election Commission
of India, Letter dated 26 May 2017, No. 56/PPEMS/
Transparency/2017 – referred to.

In the Judgment of Sanjiv Khanna, J

Charterpedia, Department of Justice, Government of

Canada, available at: https://www.justice.gc.ca/eng/csj-sjc/
rfc-dlc/ccrf-ccdl/check/art1.htm – referred to.

List of Acts

In the Judgment of Dr Dhananjaya Y Chandrachud, CJI

Constitution of India; Finance Act, 2017; Companies Act,

1956; Reserve Bank of India Act, 1934; Representation of
the People Act, 1951; Income Tax Act, 1961; Companies
Act, 2013; Companies (Amendment) Act, 1960; Companies
(Amendment) Act, 1969; Companies (Amendment) Act,
1985; Taxation Laws (Amendment) Act, 1978; Evidence
Act, 1872; Election and Other Related Laws (Amendment)
Act, 2003; Election Symbols (Reservation and Allotment)
Order, 1968; Conduct of Election Rules, 1961.
 Association for Democratic Reforms & Anr. v. 2093
Union of India & Ors.

In the Judgment of Sanjiv Khanna, J

Constitution of India; Companies Act, 1956; Companies

Act of 2013; Finance Act, 2017; Income Tax Act, 1961;
Reserve Bank of India Act, 1934; Representation of the
People Act, 1951; Foreign Contribution Regulation Act,
2010; Prevention of Money Laundering Act, 2002.

List of Keywords

In the Judgment of Dr Dhananjaya Y Chandrachud, CJI

Electoral bond scheme, 2018; Electoral bond; Corporate

contributions; Curbing black money; Transparency;
Judicial review; Close association of politics and money;
Non-disclosure of information on electoral financing;
Right to information; Electoral process; Donor privacy;
Informational privacy of financial contributions to
political parties; Privacy vis-a-vis political party;
Right to informational privacy; Judicial approach;
Balancing fundamental rights; Double proportionality
standard; Arbitrariness; Manifest arbitrariness; Indian
jurisprudence; Anonymous financial contributions to
political parties; Financial contributions to political
parties; Financial contributions; Election Commission
of India; Transparency of political finance; Quid pro quo
arrangements; Free and fair elections; Presumption of
constitutionality; Corporate funding; Electoral campaigns;
Excessive delegation; Principle of ‘one person-one vote’;
Non-disclosure of funding by companies; Public domain;
Corporate donations; Anonymity of donations to political
parties; Judicial restraint; Symbols Order; Electoral
democracy; Proportionality standard; Electoral Trusts;
Political contribution; Electronic transfer other than
electoral bonds; Right to informational privacy of political
affiliation; Privacy; Political beliefs; Political affiliation;
Privacy of political affiliation; Electoral franchise;
2094 SUPREME COURT REPORTS [2024] 2 S.C.R. 420

Corrupt practices; Single proportionality standard;

Plenary legislation; Subordinate legislation; Removal of
contribution restrictions; Loss-making companies; Profit-
making companies.

In the Judgment of Sanjiv Khanna, J

Electoral Bonds Scheme, 2018; Electoral bonds; Electoral

process; Doctrine of proportionality; Corporate funding;
Ban on contributions to political parties; Contributions
by companies; Electronic Clearing System; Economic
policy; Judicial review; Electoral democracy; Burden of
proof; Doctrine of presumption of constitutionality; Test
of proportionality; Structured proportionality; Right to
vote; Right to know; Symbol allotted to political parties;
Funding of political parties; Democratic legitimacy;
Substantive balance; Diversity; Conscientiousness; Equal
consideration; Donors of a political party; Informational
privacy of donors; Black money in electoral finance;
Retribution; Victimisation; Retaliation; Quid pro
quo; Multiple donors; Double proportionality; Single
proportionality standard; Principle of reasonableness;
Right of privacy; Balancing prong of proportionality;
Principle of lis pendens; Necessity test; Rational connection
test; Standard based review; Rule based legal adjudication;
Empirical deference; Transparency; Secrecy; Identities of
donor; Money laundering; Alternative measures; Electoral
Trust Scheme; Fundamental rights; Complementary rights;
Law Commission of India; Party wise donation; Test of
manifest arbitrariness.
 [2024] 2 S.C.R. 1136 : 2024 INSC 192

Dr Kavita Kamboj
v.
High Court of Punjab and Haryana & Ors
(Civil Appeal Nos 2179-2180 of 2024)

13 February 2024

[Dr. Dhananjaya Y Chandrachud,* CJI,

J B Pardiwala and Manoj Misra, JJ]

Issue for Consideration

The issue for consideration was a challenge to a decision of the High Court
of Punjab & Haryana directing the State of Haryana to take positive action to
accept its recommendation vide communication dated 23.02.2023, whereby
the names of thirteen in-service judicial officers were recommended for
appointment by way of promotion as Additional District and Sessions Judge.
The challenge before the High Court was inter alia to a decision of the State
of Haryana vide Letter dated 12.03.2023, whereby the State had decided not
to accept the aforesaid High Court recommendation dated 23.02.2023, on
the ground that the “settled procedure” under Article 233 read with Article
309 of the Constitution of India and the Haryana Superior Judicial Service
Rules 2007 had not been followed.

Headnotes

Service Law – Promotion – Eligibility Criteria – Haryana Superior

Judicial Service Rules 2007 – Rule 6(1)(a) r/w. Rule 8 – Recommendation
of the High Court that for a candidate seeking promotion on the basis
of merit-cum-seniority, an aggregate of 50% marks for both, i.e. in the
written test and in the viva voce, would be required so as to render a
candidate eligible for promotion – Challenge to:
Held: The High Court was correct in prescribing that recruitment by
promotion to the Higher Judicial Service should have a minimum of 50%
both in the written test as well as in the viva voce independently, for those
in-service candidates who were drawn for promotion in the 65% promotion
quota – This is because the candidate should not just demonstrate the ability

2095
2096 SUPREME COURT REPORTS [2024] 2 S.C.R. 1136

to reproduce their knowledge by answering questions in the suitability test,

but must also demonstrate both practical knowledge and the application of the
substantive law in the course of the interview – In-service candidates seeking
recruitment through promotions cannot be considered at par with candidates
seeking direct recruitment or with candidates seeking accelerated promotion
through a limited competitive test – The three modes of recruitment have
been reasonably classified and different requirements have been prescribed
for each – As such, what may or may not have been held in respect of the
viva voce in direct recruitments may not necessarily apply to the viva voce
requirement in recruitments through promotions [Paras 65, 37, 41]

Eligibility criteria for Higher Judicial Services:

Held: The Higher Judicial Services require the selection of judicial officers
of mature personality and requisite professional experience – In-service
judicial officers are expected to have a greater familiarity with the law and
the procedure based on their experience as judicial officers – While an
objective written examination can be the best gauge of the legal knowledge
of a candidate, the viva voce offers the best mode of assessing the overall
personality of a candidate – The purpose of the interview for officers in
that class is to assess the officer in terms of the ability to meet the duties
required for performing the role of an Additional District and Sessions Judge
– Consequently, there would be a reasonable and valid basis, if the High
Court were to do so, to impose a requirement of a minimum eligibility or
cut-off both in the written test and in the viva voce separately. [Paras 42, 44]

Administrative directions can fill up the gaps and supplement the Rules,
when they are silent on a particular point:
Held: When the Rules under Article 309 hold the field, these Rules have to be
implemented – Where specific provisions are made in the Rules framed under
Article 309, it would not be open to the High Court to issue administrative
directions either in the form of the Full Court Resolution or otherwise, that
are at inconsistent with the mandate of the Rules – On the other hand, in
cases such as the one at hand, where the Rules were silent, it is open to the
High Court to issue a Full Court Resolution – The Rules being silent, it
was clearly open to the High Court to prescribe such a criterion as it did in
2013, when the 50% cut-off was prescribed on aggregate scores and also,
in 2021, when the 50% cut-off was prescribed on the written test scores and
the viva voce separately. [Paras 50, 52 and 65]
 Dr Kavita Kamboj v. 2097
High Court of Punjab and Haryana & Ors

Constitution of India - Articles 233, 234 and 235 – Appointments to the

District Judiciary to be in consultation with the High Court and any
other exercise de hors such consultation would not be in accordance
with the scheme of the Constitution:
Held: In matters of appointment of judicial officers, the opinion of the High
Court is not a mere formality because the High Court is in the best position
to know about the suitability of the candidates to the post of District Judge –
The Constitution, therefore, expects the Governor to engage in constructive
constitutional dialogue with the High Court before appointing persons to
the post of District Judges under Article 233. [Para 62]
The State Government travelled beyond the remit of the consultation with
the High Court by referring the matter to the Union Government. Any issue
between the High Court and the State Government should have been ironed
out in the course of the consultative process within the two entities – The
State Government was bound to consult only the High Court – Any other
exercise de hors such consultation would not be in accordance with the
scheme of the Constitution. [Para 66]

Doctrines – Doctrine of Legitimate Expectation – Twin Test:

Held: An individual who claims the benefit or entitlement based on the
doctrine of legitimate expectation has to establish: (i) the legitimacy of the
expectation; and (ii) that the denial of the legitimate expectation led to a
violation of Article 14. [Para 58]

Case Law Cited

All India Judges’ Association v. Union of India, [2002] 2
SCR 712 : (2002) 4 SCC 247; All India Judges’ Association
v. Union of India, (2010) 15 SCC 170; Dheeraj Mor v. High
Court of Delhi, [2020] 2 SCR 161 : (2020) 7 SCC 401;
Lila Dhar v. State of Rajasthan, [1982] 1 SCR 320 : (1981)
4 SCC 159; Taniya Malik v. Registrar General of the High
Court of Delhi, [2018] 10 SCR 348 : (2018) 14 SCC 129 ;
B V Sivaiah v. K. Addanki Babu, [1998] 3 SCR 782 : (1998)
6 SCC 720 ; P K Ramachandra Iyer v. Union of India,
[1984] 2 SCR 200 : (1984) 2 SCC 141; Sant Ram Sharma v.
State of Rajasthan, [1968] 1 SCR 111 : 1967 SCC OnLine
2098 SUPREME COURT REPORTS [2024] 2 S.C.R. 1136

SC 16; State of Gujarat v Akhilesh C Bhargav, [1987] 3

SCR 1091 : (1987) 4 SCC 482; State of Uttar Pradesh
v. Chandra Mohan Nigam, [1978] 1 SCR 521 : (1977) 4
SCC 345; K H Siraj v. High Court of Kerala, [2006] Supp.
2 SCR 790 : (2006) 6 SCC 395; Chandra Mohan v. State
of Uttar Pradesh, [1967] 1 SCR 77; Chandramouleshwar
Prasad v. Patna High Court, [1970] 2 SCR 666 : (1969) 3
SCC 56; State of Haryana v Inder Prakash Anand HCS,
[1976] Supp. 1 SCR 603 : (1976) 2 SCC 977; State of
Bihar v Bal Mukund Sah, [2000] 2 SCR 299 : (2000) 4 SCC
640 – relied on.

Sivanandan C T v High Court of Kerala, [2023] 11 SCR

674, 2023 SCC Online SC 994 – distinguished.

State of West Bengal v. Nripendra Nath Bagchi, [1966]

1 SCR 771 : 1965 SCC OnLine SC 22; High Court of
Punjab and Haryana v. State of Haryana, [1975] 3 SCR
365 : (1975) 1 SCC 843; High Court of Judicature for
Rajasthan v. PP Singh, [2003] 1 SCR 593 : (2003) 4 SCC
239 – referred to.

Books and Periodicals Cited

First National Judicial Pay Commission, 1999 (Shetty
Commission Report)

List of Acts
Haryana Superior Judicial Service Rules 2007; Constitution
of India

List of Keywords
Promotion; Eligibility Criteria; Service Rules, Recruitment;
District Judiciary.
 [2024] 3 S.C.R. 462 : 2024 INSC 161

Sita Soren
v.
Union of India
(Criminal Appeal No. 451 of 2019)

04 March 2024

[Dr Dhananjaya Y Chandrachud,* CJI, A.S. Bopanna,

M. M. Sundresh, Pamidighantam Sri Narasimha,
J.B. Pardiwala, Sanjay Kumar and Manoj Misra, JJ.]

Issue for Consideration

Instant Reference pertains to reconsideration of the correctness of the view
of the majority judgment in *PV Narasimha Rao’s case granting immunity
from prosecution to a member of the legislature who has allegedly engaged
in bribery for speaking or casting a vote.

Headnotes
Constitution of India – Arts. 105 and 196 – Powers, privileges and
immunities of the Houses of Parliament or Legislature, as the case
may be, and of members and committees – Member of Parliament
or the Legislative Assembly, if can claim immunity from prosecution
on a charge of bribery in a criminal court – Reconsideration of the
correctness of the majority view in*PV Narasimha Rao’s case which
grants immunity from prosecution to a member of the legislature who
has allegedly engaged in bribery for casting a vote or speaking:
Held: Judgment of the majority in *PV Narasimha Rao’s case has wide
ramifications on public interest, probity in public life and parliamentary
democracy – There is a grave danger of this Court allowing an error to be
perpetuated if decision not reconsidered – Thus, said case not concurred
with and overruled. [Para 188]

Constitution of India – Arts. 105 and 196 – Powers, privileges and

immunities of the Houses of Parliament or Legislature, and of members
and committees – Allegation against the member of Legislative Assembly
that she accepted bribe from an independent candidate for casting her

2099
2100 SUPREME COURT REPORTS [2024] 3 S.C.R. 462

vote in his favour in the Rajya Sabha elections, however, in an open

ballot, she did not cast her vote in favour of the alleged bribe giver but
her own party candidate – Chargesheet against the member – Petition for
quashing of criminal charges, claiming protection of Art.194(2), relying
on *PV Narasimha Rao’s case that member would enjoy immunity from
prosecution for accepting bribe for speaking or giving their vote in
Parliament – Rejected by the High Court – Matter before the Supreme
Court where the two-judge bench referred the matter to three-judge
bench, who further referred to five-judges bench – Bench of five-judges
doubted the correctness of *PV Narasimha Rao wherein the majority
judgment held that the legislator is conferred with immunity when they
accept bribe for speaking or giving their vote in Parliament, whereas
minority held that giving bribe to influence legislator to vote or speak in
Parliament, not protected by Arts. 105(2) and 194(2), and referred the
matter to bench of seven judges:
Held: Interpretation placed on the issue in question in the judgment of the
majority in *PV Narasimha Rao’s case results in a paradoxical outcome
– Such an interpretation is contrary to the text and purpose of Arts. 105
and 194 – Reconsidering *PV Narasimha Rao’s case does not violate the
principle of stare decisis – Members of the House or indeed the House itself
cannot claim privileges which are not essentially related to their functioning
– Constitution envisions probity in public life – Corruption and bribery
of members of the legislature erode the foundation of the Parliamentary
democracy – Bribery is not protected by parliamentary privilege – Delivery
of result irrelevant to the offence of bribery – Voting for elections to the
Rajya Sabha falls within the ambit of Art. 194(2) – Thus, said case not
concurred with and overruled. [Paras D, G, I, 188]

Judicial Precedent – Overruling of the long-settled law in *PV Narasimha

Rao’s case, if warranted:
Held : Period of time over which the case has held the field is not of primary
consequence – It is not appropriate for this Court to confine itself to a
rigid understanding of the doctrine of stare decisis – Ability of this Court
to reconsider its decisions is necessary for the organic development of law
and the advancement of justice – If this Court is denuded of its power to
reconsider its decisions, the development of constitutional jurisprudence
would virtually come to a standstill – Thus, reconsidering *PV Narasimha
 Sita Soren v. Union of India 2101

Rao’s case does not violate the principle of stare decisis – *PV Narasimha
Rao’s case has wide ramifications on public interest, probity in public life and
the functioning of parliamentary democracy – It contains several apparent
errors, its interpretation of the text of Art. 105; its conceptualization of
the scope and purpose of parliamentary privilege and its approach to
international jurisprudence all of which resulted in a paradoxical outcome
– There is an imminent threat of allowing an error to be perpetuated if
the decision in *PV Narasimha Rao’s case is not reconsidered – Mistaken
interpretation of the Constitution, must not be perpetuted merely because of
rigid allegiance to a previous opinion of five judges of this Court. [Paras 31,
33, 40, 44, 188.1]

Constitution of India – Arts. 105 and 194 – Parliamentary privileges,

if collective right of the house – Two constituent elements of privileges:
Held: First is the sum of rights enjoyed by the House of Parliament
collectively and the second is the rights enjoyed by members of the House
individually – Rights and immunities such as the power to regulate its
own procedure, the power to punish for contempt of the House or to expel
a member, belong to the first element of privileges held by the House as
a collective body for its proper functioning, protection of members, and
vindication of its own authority and dignity – Second element of rights
exercised individually by members of the House includes freedom of speech
and freedom from arrest, among others – Privilege exercised by members
individually is in turn qualified by its necessity, in that the privilege must be
such that “without which they could not discharge their functions” – These
privileges enjoyed by members of the House individually are a means to
ensure and facilitate the effective discharge of the collective functions of the
House – Privileges enjoyed by members of the House which exceed those
possessed by other bodies or individuals, are not absolute or unqualified –
Thus, the privileges and immunities enshrined in Arts. 105 and 194 belong to
the House collectively – Exercise of the privileges individually by members
must be tested on the anvil of whether it is tethered to the healthy and
essential functioning of the House. [Paras 76, 77, 84]

Constitution of India – Arts. 105 and 194 – Parliamentary privileges –

Necessity test to claim and exercise a privilege:
Held: Members of the House or indeed the House itself cannot claim
privileges which are not essentially related to their functioning – Assertion
2102 SUPREME COURT REPORTS [2024] 3 S.C.R. 462

of a privilege by an individual member of Parliament or Legislature would

be governed by a twofold test, first, the privilege claimed has to be tethered
to the collective functioning of the House, and second, its necessity must
bear a functional relationship to the discharge of the essential duties of a
legislator – Burden of satisfying that a privilege exists and that it is necessary
for the House to collectively discharge its function lies with the person or
body claiming the privilege – Houses of Parliament or Legislatures, and
the committees are not islands which act as enclaves shielding those inside
from the application of ordinary laws – Lawmakers are subject to the same
law that the law-making body enacts for the people it governs and claims to
represent. [Paras 87, 90, 91]

Constitution of India – Arts. 105 and 194 – Parliamentary privilege

– Privileges, if attract immunity to a member of Parliament or of the
Legislatures who engages in bribery in connection with their speech or
vote:
Held: Bribery is not protected by parliamentary privilege – Bribery is not
in respect of anything said or any vote given – Bribery is not immune under
clause (2) of Art.105 and Art.194 because a member engaging in bribery
commits a crime which is unrelated to their ability to vote or to make a
decision on their vote – Same principle applies to bribery in connection with
a speech in the House or a Committee – Individual member of the legislature
cannot assert a claim of privilege to seek immunity u/Arts 105 and 194 from
prosecution on a charge of bribery in connection with a vote or speech in
the legislature – Such a claim to immunity fails to fulfil the twofold test that
the claim is tethered to the collective functioning of the House and that it is
necessary to the discharge of the essential duties of a legislator. [Para G,
188.4, 188.7]

Constitution of India – Arts. 105 and 194 – Parliamentary privilege

– Expression ‘in respect of’ and ‘anything’ in Clause (2) of Art. 105 –
Interpretation:
Held: Clause (2) of Art. 105 grants immunity “in respect of anything” said
or any vote given – Extent of this immunity must be tested on the anvil of the
test of intrinsic relation to the functioning of the House and the necessity test
– Phrase “in respect of” is significant to delineate the ambit of the immunity
granted under Clause (2) of Art. 105 – Words “in respect of” in Clause (2)
 Sita Soren v. Union of India 2103

apply to the phrase “anything said or any vote given,” and in the latter
part to a publication by or with the authority of the House – Expressions
“anything” and “any” must be read in the context of the accompanying
expressions in Arts 105(2) and 194(2) – Words “anything” or “any” may
not be interpreted without reading the operative word on which it applies
i.e. “said” and “vote given” respectively – Words “anything” and “any”
when read with their respective operative words mean that a member may
claim immunity to say as they feel and vote in a direction that they desire
on any matter before the House – These are absolutely outside the scope of
interference by the courts – Words “in respect of” means ‘arising out of’
or ‘bearing a clear relation to’ and cannot be interpreted to mean anything
which may have even a remote connection with the speech or vote given.
[Paras 99, 102-103, 188.6]

Constitution of India – Arts. 105 and 194 – Power, privileges and

immunity in Parliament – Purpose and object:
Held: Constitution envisions probity in public life – Purpose and object
for which the Constitution stipulates powers, privileges and immunity in
Parliament must be borne in mind – Privileges are essentially related to the
House collectively and necessary for its functioning – Hence, the phrase
“in respect of” in Art. 105 must have a meaning consistent with the purpose
of privileges and immunities – Arts. 105 and 194 seek to create a fearless
atmosphere in which debate, deliberations and exchange of ideas can take
place within the Houses of Parliament and the state legislatures – Purpose
is destroyed when a member is induced to vote or speak in a certain manner
not because of their belief/position on an issue but because of an act of
bribery – Corruption and bribery of members of the legislature erode the
foundation of Indian Parliamentary democracy – It is destructive of the
aspirational and deliberative ideals of the Constitution and creates a polity
which deprives citizens of a responsible, responsive and representative
democracy. [Paras 104, 188.5, 188.8]

Constitution of India – Arts. 105 and 194 – Parliamentary privileges –

Courts and the House, if exercise parallel jurisdiction over allegations
of bribery:
Held: Issue of bribery is not one of exclusivity of jurisdiction by the House
over its bribe-taking members – Purpose of a House acting against a
2104 SUPREME COURT REPORTS [2024] 3 S.C.R. 462

contempt by a member for receiving a bribe serves a purpose distinct from

a criminal prosecution – Jurisdiction which is exercised by a competent
court to prosecute a criminal offence and the authority of the House to take
action for a breach of discipline in relation to the acceptance of a bribe by
a member of the legislature exist in distinct spheres – Scope, purpose and
consequences of the court exercising jurisdiction in relation to a criminal
offence and the authority of the House to discipline its members are different
– Potential of misuse against individual members of the legislature is neither
enhanced nor diminished by recognizing the jurisdiction of the court to
prosecute a member of the legislature who is alleged to have indulged in an
act of bribery. [Paras 188.9, 188.10]

Constitution of India – Arts. 105 and 194 – Parliamentary privileges –

Offence of bribery, stage at which it crystallizes:
Held: Offence of a public servant being bribed is pegged to receiving or
agreeing to receive the undue advantage and not the actual performance
of the act for which the undue advantage is obtained – Delivery of results
is irrelevant to the offence of bribery – To read Arts. 105(2) and 194(2)
in the manner proposed in the majority judgment in PV Narasimha Rao’s
case results in a paradoxical outcome – Such an interpretation results in a
situation where a legislator is rewarded with immunity when they accept a
bribe and follow through by voting in the agreed direction – On the other
hand, a legislator who agrees to accept a bribe, but may eventually decide
to vote independently will be prosecuted – Such an interpretation belies
not only the text of Arts. 105 and 194 but also the purpose of conferring
parliamentary privilege on members of the legislature – Offence of bribery
is agnostic to the performance of the agreed action and crystallizes on the
exchange of illegal gratification – It does not matter whether the vote is
cast in the agreed direction or if the vote is cast at all – Offence of bribery
is complete at the point in time when the legislator accepts the bribe –
Prevention of Corruption Act, 1988 – s. 7. [Paras 117, 126, 188.11]

Constitution of India – Arts. 105 and 194 – Parliamentary privileges –

Votes casted by elected members of the state legislative assembly in an
election to the Rajya Sabha, if protected by Art. 194(2):
Held: Voting for elections to the Rajya Sabha falls within the ambit of
Art.194(2) – Text of Art. 194 consciously uses the term ‘Legislature’ instead
 Sita Soren v. Union of India 2105

of ‘House’ to include parliamentary processes which do not necessarily

take place on the floor of the House or involve ‘lawmaking’ in its pedantic
sense – Rajya Sabha or the Council of States performs an integral function
in the working of the democracy and the role played by Rajya Sabha
constitutes a part of the basic structure of the Constitution – Role played
by elected members of the state legislative assemblies in electing members
of Rajya Sabha is significant and requires utmost protection to ensure that
vote is exercised freely and without fear of legal persecution – Any other
interpretation belies the text of Art.194(2) and the purpose of parliamentary
privilege – Protection Arts. 105 and 194 colloquially called “parliamentary
privilege” and not “legislative privilege” – It cannot be restricted to only
law-making on the floor of the House but extends to other powers and
responsibilities of elected members, taking place in the Legislature or
Parliament, even when the House is not sitting. [Paras 180, 187]

Constitution of India – Art. 194 – Use of the term “Legislature” instead

of the “House of Legislature” at appropriate places – Effect:
Held: It is evident from the drafting of the provision that the two terms
have not been used interchangeably – First limb of Art. 194(2) pertains to
“anything said or any vote given by him in the Legislature or any committee
thereof” – However, in the second limb, the phrase used is “in respect of
the publication by or under the authority of a House of such a Legislature
of any report, paper, votes, or proceedings” – There is a clear departure
from the term ‘Legislature’ used in the first limb, to use the term “House
of such a Legislature” in the second limb of the provision – Provision
creates a distinction between the two – Terms “House of Legislature” and
“Legislature” have different connotations – “House of Legislature” refers
to the juridical body, which is summoned by the Governor pursuant to Art.
174 – Term “Legislature”, on the other hand, refers to the wider concept
under Art. 168, comprising the Governor and the Houses of the Legislature
– Use of the phrase “in the Legislature” instead of “House of Legislature”
is significant. [Paras 174, 175.]

Constitution of India – Arts. 105, 194 – Parliamentary privilege under:

Held: Is integral to deliberative democracy in facilitating the functioning of
a parliamentary form of governance – It ensures that legislators in whom
citizens repose their faith can express their views and opinions on the floor
2106 SUPREME COURT REPORTS [2024] 3 S.C.R. 462

of the House without ‘fear or favour’ – Legislator belonging to a political

party with a minuscule vote share can fearlessly vote on any motion; a
legislator from a remote region of the country can raise issues that impact
her constituency without the fear of being harassed by legal prosecution;
and a legislator can demand accountability without the apprehension of
being accused of defamation. [Para 1]

Constitution of India – Art. 105, clause (1), (2), (3), (4) – Powers,
privileges, etc. of the Houses of Parliament and of the members and
committees thereof – Explanation:
Held: Clause (1) declares that there shall be freedom of speech in Parliament,
subject to the Constitution and to the rules and standing orders regulating
the procedure in Parliament – First limb of Clause (2) prescribes that a
member of Parliament shall not be liable before any court in respect of
“anything said or any vote given” by them in Parliament or any committee
thereof and second limb prescribes that no person shall be liable before any
court in respect of the publication by or under the authority of either House
of Parliament of any report, paper, vote or proceedings – Clauses (1) and
(2) explicitly guarantee freedom of speech in Parliament – Clause (1) is a
positive postulate which guarantees freedom of speech whereas Clause (2)
is an extension of the same freedom postulated negatively – Clause (3) states
that in respect of privileges not falling under Clauses (1) and (2) of Art. 105,
the powers, privileges and immunities, shall be such as may from time to time
be defined by Parliament by law – Clause (3) allows Parliament to enact a
law on its privileges from time to time – Clause (4) extends the freedoms in
the above clauses to all persons who by virtue of the Constitution have a
right to speak in Parliament – Thus, four clauses in Arts. 105 and 194 form
a composite whole which lend colour to each other and together form the
corpus of the powers, privileges and immunities of the Houses of Parliament
or Legislature, and of members and committees. [Paras 63-66, 73]

Parliamentary privileges – History of privileges of legislatures in India:

Held: History can be traced to the history of parliamentary privileges in
the House of Commons in the UK as well as the struggle of the Indian
Legislatures to claim these privileges under colonial rule – Unlike the
House of Commons in the UK, India does not have ‘ancient and undoubted’
privileges which were vested after a struggle between Parliament and the
 Sita Soren v. Union of India 2107

King – Statutory privilege transitioned to a constitutional privilege after the

commencement of the Constitution. [Paras 49, 188.2]

Parliamentary privileges – Bribery vis-à-vis privileges – Jurisprudence

in foreign jurisdictions – Evolution and position of the law on privileges
vis-a-vis bribe received by a member of Parliament in other jurisdictions-
United Kingdom, United States of America, Canada, and Australia –
Explained and discussed. [Paras 128-167]

Prevention of Corruption Act, 1988 – s. 7 – Offence relating to public

servant being bribed – Offence of bribery, when complete – Constituent
elements of the offence:
Held: Under s. 7, the mere “obtaining”, “accepting” or “attempting” to
obtain an undue advantage with the intention to act or forbear from acting
in a certain way is sufficient to complete the offence – It is not necessary that
the act for which the bribe is given be actually performed – First explanation
to the provision strengthens such an interpretation when it expressly states
that the “obtaining, accepting, or attempting” to obtain an undue advantage
shall itself constitute an offence even if the performance of a public duty
by a public servant has not been improper – Thus, the offence of a public
servant being bribed is pegged to receiving or agreeing to receive the undue
advantage and not the actual performance of the act for which the undue
advantage is obtained. [Para 117]

Judicial review – Amenability – Claim to parliamentary privilege :

Held: Claim to parliamentary privilege conforms to the parameters of the
Constitution, as such amenable to judicial review. [Para 188.3]

Judicial discipline – Procedure of:

Held: Decision delivered by a Bench of larger strength is binding on
any subsequent Bench of lesser or coequal strength – A Bench of lesser
strength cannot disagree with or dissent from the view of the law taken
by the bench of larger strength – However, a bench of the same strength
can question the correctness of a decision rendered by a co-ordinate
bench – In such situations, the case is placed before a bench of larger
strength – In consonance with judicial discipline, the correctness of the
decision in PV Narasimha Rao’s case was only doubted by the co-equal
2108 SUPREME COURT REPORTS [2024] 3 S.C.R. 462

bench of five judges of this Court in a detailed order and accordingly, the
matter was placed before this bench of seven judges – Thus, no infirmity
in the reference to seven judges bench to reconsider the decision in *PV
Narasimha Rao’s case. [Paras 24, 25, 30]

Doctrines/Principles – Doctrine of stare decisis – Meaning:

Held: Doctrine of stare decisis provides that the Court should not lightly
dissent from precedent – However, the doctrine is not an inflexible rule of
law, and it cannot result in perpetuating an error to the detriment of the
general welfare of the public – Larger bench of this Court may reconsider a
previous decision in appropriate cases, bearing in mind the tests formulated
in the precedents of this Court – This Court may review its earlier decisions
if it believes that there is an error, or the effect of the decision would harm
the interests of the public or if it is inconsistent with the legal philosophy of
the Constitution – In cases involving the interpretation of the Constitution,
this Court would do so more readily than in other branches of law because
not rectifying a manifest error would be harmful to public interest and the
polity. [Paras 33, 188.1]

Interpretation of Constitution – Interpretation of a provision of the

Constitution:
Held: Court must interpret the text in a manner that does not do violence to
the fabric of the Constitution. [Para 92]

Interpretation of Constitution – Marginal note to the Article –

Importance of:
Held: With reference to Articles of the Constitution, a marginal note may
be used as a tool to provide some clue as to the meaning and purpose
of the Article – However, the real meaning of the Article is to be derived
from the bare text of the Article – When language of the Article is plain
and ambiguous, undue importance cannot be placed on the marginal note
appended to it – Furthermore, marginal note to a Section in a statute does
not control the meaning of the body of the Section if the language employed
is clear. [Para 173]

Interpretation of statutes – Principles of statutory interpretation –

Illustrations appended to s. 7 of the Prevention of Corruption Act –
Relevance:
 Sita Soren v. Union of India 2109

Held: Illustrations appended to a Section are of value and relevance in

construing the text of a statutory provision and they should not be readily
rejected as repugnant to the Section – Illustration to the first explanation of
s. 7 of the PC Act aids in construing the provision to mean that the offence
of bribery crystallizes on the exchange of the bribe and does not require the
actual performance of the act – Similarly, in the formulation of a legislator
accepting a bribe, it does not matter whether she votes in the agreed direction
or votes at all – At the point in time when the bribe is accepted, the offence of
bribery is complete – Prevention of Corruption Act, 1988. [Para 118]

Case Law Cited

*PV Narasimha Rao v. State (CBI/SPE), [1998] 2 SCR

870 : (1998) 4 SCC 626 – overruled.

Kuldip Nayar v. Union of India, [2006] 5 Suppl. SCR 1 :

(2006) 7 SCC 1 – Clarified.

Sita Soren v. Union of India, [2023] 12 SCR 753; Keshav

Mills Co. Ltd v. CIT, [1965] 2 SCR 908 : AIR 1965 SC 1636;
Krishena Kumar v. Union of India, [1990] 3 SCR 352 :
(1990) 4 SCC 207; Shanker Raju v. Union of India, [2011] 2
SCR 1 : (2011) 2 SCC 132; Shah Faesal and Ors. v. Union
of India (UOI), [2020] 3 SCR 1115 : (2020) 4 SCC 1; Raja
Ram Pal v. Hon’ble Speaker Lok Sabha, [2007] 1 SCR 317 :
(2007) 3 SCC 184; Lokayukta, Justice Ripusudan Dayal v.
State of M.P., [2014] 3 SCR 242 : (2014) 4 SCC 473; State
of Kerala v. K. Ajith, [2021] 6 SCR 774; Central Board
of Dawoodi Bohra Community v. State of Maharashtra,
[2004] Suppl. 6 SCR 1054 : (2005) 2 SCC 673; Kalpana
Mehta v. Union of India, [2018] 4 SCR 1 : (2018) 7 SCC
1; Amarinder Singh v. Punjab Vidhan Sabha, [2010] 4 SCR
1105 : (2010) 6 SCC 113; Maganlal Chhaganlal (P) Ltd.
v. Municipal Corpn. of Greater Bombay, [1975] 1 SCR 1 :
(1974) 2 SCC 402; Bengal Immunity Company Limited
v. State of Bihar and Ors., [1955] 2 SCR 603; Sambhu
2110 SUPREME COURT REPORTS [2024] 3 S.C.R. 462

Nath Sarkar v. State of W.B., [1974] 1 SCR 1 : (1973) 1

SCC 856; Lt. Col. Khajoor Singh v. Union of India, [1961]
2 SCR 828; Union of India v. Raghubir Singh, [1989] 3
SCR 316 : (1989) 2 SCC 754; Pradeep Kumar Biswas v.
Indian Institute of Chemical Biology, [2002] 3 SCR 100 :
(2002) 5 SCC 111; Supreme Court Advocates-on-Record
Assn. v. Union of India, [2015] 13 SCR 1 : (2016) 5 SCC
1; Ajit Mohan v. Legislative Assembly, National Capital
Territory of Delhi, [2021] 14 SCR 611 : (2022) 3 SCC 529;
Rajeev Suri v DDA, [2021] 15 SCR 283 : (2022) 11 SCC
1; Alagaapuram R Mohanraj v. TN Legislative Assembly,
[2016] 6 SCR 611 : (2016) 6 SCC 82; Tej Kiran Jain v. N
Sanjeeva Reddy, [1971] 1 SCR 612 : (1970) 2 SCC 272;
MSM Sharma v. Sri Krishna Sinha, [1959] Suppl. 1 SCR
806 : AIR 1959 SC 395; Special Reference No. 1 of 1964,
[1965] 1 SCR 413; State of Karnataka v. Union of India,
[1978] 2 SCR 1 : (1977) 4 SCC 608; N Ravi v. Speaker,
Legislative Assembly Chennai, 2003 (9) SCALE 464; State
(NCT of Delhi) v Union of India, [2018] 7 SCR 1 : (2018)
8 SCC 501; Kihoto Hollohan v. Zachillhu, [1992] 1 SCR
686 : (1992) Supp 2 SCC 651; Chaturdas Bhagwandas
Patel v. State of Gujarat, [1976] 3 SCR 1052 : (1976) 3
SCC 46; Neeraj Dutta v. State (NCT of Delhi), [2023] 2
SCR 997 : (2023) 4 SCC 731; Pashupati Nath Sukul v. Nem
Chandra Jain and Ors., [1984] 1 SCR 939 : (1984) 2 SCC
404; Madhukar Jetly v. Union of India, (1997) 11 SCC 111;
Kesavananda Bharati v. State of Kerala, [1973] Suppl. 1
SCR 1 : (1973) 4 SCC 225; K.S. Puttaswamy (Aadhaar-
5J.) v. Union of India, [2018] 8 SCR 1 : 2018 SCC OnLine
SC 1642 – referred.

Mark Graves v. People of the State of New York, 306 US

466 (1939); Kielly v. Carson, (1841-42) 4 Moo. PC 63;
The King v. Sir John Elliot, (1629) 3 St. Tr. 294; Ex Parte
Wason, (1969) 4 QB 573; R v. Greenway, [1998] PL 357;
R v. Parliamentary Commissioner for Standards Ex Parte
Fayed, [1998] 1 WLR 669; Hamilton v. Al Fayed, [2001] 1
A.C. 395; Prebble v. Television New Zealand, (1994) 3 ALL
 Sita Soren v. Union of India 2111

ER 407; Office of Government Commerce v. Information

Commissioner (Attorney General intervening), [2009] 3
WLR 627; R v. Chaytor, [2010] 3 WLR 1707; Makudi
v. Baron Triesman of Trottenham, [2014] QB 839; United
States v. Thomas F Johnson, 383 US 169 (1966); United
States v. Brewster, 408 US 501 (1972); Gavel v. United
States, 408 US 606 (1972); United States v. Helstoski, 442
US 477 (1979); Hutchinson v. Proxmire, 439 US 1066
(1979); R v. Bunting et al, 6 [1885] 17 O.R. 524; Canada
(House of Commons) v. Vaid [2005] 1 SCR 667; Chagnon v.
Syndicat de la fonction publique et parapublique du Québe,
[2018] 2 S.C.R. 687; R v. Edward White, 13 SCR (NSW)
332; R v. Boston, (1923) 33 CLR 386; Obeid v. Queen,
[2017] NSWCCA 221 – referred to.

Books and Periodicals Cited

SK Nag, Evolution of Parliamentary Privileges in India
till 1947, Sterling Publication, (1978), 317-18; SK Nag,
Evolution of Parliamentary Privileges in India till 1947,
Sterling Publication, (1978), 102-103; SK Nag, Evolution
of Parliamentary Privileges in India till 1947, Sterling
Publication, (1978), 139-141, 158; SK Nag, Evolution
of Parliamentary Privileges in India till 1947, Sterling
Publication, (1978), 322; Report of the Reforms Enquiry
Committee (1924), 75; SK Nag, Evolution of Parliamentary
Privileges in India till 1947, Sterling Publication, (1978),
213-214; Granville Austin, The Indian Constitution:
Cornerstone of a Nation, OUP (1972), ix; Granville Austin,
The Indian Constitution: Cornerstone of a Nation, OUP
(1972), xiii; CAD Vol VIII 19 May, 1949 Draft Article 85;
Subhash C. Kashyap, Parliamentary Procedure—Law,
Privileges, Practice and Precedents, 3rd ed., Universal Law
Publishing Co, 502; MN Kaul and SL Shakdher, Practice
and Procedure of Parliament, Lok Sabha Secretariat,
Metropolitan Book Co. Pvt. Ltd., 7th ed., 229; Justice
GP Singh, Principles of Statutory Interpretation, 15th Ed.
2112 SUPREME COURT REPORTS [2024] 3 S.C.R. 462

(2021), 136; Justice GP Singh, Principles of Statutory

Interpretation, 15th Ed. (2021), 188-189 – referred to.

Erskine May’s Treatise on the Law, Privileges, Proceedings

and Usage of Parliament, LexisNexis, 25th ed. (2019) 239;
Erskine May’s Treatise on the Law, Privileges, Proceedings
and Usage of Parliament, LexisNexis, 25th ed. (2019) 242
– referred to.

List of Acts

Constitution of India; Prevention of Corruption Act,

1988; Government of India Act, 1833; Charter Act, 1853;
Indian Council Act, 1861; Government of India Act, 1909;
Representation of the People Act, 1951; Government of India
Act, 1919; Government of India Act, 1935; Constitution
(Forty-fourth Amendment) Act, 1978.

List of Keywords

Bribery for speaking or casting a vote; Bribery vis-à-vis

privileges; Parliamentary privilege; Legislative privilege;
Ancient privileges; Statutory privilege; Constitutional
privilege; History of privileges of legislatures; Immunities
of the Houses of Parliament or Legislature; Reconsideration
of PV Narasimha Rao case; Probity in public life;
Parliamentary democracy; Principle of stare decisis;
Elections to Rajya Sabha; Overruled; Judicial Precedent;
Constitutional jurisprudence; Freedom of speech; House
of Parliament; Necessity test; Collective functioning of
the House; Immunity “in respect of anything” said or any
vote given; Parallel jurisdiction; House of Legislature;
Legislature; Colonial rule; House of Commons in the UK;
Foreign jurisdictions; Obtaining, accepting or attempting
to obtain an undue advantage; Judicial review; Judicial
discipline; Illustrations appended to a Section; Marginal
note to a Section; Reforms of Committee, 1924.
 [2024] 5 S.C.R. 1159 : 2024 INSC 455

Government of NCT of Delhi & Anr.

v.
M/s BSK Realtors LLP & Anr.
(Civil Appeal No. 6604 of 2024)

17 May 2024

[Surya Kant, Dipankar Datta and Ujjal Bhuyan, JJ.]

Issue for Consideration

a) Whether the dismissal of a civil appeal preferred by one appellant in
the first round operates as res judicata against the other appellant in the
second round before this Court; b) Whether suppression of the first round
of litigation by the appellants constitutes a material fact, thereby inviting an
outright dismissal of the appeals at the threshold; c) Does the doctrine of
merger operate as a bar to entertain the civil appeals in the present case; d)
Whether the previous determination of the rights of subsequent purchasers
in an inter se dispute precludes the same issue from being reconsidered
between the same parties.

Headnotes
Land Acquisition Act, 1894 – Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement
Act, 2013 – Whether the dismissal of a civil appeal preferred by one
appellant in the first round operates as res judicata against the other
appellant in the second round before this Court:

Held: In the lead matter before this Court or for that matter the other
appeals, the co-respondents before the High Court, namely, GNCTD and
DDA did not have conflicting interests – Inter se them, neither was there
any disputed issue, nor could have the High Court possibly adjudicated
on any such issue – Before this Court too, in the first round, there was no
issue on which GNCTD and DDA were at loggerheads – In the light of this,
in accordance with the legal principle, the applicability of res judicata is
negated – Res judicata, as a technical legal principle, operates to prevent
the same parties from relitigating the same issues that have already been

2113
2114 SUPREME COURT REPORTS [2024] 5 S.C.R. 1159

conclusively determined by a court – However, it is crucial to note that the

previous decision of this Court in the first round would not operate as res
judicata to bar a decision on the lead matter and the other appeals; more
so, because this rule may not apply hard and fast in situations where larger
public interest is at stake – In such cases, a more flexible approach ought to
be adopted by courts, recognizing that certain matters transcend individual
disputes and have far-reaching public interest implications. [Paras 23 and 25]

Land Acquisition Act, 1894 – Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and Resettlement
Act, 2013 – Whether suppression of the first round of litigation by
the appellants constitutes a material fact, thereby inviting an outright
dismissal of the appeals at the threshold:
Held: Law is well settled that the fact suppressed must be material in the
sense that it would have an effect on the merits of the case – The concept
of suppression or non-disclosure of facts transcends mere concealment; it
necessitates the deliberate withholding of material facts—those of such critical
import that their absence would render any decision unjust – Material facts,
in this context, refer to those facts that possess the potential to significantly
influence the decision-making process or alter its trajectory – This principle
is not intended to arm one party with a weapon of technicality over its
adversary but rather serves as a crucial safeguard against the abuse of the
judicial process – Nevertheless, this Court has carefully considered the
orders issued during the first round of litigation, which are alleged to have
been suppressed – Despite reviewing these orders, there are no compelling
reason to dismiss the appeals based solely on the prior dismissal of appeals
filed by some other appellant/authority. [Paras 30 and 31]

Land Acquisition Act, 1894 – Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and Resettlement
Act, 2013 – Does the doctrine of merger operate as a bar to entertain
the civil appeals in the instant case:
Held: The concept of public interest need not be viewed narrowly only on
the yardstick of loss to public exchequer and that these are the cases where
public at large has acquired interest in the public infrastructures already
complete or in process of completion, this Court is satisfied that if the
 Government of NCT of Delhi & Anr. v. 2115
M/s BSK Realtors LLP & Anr.

doctrine of merger is applied mechanically in respect of Groups A (deals with

M.A.s filed by the appellants-authorities primarily pleading change in law
and seeking recall of the judgments and orders of this Court dismissing the
Civil Appeals and/or Review Petitions in the first round) and B.1 (includes
cases where Civil Appeals were dismissed in the first round, and now an SLP
(now Civil Appeal) is pending before this Court in the second round) cases,
it will lead to irreversible consequences – This Court is satisfied that the
element of disparity between Groups A and B.1 cases visà-vis cases falling
in Group C is liable to be eliminated and this can only be done by invoking
extraordinary power under Article 142 of the Constitution of India so that
complete justice is done between the expropriated landowners, the State
and its developing agencies and most importantly the public in general who
has acquired a vested right in the public infrastructure projects. [Para 41]
Land Acquisition Act, 1894 – Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Act,
2013 – Delhi Lands (Restrictions on Transfers) Act, 1972 – Whether
the previous determination of the rights of subsequent purchasers in
an inter se dispute precludes the same issue from being reconsidered
between the same parties:
Held: Group E cases deal with allegations regarding fraud by landowners
by suppressing subsequent sale transactions, ownership title disputes, etc – It
is settled that transfer of land in respect of which acquisition proceedings
had been initiated, after issuance of Notification under section 4(1) of the
1894 Act, is void and a subsequent purchaser cannot challenge the validity
of the notification or the irregularity in taking possession of the land –
Also, the structure of the Delhi Lands (Restrictions on Transfers) Act, 1972
clearly indicates that any subsequent sale of the specified land without prior
permission from the competent authority is not allowed, and if such sale is
done through concealment, it amounts to fraud – The law with respect to
“who” can invoke section 24(2) of the 2013 Act has been well settled after
the decision of this Court in Shiv Kumar wherein it was held that subsequent
purchasers do not have the locus to contest the acquisition and/or claim
lapse of the acquisition proceedings – Coming to the specifics of each case
qua subsequent purchasers or disputes regarding the title of the subject
lands, this Court has clarified the scope of inquiry in Delhi Development
Authority v. Tejpal and others – As far as the concealment of material facts
2116 SUPREME COURT REPORTS [2024] 5 S.C.R. 1159

regarding subsequent sale transactions, earlier round of litigations etc. are

concerned, it is noted that the landowners and affected parties are under no
obligation to either confirm or deny the allegations levelled against them
– Nor this Court has directed the appellants to furnish original records or
documents to substantiate their claim of concealment and suppression of
material facts – Engaging in a factual inquiry at such an advanced stage
of the legal process, especially without providing adequate opportunities to
all parties, may not be fair – The cases listed in Group E involve complex
questions of fact and this Court being the Court of the last resort, ought not
to be involved in such elaborate factfinding exercise – Therefore, deem it
appropriate to remit these cases to the High Court for proper adjudication
on points of law as well as facts. [Paras 42, 44, 45, 46, 48]

Doctrine/Principles – Res judicata – discussed.

Doctrine/Principles – Doctrine of merger – Exception:

Held: This Court takes notice of the exception carved out by this Court in
Kunhayammed, to the effect that the doctrine of merger is not of universal
or unlimited application and that the nature of jurisdiction exercised by
the superior forum and the content or subject matter of challenge laid or
which could have been laid shall have to be kept in view – The exception
that has been carved out in Kunhayammed, will only be permissible in the
rarest of rare cases and such a deviation can be invoked sparingly only –
However, among such exceptions, the extraordinary constitutional powers
vested in this Court under Article 142 of the Constitution of India, which
is to be exercised with a view to do complete justice between the parties,
remains unaffected and being an unfettered power, shall always be deemed
to be preserved as an exception to the doctrine of merger and the rule of
stare decisis. [Para 33]

Public Interest – Land Acquisition – Elements of Public interest:

Held: a) While balancing the interest of the public exchequer against that
of individuals, there are many other interests at stake, and it might not be
possible to undo the acquisitions without causing significant cascading
harms and losses to such other interests; b) Since development projects have
either begun or most of the acquired lands have already been deployed for
essential public projects such as hospitals, schools, expansion of metro, etc.,
 Government of NCT of Delhi & Anr. v. 2117
M/s BSK Realtors LLP & Anr.

the effect of non-condonation of delay would go beyond mere financial loss

to the exchequer and would extend to the public at large; c) It would be
like unscrambling the egg if compensation paid would have to be clawed
back or possession taken would have to be reversed; d) In many cases,
the development projects might also have to be undone – The reversal of
possession of even a small plot lying on projects such as an under-construction
metro corridor would be practically impossible; e) These are the cases where
rights are vested to the public at large given the public infrastructure that
has come up on a large number of acquired lands; f) The fresh acquisition,
if so is required to be done by the State, would be at the expense of delaying
the construction of critical public infrastructure in our national capital –
When balancing public with private interest, the comparative interest on
the landowners would be nominal as compared to the public at large; and
g) The multiplicity of contradictory judicial opinions on section 24 (2) of
the 2013 Act has made the present set of circumstances sui generis – The
constant flux in the legal position of law has posed significant challenges
for the State and its authorities. [Para 40]

Case Law Cited

Indore Development Authority v. Manoharlal [2020] 3 SCR
1 : (2020) 8 SCC 129 – followed.

State of Gujarat and Others v. M.P. Shah Charitable

Trust and Others [1994] 3 SCR 163 : (1994) 3 SCC 552;
Mathura Prasad Bajoo Jaiswal and Others v. Dossibai N.B.
Jeejeebhoy [1970] 3 SCR 830 : (1970) 1 SCC 613; S.J.S.
Business Enterprises (P) Ltd v. State of Bihar and Others
[2004] 3 SCR 56 : (2004) 7 SCC 166; Arunima Baruah
v. Union of India and Others [2007] 5 SCR 904 : (2007) 6
SCC 120 – relied on.

Delhi Development Authority v. Tejpal and Others Civil

Appeal No. 6798 of 2024 arising out of SLP (Civil) No.
26697/2019; Pune Municipal Corporation v. Harakchand
Mistrimal Solanki [2014] 1 SCR 783 : (2014) 3 SCC 183;
Govt (NCT) of Delhi v. Manav Dharam Trust and Another
[2017] 4 SCR 232 : (2017) 6 SCC 751; Shiv Kumar and
2118 SUPREME COURT REPORTS [2024] 5 S.C.R. 1159

Another v. Union of India and Others [2019] 13 SCR 695 :

(2019) 10 SCC 229; Kunhayammed and Others. v. State
of Kerala and Another [2000] Supp. 1 SCR 538 : (2000)
6 SCC 359; Pune Municipal Corporation v. Harakchand
Misirimal Solanki (2020) SCC OnLine SC 1471 – referred
to.

Ranjana Bhatia v. Govt. of NCT of Delhi and another

(2014) SCC OnLine Del 2151; Sparsh Properties Pvt. Ltd.
v. Union of India and Others (2014) SCC OnLine Del 6659
– referred to.

Munni Bibi (since deceased) and Another v. Tirloki Nath

and Others AIR (1931) PC 114 – referred to.

List of Acts
Land Acquisition Act, 1894; Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013; Delhi Lands (Restrictions on
Transfers) Act, 1972; Constitution of India; Supreme Court
Rules, 2013.

List of Keywords
Land Acquisition; Res judicata; Interest reipublicae ut sit
finis litium; Salus populi suprema lex esto; Public interest;
Doctrine of merger; Article 142 of the Constitution of
India; Elements of Public interest; Balancing the interest
of the public exchequer; Public infrastructure; Balancing
public with private interest; Fraud by Landowners;
Concealment and suppression of material facts; Subsequent
sale transactions; Section 24(2) of the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013; Section 4(1) of
the Land Acquisition Act, 1894.
 [2024] 7 S.C.R. 1549 : 2024 INSC 554

Mineral Area Development Authority & Anr.

v.
M/s Steel Authority of India & Anr. Etc.
(Civil Appeal Nos. 4056-4064 of 1999)

25 July 2024

[Dr. Dhananjaya Y. Chandrachud,* CJI, Hrishikesh Roy, Abhay S

Oka, B.V. Nagarathna,* J.B. Pardiwala, Manoj Misra, Ujjal Bhuyan,
Satish Chandra Sharma and Augustine George Masih, JJ.]

Issue for Consideration

The questions which arose for determination are as to what is the true nature of
royalty determined u/s.9 r/w s.15(1) of the Mines and Minerals (Development
and Regulation) Act, 1957; whether royalty is in the nature of tax; what is
the scope of Entry 50 List II Seventh Schedule; what is the ambit of the
limitations imposable by Parliament in exercise of its legislative powers
under Entry 54 List I; does s.9, or any other provision of the MMDR Act,
contain any limitation with respect to the field in Entry 50 List II; whether
the expression “subject to any limitations imposed by Parliament by law
relating to mineral development” in Entry 50 List II pro tanto subjects the
entry to Entry 54 List I, which is a non-taxing general entry; whether there is
any departure from the general scheme of distribution of legislative powers
as enunciated in M P V Sundararamier’s case; what is the scope of Entry
49 List II and whether it covers a tax which involves a measure based on
the value of the produce of land; would the constitutional position be any
different qua mining land on account of Entry 50 List II r/w Entry 54 List I;
and whether Entry 50 List II is a specific entry in relation to Entry 49 List
II, and would thus, subtract mining land from the scope of Entry 49 List II.

Headnotes

Mines and Minerals (Development and Regulation) Act, 1957 – s.9 read
with s.15(1) – Royalties in respect of mining leases – Nature of royalty
determined u/s.9/15(1) – Royalty, if in the nature of tax:
Held: (per Dr Dhananjaya Y Chandrachud, CJI) (for himself and for
Hrishikesh Roy, Abhay S Oka, J.B. Pardiwala, Manoj Misra, Ujjal

2119
2120 SUPREME COURT REPORTS [2024] 7 S.C.R. 1549

Bhuyan, Satish Chandra Sharma and Augustine George Masih, JJ.)

Royalty is not a tax – Royalty is a contractual consideration paid by the
mining lessee to the lessor for enjoyment of mineral rights – Liability to
pay royalty arises out of the contractual conditions of the mining lease –
Payments made to the Government cannot be deemed to be a tax merely
because the statute provides for their recovery as arrears. [Para 342a]
– Held: (per B.V. Nagarathna, J.) (Dissenting) Royalty determined u/s.9
r/w s.15(1) is in the nature of a tax or an exaction coming within the scope
and ambit of Art.366(28) which defines taxation to include the imposition of
any tax or impost, whether general or local or special and the word “tax”
is to be construed accordingly – It is not merely a contractual payment
but a statutory levy u/s.9 – Liability to pay royalty does not arise purely
out of the contractual conditions of a binding lease – Payment of royalty
to the Government is a tax in view of Entry 50 List II being subject to any
limitations imposed by Parliament by law in the context of Entry 54 List I
read with s.2 of the MMDR Act – Constitution of India – Art.366(28), Entry
54 List I, Entry 50 List II. [Paras 40a, 41a]

Mines and Minerals (Development and Regulation) Act, 1957 – s.9 –

Royalties in respect of mining leases – Constitution of India – Entry 50 List
II Seventh Schedule – Taxes on mineral rights subject to any limitations
imposed by Parliament by law relating to mineral development – Scope
of Entry 50 List II – Ambit of the limitations imposable by Parliament
in exercise of its legislative powers under Entry 54 List I – s.9, or any
other provision of the MMDR Act, if contains any limitation with respect
to the field in Entry 50 List II:
Held: (per Dr Dhananjaya Y Chandrachud, CJI) (for himself and for
Hrishikesh Roy, Abhay S Oka, J.B. Pardiwala, Manoj Misra, Ujjal
Bhuyan, Satish Chandra Sharma and Augustine George Masih, JJ.)
Legislative power to tax mineral rights vests with the State legislatures –
Parliament does not have legislative competence to tax mineral rights under
Entry 54 List I, it being a general entry – Since the power to tax mineral
rights is enumerated in Entry 50 List II, Parliament cannot use its residuary
powers with respect to that subject-matter – Entry 50 List II envisages that
Parliament can impose “any limitations” on the legislative field created by
that entry under a law relating to mineral development – MMDR Act as it
stands has not imposed any limitations as envisaged in Entry 50 List II –
 Mineral Area Development Authority & Anr. v. 2121
M/s Steel Authority of India & Anr. Etc.

Entry 54 List I, Entry 50 List II Seventh Schedule. [Para 342b, c] – Held:

(per B.V. Nagarathna, J.) (Dissenting) – Entry 50 List II dealing with taxes
on mineral rights, is subject to any limitations imposed by Parliament by law
relating to mineral development – Use of the word “any” means the limitation
could be in any form which can be imposed only by the Parliament by law
relating to mineral development – Use of the expression ‘any limitations’
must be given the widest possible meaning to include a limitation in the
form of ss.9 and 9A, 25 or any other provision of the MMDR Act and Rules
made thereunder which act as a limitation to Entry 50 List II – Scope of the
expression “any limitations” under Entry 50 List II is wide enough to include
the imposition of restriction, conditions, principles as well as a prohibition
by Parliament by law relating to mineral development – Thus, in view of the
declaration u/s.2 of the MMDR Act made in terms of Entry 54 List I and to
the extent of the provisions of the said Act, the State legislature is denuded
of its powers under Enry 50 List. [Paras 40b, 41d, e]

Mines and Minerals (Development and Regulation) Act, 1957 – s.9 –

Royalties in respect of mining leases – Constitution of India – Entry
50 List II Seventh Schedule – Expression “subject to any limitations
imposed by Parliament by law relating to mineral development” in
Entry 50 List II, if pro tanto subjects the Entry to Entry 54 List I,
which is a non-taxing general Entry – If there is any departure from
the general scheme of distribution of legislative powers as enunciated
in MPV Sundararamier’s case:
Held: (per Dr Dhananjaya Y Chandrachud, CJI) (for himself and for
Hrishikesh Roy, Abhay S Oka, J.B. Pardiwala, Manoj Misra, Ujjal
Bhuyan, Satish Chandra Sharma and Augustine George Masih, JJ.)
– Legislative power to tax mineral rights vests with the State legislatures –
Parliament does not have legislative competence to tax mineral rights under
Entry 54 List I, it being a general entry – Since the power to tax mineral rights
is enumerated in Entry 50 List II, Parliament cannot use its residuary powers
with respect to that subject-matter – Entry 50 List II does not constitute an
exception to the position of law laid down in M P V Sundararamier’s case.
[Para 342b, c, d] – Held: (per B.V. Nagarathna, J.) (Dissenting) Expression
“subject to any limitations imposed by Parliament by law relating to mineral
development” in Entry 50 List II pro tanto subjects the Entry to Entry 54
List I – Use of the expression “any limitations” would mean that the taxing
2122 SUPREME COURT REPORTS [2024] 7 S.C.R. 1549

Entry would be subject to a non-taxing or general Entry such as in Entry

54 List I which could also be termed as a regulatory Entry – Thus, there is
a departure from the general scheme of distribution of legislative powers as
enumerated in MPV Sundararamier’s case insofar as Entry 50 List II read
with Entry 54 List I is concerned which is unique to Entry 50 List II – This
is having regard to the significance of Entry 54 List I which also overrides
Entry 23 List II – Entry 50 List II is an exception to the position of law laid
down in MPV Sundararamier’s case. [Paras 40c, 41b]

Mines and Minerals (Development and Regulation) Act, 1957 – ss.9, 2 –

Royalties in respect of mining leases – Constitution of India – Entry 49
List II Seventh Schedule – Scope of Entry 49 List II – Entry 49 List II,
if covers tax involving a measure based on the value of the produce of
land – Constitutional position, if different qua mining land on account
of Entry 50 List II read with Entry 54 List I:
Held: (per Dr Dhananjaya Y Chandrachud, CJI) (for himself and for
Hrishikesh Roy, Abhay S Oka, J.B. Pardiwala, Manoj Misra, Ujjal
Bhuyan, Satish Chandra Sharma and Augustine George Masih, JJ.)
State legislatures have legislative competence u/Art.246 read with Entry 49
List II to tax lands which comprise of mines and quarries – Mineral-bearing
land falls within the description of “lands” under Entry 49 List II – Yield
of mineral bearing land, in terms of the quantity of mineral produced or
the royalty, can be used as a measure to tax the land under Entry 49 List
II – Decision in Goodricke’s case clarified to this extent [Para 342 e, f] –
Held: (per B.V. Nagarathna, J.) (Dissenting) Entry 49 List II deals with
taxation of lands and buildings – It does not cover taxes on mineral bearing
lands – Constitutional position is different qua mineral bearing lands on
account of Entry 50 List II read with Entry 54 List I and s.2 of the MMDR
Act – Thus, any imposition on the basis of royalty by a State Legislature or
involving royalty as a measure of the value of the minerals extracted from
the land is impermissible – State legislatures have legislative competence
under Art.246 read with Entry 49 List II to tax lands and buildings but not
lands which comprise of mines and quarries or have mineral deposits as
mineral bearing lands do not fall within the description of lands (under
Entry 49 List II) – Similarly, States can tax such mineral bearing lands
which are not covered within the scope of MMDR Act-minor minerals,
under Entry 50 List II and not under Entry 49 List II as tax on exercise of
 Mineral Area Development Authority & Anr. v. 2123
M/s Steel Authority of India & Anr. Etc.

mineral rights – Thus, mineral bearing lands cannot be taxed under Entry
49 List II – Further, the yield of mineral bearing lands, in terms of quantity
of mineral produced or royalty paid cannot also be used as a measure to
tax such lands under Entry 49 List II – Decision in Goodricke’s case does
not require any clarification – Entry 50 List II read with Entry 54 List I
Seventh Schedule. [Paras 40d, 41f, g]

Mines and Minerals (Development and Regulation) Act, 1957 – ss.9,

2 – Constitution of India – Entry 49 List II, Entry 50 List II Seventh
Schedule – Entry 50 List II, if a specific Entry in relation to Entry 49
List II, and would consequently subtract mining land from the scope
of Entry 49 List II:
Held: (per Dr Dhananjaya Y Chandrachud, CJI) (for himself and for
Hrishikesh Roy, Abhay S Oka, J.B. Pardiwala, Manoj Misra, Ujjal
Bhuyan, Satish Chandra Sharma and Augustine George Masih, JJ.)
Entries 49 and 50 of List II deal with distinct subject matters and operate in
different fields – Mineral value or mineral produce can be used as a measure
to impose a tax on lands under Entry 49 List II – “Limitations” imposed by
Parliament in a law relating to mineral development with respect to Entry
50 List II do not operate on Entry 49 List II because there is no specific
stipulation under the Constitution to that effect. [Para 342g, h] – Held:
(per B.V. Nagarathna, J.) (Dissenting) Entry 50 List II is a specific Entry
in relation to Entry 49 List II and would consequently subtract mining lands
from the scope of Entry 49 List II, having regard to Entry 50 List II to be
read with Entry 54 List I and s.2 of the MMDR Act. [Para 40e]
Mines and Minerals – Royalty, in the nature of tax or not – Divergence
between India Cement’s case and Kesoram’s case – India Cement’s case
held that royalty is a tax, and as such a cess on royalty being a tax on
royalty, is beyond the competence of the State legislature because s.9
of the Central Act covers the field and the State legislature is denuded
of its competence under Entry 23 List II whereas Kesoram’s case held
that royalty is not a tax, but a payment made to the owner of land who
may be a person and may not necessarily be the State:
Held: (per Dr Dhananjaya Y Chandrachud, CJI) (for himself and for
Hrishikesh Roy, Abhay S Oka, J.B. Pardiwala, Manoj Misra, Ujjal
Bhuyan, Satish Chandra Sharma and Augustine George Masih, JJ.)
– Kesoram held that India Cement’s case was caused by “an apparent
2124 SUPREME COURT REPORTS [2024] 7 S.C.R. 1549

typographical error or inadvertent error” and should not be understood as a

correct declaration of law – Kesoram’s case also expressed its disagreement
with Mahalaxmi Fabric Mills’s case to the extent it had held that there was
no “typographical error” in India Cement’s case – Kesoram’s case concurred
with India Cement’s case on the aspect that cess on royalty is beyond the
legislative competence of the State legislatures – Divergence on the point
of law between India Cement’s case and Kesoram’s case is apparent and
pertains to whether or not royalty is a tax – Thus, the royalty does not meet
the characteristic requirements of a tax. [Paras 117, 121, 122] – Held: (per
B.V. Nagarathna, J.) Majority decision in Kesoram is a serious departure
from the law laid down by the seven-judge Bench in India Cement which
was wholly unwarranted and thus, the said majority judgment is liable to
be overruled and is overruled to the extent of holding that royalty is not a
tax – India Cement was correctly decided wherein it was held that royalty
is in the nature of tax. [Paras 42 (ii), 1.1]

Constitution of India – Legislative entries – Interpretation – Entries 49

and 50 List II in the context of mineral bearing lands – Interplay of:
Held: (per Dr Dhananjaya Y Chandrachud, CJI) (for himself and for
Hrishikesh Roy, Abhay S Oka, J.B. Pardiwala, Manoj Misra, Ujjal
Bhuyan, Satish Chandra Sharma and Augustine George Masih, JJ.)
Entries 49 and 50 of List II deal with distinct subject matters – Both the entries
operate in different fields without any overlap – Nature of taxes under the
entries are distinct – Fact that mineral value or mineral produced is used as
a measure under Entry 50 List II does not preclude the legislature from using
the same measure for taxing mineral bearing land under Entry 49 List II –
Doctrine of generalia specialibus non derogant has no application because
Entries 49 and 50 List II operate in different fields – Though Parliament can
limit the taxing field entrusted to the State under Entry 50 List II through a
law relating to mineral development, the limitation operates on the field of
taxing mineral rights – Such a limitation cannot operate on Entry 49 List
II because there is no specific stipulation under the Constitution to that
effect – Constitution envisages the imposition of limitations by Parliament
on the legislative field of the state of taxes on mineral rights, and not taxes
on lands. [Para 339] – Held: (per B.V. Nagarathna, J.) (Dissenting) Entry
49 List II is of the widest amplitude – Mineral value or mineral produce
cannot be used as a measure to tax mineral bearing land under Entry 49
List II, also, the word “lands” under Entry 49 List II cannot include mineral
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bearing land as well – This would amount to “double taxation”, one, by the
State Legislature on the mineral bearing land under Entry 49 List II and
again for conducting a mining operation which is for exercise of a mineral
right u/s.9 of MMDR Act, which is Parliamentary law also paid to the State
Government – This is impermissible having regard to the constitutional intent
and scheme of Entries in the Lists – Thus, royalty cannot also be a measure
to impose tax on mineral bearing land – State Legislature using royalty on
mineral produce as a measure to impose a cess under Entry 49 List II on
mineral bearing land would overlap Entry 50 List II, because minerals are
extracted by virtue of mining activity which is in exercise of mineral right
and taxes on mineral rights are envisaged under Entry 50 List II subject
to any limitation imposed by Parliament – Thus, Entry 50 List II would
have to be viewed distinctly from Entry 49 List II – If so viewed, it becomes
subject to Parliamentary law in the form of MMDR Act and the rules made
thereunder which would be a limitation on the power of State to tax under
Entry 50 List II – Hence to get over the rigour of Entry 50 List II, States
cannot resort to Entry 49 List II. [Paras 33, 34]

Mines and Minerals – Dead rent – Explanation:

Held: (per Dr Dhananjaya Y Chandrachud, CJI) (for himself and for
Hrishikesh Roy, Abhay S Oka, J.B. Pardiwala, Manoj Misra, Ujjal
Bhuyan, Satish Chandra Sharma and Augustine George Masih, JJ.)
Dead rent acts as a deterrent against a leaseholder cornering a mining
lease and keeping the mineral resources idle – Similar to royalty, dead rent
is also a statutory imposition and an integral part of the mining lease, but it
generally does not serve as a consideration for the removal or consumption of
minerals – Dead rent is determined on the basis of the area of land covered
by the lease – Imposition of dead rent ensures that the proprietor obtains a
fixed rent from the lessee even if the mine remains unworked – Thus, dead
rent is not in addition to royalty but an alternative – Principles applicable
to royalty apply to dead rent because dead rent is imposed in the exercise of
the proprietary right (and not a sovereign right) by the lessor to ensure that
the lessee works the mine, and does not keep it idle, and in a situation where
the lessee keeps the mine idle, it ensures a constant flow of income to the
proprietor; the liability to pay dead rent flows from the terms of the mining
lease; dead rent is an alternate to royalty; if the rates of royalty are higher
than dead rent, the lessee is required to pay the former and not the latter;
and the Central Government prescribes the dead rent not in the exercise of
2126 SUPREME COURT REPORTS [2024] 7 S.C.R. 1549

its sovereign right, but as a regulatory measure to ensure uniformity of rates.

[Paras 99, 129] – Held: (per B.V. Nagarathna, J.) Entry 49 List II does
not apply to mineral bearing lands as such lands are taxed in the form of
royalty or dead rent in the context of exercise of mineral rights – Exercise
of mineral rights is the basis for payment of royalty or dead rent – Insofar
as extraction of minerals is concerned, being an exercise of a mineral right,
royalty is payable by a holder of a mining lease and when no mining activity
is carried on, dead rent is payable by such a person. [Paras 33, 41]

Constitution of India – Federalism – Explanation – Distinctive elements:

Held: (per Dr Dhananjaya Y Chandrachud, CJI) (for himself and for
Hrishikesh Roy, Abhay S Oka, J.B. Pardiwala, Manoj Misra, Ujjal
Bhuyan, Satish Chandra Sharma and Augustine George Masih, JJ.)
Federalism is one of the basic features of the Constitution which embodies
a division of powers between the units of the federation-the Union and the
States – Indian federalism is defined as asymmetric because it tilts towards the
Centre, producing a strong Central Government – Yet, it has not necessarily
resulted in weak State governments – Indian States are sovereigns within
the legislative competence assigned to them – Delicate balance of power is
secured by constitutional courts by interpreting the scheme of distribution of
powers – In a federal form of government, each federal unit should be able to
perform its core constitutional functions with a certain degree of independence
– Constitution has to be interpreted in a manner which does not dilute the
federal character of our constitutional scheme – Effort of the constitutional
court should be to ensure that State legislatures are not subordinated to the
Union in the areas exclusively reserved for them. [Paras 48, 49] – Held:
(per B.V. Nagarathna, J.) India’s postcolonial Constitution introduced
a new approach to federalism which has departed from the principle that
federal and regional governments should each have independence in their
own sphere of authority – Distinctive elements of Indian federalism were
shaped at their foundations by the desire to boost industrial development and
lay the foundation for a national welfare state in a post-colonial future by
preventing the consolidation of ‘‘race to the bottom’’ dynamics arising from
unregulated inter-provincial economic competition – Distinctive element of
Indian federalism is the combination of a strong Centre and a substantial
sphere of shared Centre-State jurisdiction – Desirable balance between
Central and the State Governments has to be viewed in the context of the
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country continuing to confront the need to promote economic growth while

upholding and expanding social rights. [Paras 36, 36.3, 36.4]

Mines and Minerals (Development and Regulation) Act, 1957 – s.9 –

Royalty – Royalty, in nature of tax or not:
Held: (per Dr Dhananjaya Y Chandrachud, CJI) (for himself and for
Hrishikesh Roy, Abhay S Oka, J.B. Pardiwala, Manoj Misra, Ujjal
Bhuyan, Satish Chandra Sharma and Augustine George Masih, JJ.)
Royalty is not a tax – It is a consideration paid by a mining lessee to the
lessor for enjoyment of mineral rights and to compensate for the loss of
value of minerals suffered by the owner of the minerals – Liability to pay
royalty arises out of the contractual conditions of the mining lease – s.9
statutorily regulates the right of a lessor to receive consideration in the
form of royalty from the lessee for removing or carrying away minerals
from the leased area – Rates of royalty prescribed u/s.9 does not make it
a “compulsory exaction by public authority for public purposes” – s.25
allows recovery of royalty due to the Government under the MMDR Act or
“under the terms of the contract” as arrears of land does not make royalty
“an impost enforceable by law” – Furthermore, there is difference between
royalty and a tax – Proprietor charges royalty as a consideration for parting
with the right to win minerals, while a tax is an imposition of a sovereign,
royalty is paid in consideration of doing a particular action, that is, extracting
minerals from the soil, while tax is generally levied with respect to a taxable
event determined by law, and royalty generally flows from the lease deed
as compared to tax which is imposed by authority of law – Since royalty
is a consideration paid by the lessee to the lessor under a mining lease, it
cannot be termed as an impost – Furthermore, both royalty and dead rent
do not fulfil the characteristics of tax or impost – Thus, observation in India
Cement’s case that royalty is a tax is incorrect. [Paras 327, 123-130]

Mines and Minerals (Development and Regulation) Act, 1957 – s.9 –

Royalties in respect of mining leases – Purpose of s.9:
Held: (per Dr Dhananjaya Y Chandrachud, CJI) (for himself and for
Hrishikesh Roy, Abhay S Oka, J.B. Pardiwala, Manoj Misra, Ujjal
Bhuyan, Satish Chandra Sharma and Augustine George Masih, JJ.)
s.9 sought to remedy the disparity of royalty rates across India – Rates of
royalty were primarily governed by the terms of lease prior to the enactment
2128 SUPREME COURT REPORTS [2024] 7 S.C.R. 1549

of the MMDR Act – Once a mining lease was entered into between a lessor
and lessee, the rates of royalty would remain static during the subsistence
of the lease – s.9 has enabled the Central Government to examine the rates
of royalty in respect of all minerals and modulate them periodically after
taking into consideration various factors, including the uniformity of mineral
prices – Primary reason for empowering the Central Government to fix the
rate of royalty could be traced to the Industrial Policy Resolution which
underscored the active and predominant role of the State in organizing and
utilizing mineral resources – State Governments were not empowered to
determine royalty in order to maintain a uniform regime of royalty across
India – This was intended to promote domestic industry and maintain
competitive commodity prices in the international market. [Paras 77, 78]

Mines and Minerals (Development and Regulation) Act, 1957 – Meaning

of “royalty” – Explanation – Essential characteristics:
Held: (per Dr Dhananjaya Y Chandrachud, CJI) (for himself and for
Hrishikesh Roy, Abhay S Oka, J.B. Pardiwala, Manoj Misra, Ujjal
Bhuyan, Satish Chandra Sharma and Augustine George Masih, JJ.)
Royalty is generally understood as compensation paid for rights and privileges
enjoyed by the grantee – It has its genesis in the agreement entered into
between the grantor and grantee – Royalty is a payment made by the lessee
to the lessor or proprietor of the minerals for the removal of minerals –
Royalty also serves to compensate the lessor for the degradation of the value
of the mine because of the extraction of minerals – Essential characteristics
of royalty are that-it is a consideration or payment made to the proprietor
of minerals, either government or private person, it flows from a statutory
agreement (mining lease) between lessor and lessee, it represents a return for
the grant of privilege (to lessee) of removing or consuming the minerals, and
it is generally determined on basis of the quantity of the minerals removed.
[Paras 94, 96, 98]

Mines and Minerals (Development and Regulation) Act, 1957– s.9 –

Royalty – Nature of – Calculation of royalty:
Held: (per Dr Dhananjaya Y Chandrachud, CJI) (for himself and for
Hrishikesh Roy, Abhay S Oka, J.B. Pardiwala, Manoj Misra, Ujjal
Bhuyan, Satish Chandra Sharma and Augustine George Masih, JJ.)
Royalty is not a tax but a statutory consideration payable by the lessee to
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the lessor for the exercise of mineral rights – Specification of rates of royalty
with respect to major minerals under the MMDR Act limits the powers of
the State Government in terms of Entry 54 List I read with Entry 23 List II
– Royalty is payable u/s.9 on the removal or consumption of minerals by
the lessee in the leased area – Thus, essentially royalty is payable on the
dispatch of minerals from the leased area – Rates of royalty are generally
calculated on per tonnage basis or ad valorem basis on the basis of the
formula laid down – Royalty is calculated on the basis of the quantity of
minerals extracted or removed – Yield from mineral bearing land is nothing
but the quantity of mineral produced – Royalty is per se not the yield from
a mineral bearing land, but the yield (mineral produced) is the important
factor in determination of the rate of royalty – Moreover, royalty can be
considered as an income if it is paid to a private landowner – In case
minerals are vested in the State, royalty is paid to the State Government,
and hence assumes the form of non-tax revenues – Thus, royalty is relatable
to the yield of the mineral-bearing land as well as the income in case the
minerals vest in a private person. [Paras 87, 327-332]

Mines and Minerals (Development and Regulation) Act, 1957 – s.9 –

If serve as a limitation on the taxing powers of State under Entry 50
List II – Expression ‘any limitation’ under Entry 50 List II, if can be
extended to prohibition:
Held: (per Dr Dhananjaya Y Chandrachud, CJI) (for himself and for
Hrishikesh Roy, Abhay S Oka, J.B. Pardiwala, Manoj Misra, Ujjal
Bhuyan, Satish Chandra Sharma and Augustine George Masih, JJ.)
Scheme of the MMDR Act does not in itself serve as a limitation on the
field of taxation under Entry 50 List II – MMDR Act empowers the Central
Government to specify the rates of royalty u/s.9 r/w Second Schedule – Since
royalty payable u/s.9 is not a tax on mineral rights, any limitation on the
enhancement of the rates of royalty is not the imposition of a tax under
Entry 50 List II – ss.9, 9A, 9B, and 9C do not impose any limitations on the
powers of State to tax mineral rights under Entry 50 List II – Under Entry
50 List II, phrase “any limitations” is specifically used – Framers of the
Constitution intended to empower Parliament to impose “all” and “every”
possible limitation on the taxing powers of the State in the interests of mineral
development, which include even “prohibition” – Thus, the expression ‘any
limitations’ include the power to prohibit the States from taxing mineral
2130 SUPREME COURT REPORTS [2024] 7 S.C.R. 1549

rights – Overall scheme of Art. 246 r/w Entry 54 List I and Entry 50 List II
makes it clear that Parliament, in the interests of mineral development, can
impose “any limitations” – Purport of expression “any limitations” is wide
enough to include the imposition of restrictions, conditions, principles, as
well as prohibition – Constitution of India – Entry 50 List II. [Paras 229,
231, 244, 245]

Mines and Minerals (Development and Regulation) Act, 1957 – Mineral-

bearing land – Measure to tax – Minerals produced, if a measure to tax
mineral bearing land:
Held: (per Dr Dhananjaya Y Chandrachud, CJI) (for himself and for
Hrishikesh Roy, Abhay S Oka, J.B. Pardiwala, Manoj Misra, Ujjal
Bhuyan, Satish Chandra Sharma and Augustine George Masih, JJ.)
Tax on lands and buildings under Entry 49 List II is often measured with
respect to the income derived from the land or building sought to be taxed
– Measure for taxing land may bear a reasonable relationship to the actual
or potential productivity of land – Measures such as annual value or market
value provide a proximate basis to measure the income derived from land – If
the State legislature utilizes the income derived from the land as a measure
to quantify a tax on land, it does not trench upon the legislative domain of
Union to tax income – Income merely serves as the measure to calculate
the levy of taxes on land – MMDR Act does not serve as a limitation on the
legislative competence of the States to tax mineral rights under Entry 50
List II, including the power to levy taxes on mineral-bearing lands under
Entry 49 List II – Mineral value or mineral produce could be used as a
measure of the tax on land under Entry 49 List II – Entry 50 List II pertains
to taxes on mineral rights would not preclude the State legislature to use the
measure of mineral value or mineral produce under Entry 49 List II – State
legislature has legislative discretion to determine the appropriate measure
for the purposes of quantifying taxes, so long as there is a reasonable nexus
between the measure and the nature of the tax – Measure does not determine
the nature of the tax – Lands under Entry 49 List II includes mineral bearing
land – Mineral produce is the yield from a mineral bearing land – Since
royalty is determined on the basis of the mineral produce, royalty can also
be used as a measure to determine the tax on royalty – Fact that the State
legislature uses mineral produce or royalty as a measure does not overlap
with Entry 50 List II. [Paras 291, 294, 302, 341]
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Mines and Minerals (Development and Regulation) Act, 1957 – Mineral

bearing land – Decoupling of minerals from land – When:
Held: (per Dr Dhananjaya Y Chandrachud, CJI) (for himself and for
Hrishikesh Roy, Abhay S Oka, J.B. Pardiwala, Manoj Misra, Ujjal
Bhuyan, Satish Chandra Sharma and Augustine George Masih, JJ.)
Minerals are decoupled from land only upon the exercise of mineral rights by
the lessee – Although the title to minerals vests in the State Government, the
mining lease transfers the interest in the mineral from the State Government
to the mining lessee – During the whole process, minerals continue to remain
embedded in the earth, either over or above – Thus, there is no decoupling
of minerals from land – When a mining lease is granted, the lease holder
necessarily has to occupy the surface rights of the area specified in the
lease – Leaseholder has rights to both the minerals and surface during the
subsistence of the mining lease – It cannot be said that the mineral rights
are transferred from the State to the mining lessee only upon the extraction
of minerals – Once the lease deed is signed, the interest in the minerals is
transferred from the State Government (in case the minerals vest in the State
Government) to the lessee – Interest of the lessee in the minerals continues
until the determination of the lease deed – It is only upon the exercise of
mineral rights by the lessee, that is removal or consumption of minerals, that
the lessee is required to pay royalty – Thus, the transfer of interest in the
minerals is distinct from the exercise of the mineral rights. [Paras 323, 324]

Mines and Minerals (Development and Regulation) Act, 1957 – ss.2, 4, 9,

9A, 9B, 9C, 13, 15, 25 – Royalty under the MMDR Act – Explained. (per
Dr Dhananjaya Y Chandrachud, CJI) (for himself and for Hrishikesh
Roy, Abhay S Oka, J.B. Pardiwala, Manoj Misra, Ujjal Bhuyan, Satish
Chandra Sharma and Augustine George Masih, JJ.) [Paras 62-74]

Mines and Minerals (Development and Regulation) Act, 1957 – Mines

and Minerals – Contours of a mining lease – Explanation:
Held: (per Dr Dhananjaya Y Chandrachud, CJI) (for himself and for
Hrishikesh Roy, Abhay S Oka, J.B. Pardiwala, Manoj Misra, Ujjal
Bhuyan, Satish Chandra Sharma and Augustine George Masih, JJ.)
Expressions ‘lease’ and ‘licence’ have been used in the context of mining
operations in the Constitution and in the MMRD Act – “Mining lease” is
defined under the MMDR Act to mean a lease granted for the purpose of
2132 SUPREME COURT REPORTS [2024] 7 S.C.R. 1549

undertaking mining operations and includes a sub-lease granted for such

purpose – Expression “mining operations” has been defined to mean any
operations undertaken for the purpose of winning any mineral – Expression
“winning” means getting or extracting minerals from the mines – Under
a lease deed for mining operations, the owner transfers the interest in the
minerals to the lessee in lieu of the payment of rent, which usually takes the
form of royalty – Under the MMDR Act, a “prospecting licence” is granted
for the purpose of undertaking prospecting operations for the purpose of
exploring, locating, or proving a mineral deposit – Under a prospecting
licence, the licensee does not get an interest in the land or in the minerals
contained therein – Licensee is only allowed to carry away a limited quantity
of minerals after payment of specified royalty. [Paras 86, 87]

Mines and Minerals (Development and Regulation) Act, 1957 – Mineral

Concession Rules, 1960 – Nature of a mining lease under the MMDR
Act and Mineral Concession Rules:
Held: (per Dr Dhananjaya Y Chandrachud, CJI) (for himself and for
Hrishikesh Roy, Abhay S Oka, J.B. Pardiwala, Manoj Misra, Ujjal
Bhuyan, Satish Chandra Sharma and Augustine George Masih, JJ.)
MMDR Act and the Mineral Concession Rules detail the procedure for the
grant of mining leases in three situations-where the minerals vest in the
government, where the minerals vest in a person other than the government,
and where the minerals vest partly in the government and partly in a private
person – Right of proprietors to grant leases and receive royalty stems from
the proprietary interest in the immovable property including the minerals –
MMDR Act regulates the exercise of the proprietary rights in the minerals
in the larger public interest – Statute specifies the terms of the lease, but
the lease deed is ultimately entered between the State Government (or the
private person, as the case may be) and the lessee – Similarly, the rates of
royalty are fixed by the Central Government u/s. 9, but royalty is received
by the mining lessor, that is the State Government or a private person.
[Paras 89, 93]

Constitution of India – Federalism – Fiscal federalism, in the context

of mineral resources:
Held: (per Dr Dhananjaya Y Chandrachud, CJI) (for himself and for
Hrishikesh Roy, Abhay S Oka, J.B. Pardiwala, Manoj Misra, Ujjal
Bhuyan, Satish Chandra Sharma and Augustine George Masih, JJ.)
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Basic features of fiscal federalism is that both the Union government and
the State governments ought to have adequate fiscal resources to discharge
their constitutional responsibilities – List I and List II of the Seventh Schedule
contain various subject-matters under which Parliament and the State
legislatures can respectively levy taxes – Purpose of such a distribution
is to entrust adequate fiscal powers with the legislatures to raise revenues
to meet the growing fiscal expenditures and rein in the fiscal deficit –
Legislatures can formulate the principles underlying any taxing legislation,
define the taxing event or the charge of tax as well the mode and manner of
its implementation – As regards fiscal federalism in the context of mineral
resources, not all states are equally endowed with mineral resources – Few
States have greater reserves of mineral resources, resultantly, the contribution
of the mining sector in the state domestic product is higher – Despite the
abundance of mineral wealth, many of these states lag economically and
suffer from, “resource curse” – Taxation is among the important sources of
revenue for these States, impacting on their ability to deliver welfare schemes
and services to the people – Fiscal federalism entails that the power of the
States to levy taxes within the legislative domain carved out to them and
subject to the limitations laid down by the Constitution must be secured from
unconstitutional interference by Parliament. [Paras 51-54]

Constitution of India – Arts.366(28), 265 – Expression ‘tax’ – Explanation

– Essential characteristics of tax:
Held: (per Dr Dhananjaya Y Chandrachud, CJI) (for himself and for
Hrishikesh Roy, Abhay S Oka, J.B. Pardiwala, Manoj Misra, Ujjal
Bhuyan, Satish Chandra Sharma and Augustine George Masih, JJ.)
Taxes are monetary burdens or charges imposed by legislative power upon
persons, or property to raise revenues to fund public expenditure – Objects
to be taxed can be taxed by the legislature according to the exigencies of its
needs so long as they happen to be within the legislative competence of the
legislature – Although the power of taxation is pervasive and an incidence
of sovereignty, it is subject to well-defined constitutional limitations – Tax is
a compulsory exaction of money by a public authority, it is imposed under
statutory power without the consent of the tax payer, the demand is enforceable
by law, it is an imposition made for public purposes to meet the general
expenses of the state without reference to any special benefit to be conferred
on the payer of the tax, and it is part of the common burden – Art. 366(28)
defines “taxation” to include “the imposition of any tax or impost, whether
2134 SUPREME COURT REPORTS [2024] 7 S.C.R. 1549

general or local or special” – Expression “tax” u/Art.265 includes every

kind of impost in the form of a compulsory exaction – Liability arising out of
contract cannot be termed as an impost or tax – Consideration paid under
a contract to the State Government for acquiring exclusive privileges and
rights with respect to a particular activity cannot be termed as an “impost”
or “tax” u/Art. 366(28) – Government may demand payments in the nature
of a price or consideration for parting with its exclusive privilege to carry
on activities of a particular description which is neither a tax nor a fee.
[Paras 102, 104, 105, 108, 109]

Constitution of India – Entry 23 List II and Entry 54 List I – Inter-

relationship between – “Regulation of mines” and “mineral development”
– Meaning and explanation of:
Held: (per Dr Dhananjaya Y Chandrachud, CJI) (for himself and for
Hrishikesh Roy, Abhay S Oka, J.B. Pardiwala, Manoj Misra, Ujjal
Bhuyan, Satish Chandra Sharma and Augustine George Masih, JJ.) As
regards, inter-relationship between Entry 54 List I and Entry 23 List II the
State legislatures possess plenary legislative power in respect of regulation
of mines and mineral development under Entry 23 List II; Entry 23 List II
is, however, subject to the operation of Entry 54 List I; field under Entry 23
List II is subordinated to the extent to which Parliament has brought under
its control the regulation of mines and development of minerals under the
MMDR Act; expression of the legislative intention to cover a particular
field relating to mines and mineral development excludes or denudes the
legislative powers of the State with respect to that particular field; and
Parliamentary intention to cover a particular field relating to the regulation
of mines and mineral development and the extent to which control of the
Union is regarded to be in the public interest has to be ascertained from the
language of the statute – Entry 54 List I and Entry 23 List II are general or
regulatory entries dealing with the same subject matter, namely of “regulation
of mines and mineral development” – By making Entry 23 List II subordinate
to Entry 54 List I, Constitution tilts the balance of legislative powers with
respect to the regulation of mines and mineral development in favor of the
Union – Expression “regulation of mines” mean the management of both
the process of extracting minerals as well the place where such minerals
will be extracted from sub-surface levels – MMDR Act gives shape and
meaning to the expression “regulation of mines and mineral development”
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through its provisions and the rules – Entry 54 List I and Entry 23 List II
do not use the expression “minerals” simpliciter – Entries use the term
“mineral development” – As a concept, mineral development is a term of
wide import – It encompasses exploitation of minerals, reduction of wastage
in the beneficiation process, regulation of mining activities for ecological
and environmental factors and equitable distribution of mineral resources
and mining leases – Expression “mineral development” has been understood
under the MMDR Act in a comprehensive manner, to include all activities
and transactions relating to the working of mines, extracting of minerals,
their storage and disposal, as well as the conservation of the environment.
[Paras 132, 137, 138, 140, 141, 163]

Constitution of India – Entry 50 List II and Entry 54 List I – Inter-

relationship between:
Held: (per Dr Dhananjaya Y Chandrachud, CJI) (for himself and for
Hrishikesh Roy, Abhay S Oka, J.B. Pardiwala, Manoj Misra, Ujjal
Bhuyan, Satish Chandra Sharma and Augustine George Masih, JJ.)
Entry 50 List II has two elements, the legislative field governing taxes on
mineral rights is given exclusively to the states and the field given to the
states is subject to any limitations imposed by Parliament by law relating
to mineral development – Entry 50 List II is a taxing entry – Limitations on
the field created by Entry 50 List II is however, contemplated to be created
by a law which relates to mineral development – Legislative competence
of Parliament to enact a “law relating to mineral development” can be
traced to Entry 54 List I, a general entry – Thus, the taxing powers of the
state with respect to mineral rights under Entry 50 List II can be restricted
by Parliament by its regulatory power under Entry 54 List I. [Para 165]

Constitution of India – Entry 50 List II – Expression “mineral rights”

– Meaning of – Taxes on mineral rights:
Held: (per Dr Dhananjaya Y Chandrachud, CJI) (for himself and for
Hrishikesh Roy, Abhay S Oka, J.B. Pardiwala, Manoj Misra, Ujjal
Bhuyan, Satish Chandra Sharma and Augustine George Masih, JJ.)
Constitution does not define “mineral rights” – Though the expression
“mineral rights” is used in Entry 50 List II, it does not find mention in any
of the other related legislative entries Entry 54 List I and Entry 23 List II
– Expression has to be given its ordinary and natural meaning by adopting
2136 SUPREME COURT REPORTS [2024] 7 S.C.R. 1549

an interpretative approach which eschews rigidity – Mineral rights are

inextricably connected to property – Any understanding of “mineral rights”
must be prefaced on an understanding of the basics of property law – Right to
minerals entails the right to monetize mineral resources by either consuming
them or selling them to third parties – Expression “mineral rights” under
Entry 50 List II envisages a bundle of rights associated with the ownership
of minerals, including rights which can be transferred to lessee through a
mining lease – Usually, the right to mine includes excavation of minerals
and removal or consumption of the extracted minerals – Expression “mineral
rights” must be construed in this spirit to ensure that the taxing powers of
the State under Entry 50 List II are not unnecessarily curtailed – Breadth
and scope of mineral rights has also been recognized under the MMDR Act
– As regards, the “taxes on mineral rights”, it is the subject matter of Entry
50 List II – Taxable event under Entry 50 List II would relate to exercise of
mineral rights – Right to receive royalty is an integral part of the mineral
rights of the lessor – However, royalty is not a tax – Thus, royalty would not
be comprehended within the meaning of the expression “taxes on mineral
rights” – Scope of taxes on mineral rights includes taxes on the right to
extract minerals, aspects relating to the exercise of mineral rights such as
working the mines and dispatching minerals from the leased area – However,
the legislature has to ensure that the exercise of the taxing powers relatable
to the field under Entry 50 List II does not foray into a duty of excise or a
tax on the sale of minerals. [Paras 170, 172, 175, 178, 179, 185, 187, 188]

Constitution of India – Entry 50 List II – Limitations on the taxing power

of the State under Entry 50 List II – Entry 50 List II, if constitutes an
exception to the Sundararamier principle:
Held: (per Dr Dhananjaya Y Chandrachud, CJI) (for himself and for
Hrishikesh Roy, Abhay S Oka, J.B. Pardiwala, Manoj Misra, Ujjal
Bhuyan, Satish Chandra Sharma and Augustine George Masih, JJ.)
Entry 50 List II is unique because though it is a taxing entry, it is made
subject to “any limitations imposed by Parliament by law relating to mineral
development” – Thus, the taxing power of the state is capable of being
controlled by a non-fiscal enactment by Parliament relating to the development
of minerals – This seems to recognize that a fiscal imposition in the nature of
a tax on mineral rights by a state may impact on the development of minerals
– Position enunciated in Sundararamier’s case is that the field of taxation
 Mineral Area Development Authority & Anr. v. 2137
M/s Steel Authority of India & Anr. Etc.

is distinct from the general subjects of legislation in the Union and State
lists of the Seventh Schedule – While Entry 50 List II is sui generis, it does
not constitute an exception to the Sundararamier’s principle – Entry 50 List
II is subordinated only to the extent of any limitations that may be imposed
by Parliament by law relating to mineral development – Unless Parliament
imposes a limitation, the plenary power of the state legislature to levy taxes
on mineral rights is unaffected – Question of an overlap between the taxing
entry and general entry does not arise because Parliament cannot impose
taxes on minerals under Entry 54 List I – There is no direct conflict between
the taxing powers of the States under Entry 50 List II and regulatory powers
of the Union. [Paras 190, 192, 205, 207]

Constitution of India – Taxing powers of the states – Limitations imposed

by Parliament – Nature of – Determination:
Held: (per Dr Dhananjaya Y Chandrachud, CJI) (for himself and for
Hrishikesh Roy, Abhay S Oka, J.B. Pardiwala, Manoj Misra, Ujjal
Bhuyan, Satish Chandra Sharma and Augustine George Masih, JJ.) There
is a distinction between the nature of the restraints imposable by Parliament
on the legislative field of the states to regulate mines and development of
minerals, the Parliamentary restraints contemplated on the taxing power of
the states over mineral rights – In relation to the former, distinction emerges
from the language of Entry 54 List I and Entry 23 List II and as regards
the latter, it is Entry 50 List II – Relationship between Entry 23 List II and
Entry 54 List I is that the latter results in a denudation of the legislative
field of the states to the extent envisaged by Parliament by law – Expression
‘extent’ leaves it entirely to Parliament to determine whether the extent of the
control by the Union is to be total or partial – Denudation of the legislative
field of the states follows such a declaration by Parliament and the extent
would be determined by the MMDR Act enacted by Parliament – Entry
50 List II gives the legislative field of taxing mineral rights to the states
however, subject to limitations imposed by Parliament by law relating to
mineral development – Entry 50 List II does not result in the field of taxing
mineral rights being conferred on Parliament, because there is no specific
entry in List I giving the field of taxing mineral rights to the Union – Field
of taxing mineral rights is exclusive to the states and continues to remain
with them but subject to limitations imposed by Parliamentary law relating
2138 SUPREME COURT REPORTS [2024] 7 S.C.R. 1549

to mineral development – Parliament can determine as to how the taxing

power of the states over mineral rights should be limited in order to ensure
that it does not impede or retard mineral development – If Parliament does
so and indicates the nature of the limitations, states are bound to abide by
them while exercising the taxing power over mineral rights. [Paras 208,
210, 211]

Constitution of India – Entry 50 List II – Expression ‘any limitations’

– Construction of:
Held: (per Dr Dhananjaya Y Chandrachud, CJI) (for himself and for
Hrishikesh Roy, Abhay S Oka, J.B. Pardiwala, Manoj Misra, Ujjal
Bhuyan, Satish Chandra Sharma and Augustine George Masih, JJ.)
Use of the expression “any” before “limitations” under Entry 50 of List
II indicates that the scope of the limitations is expansive and includes
“all” or “every” limitation that could be imposed by Parliament by law
relating to mineral development – Expression “any” has to be construed
in its context, taking into consideration the scheme, purpose, and subject
matter of the enactment, or the scheme of distribution of legislative powers
under the Constitution – Expression “any limitations” is indicative of the
fact that Parliament has been provided with ample legislative freedom to
conceive limitations or restrictions on the legislative powers of the State to
tax minerals. [Para 233]

Constitution of India – Taxes on mineral rights on mineral development

– Impact of:
Held: (per Dr Dhananjaya Y Chandrachud, CJI) (for himself and for
Hrishikesh Roy, Abhay S Oka, J.B. Pardiwala, Manoj Misra, Ujjal
Bhuyan, Satish Chandra Sharma and Augustine George Masih, JJ.)
Uniformity of prices of mineral commodities ensures the objective of mineral
development as envisaged under the MMDR Act – Levy of a tax on mineral
rights by the State legislatures may lead to an increase in the prices of the
mineral commodity in India – An increase in the rate of tax on a particular
commodity cannot per se be said to impede free trade and commerce in that
commodity – To counteract any adverse impact on the development of minerals
in India that the Constitution has empowered Parliament under Entry 50
List II to impose limitations on the basis of which the State legislature can
 Mineral Area Development Authority & Anr. v. 2139
M/s Steel Authority of India & Anr. Etc.

tax mineral rights – Parliament has the responsibility to ensure that there
is no adverse effect on development of mineral rights – Legislative powers
granted to the State legislatures cannot be whittled down impliedly based
on the presumption that all taxes on mineral rights imposed by the State
will have adverse economic consequences on mineral development – States
have a constitutional and sovereign authority to exercise their taxing powers,
within the bounds of the Constitution, to raise adequate revenues for the
welfare of the people. [Paras 248, 249]

Constitution of India – Entry 49 List II – Taxes on lands and buildings

– Principles governing ‘taxes on lands and buildings’ under Entry 49
List II – Explanation – State legislatures, if competent to levy a tax on
mineral-bearing land as a unit under Entry 49 of List II:
Held: (per Dr Dhananjaya Y Chandrachud, CJI) (for himself and for
Hrishikesh Roy, Abhay S Oka, J.B. Pardiwala, Manoj Misra, Ujjal
Bhuyan, Satish Chandra Sharma and Augustine George Masih, JJ.)
Entry 49 List II contemplates levy of tax on land as a unit, irrespective of
the use to which it is put – Thus, the State legislature is competent while
designing the levy under Entry 49 List II to tax lands which comprise of
mines and quarries – Mineral-bearing land also falls within the description
of “lands” under Entry 49 List II – State legislature has wide discretion to
classify lands and levy taxes on them under Entry 49 List II – Subject of
taxation in Entry 49 List II is land as a unit – Subject of tax in Entry 50 List
II is the mineral rights – There is a distinction between the two legislative
entries – Legislative competence of the States to tax lands under Entry 49
List II will not be affected by the MMDR Act. [Paras 275, 278-280]

Constitution of India – Arts.245, 246, 265 – Scheme of distribution of

legislative powers between the Parliament and the State Legislature and
constitutional limitations – Stated. (per Dr Dhananjaya Y Chandrachud,
CJI) (for himself and for Hrishikesh Roy, Abhay S Oka, J.B. Pardiwala,
Manoj Misra, Ujjal Bhuyan, Satish Chandra Sharma and Augustine
George Masih, JJ.) [Paras 29-37]

Constitution of India – Seventh Schedule – Legislative entries –

Interpretation of – Stated. (per Dr Dhananjaya Y Chandrachud, CJI)
(for himself and for Hrishikesh Roy, Abhay S Oka, J.B. Pardiwala,
2140 SUPREME COURT REPORTS [2024] 7 S.C.R. 1549

Manoj Misra, Ujjal Bhuyan, Satish Chandra Sharma and Augustine

George Masih, JJ.) [Paras 38, 40-47]

Doctrines/Principles – Public trust doctrine – Natural resources and the

public trust doctrine:
Held: (per Dr Dhananjaya Y Chandrachud, CJI) (for himself and for
Hrishikesh Roy, Abhay S Oka, J.B. Pardiwala, Manoj Misra, Ujjal
Bhuyan, Satish Chandra Sharma and Augustine George Masih, JJ.)
Public trust doctrine is founded on the principle that certain resources are
nature’s bounty which ought to be reserved for the whole populace, for the
present and for the future – State holds all natural resources, including
minerals, as a trustee of the public and must deal with them in a manner
consistent with the nature of such a trust – Central Government or State
Government may not always be the owner of the underlying minerals –
Constitution has entrusted the Union and the States with the responsibility to
regulate mines and mineral development in consonance with the principles of
the public trust doctrine and sustainable development of mineral resources –
Entrustment to the State being subject to the power of Parliament to regulate
the domain – Under the MMDR Act, the Central Government, acting as a
public trustee of minerals, regulates prospecting and mining operations in
public interest. [Paras 55, 57-60]

Tax/Taxation – Nature of – True test – Measure of tax and levy of tax

– Nexus between:
Held: (per Dr Dhananjaya Y Chandrachud, CJI) (for himself and for
Hrishikesh Roy, Abhay S Oka, J.B. Pardiwala, Manoj Misra, Ujjal
Bhuyan, Satish Chandra Sharma and Augustine George Masih, JJ.)
Among its elements tax has to provide for the charge of tax, the incidence of
tax, the measure of the tax and would contain provisions in the nature of the
machinery for assessment and recovery – Measure of tax is not a true test of
the nature of tax – Standard adopted as a measure of tax may be a relevant
consideration in determining the nature of tax, but is not conclusive – Nexus
between the measure and levy of tax need not be “direct and immediate”
– Nexus has to be “reasonable” and must have some relationship with the
nature of levy – Reasonability of the nexus would largely depend upon the
nature of the tax and the means available with the legislature to design the
measure of the tax – Since the measure of the levy is a matter of legislative
 Mineral Area Development Authority & Anr. v. 2141
M/s Steel Authority of India & Anr. Etc.

policy and convenience, the reasonability of the nexus between the measure
and tax has to be determined by the courts on a case-to-case basis. [Paras
283, 286, 290]

Mines and Minerals (Development and Regulation) Act, 1957 – Object

and scope of – MMDR Act vis-a-vis Entry 50 List II:
Held: (per B. V. Nagarathna, J.) MMDR Act contemplates all manner of
levies, charges, impost or demands that could be provided for having a nexus
with mineral rights – Thus, the Act itself has to be construed as a limitation
on the power of the States to demand or impose levies to the extent to which
is stated in the Act – Though, Entry 50 List II is a taxing Entry, it would be
subject to the limitations enacted by the Parliament by law under Entry 54
List I – States cannot impose levies under Entry 50 List II over and above
the amount of royalty received by them under the MMDR Act – Entry 50
List II is sui generis because it is the only legislative Entry which limits the
taxing powers of the State legislatures by reference to a general law – Thus,
expression “mineral development” found in Entry 50 List II has to be traced
to the entire architecture of the MMDR Act which serves as limitation of
taxing power of the State legislature under Entry 50 List II – To read it
otherwise would lead to destruction of the federal balance – Further, tax
on mineral right would also include royalty as envisaged u/s.9 and other
Sections of the MMDR Act and every holder of mining lease is bound to
pay royalty irrespective of the owner of the mineral bearing land, in terms
of s.9 read with Second Schedule to the said Act – Thus, royalty is in the
nature of a tax on mineral rights – Also the MMDR Act and the Rules made
thereunder is a complete Code on the regulation of mineral development
– State legislature cannot, on the basis of royalty paid, levy any other tax,
cess or surcharge on cess – States can only levy tax on sale of mineral as
per Entry 54 List II which is not a tax on mineral rights – Moreover, Entry
50 List II is a recognition of parliamentary superiority via imposition of a
limitation. [Paras 39, 39.1]

Mines and Minerals (Development and Regulation) Act, 1957 – ss.2,

9, 9A – India Cement’s case holding that royalty is a tax – Effect of
overruling India Cement:
Held: (per B.V. Nagarathna, J.) If royalty is not held to be a tax and the
same being covered under the provisions of the MMDR Act, it would imply
that despite Entry 54 List I and ss.2, 9, 9A and other provisions, taxes on
2142 SUPREME COURT REPORTS [2024] 7 S.C.R. 1549

mineral rights could be imposed by States over and above payment of royalty
on a holder of a mining lease – Limitation that Parliament has made by law
on the taxing power of a State explicitly stated in Entry 50 List II would
be given a go by and the States could pass laws imposing taxes, cesses,
surcharge on cess, etc. on the basis of royalty which is in addition to payment
of royalty – Such levies could also be imposed under Entry 49 List II thereby
making Entry 50 List II redundant which is not acceptable – There would
be unhealthy competition between the States to derive additional revenue
and consequently, the steep, uncoordinated and uneven increase in cost of
minerals, subjecting the national market being exploited for arbitrage –
Overall economy of the country would be affected adversely – This would
lead to breakdown of the federal system envisaged under the Constitution
in the context of mineral development and mineral rights – Overruling the
judgment in India Cement would mean that all judgments akin to India
Cement’s case whether prior to or subsequent thereto, stand overruled
irrespective of whether they are of High Courts or this Court – Thus, all
States would once again start levying taxes on mineral rights under Entry
49 List II, thereby bypassing Entry 50 List II so as to not be bound by any
limitation that Parliament had imposed by law on power of the States to levy
taxes on mineral rights – Parliament would have to again step in to bring
about uniformity in the prices of minerals and in the interest of mineral
development so as to curb the States from imposing levies, taxes on mineral
rights. [Paras 35.2, 35.3]

Precedent – Typographical error in a judgment of a larger Bench – If

can be questioned by smaller Benches on the basis thereof:
Held: (per B.V. Nagarathna, J.) Judgments of larger Benches cannot be
questioned by smaller Benches on the basis of an imagined “typographical
error” – Entire judgment must be read and understood including its under
currents before negating it for what it stands – Judgment of a Court of law
is not a piece of legislation but one pregnant with reasoning and it becomes
the duty of a succeeding Bench considering a precedent to be cautious in
opining something contrary on the premise of a “typographical error” in
a judgment of a larger Bench by failing to understand the import of the
reasoning – Opinion of the majority in the Kesoram’s case is per incuriam as
it failed to follow the dictum in India Cement on the basis of a “typographical
error” where there was none. [Para 27]
 Mineral Area Development Authority & Anr. v. 2143
M/s Steel Authority of India & Anr. Etc.

Case Law Cited

In the judgment of Dr. Dhananjaya Y. Chandrachud, CJI:

State of West Bengal v. Kesoram Industries Ltd. [2004] 1

SCR 564 : (2004) 10 SCC 201 – affirmed.

Goodricke Group Ltd. v. State of West Bengal [1994] Supp.

6 SCR 120 : (1995) Supp 1 SCC 707 – clarified.

M P V Sundararamier & Co. v. State of Andhra Pradesh

[1958] 1 SCR 1422 – explained.

India Cement Ltd. v. State of Tamil Nadu [1989] Supp.

1 SCR 692 : (1990) 1 SCC 12; Orissa Cement Ltd. v.
State of Orissa [1991] 2 SCR 105 : (1991) Supp 1 SCC
430; Federation of Mining Associations of Rajasthan
v. State of Rajasthan (1992) Supp 2 SCC 239; State of
M P v. Mahalaxmi Fabric Mills Ltd. [1995] 1 SCR 756 :
(1995) Supp 1 SCC 642; Saurashtra Cement & Chemical
Industries Ltd. v. Union of India [2000] Supp. 4 SCR 44 :
(2001) 1 SCC 91; State of Orissa v. Mahanadi Coalfields
Ltd. [1995] 3 SCR 639 : (1995) Supp 2 SCC 686; P
Kannadasan v. State of Tamil Nadu [1996] Supp. 4 SCR 92
: (1996) 5 SCC 670 – overruled.

Banarsi Dass Chadha v. Lt Governor, Delhi Administration

[1979] 1 SCR 271 : (1978) 4 SCC 11; V P Pithupitchai v.
Special Secretary to the Government of TN [2003] 3 SCR
1045 : (2003) 9 SCC 534; Jindal Stainless Steel v. State of
Haryana [2016] 10 SCR 1 : (2017) 12 SCC 1; State of West
Bengal v. Committee for Protection of Democratic Rights
[2010] 2 SCR 979 : (2010) 3 SCC 571; State of Kerala v.
Mar Appraem Kuri Company Ltd. [2012] 4 SCR 448 :
(2012) 7 SCC 106; Hoechst Pharmaceuticals v. State of
Bihar [1983] 3 SCR 130 : (1983) 4 SCC 45; Calcutta Gas
Company (Proprietary) Ltd. v. State of West Bengal [1962]
Supp 3 SCR 1; Ujagar Prints (II) v. Union of India [1989]
2144 SUPREME COURT REPORTS [2024] 7 S.C.R. 1549

1 SCR 344 : (1989) 3 SCC 488; Ch Tika Ramji v. State of

U P [1956] 1 SCR 393 : (1956) SCC OnLine SC 9; State
of Maharashtra v. Bharat Shanti Lal Shah [2008] 12 SCR
1083; Kishori Shetty v. The King (1949-50) 11 FCR 650;
Offshore Holdings (P) Ltd. v. Bangalore Development
Authority [2011] 1 SCR 453 : (2011) 3 SCC 139; Mafatlal
Industries v. Union of India [1996] Supp. 10 SCR 585 :
(1997) 5 SCC 536; R M D Chamarbaugwalla v. Union of
India [1957] 1 SCR 930 : (1957) SCC OnLine SC 11; R
Abdul Quader & Co. v. STO [1964] 6 SCR 867; In Re. Sea
Customs Act, s. 20(2) [1964] 3 SCR 787; Godfrey Phillips
India Ltd. v. State of UP [2005] 1 SCR 732 : (2005) 2 SCC
515; Navinchandra Mafatlal v. Commissioner of Income
Tax, Bombay City [1955] 1 SCR 829 : (1954) 3 SCC 623;
Hans Muller of Nurenburg v. Superintendent, Presidency
Jail [1955] 1 SCR 1284; Elel Hotels & Investments Ltd. v.
Union of India [1989] 2 SCR 880 : (1989) 3 SCC 698;
State of Rajasthan v. G Chawla [1959] Supp. 1 SCR 904 :
(1958) SCC OnLine SC 33; United Provinces v Atiqa
Begum (1940) 2 FCR 110; Express Hotels (P) Ltd. v. State
of Gujarat [1989] 2 SCR 893 : (1989) 3 SCC 677; Sardar
Baldev Singh v. CIT [1961] 1 SCR 482 : (1960) SCC
OnLine SC 147; A L S P P L Subrahmanyan Chettiar v.
Muthuswami Goundan (1940) 2 FCR 188; A S Krishna v.
State of Madras [1957] SCR 399; K C Gajapathi Narayan
Deo v. State of Orissa [1954] 1 SCR 1 : (1953) 2 SCC 178;
South India Corporation (P) Ltd. v. Secretary, Board of
Revenue [1964] 4 SCR 280; State of Bihar v. Kameshwar
Singh [1952] 1 SCR 889 : (1952) 1 SCC 528; S R Bommai
v. Union of India [1994] 2 SCR 644 : (1994) 3 SCC 1; Dr
Indramani Pyarelal Gupta v. W R Natu [1963] 1 SCR 721;
Union of India v. Mohit Minerals Private Limited [2022] 9
SCR 300 : (2022) 10 SCC 700; Khazan Chand v. State of
Jammu and Kashmir [1984] 2 SCR 858 : (1984) 2 SCC
456; M C Mehta v. Kamal Nath [1996] Supp. 10 SCR 12 :
(1997) 1 SCC 388; M C Mehta v. Union of India (2009) 6
SCC 142; T N Godavarman Thirumulpad v. Union of India
[2005] Supp. 3 SCR 552 : (2006) 1 SCC 1; Centre for
 Mineral Area Development Authority & Anr. v. 2145
M/s Steel Authority of India & Anr. Etc.

Public Interest Litigation v. Union of India [2012] 3 SCR

147 : (2012) 3 SCC 1; Reliance Natural Resources Ltd. v.
Reliance Industries [2010] 5 SCR 704 : (2010) 7 SCC 1;
Fomento Resorts & Hotels Ltd. v. Minguel Martins [2009] 3
SCR 1 : (2009) 3 SCC 571; Natural Resources Allocation,
In re, Special Reference No. 1 of 2012 [2012] 9 SCR 311 :
(2012) 10 SCC 1; State of Rajasthan v. Gotan Lime Stone
Khanji Udyog (P) Ltd. [2016] 1 SCR 216 : (2016) 4 SCC
469; Orissa Mining Corporation Ltd. v. Ministry of
Environment & Forests [2013] 6 SCR 881 : (2013) 6 SCC
476; Pradeep S Wodeyar v. State of Karnataka [2021] 11
SCR 985 : (2021) 19 SCC 62; State (NCT of Delhi) v.
Sanjay [2014] 9 SCR 1063 : (2014) 9 SCC 772; State of
Haryana v. Ram Kishan [1988] 3 SCR 1015 : (1988) 3 SCC
416; National Mineral Development Corporation Ltd. v.
State of M P [2004] Supp. 2 SCR 1 : (2004) 6 SCC 281;
Tata Steel Ltd. v. Union of India [2015] 6 SCR 29 : (2015)
6 SCC 193; D K Trivedi & Sons v. State of Gujarat [1986]
1 SCR 479 : (1986) Supp SCC 20; Federation of Indian
Mineral Industries v. Union of India [2017] 12 SCR 724 :
(2017) 16 SCC 186; K P Varghese v. ITO [1982] 1 SCR 629
: (1981) 4 SCC 173; Gujarat Pottery Works v. B P Sood,
Controller of Mining Leases for India [1967] 1 SCR 695;
State of Punjab v. British India Corporation [1964] 2 SCR
114; Associated Hotels of India Ltd. v. R N Kapoor [1960] 1
SCR 368; State of Karnataka v. Subhash Rukmayya
Guttedar (1993) Supp 3 SCC 290; Sri Tarkeshwar Sio
Thakur jiu v. Dar Dass Dey (1979) 3 SCC 106; Mangal
Amusement Park Private Ltd. v. State of Madhya Pradesh
[2012] 10 SCR 388 : (2012) 11 SCC 713; Bhagwan Dass v.
State of Uttar Pradesh [1976] 3 SCR 869 : (1976) 3 SCC
784; State of Meghalaya v. All Dimasa Students Union
[2019] 8 SCR 297 : (2019) 8 SCC 177; Inderjeet Singh Sial
v. Karam Chand Thapar [1995] Supp. 4 SCR 53 : (1995) 6
SCC 166; H R S Murthy v. Collector of Chittoor [1964] 6
SCR 666; Bherulal v. State of Rajasthan (1956) SCC
OnLine Raj 9; Amrit Banaspati Co. Ltd. v. State of Punjab
[1992] 2 SCR 13 : (1992) 2 SCC 411; Dena Bank v.
2146 SUPREME COURT REPORTS [2024] 7 S.C.R. 1549

Bhikabhai Prabhudas Parekh & Co. [2000] 3 SCR 509 :

(2000) 5 SCC 694; Commissioner, Hindu Religious
Endowment, Madras v. Sri Lakshmindra Thirta Swamiar of
Sri Shirur Mutt [1954] 1 SCR 1005 : (1954) 1 SCC 412;
CIT v. McDowell and Co. Ltd. [2009] 8 SCR 983 : (2009)
10 SCC 755; Mahant Sri Jagannath Ramanuj Das v. State
of Orissa [1954] 1 SCR 1046 : (1954) 1 SCC 455; D G
Gose and Co. (Agents) (P) Ltd. v. State of Kerala [1980] 1
SCR 804 : (1980) 2 SCC 410; Indian Banks’ Association v.
Devkala Consultancy Service [2004] Supp. 1 SCR 225 :
(2004) 11 SCC 1; CCE v. Chhata Sugar Co. Ltd. [2004] 2
SCR 790 : (2004) 3 SCC 466; State of Punjab v. Devans
Modern Breweries [2003] Supp. 5 SCR 930 : (2004) 11
SCC 26; Har Shankar v. Excise and Taxation Commissioner
[1975] 3 SCR 254 : (1975) 1 SCC 737; State Bank of India
v. Jage Ram [1980] 3 SCR 746 : (1980) 3 SCC 599;
Government of Andhra Pradesh v. Anabeshahi Wine and
Distilleries Pvt Ltd. (1988) 2 SCC 25; Laddu Mal v. State of
Bihar (1965) SCC OnLine Pat 30; Laxminarayana Mining
Co. v. Taluk Development Board (1972) SCC OnLine Kar
80; Dr. Shanti Swaroop Sharma v. State of Punjab, AIR
1969 Punj and Har 79; Saurashtra Cement & Chemical
Industries Ltd. v. Union of India (1979) SCC OnLine Guj
23; Laxmi Narayan Agarwalla v. State of Orissa (1983)
SCC OnLine Ori 16; Raojibhai Jivabhai Patel v. State of
Gujarat [1989] Supp. 2 SCR 406 : (1989) Supp 2 SCC
744; Quarry Owners Association v. State of Bihar [2000]
Supp. 2 SCR 211 : (2000) 8 SCC 655; State of H P v.
Gujarat Ambuja Cement Ltd. [2005] Supp. 1 SCR 684 :
(2005) 6 SCC 499; Indsil Hydro Power & Manganese Ltd.
v. State of Kerala [2019] 10 SCR 647 : (2021) 10 SCC 165;
Goodyear India Ltd. v. State of Haryana [1989] Supp. 1
SCR 510 : (1990) 2 SCC 71; K Ramanathan v. State of
Tamil Nadu [1985] 2 SCR 1028 : (1985) 2 SCC 116; State
of Tamil Nadu v. Hindu Stone [1981] 2 SCR 742 : (1981) 2
SCC 205; State of Uttar Pradesh v. Maharaja Dharmander
Prasad Singh [1989] 1 SCR 176 : (1989) 2 SCC 505;
Talcher Municipality v. Talcher Regulated Market
 Mineral Area Development Authority & Anr. v. 2147
M/s Steel Authority of India & Anr. Etc.

Committee [2004] Supp. 3 SCR 167 : (2004) 6 SCC 178;

Union of India v. Asian Food Industries Ltd. [2006] Supp.
8 SCR 485 : (2006) 13 SCC 542; UP Coop. Cane Unions
Federations v. West UP Sugar Mills Association [2004]
Supp. 2 SCR 238 : (2004) 5 SCC 430; Balmer Lawrie &
Company Limited v. Partha Sarathi Sen Roy [2013] 4 SCR
1018 : (2013) 8 SCC 345; Subramanian Swamy v. State of
Tamil Nadu [2014] 1 SCR 308 : (2014) 5 SCC 75; Premium
Granites v. State of Tamil Nadu [1994] 1 SCR 579 : (1994)
2 SCC 691; Tata Iron & Steel Co. Ltd. v. Union of India
[1996] Supp. 3 SCR 808 : (1996) 9 SCC 709; Hingir-
Rampur Coal Co. Ltd. v. State of Orissa [1961] 2 SCR 537;
State of Orissa v. M A Tulloch [1964] 4 SCR 461; Baijnath
Kedia v. State of Bihar [1970] 2 SCR 100 : (1969) 3 SCC
838; Bharat Coking Coal Ltd. v. State of Bihar [1990] 3
SCR 744 : (1990) 4 SCC 557; State of Assam v. Om Prakash
Mehta [1973] 3 SCR 169 : (1973) 1 SCC 584; Sandur
Manganese & Iron Ores Ltd. v. State of Karnataka [2010]
11 SCR 240 : (2010) 13 SCC 1; Sayyed Ratanbhai Sayeed
v. Shirdi Nagar Panchayat [2016] 11 SCR 476 : (2016) 4
SCC 631; Meerut Development Authority v. Association of
Management Studies [2009] 6 SCR 663 : (2009) 6 SCC
171; Ishwari Khetan Sugar Mills v. State of Uttar Pradesh
[1980] 3 SCR 331 : (1980) 4 SCC 136; Rajasthan Roller
Flour Mills Association v. State of Rajasthan [1993] Supp.
2 SCR 72 : (1994) Supp 1 SCC 413; Thressiamma Jacob
v. Geologist, Department of Mining & Geology [2013] 7
SCR 863 : (2013) 9 SCC 725; State of West Bengal v.
Union of India [1964] 1 SCR 371; Tata Chemicals Ltd. v.
State of Gujarat (1988) SCC OnLine Guj 13; Kumar
Ramessur Malia v. Ram Nath Bhattacharjee (1905) SCC
OnLine Cal 55; Saurabh Chaudri v. Union of India [2003]
Supp. 5 SCR 152 : (2003) 11 SCC 146; Navtej Singh Johar
v. Union of India [2018] 7 SCR 379 : (2018) 10 SCC 1;
Govind Saran Ganga Saran v. CST [1985] 3 SCR 985 :
(1985) Supp SCC 205; Mathuram Agrawal v. State of M P
[1999] Supp. 4 SCR 195 : (1999) 8 SCC 667; State of
Karnataka v. Drive-In Enterprise [2001] 2 SCR 378 :
2148 SUPREME COURT REPORTS [2024] 7 S.C.R. 1549

(2001) 4 SCC 60; Chhotabhai Jethabhai Patel and Co. v.

Union of India [1962] Supp 2 SCR 1; Anant Mills Co. Ltd.
v. State of Gujarat [1975] 3 SCR 220 : (1975) 2 SCC 175;
International Tourist Corporation v. State of Haryana
[1981] 2 SCR 364 : (1981) 2 SCC 318; Province of Madras
v. Boddu Paidanna (1942) 4 FCR 90; All India Federation
of Tax Practitioners v. Union of India [2007] 9 SCR 147 :
(2007) 7 SCC 527; Federation of Hotel & Restaurant
Association of India v. Union of India [1989] 2 SCR 918 :
(1989) 3 SCC 634; State of Karnataka v. State of Meghalaya
[2022] 18 SCR 516 : (2023) 4 SCC 416; State of Mysore v.
D Cawasji and Co [1971] 2 SCR 799 : (1970) 3 SCC 710;
Umeg Singh v. State of Bombay [1955] 2 SCR 164; Kalpana
Mehta v. Union of India [2018] 4 SCR 1 : (2018) 7 SCC 1;
In re Powers, Privileges and Immunities of State legislature,
Special Reference No. 1 of 1964 [1965] 1 SCR 413; Firm
Bansidhar Premsukhdas v. State of Rajasthan [1966] Supp
1 SCR 81; Kesavananda Bharati v. State of Kerala [1973]
Supp. 1 SCR 1 : (1973) 4 SCC 225; I R Coelho v. State of
Tamil Nadu [2007] 1 SCR 706 : (2007) 2 SCC 1; Vishaka
v. State of Rajasthan [1997] Supp. 3 SCR 404 : (1997) 6
SCC 241; Anoop Baranwal v. Union of India [2023] 9 SCR
1 : (2023) 6 SCC 161; LDA v. M K Gupta [1993] Supp. 3
SCR 615 : (1994) 1 SCC 243; Raj Kumar Shivhare v.
Directorate of Enforcement [2010] 4 SCR 608 : (2010) 4
SCC 772; Vivek Narayan Sharma v. Union of India [2023]
1 SCR 1 : (2023) 3 SCC 1; State of Assam v. Labanya
Probha Devi [1967] 3 SCR 611; Sharma Transport v.
Government of AP [2001] Supp. 5 SCR 390 : (2002) 2
SCC 188; Vrajilal Manilal & Co. v. State of M P [1986] 2
SCR 98 : (1986) Supp SCC 201; State of Kerala v. A B
Abdul Kadir [1970] 1 SCR 700 : (1969) 2 SCC 363; Durga
Prasad Singh v. Braja Nath Bose (1912) SCC Online PC 9;
Secretary of State for India in Council v. Srinivasa Chariar
(1920) SCC OnLine PC 89; State of A P v. Duvvuru
Balarami Reddy [1963] 1 SCR 173 : (1962) SCC OnLine
SC 182; Gopalan v. State of Madras (1958) 2 MLJ 117;
Dalmia Cement (Bharat) Ltd. v. State of TN [2013] 17 SCR
 Mineral Area Development Authority & Anr. v. 2149
M/s Steel Authority of India & Anr. Etc.

529 : (2014) 2 SCC 279; Raja Anand Brahma Shah v. State

of U P [1967] 1 SCR 373 : (1966) SCC OnLine SC 89;
State of Haryana v. Chanan Mal [1976] 3 SCR 688 : (1977)
1 SCC 340; Raja Jagannath Baksh Singh v. State of Uttar
Pradesh [1963] 1 SCR 220; Ajoy Kumar Mukherjee v.
Local Board of Barpeta [1965] 3 SCR 47; Government of A
P v. Hindustan Machine Tools Ltd. [1975] Supp. 1 SCR
394 : (1975) 2 SCC 274; Ahmedabad Municipal Corporation
v. GTL Infrastructure Ltd. [2016] 11 SCR 172 : (2017) 3
SCC 545; Jalkal Vibhag Nagar Nigam v. Pradeshiya
Industrial & Investment Corp [2021] 12 SCR 210 : (2021)
20 SCC 657; Sudhir Chandra Nawn v. WTO (1968) 69 ITR
897; Second Gift Tax Officer, Mangalore v. D H Nazareth
[1971] 1 SCR 195 : (1970) 1 SCC 749; Assistant
Commissioner of Urban Land Tax v. Buckingham and
Carnatic Co. Ltd. [1970] 1 SCR 268 : (1969) 2 SCC 55;
Shri Prithvi Cotton Mills Ltd. v. Broach Borough
Municipality [1970] 1 SCR 388 : (1969) 2 SCC 283; Union
of India v. H S Dhillon [1972] 2 SCR 33 : (1971) 2 SCC
779; East India Tobacco Company v. State of Andhra
Pradesh [1963] 1 SCR 404 : (1962) SCC OnLine SC 145;
Hiralal Rattanlal v. State of U P [1973] 2 SCR 502 : (1973)
1 SCC 216; Khyerbari Tea Co. Ltd. v. State of Assam [1964]
5 SCR 975; Union of India v. A Sanyasi Rao [1996] 2 SCR
570 : (1996) 3 SCC 465; R K Garg v. Union of India [1982]
1 SCR 947 : (1981) 4 SCC 675; Spencer & Co. v. State of
Mysore [1971] Supp. 1 SCR 502 : (1971) 2 SCC 217; K T
Moopil Nair v. State of Kerala [1961] 3 SCR 77 : (1960)
SCC OnLine SC 7; Khandige Sham Bhat v. Agricultural
Income Tax Officer Kasargod [1963] 3 SCR 809 : (1962)
SCC OnLine SC 15; Western Coalfields Ltd. v. Special
Area Development Authority [1982] 2 SCR 1 : (1982) 1
SCC 125; Rai Ramkrishna v. State of Bihar [1964] 1 SCR
897 : (1963) SCC OnLine SC 31; S Kodar v. State of
Kerala [1975] 1 SCR 121 : (1974) 4 SCC 422; Shaktikumar
M Sancheti v. State of Maharashtra [1994] Supp. 6 SCR
98 : (1995) 1 SCC 351; Sainik Motors, Jodhpur v. State of
Rajasthan [1962] 1 SCR 517; Sir Byramjee Jeejeebhoy v.
2150 SUPREME COURT REPORTS [2024] 7 S.C.R. 1549

The Province of Bombay (1942) SCC OnLine Bom 30; B

Shama Rao v. Union Territory of Pondicherry [1967] 2
SCR 650 : (1967) SCC OnLine SC 29; R R Engineering
Co. v. Zilla Parishad, Bareilly [1980] 3 SCR 1 : (1980) 3
SCC 380; Ralla Ram v. The Province of East Punjab (1948)
SCC OnLine FC 9; Union of India v. Bombay Tyre
International Ltd. [1984] 1 SCR 347 : (1984) 1 SCC 467;
CCE v. Grasim Industries Ltd. [2018] 6 SCR 1099 : (2018)
7 SCC 233; Patel Gordhandas Hargovindas v. Municipal
Commissioner [1964] 2 SCR 608 : (1963) SCC OnLine
SC 57; State of Kerala v. Haji K Kutty Naha [1969] 1 SCR
645; New Manek Chowk Spg. & Wvg. Mills v. Ahmedabad
Municipality [1967] 2 SCR 679 : (1967) SCC OnLine SC
116; Buxa Dooars Tea Co. Ltd. v. State of West Bengal
[1989] 3 SCR 293 : (1989) 3 SCC 211; Kaviraj
Basudevanand v. Mahant Harihar Gir [1975] 1 SCR 590 :
(1974) 2 SCC 514; Burrakur Coal Co. Ltd. v. Union of
India [1962] 1 SCR 44 : AIR 1961 SC 954; Union of India
v. Pramod Gupta [2005] Supp. 3 SCR 48 : (2005) 12 SCC
1; State of Bihar v. Indian Aluminium Company [1997]
Supp. 4 SCR 222 : (1997) 8 SCC 360; P M
Ashwathanarayana Setty v. State of Karnataka [1988]
Supp. 3 SCR 155 : (1989) Supp 1 SCC 696 – referred to.

McCulloch v. Maryland, 17 U.S. 316; Matthews v.

Chicory Marketing Board, 60 CLR 263; Lord Provost and
Magistrates of Glasgow v. Faire (1888) [L.R] 13 App. Cas.
657; Pennsylvania Coal Co. v. Mahon, 260 US 393 (1922);
Assessment Committee of the Metropolitan Borough of
Poplar v. Roberts [1922] 2 AC 93 – referred to.

In the judgment of B.V. Nagarathna, J.

District Mining Officer v. Tata Iron and Steel Company

[2001] Supp. 1 SCR 147 : (2001) 7 SCC 358 – correct
law.
 Mineral Area Development Authority & Anr. v. 2151
M/s Steel Authority of India & Anr. Etc.

India Cement Limited v. State of Tamil Nadu [1989] Supp.

1 SCR 692 : (1990) 1 SCC 12 : AIR 1990 SC 85; State of
Madhya Pradesh v. Mahalaxmi Fabric Mills Ltd. [1995]
1 SCR 756 : (1995) Supp 1 SCC 642; Orissa Cement
Limited v. State of Orissa [1991] 2 SCR 105 : (1991) Supp
1 SCC 430; Saurashtra Cement & Chemicals Industries
Ltd. v. Union of India [2000] Supp. 4 SCR 44 : (2001) 1
SCC 91; State of Orissa v. Mahanadi Coalfields Ltd. [1995]
3 SCR 639 : (1995) Supp. 2 SCC 686; P. Kannadasan v.
State of Tamil Nadu [1996] Supp. 4 SCR 92 : (1996) 5 SCC
670 – correct law excluding to the extent overruled in
Tata Iron and Steel’s case.

State of West Bengal v. Kesoram Industries Limited [2004]

1 SCR 564 : (2004) 10 SCC 201 – overruled to the extent
that royalty is not a tax.

Goodricke Group Ltd. v. State of West Bengal [1994] Supp.

6 SCR 120 : (1995) Supp. 1 SCC 707; MPV Sundararamier
v. State of Andhra Pradesh [1958] 1 SCR 1422 : AIR 1958
SC 468 – held inapplicable.

Mineral Area Development Authority v. Steel Authority of

India [2011] 4 SCR 19 : (2011) 4 SCC 450; Hingir-Rampur
Coal Co. Ltd. v. State of Orissa [1961] 2 SCR 537; State of
Orissa v. M.A. Tulloch [1964] 4 SCR 461; Baijnath Kedia v.
State of Bihar [1970] 2 SCR 100 : (1969) 3 SCC 838; State
of Karnataka v. State of Meghalaya [2022] 18 SCR 516 :
(2023) 4 SCC 416; Prafulla Kumar Mukherjee v. Bank of
Commerce, Khulna, AIR 1947 P.C. 60; State of Bombay v.
FN Balsara [1951] 1 SCR 682 : AIR 1951 SC 318; United
Provinces v. Atiqa Begum, AIR 1941 FC 16; Calcutta Gas
Company v. State of West Bengal [1962] Supp 3 SCR 1 :
AIR 1962 SC 1044; RMDC v. Union of India [1957] 1
SCR 930 : AIR 1957 SC 628; Govind Saran Ganga Saran
v. Commissioner of Sales Tax [1985] 3 SCR 985 : (1985)
Supp SCC 205; HRS Murthy v. Collector of Chittoor
[1964] 6 SCR 666 : AIR 1965 SC 177; Guruswamy &
Co. v. State of Mysore [1967] 1 SCR 548 : AIR 1967 SC
2152 SUPREME COURT REPORTS [2024] 7 S.C.R. 1549

1512; M/s Laxminarayana Mining Co., Bangalore v. Taluk

Development Board, AIR 1972 Mys 299; Laddu Mal v.
The State of Bihar, AIR 1965 Pat 491; Bherulal v. State of
Rajasthan, AIR 1956 Rajasthan 161; Dr. Shanti Saroop v.
State of Punjab, AIR 1969 P & H 79; Saurashtra Cement
and Chemical Industries Ltd. Ranavav v. Union of India,
AIR 1979 Guj 180; Laxmi Narayan Agarwalla v. State
of Orissa, AIR 1983 Ori 210; Corporation of Calcutta v.
Liberty Cinema [1965] 2 SCR 477 : AIR 1965 SC 1107;
State of Orissa v. Titaghur Paper Mills Company Limited
[1985] 3 SCR 26 : (1985) Supp. SCC 280; A.R. Antulay v.
R.S. Naik [1987] 1 SCR 91 : (1986) Supp SCC 510; Raja
Jagannath Baksh Singh v. State of U.P. [1963] 1 SCR 220;
New Manek Chowk Spinning & Weaving Mills Co. Ltd. v.
Municipal Corporation of the City of Ahmedabad [1967]
2 SCR 679; Sudhir Chandra Nawn v. Wealth Tax Officer,
Calcutta [1969] 1 SCR 108; Assistant Commissioner of
Urban Land Tax v. The Buckingham & Carnatic Co. Ltd.
[1970] 1 SCR 268; Second Gift Tax Officer, Mangalore
v. D.H. Nazareth [1971] 1 SCR 195; Union of India v.
Harbhajan Singh Dhillon [1972] 2 SCR 33 : (1971) 2 SCC
779 – referred to.

Books and Periodicals Cited

In the judgment of Dr. Dhananjaya Y. Chandrachud, CJI

Ramanatha Aiyar Advanced Law Lexicon (Volume 3)

3543, 2789, 4778, 3254; Ligia Norohna et al, ‘Resource
Federalism in India: The Case of Minerals’ (2009) 44(8)
Economic and Political Weekly 51, 52; Debates in the
House of Commons on the Government of India Act 1919
(3rd December 1919); Government of India Bill, Seventh
Schedule (Legislative Lists) Hansard (Volume 301) (13 May
1935); H M Seervai, Constitutional Law of India, Volume
3 (4th edn.) [22.6] 2306, 2468; Constituent Assembly
Debates, Vol. 11 (25 November 1949); Dr. B R Ambedkar,
 Mineral Area Development Authority & Anr. v. 2153
M/s Steel Authority of India & Anr. Etc.

CAD Volume 7 (4 November 1948); Granville Austin,

Cornerstone of a Nation (OUP, 1966) 187; Wallace E Oates,
‘An Essay on Fiscal Federalism’ (1999) 37(3) Journal of
Economic Literature 1120, 1121; Dr. B R Ambedkar, The
Evolution of Provincial Finance in British India: A Study
in the Provincial Decentralization of Imperial Finance’
(1923) 152-171; ‘State Finances: A Study of Budgets of
2023-2024, Revenue Dynamics and Fiscal Capacity of
Indian States’ Reserve Bank of India (December 2023) 28;
Ligia Noronha, et al, ‘Resource Federalism in India: The
Case of Minerals’ (2009) 44(8) Economic and Political
Weekly 51, 53; Economic Survey 2016-2017, Ministry of
Finance, Government of India (January 2017) 292; Joseph
L Sax, ‘The Public Trust Doctrine in Natural Resource
Law: Effective Judicial Intervention’ (1970) Michigan Law
Review 471, 484; Mr K D Malviya, Lok Sabha Debates,
Volume X (9th December to 21st December 1957) 7123; Mr
J R Mehta, Lok Sabha Debates, Volume X (9th December
to 21st December 1957) 7111; Lok Sabha Debates, Volume
VIII (11th November to 22nd November, 1957, Third
Session) 395, 463; J U Nef, The Rise of the British Coal
Industry (Routledge, 1966); Royal Commission on Mining
Royalties, Final Report of the Royal Commission Appointed
to Inquire into the Subject of Mining Royalties (1893) 4;
W R Sorley, ‘Mining Royalties and their Effect on the Iron
and Coal Trades’ (1889) 52(1) Journal of Royal Statistical
Society 60, 66; Government of India, Ministry of Mines,
‘Mineral Royalties’ 27 (January 2011); Thomas Cooley,
The Law of Taxation (4th edn, 1924) 149, 74; Constituent
Assembly Debates, Volume IX, 898 (31st August 1949), (2nd
September 1949); Lloyd George, ‘The Budget, The Land
and The People: The New Land Value Taxes Explained and
Illustrated’ (2nd edn, 1909) 48, 51; Royal Commission on
Mining Royalties, Final Report of the Royal Commission
appointed to inquire into the subject of mining royalties
(1893) 14; Mr. Lloyd George (Hansard, Volume 11) 28
September 1909; Hansard, Volume 11, 22 September 1909;
Hansard, Volume 35, 5 March 1912; Jeremy Waldron,
2154 SUPREME COURT REPORTS [2024] 7 S.C.R. 1549

‘What is Private Property?’ (1985) 5(3) Oxford Journal

of Legal Studies 313, 327; James Y Stern, ‘The Essential
Structure of Property Law’ (2017) 115(7) Michigan Law
Review 1167, 1176; Black’s Law Dictionary (6th edn,1990)
995; Corpus Juris Secundum (Volume 58) 15; Constituent
Assembly Debates, Volume 9 (1 September 1949); Megarry
and Wade, The Law of Real Property (9th edn, Sweet and
Maxwell); S Sundararaja Iyengar, Land Tenures in the
Madras Presidency (1921) 25, 120, 151; B Shiva Rao, ‘The
Framing of India’s Constitution: A Study’ (1966, Volume
3) 181, 269, 502; Peter Brown and Patrick Bond, ‘Rating
Valuation: Principles and Practice) (3rd edn, Elsevier) 13
– referred to.

In the judgment of B.V. Nagarathna, J.

“Building a National Economy : Origins of Centralized

Federalism in India” by Louise Tillin published by the
Oxford University Press in 2021; M.P. Jain, Nehru and
the Indian Federalism, Journal of the Indian law Institute,
Vol.19, No.4, 1977, p.408 – referred to.

List of Websites
In the judgment of Dr. Dhananjaya Y. Chandrachud, CJI:

Ministry of Statistics and Programme Implementation, State-

wise date on per capita income’ (24 July 2023) <https://
www.pib.gov.in/PressReleasePage.aspx?PRID=1942055>
– referred to.

List of Acts
In the judgment of Dr. Dhananjaya Y. Chandrachud, CJI:
Constitution of India; Mines and Minerals (Development
and Regulation) Act, 1957; Bihar Coal Mining Area
Development Authority (Amendment) Act 1992; Bihar
 Mineral Area Development Authority & Anr. v. 2155
M/s Steel Authority of India & Anr. Etc.

Mineral Area Development Authority (Land Use Tax)

Rules 1994; Bihar Coal Mining Area Development
Authority Act 1986; Government of India Act 1915-19;
Government of India Act 1935; Constitution (Seventh
Amendment) Act 1956; Mines and Minerals (Regulation
and Development) Act 1948; Mineral Concession Rules
1960; Mineral Concession Rules 1948; General Clauses
Act 1897; Transfer of Property Act 1882; Registration
Act 1908; Indian Easements Act 1882; Income Tax Act
1961; Sea Customs Act; Essential Commodities Act; Bihar
Minor Mineral Concession Rules 1964; Punjab Minor
Mineral Concession Rules 1964; Madras Panchayat Act
1958; Working Conditions Code 2020; Offshore Areas
Mineral (Development and Regulation) Act 2002; Mineral
Conservation and Development Rules 2017; Orissa Mining
Areas Development Fund Act 1952; Industries (Development
and Regulation) Act 1951; Finance Act 1910; Gujarat
Mineral Rights Tax Act 1985; Mineral (Auction) Rules
2015; Madras Permanent Settlement Regulation XXV of
1802; Petroleum Act 1998; Coal Act 1938; Madras Mining
Manual of 1929; Waste Land Rules; Madras Forest Act
1882; Mineral Concession Rules 1949; Maharashtra Land
Revenue Code 1966; Uttar Pradesh Zamindari Abolition
and Land Reforms Act 1950; Maharashtra Personal Inams
Abolition Act 1953; Maharashtra Abolition of Subsisting
Proprietary Rights to Mine and Minerals in Certain Lands
Act 1985; Haryana Minerals (Vesting of Rights) Act 1973;
UP Large Land Holdings Tax Act 1957; Wealth Tax Act 1957;
Kerala Building Tax Act 1975; Coal Mines (Nationalisation)
Act 1973; Punjab Urban Immoveable Property Tax Act
1940; Kerala Buildings Act 1961; Orissa Cess Act 1962;
Orissa Rural Employment, Education and Production Act
1992; West Bengal Rural Employment and Production Act
1976; Tea Act 1953; West Bengal Taxation Laws (Second
Amendment) Act 1989; Central Excises and Salt Act, 1944;
Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act 2013;
Coal Bearing Areas (Acquisition and Development) Act
2156 SUPREME COURT REPORTS [2024] 7 S.C.R. 1549

1957; Gujarat Land Revenue Code 1879; Madhya Pradesh

Land Revenue Code 1959; Chhattisgarh Land Revenue
Code 1959; Goa, Daman and Diu Land Revenue Code
1968; Madras Urban Land Tax Act 1966; Non-Domestic
Rating (Miscellaneous Provisions) Regulations 1989.

In the judgment of B.V. Nagarathna, J.

Mines and Minerals (Development and Regulation) Act,
1957; Constitution of India; Government of India Act,
1919; Government of India Act, 1935; Mineral Concession
Rules, 1960; Orissa Mining Areas Development Fund Act,
1952; Orissa Mining Areas Development Act Rules, 1955;
Mines and Minerals (Regulation and Development) Act,
1948; Bihar Land Reforms Act, 1950; Bihar Minor Mineral
Concession Rules, 1964; Bihar Land Reforms (Amendment)
Act, 1964; Madras District Boards Act, 1920; Madras
Panchayats Act, 1958; Madras Act, 1964; Tamil Nadu
Panchayats (Amendment and Miscellaneous Provisions)
Act, 1964; Bihar Minor Mineral Concession Rules, 1984;
Mysore Village Panchayats and Local Boards Act, 1959;
Orissa Rural Employment, Education and Production Act,
1992; West Bengal Taxation Laws (Second Amendment)
Act, 1989; Cess Act, 1880; West Bengal Rural Employment
and Production Act, 1976; Uttar Pradesh Special Area
Development Authorities Act, 1986; Shakti Nagar Special
Area Development Authority (Cess on Mineral Rights)
Rules, 1997; Cess and Other Taxes on Minerals (Validation)
Act, 1992.

List of Keywords
Mines and Minerals; Royalty; Royalties in respect of
mining leases; Royalty, in nature of tax; Royalty is not a
tax; Contractual consideration; Mining lessee; Mineral
rights; Contractual conditions; Tax; Recovery as arrears;
Imposition of tax or impost; Contractual payment; Statutory
levy; Entry 50 List II Seventh Schedule; Taxes on mineral
 Mineral Area Development Authority & Anr. v. 2157
M/s Steel Authority of India & Anr. Etc.

rights; Mineral development; Limitations imposable by

Parliament; Legislative powers under Entry 54 List I;
Legislative competence to tax mineral rights; Residuary
powers; Any limitations; Denude or limit; Non-taxing
general Entry; Distribution of legislative powers; MPV
Sundararamier’s case; Subject to any limitations imposed
by Parliament by law relating to mineral development;
Regulatory Entry; Description of “lands” under Entry
49 List II; Yield of mineral bearing land; Quantity of
mineral produced; Measure to tax; Minor minerals;
Subtract mining land; Mineral value or mineral produce;
India Cement’s case; Kesoram’s case; Cess on royalty;
Typographical error or inadvertent error; Characteristic
requirements of tax; Doctrine of generalia specialibus
non derogant; Federalism; Indian federalism; Balance of
power; Distribution of powers; Postcolonial Constitution;
National welfare state; Unregulated inter-provincial
economic competition; Centre-State jurisdiction; Economic
growth; Uniformity in mineral prices; Compulsory
exaction by public authority for public purposes; Exclusive
privileges; Doctrine of pith and substance; Transgresses
its legislative competence; Colourable legislation; Vice of
unconstitutionality; Potential overlaps or conflicts between
and among entries in three Lists; Terminologies “other
than”, “not including”, “subject to”; “Declared by or
under law”; “Declared by Parliament by law”; “Imposed
by Parliament by law”; Fiscal federalism; Imbalance
between resources; Inter-governmental distribution and
grants; Fiscal powers; Fiscal expenditures; Fiscal deficit;
Heterogenous distribution of legislative powers; Resource
curse; Public trust doctrine; Sustainable development of
mineral resources; Public trustee of minerals; Prospecting
and mining operations; Disparity of royalty; Industrial
Policy Resolution; ‘Lease’ and ‘licence’; Immoveable
property; “Mining lease”; “Mining operations”;
“Winning”; Getting or extracting minerals from the mines;
“Prospecting licence”; Exploring, locating, or proving a
mineral deposit; Proprietary rights in the minerals; Rates
2158 SUPREME COURT REPORTS [2024] 7 S.C.R. 1549

of royalty; Essential characteristics of royalty; Royalty

a statutory consideration; Royalty calculated on per
tonnage basis or ad valorem basis; Quantity of mineral
removed or dispatched; Indian Bureau of Mines; Non-tax
revenues; Dead rent; Proprietary right; Sovereign right;
Monetary burdens or charges; “Regulation of mines”;
Plenary legislative power; Taxing entry; Regulatory power;
Non-fiscal enactment by Parliament; Overlap between
the taxing entry and general entry; Principle of federal
supremacy; Regulation of mines; Decoupling of minerals
from land; Sarkaria Commission Report; Principles of
Union Supremacy; Destruction of the federal balance;
Recognition of parliamentary superiority; Typographical
error; Precedent; Per incuriam.
 [2024] 8 S.C.R. 1321 : 2024 INSC 562

The State of Punjab & Ors.

v.
Davinder Singh & Ors.
Civil Appeal No. 2317 of 2011

01 August 2024

[Dr Dhananjaya Y Chandrachud,* CJI, B.R. Gavai,*

Vikram Nath,* Bela M. Trivedi,* Pankaj Mithal,*
Manoj Misra and Satish Chandra Sharma,* JJ.]

Issue for Consideration

The Supreme Court was required to adjudicate upon whether the sub-
classification of Scheduled Castes for the purpose of providing affirmative
action, including reservation is valid. In this context, the following issues
arose for consideration: Whether sub-classification of a reserved class is
permissible under Articles 14, 15 and 16 of the Constitution; Whether the
Scheduled Castes constitute a homogenous or a heterogenous grouping;
Whether Article 341 of the Constitution creates a homogenous class through
the operation of the deeming fiction; and Whether there any limits on the
scope of sub-classification.

Headnotes

Reservation – Whether sub-classification of Scheduled Castes for

purposes of reservation is constitutionally permissible – Held (per
majority), Yes.
Held (per Dr D Y Chandrachud, CJI) (for himself and Manoj Misra,
J.): 1. Article 14 of the Constitution permits sub-classification of a class
which is not similarly situated for the purpose of the law – The Court
while testing the validity of sub-classification must determine if the class
is a homogenous integrated class for fulfilling the objective of the sub-
classification – If the class is not integrated for the purpose, the class
can be further classified upon the fulfillment of the two-prong intelligible
differentia standard. [Para 205(a)]

2159
2160 SUPREME COURT REPORTS [2024] 8 S.C.R. 1321

2. The holding in Chinnaiah that sub-classification of the Scheduled Castes

is impermissible is overruled. [Para 205(f)]

Held (per B.R. Gavai, J.) (Concurring): 1. E.V. Chinnaiah, which held that
sub-classification amongst the Scheduled Castes for the purpose of giving
more beneficial treatment to a group in the larger group of the Scheduled
Castes is not permissible, does not lay down a good law. [Para 296 (i)]
2. Sub-classification amongst the Scheduled Castes for giving more beneficial
treatment is permissible in law. [Para 296 (ii)]

Held (per Vikram Nath, J.) (Concurring): I am generally in agreement

with the reasons and conclusions arrived at in the opinions of Hon’ble the
Chief Justice and Brother Justice Gavai in particular that the holding in E.V.
Chinnaiah, that sub-classification within Scheduled Castes was impermissible,
does not lay down good law and stands over-ruled. [Para 1]

Held (per Pankaj Mithal, J.) (Concurring): 1. The issue of sub-classification

of scheduled castes has been appropriately answered by the Chief Justice and
my esteemed brother Justice Gavai by their separate opinions with which I
respectfully agree. [Para 9]
2. The policy of reservation as enshrined under the Constitution and by
its various amendments requires a fresh re-look and evolvement of other
methods for helping and uplifting the depressed class or the downtrodden
or the persons belonging to SC/ST/OBC communities – So long no new
method is evolved or adopted, the system of reservation as prevailing may
continue to occupy the field with power to permit sub-classification of a
class particularly scheduled caste as I would not be suggesting dismantling
of an existing building without erecting a new one in its place which may
prove to be more useful. [Para 84(i)]
3. Sub-classification of Scheduled Castes is permissible in law for the
purposes of reservation. [Para 85]

Held (per Satish Chandra Sharma, J.) (Concurring): I have had the
privilege of reading the lucid and detailed opinion(s) authored by Hon’ble
Dr. Justice D.Y.Chandrachud, Chief Justice of India and Hon’ble Mr. Justice
B.R. Gavai, respectively – I am fully in agreement with both opinions to the
extent that the validity of sub-classification within Scheduled Castes has
been held to be constitutionally permissible. [Para 1]
 The State of Punjab & Ors. v. Davinder Singh & Ors. 2161

Held (per Bela M. Trivedi, J.) (Dissenting): 1. When the law was settled by
the Constitution Bench in E.V. Chinnaiah after considering all the previous
judgments including Indra Sawhney and after investing substantial judicial
time and resources, the same should not have been doubted and referred to
the larger bench by the Three-Judge Bench in Davinder Singh, and that too
without assigning any reason much less cogent reason for their disagreement
disregarding the well settled doctrines of Precedents and Stare decisis.
[Para 79(i)]
2. The Nine-Judge Bench in Indra Sawhney and the Five-Judge Bench
in Jarnail Singh had not dealt with the issue of sub-classification of the
“Scheduled Castes” in the context of Article 341, much less had dealt with
the State’s powers to sub-classify or sub-divide or regroup the castes specified
as “Scheduled Castes” under Article 341 of the Constitution, and therefore,
it could not be held that the law laid down in E.V. Chinnaiah was not in
consonance with Indra Sawhney or Jarnail Singh. [Para 79(viii)]
3. The power conferred upon the Supreme Court under Article 142 cannot
be used to supplant the substantive law applicable to the case under
consideration – Even with the width of its amplitude, Article 142 cannot be
used to build a new edifice where none existed earlier, by ignoring express
statutory provisions dealing with the subject, and thereby to achieve something
indirectly which cannot be achieved directly – The action of the State, though
well intentioned and affirmative in nature, if violates the specific provision
of the Constitution, cannot be validated by the Supreme Court in exercise
of its jurisdiction under Article 142. [Para 79(ix)]
4. The affirmative action and legal frameworks, though both do aim at more
equitable society, they must navigate complex legal principles to ensure
fairness and constitutionality. [Para 79(x)]
5. The law laid down by the Five-Judge Bench in E.V. Chinnaiah is the
correct law and deserves to be confirmed. [Para 80]

Reservation – Whether sub-classification of Scheduled Castes for

reservation was excluded or barred by the Nine Judge Bench decision
in Indra Sawhney case – Held, No.
Held (per Dr D Y Chandrachud, CJI) (for himself and Manoj Misra,
J.): In Indra Sawhney, this Court did not limit the application of sub-
classification only to the Other Backward Class – This Court upheld the
2162 SUPREME COURT REPORTS [2024] 8 S.C.R. 1321

application of the principle to beneficiary classes under Articles 15(4) and

16(4). [Para 205(b)]

Held (per B.R. Gavai, J.) (Concurring): In Indra Sawhney, 7 Learned

Judges affirmed the position as laid down in N.M. Thomas that clause (4)
of Article 16 is not by way of an exception to clause (1) of Article 16, but
it is an emphatic way of stating a principle implicit in Article 16(1) – It
has been held that further classification of backward classes into backward
and more backward classes is permissible under the Constitution – It has
been held in Indra Sawhney that under Article 16(4) the Scheduled Castes
are also included in the term ‘backward class of citizens’. [Paras 247, 248]

Held (per Pankaj Mithal, J.) (Concurring): The Chief Justice in his opinion
has clearly opined that this Court in Indra Sawhney never intended to limit the
application of sub-classification to the other backward classes only – If any
class is not integrated it can be further classified and such sub-classification
of a class would not be violative of Article 14 of the Constitution, so long
persons in a class are not similarly situated. [Para 79]

Held (per Bela M. Trivedi, J.): Though Indra Sawhney had sought to define
“backward class” in terms of social backwardness, while considering the
ambit of “backward class” for the purpose of Article 16(4), it did not deal
with the issue qua the Scheduled Castes/ Scheduled Tribes particularly in the
light of Article 341/342, rather it categorically kept the Scheduled Castes/
Scheduled Tribes outside the purview of consideration – The Scheduled
Castes being the most backward class amongst the backward classes, and
having acquired a special status by virtue of Article 341, the question of
defining “backward class” qua the “Scheduled Castes” did not arise, and
rightly not dealt with in Indra Sawhney for the purposes of Article 16(4) of
the Constitution. [Para 70]

Reservation – Whether Scheduled Castes under Article 341, constitute

a homogeneous class – Held (per majority), No – Constitution of India
– Art. 341.
Held (per Dr D Y Chandrachud, CJI) (for himself and Manoj Misra,
J.): 1. In Chinnaiah, Justice Santosh Hegde observed that the Castes notified
by the President in the exercise of power under Article 341 form a class in
themselves – For this purpose, the learned Judge relied on certain observations
 The State of Punjab & Ors. v. Davinder Singh & Ors. 2163

of the Constitution Bench in NM Thomas case – In NM Thomas however,

rules providing concessions to the members of the Scheduled Castes for
qualifying at the entrance examination were challenged – One of the issues
before the Court was whether the concession to the members of the Scheduled
Castes violated Article 16(2) since it discriminates solely on the ground of
“caste” – To overcome the embargo placed by Article 16(2), the learned
Judges observed that provision for affirmative action is made in favour of
the Scheduled Castes, which once notified by the President in exercise of the
power under Article 341 are not a “caste” but a class – The class that is
constituted by the Presidential notification as the Scheduled Castes consists
of numerous castes, thereby forming a class – The observations in NM
Thomas do not go further to state that it is a homogenous class that cannot
be classified further – Additionally, the approach adopted in NM Thomas by
this Court that the Scheduled Castes are a class because they comprise of
a collection of castes must be read in the context of the nine-Judge Bench
decision in Indra Sawhney, where this Court held that caste is itself a class
– Therefore, the inference drawn by Justice Hegde in Chinnaiah that the
Scheduled Castes are a homogenous class based on the above observations
in NM Thomas is erroneous. [Paras 113, 114]
2. Article 341(1) does not create a deeming fiction – The phrase “deemed”
is used in the provision to mean that the castes or groups notified by the
President shall be “regarded as” the Scheduled Castes – Even if it is accepted
that the deeming fiction is used for the creation of a constitutional identity,
the only logical consequence that flows from it is that castes included in the
list will receive the benefits that the Constitution provides to the Scheduled
Castes – The operation of the provision does not create an integrated
homogenous class. [Para 205(c)]
3. Sub-classification within the Scheduled Castes does not violate Article
341(2) because the castes are not per se included in or excluded from the List
– Sub-classification would violate the provision only when either preference
or exclusive benefit is provided to certain castes or groups of the Scheduled
Castes over all the seats reserved for the class. [Para 205(d)]

Held (per B.R. Gavai, J.) (Concurring): The ground realities cannot be
denied – Even among the Scheduled Castes, there are some categories who
have received more inhuman treatment for centuries and generations as
compared to the other categories – The hardships and the backwardness
2164 SUPREME COURT REPORTS [2024] 8 S.C.R. 1321

which these categories have suffered historically would differ from category to
category – Therefore, merely because they are part of a single or a combined
Presidential List, it cannot be said that they form part of a homogeneous
group. [Para 261]

Held (per Bela M. Trivedi, J.) (Dissenting): 1. While giving a broad and
generous construction to the Constitutional provisions, the rule of “plain
meaning”, or “literal” interpretation, which is the “primary rule” has to
be kept in mind. [Para 79(ii)]
2. The Presidential List specifying “Scheduled Castes” under Article 341
assumes finality on the publication of the notification, and the castes, races
or tribes, or groups within castes, races or tribes specified in the notification
are deemed to be the “Scheduled Castes” in relation to that State or Union
Territory as the case may be, for the purposes of the Constitution and as
such assume special status of “Scheduled Castes”. [Para 79(iii)]
3. It is only the Parliament by law which can include in or exclude from the
list of the “Scheduled Castes” specified in the notification notified under
Clause (1), any caste, race or tribe or part of or group within any caste,
race or tribe – Such notification notified under Clause (1) cannot be varied
even by the President by issuing any subsequent notification. [Para 79(iv)]
4. It is by virtue of the notification of the President under Article 341 that the
“Scheduled Castes” come into being – Though the members of Scheduled
Castes are drawn from different castes, races or tribes, they attain special
status of “Scheduled Castes” by virtue of Presidential Notification – The
etymological and evolutionary history and the background of the nomenclature
“Scheduled Castes”, coupled with the Presidential orders published under
Article 341 of the Constitution, make the “Scheduled Castes”, a homogenous
class, which cannot be tinkered with by the States. [Para 79(v)]

Reservation – Whether State legislature has the power of sub-classification

of Scheduled Castes under Arts. 15 and 16 – Held (per majority), Yes
– Constitution of India – Arts. 15 and 16.
Held (per Dr D Y Chandrachud, CJI) (for himself and Manoj Misra, J.):
Historical and empirical evidence demonstrates that the Scheduled Castes
are a socially heterogenous class – Thus, the State in exercise of the power
under Articles 15(4) and 16(4) can further classify the Scheduled Castes
 The State of Punjab & Ors. v. Davinder Singh & Ors. 2165

if (a) there is a rational principle for differentiation; and (b) the rational
principle has a nexus with the purpose of sub-classification. [Para 205(e)]

Held (per B.R. Gavai, J.) (Concurring):

1. It is the duty of the State to give preferential treatment to the backward
class of citizens who are not adequately represented – If the State while
discharging that duty finds that certain categories within the Scheduled Castes
and Scheduled Tribes are not adequately represented and only the people
belonging to few of the categories are enjoying the entire benefit reserved
for Scheduled Castes and Scheduled Tribes, can the State be denied its right
to give more preferential treatment for such categories? The answer would
be in the negative, since the same would not amount to tinkering with the
Presidential List. [Para 258]
2. No doubt that if the State decides to provide 100% of the reservation for
Scheduled Castes to one or more categories enlisted in the Presidential List
in that State to the exclusion of some categories, it may amount to tinkering
with that list because, in effect, it would amount to denial of benefit of
reservation to those Scheduled Caste categories which have been excluded
– That would, in effect, amount to deletion of the said categories from
the Presidential List notified under Article 341 of the Constitution, which
power is exclusively reserved with Parliament; such an exercise would not
be permissible. [Para 259]
3. However, merely because more preferential treatment is provided to the
more backward or more inadequately represented among the Scheduled
Castes, it would not amount to tinkering with the Presidential List – The
same would be permissible in view of the law laid down by the 9-Judge
Bench in the case of Indra Sawhney. [Para 260]

Held (per Bela M. Trivedi, J.) (Dissenting): 1. The States have no legislative
competence to enact the law for providing reservation or giving preferential
treatment to a particular caste/castes by dividing/sub-dividing/sub-classifying
or regrouping the castes, races or tribes enumerated as the “Scheduled
Castes” in the notification under Article 341. [Para 79(vi)]
2. Under the guise of providing reservation or under the pretext of taking
affirmative action for the weaker of the weakest sections of the society, the
State cannot vary the Presidential List, nor can tinker with Article 341 of
the Constitution. [Para 79(vii)]
2166 SUPREME COURT REPORTS [2024] 8 S.C.R. 1321

Reservation – Criteria and scope for sub-classification of Scheduled

Castes – Discussed.
Held (per Dr D Y Chandrachud, CJI) (for himself and Manoj Misra,
J.): 1. The purpose of the reservation clause is to remedy the inadequate
representation in public services of certain “classes” – The intent of Article
16(4) is to cover those classes which have been inadequately represented
because of their backwardness. [Paras 165, 166]
2. However, adequacy of representation when determined purely from a
numerical perspective without accounting for factors such as representation
vis-à-vis posts would dilute the purpose of the provision – The objective of
Article 16(4) is to ensure effective representation of the class in the services
of the State across posts and grades – The objective of the provision is not to
emulate the existing social hierarchy where the low-grade posts are occupied
by the socially backward while supervisory and managerial posts continue
to be occupied by the advanced classes – If the objective of Article 16(4)
is to be achieved in the truest sense, the inadequacy of representation must
not be determined only on the basis of the total number of members of the
backward class in the services of the State but by assessing the representation
of the class across various posts. [Paras 167, 168]
3. Since the purpose of Articles 15(4) and 16(4) is to ensure equality
of opportunity of the socially backward classes, the criterion for sub-
classification within a class (be it the Other Backward Classes or the
Scheduled Castes or Tribes) must be an indicator of social backwardness –
The yardstick for classification must differentiate the class based on inter-se
social backwardness – The inter-se backwardness could be identified based
on the same or different identity. [Para 174]
4. Since the State can use any yardstick to determine inter-se backwardness,
it is not necessary that the criteria for sub-classification and the criteria used
to distinguish the class from the other classes must be the same – How does
the State identify inter-se social backwardness within the Scheduled Castes?
The inter-se backwardness can, inter alia, be identified based on inadequacy
of effective representation – However, it must be proved that inadequacy of
effective representation of a caste is because of its social backwardness –
The State must prove that the group/caste carved out from the larger group
of Scheduled Castes is more disadvantaged and inadequately represented.
[Paras 175, 177]
 The State of Punjab & Ors. v. Davinder Singh & Ors. 2167

5. While the State may embark on an exercise of sub-classification, it

must do so on the basis of quantifiable and demonstrable data bearing on
levels of backwardness and representation in the services of the State – It
cannot merely act on its whims or as a matter of political expediency –
The decision of the State is amenable to judicial review – When its action
is challenged under Article 226 or before this Court under Article 32, the
State must provide justification and the rationale for its determination – No
State action can be manifestly arbitrary – It must be based on intelligible
differentia which underlie the sub-classification – The basis of the sub-
classification must bear a reasonable nexus to the object sought to be
achieved. [Para 190]
6. Though sub-categorization based on each caste is permissible, there can
never be a situation where seats are allocated for every caste separately
– Though each caste is a separate unit, the social backwardness suffered
by each of them is not substantially distinguishable to warrant the State to
reserve seats for each caste – If the social backwardness of two or more
classes is comparable, they must be grouped together for the purposes of
reservation. [Para 195]
7. The scope of sub-classification of the Scheduled Castes is summarized
as follows: (i) The objective of any form of affirmative action including
sub-classification is to provide substantive equality of opportunity for the
backward classes – The State can sub-classify, inter alia, based on inadequate
representation of certain castes – However, the State must establish that the
inadequacy of representation of a caste/group is because of its backwardness;
(ii) The State must collect data on the inadequacy of representation in the
“services of the State” because it is used as an indicator of backwardness;
and (iii) Article 335 of the Constitution is not a limitation on the exercise
of power under Articles 16(1) and 16(4) – Rather, it is a restatement of
the necessity of considering the claims of the Scheduled Castes and the
Scheduled Tribes in public services – Efficiency of administration must be
viewed in a manner which promotes inclusion and equality as required by
Article 16(1). [Para 205(f)]

Held (per B.R. Gavai, J.) (Concurring): 1. For sub-classification amongst

the Scheduled Castes, the State will have to justify that the group for which
more beneficial treatment is provided is inadequately represented as compared
to the other castes in the said List. [Para 296 (iii)]
2168 SUPREME COURT REPORTS [2024] 8 S.C.R. 1321

2. While doing so, the State will have to justify the same on the basis of
empirical data that a sub-class in whose favour such more beneficial treatment
is provided is not adequately represented. [Para 296 (iv)]
3. However, while providing for sub-classification, the State would not be
entitled to reserve 100% seats available for Scheduled Castes in favour of
a sub-class to the exclusion of other castes in the List. [Para 296 (v)]
4. Such a sub-classification would be permissible only if there is a reservation
for a sub-class as well as the larger class. [Para 296 (vi)]

Held (per Vikram Nath, J.) (Concurring): Any exercise involving sub-
classification by the State must be supported by empirical data. [Para 1]

Held (per Satish Chandra Sharma, J.) (Concurring): I am fully in

agreement with the opinion(s) authored by Hon’ble Dr. Justice D.Y.
Chandrachud, Chief Justice of India and Hon’ble Mr. Justice B.R. Gavai,
respectively to the extent that any exercise involving sub-classification by
the State, must be supported by empirical data that ought to underscore
the more ‘disadvantaged’ status of the sub-group to which such preferential
treatment is sought to be provided vis-à-vis the Constitutional Class as a
whole. [Para 1]

Reservation – Applicability of creamy layer principle to the Scheduled

Castes – Discussed.
Held (per B.R. Gavai, J.): 1. Taking into consideration that the Constitution
itself recognizes the Scheduled Castes and Scheduled Tribes to be the most
backward section of the society, the parameters for exclusion from affirmative
action of the person belonging to this category may not be the same that is
applicable to the other classes – If a person from such a category, by bagging
the benefit of reservation achieved a position of a peon or maybe a sweeper,
he would continue to belong to a socially, economically and educationally
backward class – At the same time, the people from this category, who after
having availed the benefits of reservation have reached the high echelons
in life cannot be considered to be socially, economically and educationally
backward so as to continue availing the benefit of affirmative action – They
have already reached a stage where on their own accord they should walk out
of the special provisions and give way to the deserving and needy. [Para 294]
 The State of Punjab & Ors. v. Davinder Singh & Ors. 2169

2. The State must evolve a policy for identifying the creamy layer even from
the Scheduled Castes and Scheduled Tribes so as exclude them from the
benefit of affirmative action – Only this and this alone can achieve the real
equality as enshrined under the Constitution. [Para 295]
3. The finding of M. Nagaraj, Jarnail Singh and Davinder Singh to the
effect that creamy layer principle is also applicable to Scheduled Castes
and Scheduled Tribes lays down the correct position of law. [Para 296 (vii)]
4. The criteria for exclusion of the creamy layer from the Scheduled Castes
and Scheduled Tribes for the purpose of affirmative action could be different
from the criteria as applicable to the Other Backward Classes. [Para 296
(viii)]

Held (per Vikram Nath, J.) (Concurring): I am in agreement with the

opinion of Brother Justice Gavai that ‘creamy layer’ principle is also
applicable to Scheduled Castes and Scheduled Tribes, and that the criteria
for exclusion of creamy layer for the purpose of affirmative action could
be different from the criteria as applicable to the Other Backward Classes.
[Para 2]

Held (per Pankaj Mithal, J.) (Concurring): 1. Justice Gavai has rightly
concluded that the State must evolve a policy of identifying the creamy layer
even from the scheduled castes and scheduled tribes so as to exclude them
from the benefit of reservation. [Para 83]
2. In the Constitutional regime, there is no caste system and the country has
moved into a casteless society except for the deeming provision under the
Constitution for the limited purposes of affording reservation to the depressed
class of persons, downtrodden or belonging to SC/ST/OBC – Therefore, any
facility or privilege for the promotion of the above categories of persons has
to be on a totally different criteria other than the caste may be on economic
or financial factors, status of living, vocation and the facilities available to
each one of them based upon their place of living (urban or rural). [Para
84(ii)]
3. The reservation, if any, has to be limited only for the first generation or
one generation and if any generation in the family has taken advantage of
the reservation and have achieved higher status, the benefit of reservation
would not be logically available to the second generation. [Para 84(iii)]
2170 SUPREME COURT REPORTS [2024] 8 S.C.R. 1321

4. Periodical exercise has to be undertaken to exclude the class of person

who after taking advantage of reservation has come to march, shoulder to
shoulder with the general category. [Para 84(iv)]

Held (per Satish Chandra Sharma, J.) (Concurring): On the question of

applicability of the ‘creamy layer principle’ to Scheduled Castes and Scheduled
Tribes, I find myself in agreement with the view expressed by Justice Gavai
i.e., for the full realisation of substantive equality inter se the Scheduled
Castes and Scheduled Tribes, the identification of the ‘creamy layer’ qua
Scheduled Castes and Scheduled Tribes ought to become a constitutional
imperative for the State. [Para 2]

Held (per Bela M. Trivedi, J.) (Dissenting): In so far as Article 15(4) and
15(5) are concerned, the use of the word “any” before the words “socially
and educationally backward classes” and the use of the word “the” before
“Scheduled Castes/Scheduled Tribes” clearly indicate that the said provisions
pertain to the “Other Backward Classes” which are socially and educationally
backward, and that the said provisions also pertain to the “Scheduled Castes”
and “Scheduled Tribes”, however the “Scheduled Castes” do not require
any further identification once they are notified under Article 341 – As
rightly held in Ashok Kumar Thakur, the “creamy layer” principle is one
of the parameters to identify backward classes – The “Scheduled Castes”
having already been specified in the Presidential List under Article 341, the
said creamy layer principle cannot be applied to the “Scheduled Castes”
for their identification as backward class. [Para 71]

Case Law Cited

In the judgment of Dr Dhananjaya Y Chandrachud, CJI

EV Chinnaiah v. State of Andhra Pradesh [2004] Supp. 5
SCR 972 : (2005) 1 SCC 394 – overruled.

State of Kerala v. NM Thomas [1976] 1 SCR 906 : (1976) 2

SCC 310; Indra Sawhney v. Union of India [1992] Supp. 2
SCR 454 : (1992) Supp. 3 SCC 217 – explained.

Triloki Nath v. State of J&K [1969] 1 SCR 103; State of UP

v. Pradip Tandon [1975] 2 SCR 761 : 1975 1 SCC 267;
The State of Punjab & Ors. v. Davinder Singh & Ors. 2171

Akhil Bhartiya Soshit Karamchari Sangh (Rly) v. Union of

India [1981] 2 SCR 185 : (1981) 1 SCC 246; State of
Punjab v. Davinder Singh [2020] 10 SCR 857: (2020) 8
SCC 1; Jarnail Singh v. Lachhmi Narain Gupta [2018] 10
SCR 663 : (2018) 10 SCC 396; Bhaiyalal v. Harikishan
Singh [1965] 2 SCR 877; State of Maharashtra v. Milind
[2000] Supp. 5 SCR 65 : (2001) 1 SCC 4; Bir Singh v.
Delhi Jal Board [2018] 10 SCR 513 : (2018) 10 SCC 312;
B. Basavalingappa v. D. Munichinnapa [1965] 1 SCR
316; Srish Kumar Chodhury v. State of Tripura [1990] 1
SCR 576 : 1990 Supp SCC 220; State of West Bengal
v. Anwar Ali Sarkar [1952] 1 SCR 284 : (1952) AIR 75;
Chiranjit Lal Chowdhury v. Union of India [1950] 1 SCR
869 : 1950 SCC 833; General Manager, Southern Railway
v. Rangachari [1962] 2 SCR 586 : AIR 1962 SC 36; CA
Rajendra v. Union of India AIR 1968 SC 507; State of
Madras v. Champakam Dorairajan [1951] 1 SCR 525;
B Venkataramana v. The State of Madras AIR 1951 SC
229; Balaji v. State of Mysore [1963] Supp. 1 SCR 439 :
AIR 1963 SC 649; Union of India v. Virpal Singh Chauhan
[1995] Supp. 4 SCR 158 : (1995) 6 SCC 684; Ajit Singh
(II) v. State of Punjab (1999) INSC 407; Ajit Singh (I) v.
State of Punjab [1996] 3 SCR 125 : (1996) 2 SCC 715; S
Vinod Kumar v. Union of India [1996] Supp. 7 SCR 142 :
(1996) 6 SCC 580; T Devadasan v. Union of India [1964]
4 SCR 680; M Nagaraj v. Union of India [2006] Supp. 7
SCR 336 : (2006) 8 SCC 212; Neil Aurelio Nunes v. Union
of India [2022] 1 SCR 970 : (2022) 4 SCC 1; BK Pavitra
(II) v. State of Karnataka [2019] 7 SCR 1086 : (2019) 16
SCC 129; Janki Prasad Parimoo v. State of J&K [1973] 3
SCR 236 : (1973) 1 SCC 420; Shri Ram Krishna Dalmia v.
Shri SR Tandolkar [1959] 1 SCR 279 : 1958 SCC OnLine
SC 6; Special Courts Bill, 1978, In re [1979] 2 SCR 476 :
(1979) 1 SCC 380; Moorthy Match Works v. CCE [1974]
3 SCR 121 : (1974) 4 SCC 428; Deepak Sibal v. Punjab
University [1989] 1 SCR 689 : (1989) 2 SCC 145; Budhan
Choudhry v. State of Bihar [1955] 1 SCR 1045; All India
2172 SUPREME COURT REPORTS [2024] 8 S.C.R. 1321

Station Masters & Assistant Station Master’s Association

v. General Manager, Central Railways [1960] 2 SCR 311 :
AIR 1960 SC 384; Mohd. Shujat Ali v. Union of India [1975]
1 SCR 449 : 1975 3 SCC 76; State of Jammu and Kashmir
v. Triloki Nath Khosa [1974] 1 SCR 771 : 1974 1 SCC
19; Roshan Lal Tandon v. Union of India [1968] 1 SCR
185; Katyani Sayal v. Union of India [1980] 3 SCR 139 :
(1980) 3 SCC 245; Col AS Iyer v. V Balasubramanyam
[1980] 1 SCR 1036 : 1980 1 SCC 634; Navtej Singh Johar
v. Union of India [2018] 7 SCR 379 : (2019) 3 SCC 345;
Consolidated Coffee Ltd v. Coffee Board, Bangalore [1980]
3 SCR 625 : 1980 3 SCC 358; Bhuwalka Steel Industries
Limited v. Union of India [2017] 2 SCR 993 : (2017) 5 SCC
598; St. Aubyn v. Attorney General 1952 AC 15; Industrial
Supplies Private Limited v. Union of India [1981] 1 SCR
375 : (1980) 4 SCC 341; K. Prabhakaran v. P. Jayarajan
[2005] 1 SCR 296 : (2005) 1 SCC 754; Bengal Immunity
Company Ltd v. State of Bihar [1955] 2 SCR 603 : (1955)
SCC OnLine SC 2; Delhi Cloth & General Mills Co. Ltd v.
State of Rajasthan [1980] 3 SCR 1109 : 1976 3 SCC 443;
Punit Rai v. Dinesh Chaudhary [2003] Supp. 2 SCR 743 :
2003 8 SCC 204; Marri Chandra Shekar Rao v. Dean, Seth
GS Medical College [1990] 2 SCR 843: (1990) 3 SCC 130;
Palghat Jilla Thandan Samudhaya Samrakshna Samithi v.
State of Kerala [1993] Supp. 3 SCR 872 : (1994) 1 SCC
359; Janki Prasad Parimoo v. State of Jammu and Kashmir
[1973] 3 SCR 236 : (1973) 1 SCC 420; RK Sabharwal
v. State of Punjab [1995] 2 SCR 35 : (1995) 2 SCC 745;
Triloki Nath v. State of Jammu and Kashmir (I) [1967] 2
SCR 265; Chitralekha v. State of Mysore. AIR 1964 SC
1823; P Rajendran v. State of Madras [1968] 2 SCR 786;
Barium Chemicals v. Company Law Board (1992) Supp. 3
SCC 217 – referred to.

East End Dwelling Co. Ltd. v. Finsbury Borough Council

LR 1952 AC 109 – referred to.
 The State of Punjab & Ors. v. Davinder Singh & Ors. 2173

In the judgment of B.R. Gavai, J.

E.V. Chinnaiah v. State of Andhra Pradesh and Ors. [2004]
Supp. 5 SCR 972 : (2005) 1 SCC 394; – held, not good
law.

State of Kerala and another v. N.M. Thomas and others

[1976] 1 SCR 906 : (1976) 2 SCC 310; Indra Sawhney and
others v. Union of India and others [1992] Supp. 2 SCR
454 : (1992) Supp 3 SCC 217 – explained.

M. Nagaraj and others v. Union of India and others [2006]

Supp. 7 SCR 336 : (2006) 8 SCC 212; The State of Punjab
& Ors. v. Davinder Singh & Ors. [2020] 10 SCR 857 :
(2020) 8 SCC 1; Jarnail Singh and others v. Lachhmi
Narain Gupta and others [2018] 10 SCR 663 : (2018) 10
SCC 396 – affirmed.

The State of Punjab & Ors. v. Davinder Singh & Ors.

(2020) 8 SCC 65; State of Madras v. Smt. Champakam
Dorairajan [1951] 1 SCR 525; M.R. Balaji and others
v. State of Mysore [1963] Supp. 1 SCR 439 : 1962 SCC
OnLine 147; State of Gujarat v. Shri Ambica Mills Ltd.,
Ahmedabad [1974] 3 SCR 760 : (1974) 4 SCC 656; His
Holiness Kesavananda Bharati Sripadagalavaru v. State
of Kerala [1973] Supp. 1 SCR 1 : (1973) 4 SCC 225; T.
Devadasan v. Union of India [1964] 4 SCR 680 : AIR 1964
SC 55; Akhil Bharatiya Soshit Karamchari Sangh (Railway)
represented by its Assistant General Secretary on behalf of
the Association v. Union of India and others [1981] 2 SCR
185 : (1981) 1 SCC 246; K.C. Vasanth Kumar and another
v. State of Karnataka [1985] Supp. 1 SCR 352 : 1985 Supp
SCC 714; Marri Chandra Shekhar Rao v. Dean, Seth G.S.
Medical College and others [1990] 2 SCR 843 : (1990) 3
SCC 130 – referred to.
2174 SUPREME COURT REPORTS [2024] 8 S.C.R. 1321

In the judgment of Pankaj Mithal, J.

E.V. Chinnaiah v. State of Andhra Pradesh and Ors. [2004]

Supp. 5 SCR 972 : (2005) 1 SCC 394; Indra Sawhney and
Ors. v. Union of India and Ors. [1992] Supp. 2 SCR 454 :
(1992) Supp. 3 SCC 217; State of Madras v. Champakam
Dorairajan [1951] 1 SCR 525 : AIR (1951) SC 226; B.
Venkataramana v. State of Madras and Ors. AIR (1951) SC
229; S. Vinod Kumar and Anr. v. Union of India and Ors.
[1996] Supp. 7 SCR 142 : (1996) 6 SCC 580; Union of
India v. Virpal Singh Chauhan [1995] Supp. 4 SCR 158 :
(1995) 6 SCC 684; Ajit Singh Januja v. State of Punjab
[1996] 3 SCR 125 : (1996) 2 SCC 715; Ajit Singh (II) v.
State of Punjab (1999) INSC 546; Ashoka Kumar Thakur
v. State of Bihar [1995] Supp. 3 SCR 269 : (1995) 5 SCC
403; Indra Sawhney (II) v. Union of India [1999] Supp.
5 SCR 229 : (2000) 1 SCC 168; M. Nagaraj v. Union of
India [2006] Supp. 7 SCR 336 : (2006) 8 SCC 212; TMA
Pai Foundation v. State of Karnataka [2002] Supp. 3 SCR
587 : (2002) 8 SCC 481; Islamic Academia Education v.
State of Karnataka [2003] Supp. 2 SCR 474 : (2003) 6
SCC 697; P.A. Inamdar v. State of Maharashtra [2005]
Supp. 2 SCR 603 : (2005) 6 SCC 537; Ashok Pramati
Educational & Cultural Trust v. Union of India [2014] 11
SCR 712 : (2014) 8 SCC 1; Ram Singh v. Union of India
[2015] 5 SCR 670 : (2015) 4 SCC 697; Janhit Abhiyan
v. Union of India (EWS Reservation) [2022] 14 SCR 1 :
(2023) 5 SCC 1; M.R Balaji v. State of Mysore [1963] Supp.
1 SCR 439 : AIR 1963 SC 649; K C Vasantha Kumar &
Anr. v. State of Karnataka (1985) SCC Suppl. 714; State of
Kerala v. N M Thomas [1976] 1 SCR 906 : (1976) 2 SCC
310; Akhil Bharatiya Soshit Karamchari Sangh v. Union
of India & Ors. [1981] 2 SCR 185 : (1981) 1 SCC 246;
Jaishri Laxmanrao Patil v. State of Maharashtra (2021)
8 SCC 1 – referred to.
 The State of Punjab & Ors. v. Davinder Singh & Ors. 2175

In the judgment of Bela M. Trivedi, J.

Pradip Chandra Parija and Others v. Pramod Chandra
Patnaik and Others [2001] Supp. 5 SCR 460 : 2002
(1) SCC 1; Maganlal ChhaganLal (P) Ltd. v. Municipal
Corporation of Greater Bombay & Others [1975] 1 SCR
1 : (1974) 2 SCC 402; Lt. Col. Khajoor Singh v. Union
of India & Another [1961] 2 SCR 828 : AIR 1961 SC
532; Keshav Mills Co. Ltd. v. Commissioner of Income Tax,
Bombay North, Ahmedabad [1965] 2 SCR 908 : AIR 1965
SC 1636; Dr. Shah Faesal and Others v. Union of India
and Another [2020] 3 SCR 1115 : (2020) 4 SCC 1; GVK
Industries Limited and Another v. Income Tax Officer and
Another [2011] 3 SCR 366 : (2011) 4 SCC 36; Dr. JaiShri
Laxman Rao Patil v. Chief Minister and Others [2021]
15 SCR 715 : (2021) 8 SCC 1; B. Basavalingappa v. D.
Munichinnappa & others [1965] 1 SCR 316 : AIR (1965)
SC 1269; Bhaiya Lal v. Harikishan Singh [1965] 2 SCR
877 : AIR (1965) SC 1557; State of Maharashtra vs. Milind
and Others [2000] Supp. 5 SCR 65 : (2001) 1 SCC 4; Bir
Singh v. Delhi Jal Board and Others [2018] 10 SCR 513 :
(2018) 10 SCC 312; State of Kerala & Anr. v. N.M. Thomas
& Ors. [1976] 1 SCR 906 : (1976) 2 SCC 310; Ashok
Kumar Thakur v. Union of India and Others [2007] 7 SCR
63 : (2008) 6 SCC 1; and Supreme Court Bar Association
v. Union of India and Another [1998] 2 SCR 795 : (1998) 4
SCC 409 – followed.

State of Haryana vs. Ranbir alias Rana [2006] 3 SCR 864 :

(2006) 5 SCC 167; ADM Jabalpur vs. Shivakant Shukla
(1976) 8 SCC 521; and Bharat Coking Coal Ltd. v. State of
Bihar and Others [1990] 3 SCR 744 : (1990) 4 SCC 557–
relied on.

E.V. Chinnaiah v. State of Andhra Pradesh and Others

[2004] Supp. 5 SCR 972 : (2005) 1 SCC 394 – affirmed.
2176 SUPREME COURT REPORTS [2024] 8 S.C.R. 1321

Indra Sawhney v. Union of India and Others [1992] Supp.

2 SCR 454 : (1992) Suppl. 3 SCC 217; and Jarnail Singh
v. Lachhmi Narain Gupta [2018] 10 SCR 663 : (2018) 10
SCC 396 – distinguished.

K.C. Gajapati Narayan Deo v. State of Orissa [1954] 1 SCR

1 : (1953) 2 SCC 178; M. Nagaraj and Others v. Union of
India and Others [2006] Supp. 7 SCR 336 : (2006) 8 SCC
212; State of Punjab and Others v. Davinder Singh and
Others (2020) 8 SCC 65; State of Punjab and Others v.
Davinder Singh and Others [2020] 10 SCR 857 : (2020) 8
SCC 1 – referred to.

Northern Securities Company v. The United States (1903)

193 U.S. 197 (1903) – referred to.

Books and Periodicals Cited

In the judgment of Dr Dhananjaya Y Chandrachud, CJI

3rd meeting of the National Commission for Scheduled
Castes held on 13.12.2010 under the Chairmanship of Dr
PL Punia; Ashwini Deshpande, Double Jeopardy? Stigma
of Identity and Affirmative Action, The Review of Black
Political Economy 2019, Vol. 46(I) 38-64; Marc Galanter,
Competing Equalities: Law and the Backward Classes in
India, [Oxford University Press (1984)] 130; Report of
the Indian Franchise Committee (1932) Vol I, 112; Hutton
Census Report (1931) 471; Minute of dissent by Mr SB
Rambe, Mr CY Chintamani, Mr RR Bakhale, Report of
the Franchise Committee, 231; Dr Ambedkar, Note on the
Depressed Classes, Report of the Franchise Committee,
211; AM Shah, The ‘Dalit” category and its Differentiation;
AM Shah, Untouchability, the Untouchables and Social
Change in Gujarat in Dimensions of Social Life, Essays in
Honor of David G Mandelbaum (edited by Paul Hockings);
Robert F Kennedy, Center for Justice and Human Rights,
Understanding Untouchability: A comprehensive Study
of Practices and Conditions in 1589 Villages, 22-33;
 The State of Punjab & Ors. v. Davinder Singh & Ors. 2177

Ravinchandran Bathran, The many omissions of a concept:

Discrimination amongst Scheduled Castes, Economic &
Political Weekly, (Vol L1 No. 47, November 19, 2016) 1342-
1346; Uma Ramaswamy, Protection and Inequality among
Backward Groups, Economic & Political Weekly (Vol. 21
No. 9, 9 March 1986); B Shiva Rao, The Framing of India’s
Constitution: Select Documents [Vol II, The Indian Institute
of Public Administration] 221; Justice Usha Mishra
Report on National Commission to Examine Issue of Sub-
Categorisation [327] – referred to.

In the judgment of B.R. Gavai, J.

Abhinav Chandrachud, These Seats are Reserved: Caste,
Quotas and the Constitution of India (Viking by Penguin
Random House India 2023); B.R. Ambedkar, ‘Evidence
before the Southborough Committee on Franchise’ in Dr.
Babasaheb Ambedkar: Writings and Speeches, ed. Vasant
Moon, Ministry of Social Justice and Empowerment 2019,
Vol.I, p. 255; Anurag Bhaskar, The Foresighted Ambedkar:
Ideas that shaped Indian constitutional Discourse (Viking
by Penguin Random House 2024); Narendra Jadhav,
Ambedkar: Awakening India’s Social Conscience. (Konark
Publishers Pvt. Ltd. 2014) – referred to.

In the judgment of Bela M. Trivedi, J.

Bernard Schwartz, A Book of Legal Lists: The Best and
Worst in American Law P.283 and Benjamin Cardozo, The
Nature of Judicial Process, (New Haven: Yale University
Press, 13th Edition 1946) 141 – referred to.

In the judgment of Pankaj Mithal, J.

Nani Palkiwala, We, The Nation: The Lost Decades 179
(Mehta Publishing House 1995) and Skanda Purana
Vol.18 Book VI, Nagar Kanda, Chapter 239, Verse 31-34
– referred to.
2178 SUPREME COURT REPORTS [2024] 8 S.C.R. 1321

List of Acts
Constitution of India; Punjab Scheduled Castes and
Backward Classes (Reservation in Services) Act 2006;
Tamil Nadu Arunthathiyars (Special Reservation of seats
in educational institutions including private educational
Institutions and of appointments or posts in services under
State within the Reservation for the Scheduled Castes) Act
2009; Andhra Pradesh Scheduled Castes (Rationalisation
of Reservations) Act 2000; Constitution (One Hundred and
Second Amendment) Act, 2018; Constitution (Seventy-
seventh Amendment) Act 1995; Constitution (Eighty-
first) Amendment Act 2000; Constitution (Eighty-second)
Amendment Act 2000; Constitution (One Hundred and
Fifth) Amendment Act, 2021; First Amendment to the
Constitution.

List of Keywords
Articles 14, 15, 16 and 341 of Constitution; Reservation;
Scheduled Castes; Sub-classification; Affirmative action;
Homogenous or heterogenous grouping; Operation of
deeming fiction; Limits on scope of sub-classification;
Intelligible differentia; Beneficial treatment; Doctrine
of Precedent; Stare decisis; Substantive law; Backward
class; Integrated homogenous class; Presidential List;
Historical and empirical evidence; Socially heterogenous
class; Rational principle for differentiation; Preferential
treatment; Inadequate representation; Criteria and scope
for sub-classification; Inter-se backwardness; Judicial
review; Reasonable nexus; Sub-categorization based
on caste; Social backwardness; Empirical data; more
‘disadvantaged’ status; Creamy layer principle.
 [2024] 11 S.C.R. 1647 : 2024 INSC 856

Aligarh Muslim University

v.
Naresh Agarwal & Ors.
(Civil Appeal No. 2286 of 2006)

08 November 2024

[Dr Dhananjaya Y Chandrachud,* CJI, Sanjiv Khanna,

Surya Kant,* J.B. Pardiwala, Dipankar Datta,*
Manoj Misra and Satish Chandra Sharma, JJ.]

Issue for Consideration

The issues were: 1) ingredients, indicia or criteria for an educational
institution to be considered a minority educational institution under Article
30 of the Constitution; 2) whether Aligarh Muslim University (AMU) is a
minority educational institution; 3) whether the Constitution Bench decision
in Azeez Basha was incorrect, and 4) Whether two-Judge Bench of Supreme
Court in Anjuman-e-Rahmaniya erred in referring the correctness of the
decision rendered in Azeez Basha directly to a Bench of seven Judges.

Headnotes
A1. Educational Institution – No distinction between educational
institutions established before and after commencement of the
Constitution for purposes of Art. 30(1) – Right guaranteed by Article
30(1) is applicable to universities established before commencement
of the Constitution – Constitution of India – Art.30.
A2. Educational Institution – Minority institution – Indicia for
‘establishment’ of a minority educational institution – Meaning
of word ‘establish’ as used in Art.30(1) – Effect of incorporation
on minority character of an institution – Distinction between
‘incorporation’ and ‘establishment’ – Constitution of India – Art.30.
A3. Educational Institution – Minority institution – Declaration of an
institution as one of national importance does not amount to change
in minority character of the institution.

2179
2180 SUPREME COURT REPORTS [2024] 11 S.C.R. 1647

A4. Educational Institution – Minority educational institution – Whether

Aligarh Muslim University (AMU) is a minority educational
institution.
A5. Constitution of India – Art.30 – Scope of – Purpose of Art.30(1) –
Special protection guaranteed by Art.30(1).
A6. Constitution of India – Art.30 – Article 30(1) can be classified as
both an anti-discrimination provision and a special rights provision.
A7. Words and Phrases – ‘establishment’ and ‘incorporation’
of educational institutions – The words ‘incorporation’ and
‘establishment’ cannot be used interchangeably.

Held [per Dr D Y Chandrachud, CJI (for himself, Sanjiv Khanna,

J.B. Pardiwala and Manoj Misra, JJ.)]:
1.1. A distinction between educational institutions established before and
after the commencement of the Constitution cannot be made for the
purposes of Article 30(1) – Article 30 will stand diluted and weakened
if it is to only apply prospectively to institutions established after the
commencement of the Constitution – The adoption of the Constitution
reflects a break from the system of sovereign and potentate government
under the colonial regime and the dawn of governance based on the
rule of law – It secures to the minority educational institutions, rights
under the Constitution from the date of its commencement. [Para 83]
1.2. Upon the commencement of the Constitution, citizens received the
protective cover of Part III – Article 372 read with Article 13(1)
stipulates that laws which pre-date the Constitution are unconstitutional
if they contravene the fundamental rights – The provisions do not
stipulate that laws which pre-date the Constitution cannot receive the
additional protection which the fundamental rights offer – The right to
administration in Article 30(1) is one such protection. [Para 84]
2.1. ‘Incorporation’ signifies the legal existence of the institution. In
contrast, ‘establishment’ signifies the founding or bringing into
existence of the institution – The possibility of distinguishing the
establishment and incorporation of universities arose with the advent
of teaching Universities – Two kinds of institutions were incorporated
as teaching universities – They consisted of institutions which were
established and incorporated at the same time, and institutions in
 Aligarh Muslim University v. Naresh Agarwal & Ors. 2181

which the establishment of the institution predated its incorporation

– Universities in the latter category, however, were teaching colleges
converted into teaching universities – The instance of conversion of
teaching collages to teaching universities elucidates the distinction
between the ‘establishment’ and ‘incorporation’ of educational
institutions. [Para 94]
2.2. The word ‘establish’ as used in Article 30(1) cannot and should not
be understood in a narrow and legalistic sense – The words used in
clause (1) of Article 30 have to be interpreted in view of the object and
purpose of the article, and the guarantee and protection it confers – The
guarantee and protection are not dependent on the basis or the manner in
which the legal requirements were/are complied with, rather it concerns
the persons who have founded and created the establishment – The
incorporation by a statute or the procedure and requirements in law are
not determinative factors – The persons behind it, that is, the promoters
and founder(s) are important – They should belong to a linguistic or
a religious minority – There will always be individuals and groups
instrumental in catalysing and setting up the institution – Thus, giving
a legal character to an educational institution through state or sovereign
action, it does not ipso facto follow that the university so established
deprives the group of persons/individuals the guarantee under
clause (1) of Article 30 of the Constitution – Universities are as much
educational institutions as schools and colleges – The interpretation
in Azeez Basha confers a legalistic meaning to the word ‘established’,
sans the context of clause (1) of Article 30 – No distinction exists
between universities and other educational institutions such as schools
and colleges for the purpose of Article 30(1). [Para 95]
2.3. It cannot be argued that a university was established by Parliament
merely because the long title and preamble of the statute incorporating
the university states that it is an Act to establish and incorporate – If
such a formalistic interpretation is adopted, fundamental rights would
be made subservient to legislative language – The courts must identify
the circumstances surrounding the incorporation of the University
(including through a reading of the statute) to identify who established
the university – Formalism must give way to actuality and to what is
real. [Para 112]
2.4. The argument that the test of whether an educational institution is a
minority institution must be examined based on whether the community
2182 SUPREME COURT REPORTS [2024] 11 S.C.R. 1647

or the group which had established the institution was a minority at

the time of its establishment in pre-independent India, is rejected –
The purpose of the provision is to ensure that the minorities are able
to preserve and promote their linguistic and religious culture – For
this purpose, the status of the group/community, that had established
the institution, on the date of commencement of the Constitution
should be considered – The test of establishment will apply to future
situations on the day when new educational institutions are established
– The protection under clause (1) of Article 30 cannot be denied to
institutions established before the commencement of the Constitution
for the reason that at the time of establishment in pre-independent
India, the founders were not aware that they would receive protection
of Article 30(1). [Para 122]
2.5. ‘establishment’ or formation of an institution can be at any point of
time and even before the commencement of the Constitution – If
an institution was established before the commencement of the
Constitution, the enquiry on the question of ‘establishment’ must relate
back to the date when the institution was established or formed to
ascertain whether it would qualify as a minority institution upon the
commencement of the Constitution. [Para 134]
3.1. To determine who established the institution, the Courts must consider
the genesis of the educational institution – For this analysis, the Courts
must trace the origin of the idea for the establishment of the institution
– The Court must identify who was the brain behind the establishment
of the educational institution – Letters, correspondence with other
members of the community or with government/State officials and
resolutions issued could be valid proof for establishing ideation or
the impetus to found and establish – The proof of ideation must point
towards one member of the minority or a group from the community.
[Para 135]
3.2. The second indicia is the purpose for which the educational institution
was established – Though it is not necessary that the educational
institution must have been established only for the benefit of a religious
or linguistic minority community, it must predominantly be for its
benefit – It is not necessary that education must be provided in the
language spoken by the minority or on the religion of the minority – For
example, it is not necessary that an educational institution established
for the Tamils in Uttar Pradesh must necessarily prescribe Tamil as the
 Aligarh Muslim University v. Naresh Agarwal & Ors. 2183

language of instruction – However, it must be proved that the institution

was established for the benefit of the tamil-speaking community – This
indicia could be proved by a reference to private communication or
speeches about the necessity of establishing an educational institution
for the community and a recognition of the educational difficulties
faced by the community. [Para 136]
3.3. The third test is tracing the steps taken towards the implementation of
the idea – Information on who contributed the funds for its creation,
who was responsible for obtaining the land, and whether the land was
donated by a member of the minority community or purchased from
funds raised by the minority community for this purpose or donated by
a person from some other community specifically for the establishment
of a minority educational institution are elements that must be
considered – Similar questions must be asked of its other assets – Other
important questions are: who took the steps necessary for establishing
the institution (such as obtaining the relevant permissions, constructing
the buildings, and arranging other infrastructure). It is also important
to note that the state may grant some land or other monetary aid during
or after the establishment of the educational institution – If the land
or monies were granted after the establishment, the grant would not
have the effect of changing the minority character of the institution –
Minority institutions are not barred from receiving aid save at the cost
of their minority status – If the land or monies are granted at the time of
establishment, the circumstances surrounding the establishment must
be considered as a whole to determine who established the institution
– The presence of a grant must not be automatically interpreted as
leading to the erasure of a claim to minority status. [Para 137]
3.4. An educational institution is a minority educational institution if it is
established by a religious or linguistic minority – It is not necessary
to prove that administration vests with the minority to prove that it is
a minority educational institution because the very purpose of Article
30(1) is to grant special rights on administration as a consequence
of establishment – To do otherwise, would amount to converting the
consequence to a pre-condition – The right to administer is guaranteed
to minority educational institutions to enable them to possess
sufficient autonomy to model the educational institution according to
the educational values that the community wishes to emphasise – It
is not necessary that the purpose can only be implemented if persons
2184 SUPREME COURT REPORTS [2024] 11 S.C.R. 1647

belonging to the community helm the administrative affairs – This is

so particularly because a minority institution may wish to emphasise
secular education. [Para 138]
3.5. The test to be adopted by the Court is whether the administrative set
up of the educational institution affirms the minority character of the
institution – If the administrative structure of the educational institution
does not reflect its minority character or when it does not elucidate that
the educational institution was established to protect and promote the
interests of the minority, it may be reasonably inferred that the purpose
was not to establish an educational institution for the benefit of the
minority community – [Para 139]
3.6. The test of administration should be evaluated in praesenti, that is, on
the date of the commencement of the Constitution – An institution to be
a minority institution must satisfy the criteria of being ‘administered’ as
a minority institution on the date of commencement of the Constitution,
and being a minority institution on the date of formation – Even if an
educational institution was established by the minority for the purposes
of the community, one must assess the impact of any subsequent events
that altered the character of the institution before the commencement
of the Constitution – The statutory incorporation of the institution
does not ipso facto amount to a surrender of the minority character
of the institution – The Court must pierce the veil to identify if the
University was established by a minority for the purpose of promoting
the interest of the community – The Court may on a holistic reading
of the statutory provisions relating to the administrative set-up of the
educational institution deduce if the minority character or the purpose
of establishment was relinquished upon incorporation – The question is
whether the regulatory measures wrest the administrative control from
the founders of the institution – This is a question of fact which must
be determined on the facts of each case – The Court must make that
determination upon a comprehensive analysis of the administrative
framework which includes host of factors such as the representation of
the interests of the community in the administrative set-up. [Para 140]
3.7. Taken together, these are the main indicia which assist the Court in
determining who established an educational institution under Article
30 – However, the complex nature of establishing an educational
institution is not lost on us – Undoubtedly, there can be no straitjacket
formula which may be applied – The above indicia of establishment
 Aligarh Muslim University v. Naresh Agarwal & Ors. 2185

must be considered as a whole, along with any relevant facts which are
available to the Court – The matter must be considered in totality and
competing factors must be weighed against each other depending on
the facts and circumstances of each institution. [Para 141]
3.8. The above indicia must be proved through the submission of cogent
material – Reliance must be placed on primary sources such as
office documents, letters and resolutions or memorandums issued to
implement the resolutions – Secondary sources must only be used to
corroborate the primary sources – The onus to prove that the educational
institution was established by a minority is on the claimants. [Para 142]
4. The declaration of an institution as one of national importance does
not amount to a change in the minority character of the institution –
This is for multiple reasons – First, Entries in the Lists in the Seventh
Schedule delineate the legislative competence of Parliament and of
the legislatures of the States – The State may regulate various aspects
of education and educational institutions – The field of legislative
competence over universities does not amount to a surrender of
minority character – The distribution of legislative competence between
Parliament and the State legislatures does not bear upon the minority
character of the institution – Second, as a matter of principle, nothing
prevents a minority educational institution from being an institution
of national importance – The qualities denoted by the terms ‘national’
and ‘minority’ are not at odds with each other nor are they mutually
exclusive – The former indicates that the institution has a pan-India
or national character, as opposed to relatively more local or regional
institutions – It is indicative of the importance of the institution on
the national stage – The latter is evidence of the religious or linguistic
background of the founders and the constitutional rights which vest in
them – Each term indicates distinct attributes which are not antithetical
to one another – A university may well be both national and ergo, of
national importance, as well as minority in character – There is no reason
why a minority educational institution cannot also be an institution
of national importance – Third, Entries 63 and 64 provide Parliament
with the power to declare an institution to be of national importance
– An interpretation that an institution of national importance cannot
be a minority institution would amount to rendering the fundamental
right guaranteed by Article 30(1) subservient to the legislative power of
Parliament – Parliament can in terms of Entries 63 and 64 declare any
institution to be of national importance. [Para 148]
2186 SUPREME COURT REPORTS [2024] 11 S.C.R. 1647

5. Article 30(1) can be classified as both an anti-discrimination provision

and a special rights provision – A legislation or an executive action
which discriminates against religious or linguistic minorities in
establishing or administering educational institutions is ultra vires
Article 30(1) – This is the anti-discrimination reading of the provision
– Additionally, a linguistic or religious minority which has established
an educational institution receives the guarantee of greater autonomy
in administration – This is the ‘special rights’ reading of the provision.
[Para 160(b)]
6. Religious or linguistic minorities must prove that they established the
educational institution for the community to be a minority educational
institution for the purposes of Article 30(1). [Para 160(c)]
7. The right guaranteed by Article 30(1) is applicable to universities
established before the commencement of the Constitution. [Para
160(d)]
8.  The right under Article 30(1) is guaranteed to minorities
as defined upon the commencement of the Constitution –
A different right-bearing group cannot be identified for institutions
established before the adoption of the Constitution. [Para 160(e)]
9. The incorporation of the University would not ipso facto lead to
surrendering of the minority character of the institution – The
circumstances surrounding the conversion of a teaching college to a
teaching university must be viewed to identify if the minority character
of the institution was surrendered upon the conversion – The Court
may on a holistic reading of the statutory provisions relating to the
administrative set-up of the educational institution deduce if the
minority character or the purpose of establishment was relinquished
upon incorporation. [Para 160(f)]
10. The following are the factors which must be used to determine if a
minority ‘established’ an educational institution:
i.  The indicia of ideation, purpose and implementation must
be satisfied – First, the idea for establishing an educational
institution must have stemmed from a person or group belonging
to the minority community; second, the educational institution
must be established predominantly for the benefit of the minority
community; and third, steps for the implementation of the
idea must have been taken by the member(s) of the minority
community; and
 Aligarh Muslim University v. Naresh Agarwal & Ors. 2187

ii. The administrative-set up of the educational institution must

elucidate and affirm (I) the minority character of the educational
institution; and (II) that it was established to protect and promote
the interests of the minority community. [Para 160(g)]
11. The question of whether AMU is a minority educational institution
must be decided based on the principles laid down in this judgment
– The papers of this batch of cases shall be placed before the regular
bench for deciding whether AMU is a minority educational institution.
[Para 161]
Held [per Surya Kant, J.]:
1. The minority institutions established in the pre-Constitution era are
also entitled to the protection conferred by Article 30. [Para 192(g)]
2. Educational institutions, with reference to Article 30 include universities
as well. [Para 192(h)]
3. In order to seek protection under Article 30 of our Constitution, the
minority institution must satisfy the conjunctive test, namely that it
was established by a minority community and has been/is being
administered by such a community. [Para 192(i)]
4. The true import and meaning of the expressions ‘establish’ and
‘administer’, which comprise the very core of Article 30, are to be
construed and understood strictly in accordance with the indicia in
paragraphs 141 and 181. [Para 192(j)]
5. The question pertaining to whether AMU satisfies the abovementioned
test of ‘establish’ and ‘administer’ so as to seek protection of Article
30 of the Constitution, and which will concomitantly entail a mixed
question of facts and law, will be determined by a Regular Bench.
[Para 192(k)]
Held [per Dipankar Dutta, J.]:
1. While the majority opinion seems to have identified establishment as
the sole indicium, Hon’ble Surya Kant and Hon’ble Satish Chandra
Sharma, JJ – have laid equal stress on administration apart from
establishment as the indicia – Inasmuch as the broad criteria which can
be used to assess the status of an educational institution is concerned,
I express my agreement with the indicia laid out by Their Lordships.
[Para 54]
2. Certain broad indicia, which are universally applicable, may be applied
prospectively to facilitate identification of minority institutions –
2188 SUPREME COURT REPORTS [2024] 11 S.C.R. 1647

However, any indicium or the indicia, as identified or formulated, for

treating an institution as a minority institution may not be exhaustive
so as to cater to all situations – Previous decisions of this Court have
also determined the minority character of educational institutions vis-
à-vis Article 30, as per indicia tailored to the specific factual matrices
– It could be well-nigh difficult, if not impossible, to fix indicia
without regard to a whole lot of relevant facts and circumstances,
which might have escaped notice or may not have been visualized – A
flexible framework rather than a rigid one-size-fits-all model is always
desirable and essential for accurately assessing minority institution
status – Having regard to special features that each minority institution
is most likely to have, a nuanced approach would be required to
identify minority institutions by balancing the general guidelines with
unique institutional circumstances – The indicia, which have been
proposed, could partly inform classification of minority institutions but
a tailored evaluation is all the more necessary to account for distinct
characteristics which each such institution is associated with; more so,
when AMU is unique in itself and its status is under consideration as a
standalone institution. [Para 57]
3. It is no longer res integra that even institutions established prior to the
Constitution would be eligible to seek the protection of Article 30(1),
as was expressed by this Court in Re: The Kerala Education Bill, 1957.
[Para 67]
4. The claim of the appellants cannot stand – AMU was neither established
by any religious community, nor is it administered by a religious
community which is regarded as a minority community; hence, AMU
does not qualify as a minority institution – Protection under Article
30(1) of the Constitution is, thus, not available – This submission of
the appellants has no historic, legal, factual, or logical basis. [Para 149]
5. In terms of clause (5) of Article 145 of the Constitution, not only do the
references not require an answer, it is also declared that AMU is not a
minority educational institution and that the appeals seeking minority
status for it should fail. [Para 150]
Held [per Satish Chandra Sharma, J.]:
1. The ‘establishment’ of an institution by the minority is necessary for the
said minority to claim right of administration under Article 30 – The
words ‘establish’ and ‘administer’ are used conjunctively in Article 30 of
the Constitution. [Para 266]
 Aligarh Muslim University v. Naresh Agarwal & Ors. 2189

2. The term ‘establish’ in Article 30 means ‘to bring into existence or to

create’ and cannot be conflated with generic phrases such as ‘genesis of
the institution’ or the ‘founding moment of the institution’. [Para 266]
3. The real positive indicia for determining the question of establishment
of an institution would have to be developed on a case to case basis with
the following broad parameters in mind:
 Firstly, to claim ‘establishment’, the minority community must
actually and tangibly bring the entirety of the institution into existence
– The role played by the minority community must be predominant, in
fact almost complete to the point of exclusion of all other forces – The
indicia which may be illustrative and exhaustive in this regard may
be the nature of the institution, the legal/statutory basis required for
establishing the institution, whether the establishment required any
‘negotiation’ with outside forces, the role in acquiring lands, obtaining
funds, constructing buildings, and other related matters must have
been held completely by the minority community – Similarly, while
teachers, curriculum, medium of instruction, etc. can be on secular
lines, however, the decision-making authority regarding hiring
teachers, curriculum decisions, medium of instruction, admission
criteria, and similar matters must be the minority community – The
choice of having secular education in the institution must be made
expressly by the minority community, demonstrating the link between
institution and the persons claiming to establish it.
Secondly, the purpose of the institution must have been to predominantly
serve the interests of the minority community or the sole betterment
of the minority community, irrespective of the form of education
provided and the mode of admission adopted – Therefore, as per the
choice of the minority community, an institution may have secular
education, but such secular education and the resultant institution,
must be predominantly meant for the overall betterment of the minority
community.
 Thirdly, the institution must be predominantly administered as a
minority institution with the actual functional, executive and policy
administration vested with the minority – The minority community
should determine the selection, removal criteria, and procedures
for hiring teaching, administrative staff, and other personnel – The
authority to hire and fire staff must be from the minority community
2190 SUPREME COURT REPORTS [2024] 11 S.C.R. 1647

– Further, even if teaching or administrative staff may include non-

minority persons, the final authority exercising functional, directional,
and policy control over these authorities must be from the minority
community – This ensures that the thoughts, beliefs, and ideas of
the minority community regarding administration are implemented
in reality – This represents the real decision-making authority of the
institution being of the minority community – In ascertaining the
above, it would be open for the Court to look at the true purpose behind
each of the above factors and to pierce the veil. [Para 266]
4. The minority community may conceptualize the idea of an institution
and may advocate for the same, however, if during exchange or
negotiation, the actual institution which was established had primacy
of governmental efforts and control, then such institution cannot be
held to be predominantly established by the efforts and actions of the
minority community. [Para 266]
5. In the pre-independence and pre-UGC era, in the absence of a provision
like Section 23 of the UGC Act, 1956, it was open for any institutions
to adopt the titles such as ‘university’ or in some cases ‘vidyapeeth’ or
‘jamia’ asserting their capability to grant degrees – The absence of a
legislative embargo from private establishment of Universities prior to
1956 would be critical for the scope of enquiry. [Para 266]
6. The use of the phrase ‘establish and incorporate’ by the Legislature
may be relevant in the larger enquiry but cannot be said to be
conclusively determinative of the factum of establishment or not by the
minority community – If the intention of the Legislature is to establish
or incorporate or recognise a minority University, the Legislatures
have incorporated suitable provisions to colour the University with a
minority identity. [Para 266]
7. There were no rights, fundamental or otherwise, prior to the Constitution
coming into force and therefore, there is no question of surrendering any
right – The British Indian Government was a supreme Imperial power
in the country, and the question of surrender is illusionary and does not
arise in the present case – The coming into force of the Constitution
and fundamental right after 1950, cannot alter the events that occurred
during the decade of 1910-1920 which led to the establishment of the
AMU. [Para 266]
8. There is no legal requirement for the AMU ‘Court’ to be manned by the
people from the minority community ever since 1951 and therefore,
 Aligarh Muslim University v. Naresh Agarwal & Ors. 2191

merely because de facto the persons from the minority community

may have manned the posts in the institution, would not be relevant to
adjudicate the question. [Para 266]
9. The assertion that ‘neutral’ institutions or non-minority institutions
would in the natural course of things be ‘majoritarian’ or that Article
30 contemplates constitutionally protecting certain educational spaces
from such ‘majoritarianism-by-default’ tendencies, is wholly erroneous
– The purpose of Article 30 is not to create ‘minority only’ ghettos
rather provide positive rights to the minorities to establish educational
institutions of their choice and kind. [Para 266]
10. Article 30, as a feature of the Constitution, provides important rights
which function within the larger penumbra of fundamental rights –
There is substantial interplay, intermixing and balancing of rights inter
se within the fundamental rights and Article 30 is not absolute and
certainly do not exist in a silo. [Para 266]
11. The crux of Article 30(1) lies in its mandate to ensure parity between
non-minority [or ‘neutral’] institutions and minority institutions
– Its fundamental aim is to prevent any form of discrimination
or preferential treatment to non-minority communities, thereby
advocating for equal treatment under the law for one and all – This
provision underscores that no specific category or type of institution
should be disadvantaged or unduly favoured over another within the
legal framework. [Para 266]
12. To assume that the minorities of the country require some ‘safe
haven’ for attaining education and knowledge is wholly incorrect –
The minorities of the country have not just joined the mainstream but
comprise an important facet of the mainstream itself. The institutions
of national character of the country always serve the interests of the
minorities and are diverse centers of learning. [Para 266]
B. Educational Institution – Minority educational institution – Status
of AMU vis-à-vis minority rights – Whether the Constitution Bench
decision in Azeez Basha was incorrect.
Held [per Dr D Y Chandrachud, CJI (for himself, Sanjiv Khanna, J.B.
Pardiwala and Manoj Misra, JJ.)]: The view taken in Azeez Basha that an
educational institution is not established by a minority if it derives its legal
character through a statute, is overruled. [Para 161]
2192 SUPREME COURT REPORTS [2024] 11 S.C.R. 1647

Held [per Surya Kant, J.]: The Constitution Bench in Azeez Basha, when
it holds that since Section 6 of the AMU Act, 1920 stipulates that degrees
conferred by AMU would be recognised by the Government, it could not have
been ‘brought into existence by a private individual or body’, is seemingly
incorrect – There is no conflict between the seven-judge bench opinion in
Kerala Education Bill and the five-judge Constitution Bench in Azeez Basha
on the other – The six-judge Constitution Bench in Sidhajbhai Sabhai, laying
down that the right under Article 30 is absolute and unconditional, is not
the correct principle of law; the judgment is no more binding in nature and
stands effectively overruled in TMA Pai, to that extent – Consequently,
Azeez Basha does not suffer from any legal infirmity on the premise that it
did not cite or follow Sidhajbhai Sabhai. [Para 192(a), (b) and (f)]
Held [per Dipankar Dutta, J.]: Not only is Azeez Basha a judicial verdict
more than half a century old on the status of AMU vis-à-vis minority
rights, but it has a strong foundational basis and is anchored in robust legal
reasoning – The view taken therein, in the given facts and circumstances, is
indeed a plausible view which demands due deference rather than the view
being overruled at this distance of time. [Para 14]
Held [per Satish Chandra Sharma, J.]: The notion that Azeez Basha
categorically prohibits minorities from establishing universities due to statutory
requirements is unfounded – The bench in Azeez Basha and present bench
are faced with a unique situation and needs to adopt a suitably modulated
approach – The judgment in Azeez Basha does not preclude minorities from
establishing universities but rather highlights the importance of legislative
intent and statutory provisions in determining an institution’s character – The
UGC Act or the judgment in Yashpal, in no manner, comes to the aid of the
parties challenging the correctness of the judgment in Azeez Basha – The
amendment in the NCMEI Act 2004 does not come to the aid of the parties
questioning the correctness of the decision in Azeez Basha.

C. Judicial discipline – Preliminary objection to reference – Whether

two-Judge Bench of Supreme Court in Anjuman-e-Rahmaniya
could not have referred the correctness of the decision rendered by
the Constitution Bench in Azeez Basha directly to a Bench of seven
Judges.
Held [per Dr D Y Chandrachud, CJI (for himself, Sanjiv Khanna, J.B.
Pardiwala and Manoj Misra, JJ.)]:
 Aligarh Muslim University v. Naresh Agarwal & Ors. 2193

1. In Central Board of Dawoodi Bohra Community, a Constitution Bench

discussed the legal precepts which apply to orders of reference and
reiterated the position of law as below:-
a. Decisions of this Court rendered by a Bench of larger strength are
binding on Benches of a less or equal strength;
b. If a Bench of lower strength is doubtful about the correctness
of a judgment delivered by a Bench of larger strength, it cannot
disagree or dissent from the view taken by the larger Bench –
In case of doubt, it can invite the attention of the Chief Justice
of India to its opinion and request the Chief Justice to list the
matter before a Bench, the strength of which is greater than that
which delivered the judgment which has been doubted;
c. The correctness of the view taken by any Bench can only be
doubted by a Bench of equal strength – The matter will then be
placed for hearing before a Bench of greater strength;
d. There are two exceptions to the rules: i. The discretion of the
Chief Justice is not bound by the rules – As the master of the
roster, the Chief Justice may list any case before any Bench of any
strength; ii. Despite the rules, if a particular case has come up
for hearing before a Bench of larger strength and that Bench is
of the opinion that the judgment of the Bench of lower strength
requires reconsideration or correction, or is otherwise doubtful of
its correctness, it may dispense with the need for a reference in the
terms described above or an order of the Chief Justice and hear
the matter for reasons given by it. [Para 37]
2. The position of law laid down in Central Board of Dawoodi Bohra
Community is correct – Decisions of a larger Bench are binding
precedent, and judicial discipline and propriety dictate that Benches
of lower strength must adhere to such decisions – This will also avoid
inconsistencies in the development of law – Questions concerning the
correctness of judgments must ordinarily be referred only by a Bench
which is equal in strength to the Bench whose judgment is doubted –
We also agree with the two exceptions to this rule, as detailed by this
Court in Central Board of Dawoodi Bohra Community – They must
remain exceptions and not transmogrify into the rule itself. [Para 38]
3. The three issues which required an authoritative pronouncement in
Anjuman-e-Rahmaniya, were not directly a point of contention in
Azeez Basha – However, the decision would have a bearing on them
2194 SUPREME COURT REPORTS [2024] 11 S.C.R. 1647

– Doubting the correctness of the opinion in Azeez Basha, without

disagreeing with it, the two-Judge Bench requested that the matter
may be placed before the Chief Justice of India for being heard by a
Bench of seven Judges – This falls within the permissible limits laid
down in Central Board of Dawoodi Bohra Community – Further, the
Solicitor General has also stated that he is not pressing the Union’s
preliminary objection – The order of reference dated 12 February
2019 (wherein a three-Judge Bench of this Court observed that the
correctness of the question arising from the decision in Azeez Basha
was unanswered, and then referred the matter to a seven-Judge
Bench), too, noted that although a three-Judge Bench could not
ordinarily refer a case directly to a seven-Judge Bench, it was doing
so in this case because the question was already referred to a Bench
of seven Judges but was not answered. [Para 39]
4. 
The reference in Anjuman-e-Rahmaniya of the correctness of the
decision in Azeez Basha was valid – The reference was within the
parameters laid down in Central Board of Dawoodi Bohra Community.
[Para 160(a)]
Held [per Surya Kant, J.]:
1.1. The two-judge bench in Anjuman, after expressing doubt about the
correctness of Azeez Basha and its principles, referred the matter
for reconsideration to a larger bench – Additionally, the bench in
Anjuman specifically stated that the larger bench reviewing Azeez
Basha —a decision by a five-judge bench—should consist of seven
judges – The decision further directed that the matter be placed
before the Hon’ble Chief Justice for appropriate directions – Such
a reference is not consistent with the established norms of judicial
propriety. [Paras 90, 91]
1.2. The principles enunciated in Dawoodi Bohra re-enforce the provisions
of the Supreme Court Rules referred to earlier, and also reiterate the
well-established principles based upon doctrines of predictability,
consistency, finality and the principle of stare decisis – The two-judge
bench in Anjuman, ought to have understood and applied the law,
consistent with these principles – The two-judge bench in Anjuman
being of lesser strength than the five-judge bench in Azeez Basha,
lacked the authority to explicitly question the correctness of Azeez
Basha and refer the matter to a seven-judge bench. [Para 93]
 Aligarh Muslim University v. Naresh Agarwal & Ors. 2195

1.3. In Anjuman, the bench not only referred the matter but also specified
the numerical strength of the bench to which it should be referred, with
a further direction that the matter be placed before the Chief Justice
for the limited purpose of notifying the composition of the seven-
judge bench – This effectively impaired the Chief Justice’s authority
as the master of the roster – Allowing such a practice would enable
benches of lesser strength, such as a two-judge bench, to undermine the
decisions of larger benches, potentially even an eleven-judge bench –
This would also place the Chief Justice in an untenable position, who
would be bound by a judicial order while acting in an administrative
role, leading to procedural complications and embarrassment. [Para
94]
2. There is no substantial difference between ‘doubting’ or ‘disagreeing’
with a judgement – That being so, the reference by a two-judge bench
in Anjuman doubting the correctness of the five-judge bench in Azeez
Basha and referring it to a seven-judge bench suffers from multiple
illegalities, including judicial impropriety. [Para 192(c)]
3. In view of the dictum of the Constitution Bench in Dawoodi Bohra,
a two-judge bench has no authority whatsoever to doubt or disagree
with a judgement of the larger bench, and directly refer the matter to a
bench having a numerically greater strength than the matter so doubted
– The reference by the two judge bench in Anjuman is nothing but a
challenge to the authority of the Chief Justice of India being the master
of the roster and in derogation of the special powers enjoyed upon
under Article 145 of the Constitution read with Order VII Rule 2 of the
Supreme Court Rules, 1966 (as was applicable) – Consequently, the
said reference is not maintainable – However, the subsequent reference
dated 12.02.2019, in which the then Hon’ble Chief Justice of India was
the presiding judge, is maintainable. [Para 192(d)]
4. The reference in Anjuman to a seven-judge bench for the reconsideration
of the five-judge decision in Azeez Basha is bad in law and ought to be
set aside. [Para 192(e)]
Held [per Dipankar Dutta, J.]:
1.1. It has been considered uniformly to be an act of breach of judicial
propriety and discipline if a bench of lesser strength [of 2 (two) Judges]
casts doubt in respect of a decision rendered by a bench of greater
strength [of 5 (five Judges] and a request is made to the Chief Justice
2196 SUPREME COURT REPORTS [2024] 11 S.C.R. 1647

of India to constitute a still larger Bench [of 7 (seven Judges] – This

concept was extensively ratiocinated in Central Board of Dawoodi
Bohra Community vs. State of Maharashtra. [Para 24]
1.2. If “doubting the correctness of the opinion in Azeez Basha, without
disagreeing with it” could permit the bench in Anjuman-e-Rahmania
to request the Chief Justice of India to place the matter for being heard
by a bench of 7 (seven) Judges and such a course of action were held
to be permissible and within the limits of Central Board of Dawoodi
Bohra Community, as proposed in the majority opinion - I am afraid,
tomorrow, a bench of 2 (two) Judges, referring to opinions of jurists
[as in Anjuman-e-Rahmania] could well doubt the ‘basic structure’
doctrine and request the Chief Justice of India to constitute a bench of
15 (fifteen) Judges – The reasoning in the majority opinion, with due
respect, appears to be based on an incomplete reading of paragraph
12(2) of Central Board of Dawoodi Bohra Community – Though the
second sentence of the said paragraph is a bit ambiguous, but the
same - read harmoniously with the other sentences - would lead to
the inevitable conclusion that even in case of a doubt being expressed
by a bench of 2 (two) Judges in respect of the ratio laid down by a
bench of 5 (five) Judges, the case on a reference being made (with
sufficient reasons) ought to be first placed before a bench of 3 (three)
Judges, and not to a bench of either 5 (five) or 7 (seven) Judges – If,
indeed, the proposed view in the majority opinion were accepted, all
the precedents referred to above would stand overruled and a legal
principle, which hitherto no bench of this Court did, would be laid
down and, in the process, the floodgates for unmeritorious references
opened – That would be an incorrect and improper approach – Hence,
the order of reference in Anjuman-e-Rahmania must be regarded as
completely flawed and non-est. [Para 28]
2. The essence of the law laid down in State of Kerala vs. Very Rev.
Mother Provincial, which is a decision of the Constitution Bench of 6
(six) Judges of this Court rendered more than half a century back, and
has never been doubted by any subsequent bench, is that the minority
institution should have been established for the benefit of a minority
community by a member of that community – Attention of the bench of
2 (two) Judges in Anjuman-e-Rahmania was not invited to this and one
is left to wonder whether the reference would have at all been made
if Very Rev. Mother Provincial was cited – There being no reference
 Aligarh Muslim University v. Naresh Agarwal & Ors. 2197

in Anjuman-e-Rahmania of Very Rev. Mother Provincial, a binding

decision, certainly the said decision of the Constitution Bench had not
been placed before the bench of 2 (two) Judges by the set of counsel
appearing before it who agreed with the bench on the question of (in)
correctness of Azeez Basha – Also, there cannot be any comparison
of chalk and cheese – The case dealt with by Azeez Basha and the
one arising for decision in Anjuman-e-Rahmania were fundamentally
different and in stark contrast with each other – Therefore, even on
merits, there was no good reason to make a reference for being placed
before a bench of 7 (seven) Judges which Anjuman-e-Rahmania
ordered. [Para 42]
Held [per Satish Chandra Sharma, J.]: The bench of two judges in
Anjuman-e-Rehmania & Ors v. Distt. Inspector of School & Ors. could not
have referred the matter to a bench of seven Hon’ble Judges directly, without
the Hon’ble Chief Justice of India, being a part of the bench. [Para 266]

Case Law Cited

In the judgment of Dr. D.Y. Chandrachud, CJI:

S Azeez Basha v. Union of India [1968] 1 SCR 833 : AIR
1968 SC 662 – overruled.

Prof. Yashpal v. State of Chhattisgarh [2005] 2 SCR 23 :

(2005) 5 SCC 420 – held inapplicable.

Central Board of Dawoodi Bohra Community v. State of

Maharashtra [2004] Supp. 6 SCR 1054 : (2005) 2 SCC
673; TMA Pai Foundation v. State of Karnataka [2002]
Supp. 3 SCR 587 : (2002) 8 SCC 481; Rev. Sidhajbhai
Sabhai v. State of Bombay [1962] 3 SCR 837; In re Kerala
Education Bill [1958] 1 SCR 995 – relied on.

Dalco Engg. (P) Ltd. v. Satish Prabhakar Padhye [2010] 4

SCR 15 : (2010) 4 SCC 378 – distinguished.

Anjuman-e-Rahmaniya v. District Inspector of Schools

[Supreme Court decision in W.P.(C) No. 54-57 of 1981]
– affirmed.
2198 SUPREME COURT REPORTS [2024] 11 S.C.R. 1647

Indira Sawhney (II) v. Union of India & Ors., AIR 2000

SC 498; A.K. Gopalan v. State of Madras, AIR 1950 SC
27; Rustom Cavasjee Cooper v. Union of India [1970] 3
SCR 530 : (1970) 1 SCC 248; Maneka Gandhi v. Union of
India [1978] 2 SCR 621 : (1978) 1 SCC 248; Ahmedabad
St. Xaviers College Society and Anr. v. State of Gujarat and
Anr. [1975] 1 SCR 173 : AIR 1974 SC 1389; Rev. Father
W. Proost and Ors. v. State of Bihar and Ors. [1969] 2
SCR 73; PA Inamdar v. State of Maharashtra [2005] Supp.
2 SCR 603 : (2005) 6 SCC 537; State of Kerala v. Very
Rev. Mother Provincial [1971] 1 SCR 734 : (1970) 2 SCC
417; Manager, St. Thomas UP School v. Commr. & Secy, to
general Education Dept. (2002) 2 SCC 497; DAV College
trust & Management Society v. State of Maharashtra
[2013] 4 SCR 821 : (2013) 4 SCC 14; SP Mittal v. Union
of India [1983] 1 SCR 729 : (1983) 1 SCC 51; The Durgah
Committee, Ajmer v. Syed Hussain Ali [1962] 1 SCR 383 :
(1962) 1 S.C.P 383; Rev. Bishop SK Patro v. State of Bihar
[1970] 1 SCR 172 : (1969) 1 SCC 863; In re Special Courts
Bill [1979] 2 SCR 476 : (1979) 1 SCC 380; SEBI v. Rajpur
Nagpal [2022] 15 SCR 1 : (2023) 8 SCC 274; Keshavan
Madhava Menon v. State of Bombay [1951] 1 SCR 228 :
AIR 1951 SC 128; Sukhdev Singh v. Bhagatram Sardar
Singh Raghuvanshi [1975] 3 SCR 619 : (1975) 1 SCC 421;
Vaish Degree College v. Lakshmi Narain [1976] 2 SCR
1006 : (1976) 2 SCC 58; S.S. Dhanoa v. MCD [1981] 3
SCR 864 : (1981) 3 SCC 431 – referred to.

Dr. Naresh Agarwal v. Union of India, 2005 SCC OnLine

All 1705 – referred to.

Aligarh Muslim University v. Malay Shukla Judgment in

Special Appeal No 1321 of 2005 and connected matters,
High Court of Allahabad – referred to.

St. David’s College, Lampeter v. Ministry of Education,

1951 All ER 559 – referred to.
 Aligarh Muslim University v. Naresh Agarwal & Ors. 2199

In the judgment of Surya Kant, J.:

S. Azeez Basha v. Union of India [1968] 1 SCR 833 –
modified and clarified to an extent.

Rev. Sidhajbhai Sabhai v. State of Bombay [1963] 3 SCR

837 – held overruled.

Central Board of Dawoodi Bohra Community and

another v. State of Maharashtra and another (2005) 2 SCC
673; Right Rev. Bishop S.K. Patro v. State of Bihar [1970]
1 SCR 172 : (1969) 1 SCC 863; A.P. Christian Medical
Educational Society v. Govt. of A.P. [1986] 2 SCR 749 :
(1986) 2 SCC 667; T. Varghese George v. Kora K. George
[2011] 12 SCR 1070 : (2012) 1 SCC 369; Dayanand Anglo
Vedic (DAV) College Trust and Management Society v. State
of Maharashtra [2013] 4 SCR 821 : (2013) 4 SCC 14; St.
Stephen’s College v. University of Delhi [1991] Supp. 3
SCR 121 : (1992) 1 SCC 558; State of Kerala v. Very Rev.
Mother Provincial [1971] 1 SCR 734 : (1970) 2 SCC 417;
Dalco Engg. (P) Ltd. v. Satish Prabhakar Padhye [2010] 4
SCR 15 : (2010) 4 SCC 378; Executive Committee of Vaish
Degree College v. Lakshmi Narain [1976] 2 SCR 1006 :
(1976) 2 SCC 58; – relied on.

Aligarh Muslim University v. Naresh Agarwal [2009] 2 SCR

907 : (2020) 13 SCC 737; TMA Pai Foundation v. State of
Karnataka [2002] Supp. 3 SCR 587 : (2002) 8 SCC 481;
Prof. Yashpal v. State of Chhattisgarh [2005] 2 SCR 23 :
(2005) 5 SCC 420; P.A. Inamdar v. State of Maharashtra
[2005] Supp. 2 SCR 603 : (2005) 6 SCC 537; Islamic
Academy of Education v. State of Karnataka [2003] Supp.
2 SCR 474 : (2003) 6 SCC 697; Secy., Malankara Syrian
Catholic College v. T. Jose [2006] Supp. 9 SCR 644 : (2007)
1 SCC 386; In re the Kerala Education Bill ,1957 [1958]
SCR 995 [1959] 1 SCR 995; Krishen Kumar v. Union of
India [1990] 3 SCR 352 : (1990) 4 SCC 234; State of Uttar
Pradesh v. Ajay Kumar Sharma [2015] 12 SCR 627 : (2016)
15 SCC 292; Shanker Raju v. Union of India [2011] 2 SCR
2200 SUPREME COURT REPORTS [2024] 11 S.C.R. 1647

1 : (2011) 2 SCC 132; SEBI v. Rajkumar Nagpal [2022]

15 SCR 1 : (2023) 8 SCC 274; Ashoka Kumar Thakur v,
Union of India (2008) 4 SCR 1 : (2008) 6 SCC 1; S.P.
Mittal v. Union of India (1983) 1 SCC 51; Rev. Father W.
Proost and Ors. v. State of Bihar and Ors. [1969] 2 SCR 73;
Ahmedabad St. Xaviers College Society and Anr. v. State of
Gujarat and Anr. [1975] 1 SCR 173 : AIR 1974 SC 1389;
Gandhi Faiz-e-am-College v. University of Agra and Anr.
[1975] 3 SCR 810 : (1975) 2 SCC 283; Kolawana Gram
Vikas Kendra v. State of Gujarat and Anr. [2009] 15 SCR
272 : (2010) 1 SCC 133; All Saints High School v. Govt.
of A.P. and Ors. [1980] 2 SCR 924:(1980) 2 SCC 478
Christian Medical College Vellore Assn. v. Union of India,
[2020] 5 SCR 516 : (2020) 8 SCC 705; Modern School v.
Union of India and Ors. [2004] Supp. 1 SCR 668 : (2004)
5 SCC 583; Father Thomas Shingare and Ors. v. State of
Maharashtra and Ors. [2001] Supp. 5 SCR 636 : (2002) 1
SCC 758; Andhra Kesari College of Education v. State of
A.P. [2019] 12 SCR 669 : (2019) 9 SCC 457; Society for
Unaided Private Schools of Rajasthan v. Union of India
[2012] 2 SCR 715 : (2012) 6 SCC 1; Icon Education
Society v. State of M.P. and Ors. [2023] 2 SCR 728 : 2023
SCC OnLine SC 289; Islamic Academy of Education v.
State of Karnataka and Ors. [2003] Supp. 2 SCR 474 : 2003
6 SCC 697; Cochin University of Science & Technology and
Anr. v. Thomas P. John and Ors. [2008] 7 SCR 887 : (2008)
8 SCC 82; Board of Secondary Education and Teachers
Training v. Jt. Director of Public Instructions (1998) 8 SCC
555; Ivy C.Da. Conceicao v. State of Goa and Ors. [2017]
1 SCR 445 : (2017) 3 SCC 619; The Manager, Corporate
Educational Agency v. James Mathew and Ors. [2017] 6
SCR 498 : (2017) 15 SCC 595; R. Sulochana Devi v. D.M.
Sujatha & Ors. [2004] Supp. 5 SCR 1 : (2005) 9 SCC 335;
Lilly Kurian v. Sr. Lewina and Ors. [1979] 1 SCR 820 :
AIR 1979 SC 52; State of Karnataka and Anr. v. Associated
Management of English Medium Primary & Secondary
Schools and Ors. [2014] 5 SCR 1104 : (2014) 9 SCC 485;
 Aligarh Muslim University v. Naresh Agarwal & Ors. 2201

Society for Unaided Private Schools of Rajasthan v. Union

of India and Anr. [2012] 2 SCR 715 : (2012) 6 SCC 1;
Pramati Educational & Cultural Trust and Ors. v. Union of
India and Ors. [2014] 11 SCR 712 : (2014) 8 SCC 1; G.
Vallikumari v. Andhra Education Society (2010) 2 SCC 497;
Frank Anthony Public School Employees’ Assn. v. Union of
India and Ors. [1987] 1 SCR 238 : (1986) 4 SCC 707;
State of Karnataka and Anr. v. Associated Management of
English Medium Primary & Secondary Schools and Ors.
[2014] 5 SCR 1104 : (2014) 9 SCC 485 – referred to.

Sehajdhari Sikh Federation v. Union of India and others,

2011 SCC Online P&H 17374; Manager, Rajershi
Memorial Basic Training School v. State of Kerala, 1972
SCC OnLine Ker 111; Rt. Rev. Dr. Aldo Maria Patroni v.
Assistant Educational Officer, 1973 SCC OnLine Ker 60;
A. Raju and Ors. v. Manager, Nallor Narayana L.P. Basic
School & Ors., 2019 SCC OnLine Ker 16483; Dipendra
Nath Sarkar v. State of Bihar & Ors., 1960 SCC OnLine
Pat 205; Rt. Rev. Dr. Aldo Maria Patroni v. Assistant
Educational Officer, 1973 SCC OnLine Ker 60, para
7; A. Raju and Ors. v. Manager, Nallor Narayana L.P.
Basic School & Ors., 2019 SCC OnLine Ker 16483 and
Dipendra Nath Sarkar v. State of Bihar & Ors., 1960 SCC
OnLine Pat 205 – referred to.

Anjuman-e-Rahmaniya v. District Inspector of Schools.

[Supreme Court decision in W.P.(C) No. 54-57 of 1981]
– bad in law.

In the judgment of Dipankar Dutta, J.:

Supertech Ltd. v. Emerald Court Owner Residents
Association [2021] 10 SCR 569 : (2023) 10 SCC 817;
Maganlal Chhaganlal (P) Ltd. v. Municipal Corpn. of
Greater Bombay [1975] 1 SCR 1 : (1974) 2 SCC 402;
Re: Kerala Education Bill [1959] 1 SCR 995; Lala
2202 SUPREME COURT REPORTS [2024] 11 S.C.R. 1647

Shri Bhagwan v. Shri Ram Chand [1965] 3 SCR 218;

Central Board of Dawoodi Bohra Community v. State of
Maharashtra [2004] Supp. 6 SCR 1054 : (2005) 2 SCC
673; Union of India v. Hansoli Devi & Ors. [2002] Suppl.
2 SCR 324 : (2002) 7 SCC 273; Pradip Chandra Parija
v. Pramod Chandra Patnaik [2001] Supp. 5 SCR 460 :
(2002) 1 SCC 1; Campaign for Judicial Accountability and
Reforms v. Union of India [2017] 12 SCR 331 : (2018) 1
SCC 196 – relied on.

Union of India v. Tulsiram Patel [1985] Supp. 2 SCR 131

: (1985) 3 SCC 398; S. Azeez Basha and Anr. v. Union
of India [1968] 1 SCR 833; Aligarh Muslim University v.
Naresh Agarwal and Ors. [2020] 4 SCR 706 : (2020) 13
SCC 737; M. P. Sharma v. Satish Chandra [1954] 1 SCR
1077 : (1954) 1 SCC 385; T.M.A. Pai Foundation and ors.
v. State of Karnataka and Ors. [2002] Supp. 3 SCR 587 :
(2002) 8 SCC 481; Shahal H. Musaliar and Anr. v. Union
of India and Ors., Writ Petition (C) No. 331 of 2005;
Islamic Academy of Education v. State of Karnataka [2003]
Supp. 2 SCR 474 : (2003) 6 SCC 697; P.A. Inamdar v.
State of Maharashtra [2005] 2 Supp. SCR 603 : (2005)
6 SCC 537; Prof. Yashpal v. State of Chhattisgarh [2005]
2 SCR 23:(2005) 5 SCC 420; State of Kerala v. Very Rev.
Mother Provincial [1971] 1 SCR 734 : (1970) 2 SCC 417;
St. Stephen’s College v. University of Delhi [1991] Supp.
3 SCR 121:(1992) 1 SCC 558; A.P. Christian Medical
Educational Society v. Govt. of A.P. [1986] 2 SCR 749
: (1986) 2 SCC 667; Ahmedabad St. Xavier’s College
Society v. State of Gujarat [1975] 1 SCR 173:(1974) 1
SCC 717; Dayanand Anglo Vedic (DAV) College Trust and
Management Society v. State of Maharashtra [2013] 4 SCR
821 : (2013) 4 SCC 14 – referred to.

Anjuman-e-Rahmania and Ors. v. Distt. Inspector of School

and Ors. [Supreme Court decision in Writ Petition (Civil)
Nos. 54-57 of 1981] – non-est in law.
 Aligarh Muslim University v. Naresh Agarwal & Ors. 2203

In the judgment of Satish Chandra Sharma, J.:

S. Azeez Basha v. Union of India [1968] 1 SCR 833 –
clarified.

Prof. Yashpal v. State of Chhattisgarh [2005] 2 SCR 23 :

(2005) 5 SCC 420 – held inapplicable.

T.M.A. Pai Foundation v. State of Karnataka [2002] Supp. 3

SCR 587 : (2002) 8 SCC 481; In Re Kerala Education Bill,
1957 [1959] 1 SCR 995; Ahmedabad St. Xavier’s College
Society v. State of Gujarat [1975] 1 SCR 173 : (1974) 1
SCC 717 – relied on.

Dalco Engineering Pvt. Ltd. v. Satish Prabhakar Padhye

[2010] 4 SCR 15 : (2010) 4 SCC 378 – distinguished.

P.A. Inamdar v. State of Maharashtra [2005] Supp. 2 SCR

603 : (2005) 6 SCC 537; St. Stephen’s College v. University
of Delhi [1991] Supp. 3 SCR 121 : (1992) 1 SCC 558
[5-Judge Bench]; Rev. Father W Proost v. State of Bihar
[1969] 2 SCR 73 [5-Judge Bench]; Right Rev. Bishop
SK Patro v. State of Bihar [1970] 1 SCR 172 : (1969) 1
SCC 863 [5-Judge Bench]; Sidhajbhai Sabhai v. State
of Bombay [1963] 3 SCR 837; A.P. Christians Medical
Educational Society v. Government of Andhra Pradesh
[1986] 2 SCR 749 : (1986) 2 SCC 667; Dir. of Endowments
Gov. of Hyderabad v. Syed Akram Ali, AIR 1956 SC 60;
State of Kerala v. Very Rev. Mother Provincial [1971] 1
SCR 734 : (1970) 2 SCC 417; Bal Patil v. Union of India
[2005] Supp. 2 SCR 459 : (2005) 6 SCC 690; Hyderabad
Asbestos Cement Products v. Union of India [1999] Supp. 5
SCR 155 : (2000) 1 SCC 426; M. Siddiq (Ram Janambhumi
Temple Reference-5J) v. Mahant Suresh Das [2019] 18 SCR
1 : (2020) 1 SCC 1; Indira Sawhney v. Union of India & Anr.
[1999] Supp. 5 SCR 229 : (2000) 1 SCC 168; Mullaperiyar
Environmental Protection Forum v. Union Of India & Ors.
[2006] 2 SCR 740 : (2006) 3 SCC 643; Sukhdev Singh
v. Bhagatram Sardar Singh Raghuvanshi [1975] 3 SCR
2204 SUPREME COURT REPORTS [2024] 11 S.C.R. 1647

619:(1975) 1 SCC 421; Sardar Syedna Taher Saifuddin

Saheb v. State of Bombay [1962] 2 Supp. SCR 496; Bharat
Petroleum Corpn. Ltd. v. Mumbai Shramik Sangha [2001]
3 SCR 208 : (2001) 4 SCC 448; Pradip Chandra Parija
v. Pramod Chandra Patnaik [2001] Supp. 5 SCR 460 :
(2002) 1 SCC 1; Chandra Prakash v. State of U.P. [2002]
2 SCR 913 : (2002) 4 SCC 234; Vishweshwaraiah Iron &
Steel Ltd. v. Abdul Gani (2002) 10 SCC 437; Arya Samaj
Education Trust v. Director of Education (2004) 8 SCC 30;
Central Board of Dawoodi Bohra Community and Anr. v.
State of Maharashtra and Anr. [2004] Supp. 6 SCR 1054 :
(2005) 2 SCC 673; Govt. of A.P. v. B. Satyanarayana Rao
(2000) 4 SCC 262; Shrimanth Balasaheb Patil v. Speaker,
Karnataka Legislative Assembly [2019] 16 SCR 886 :
(2020) 2 SCC 595; Joint Commissioner of Income Tax,
Surat v. Saheli Leasing & Industries Ltd. [2010] 6 SCR 747
: (2010) 6 SCC 384; Kantaru Rajeevaru (Right to Religion,
In re-9 J.) (2) v. Indian Young Lawyers Association [2019]
17 SCR 599 : (2020) 9 SCC 121; S.P. Mittal v. Union of
India [1983] 1 SCR 729 : (1983) 1 SCC 51; Dayanand
Anglo Vedic (DAV) College Trust and Management Society
v. State of Maharashtra [2013] 4 SCR 821 : (2013) 4 SCC
14; Sakshi v. Union of India [2004] Supp. 2 SCR 723 :
(2004) 5 SCC 518; Milkfood Ltd. v. GMC Ice Cream Private
Ltd. (2004) 7 SCC 288; Narinder Singh v. State of Punjab
[2014] 4 SCR 1012 : (2014) 6 SCC 466; Shah Faesal v.
Union of India [2020] 3 SCR 1115 : (2020) 4 SCC 1; D.A.V.
College v. State of Punjab (1971) 2 SCC 269; Gandhi Faiz-
e-am-College v. University of Agra [1975] 3 SCR 810 :
(1975) 2 SCC 283; Rt. Rev. Msgr. Mark Netto v. State of
Kerala [1979] 1 SCR 609 : (1979) 1 SCC 23; Lily Kurian
v. Lewina [1979] 1 SCR 820 : (1979) 2 SCC 124; Christian
Medical College Hospital Employees’ Union v. Christian
Medical College Vellore Association [1988] 1 SCR 546 :
(1987) 4 SCC 691; Al-Karim Educational Trust v. State of
Bihar (1996) 8 SCC 330; Yunus Ali Sha v. Mohamed Abdul
Kalam (1999) 3 SCC 676; Society of St. Joseph’s College v.
Union of India (2002) 1 SCC 273; Secy., Malankara Syrian
Aligarh Muslim University v. Naresh Agarwal & Ors. 2205

Catholic College v. T. Jose [2006] Supp. 9 SCR 644 : (2007)

1 SCC 386; Satimbla Sharma v. St Paul’s Senior Secondary
School [2011] 10 SCR 203 : (2011) 13 SCC 760; Durgah
Committee, Ajmer v. Syed Hussain Ali [1962] 1 SCR 383;
P.S. Sathappan v. Andhra Bank Ltd. & Ors. [2004] Supp.
5 SCR 188 : (2004) 11 SCC 672; Executive Committee
of Vaish Degree College v. Lakshmi Narain [1976] 2 SCR
1006 : (1976) 2 SCC 58; S.S. Dhanoa v. MCD [1981] 3
SCR 864 : (1981) 3 SCC 431; CIT v. Canara Bank [2018] 7
SCR 866 : (2018) 9 SCC 322; Sri Jagadguru Kari Basava
Rajendraswami of Govimutt v. Commr. of Hindu Religious
and Charitable Endowments [1964] 8 SCR 252 : [1964]
8 SCR 252; Rabindranath Bose v. Union of India (1970)
1 SCC 84; Guru Datta Sharma v. State of Bihar [1962] 2
SCR 292]; KS Puttaswamy (Privacy-9 J.) v. Union of India
[2018] 8 SCR 1 : (2017) 10 SCC 1; Keshavan Madhava
Menon v. State of Bombay [1951] 1 SCR 228 : [1951] SCR
228 and Pannalal Binjraj v. Union of India [1957] 1 SCR
233 – referred to.

Hotel and Catering Industry Training Board v. Automobile

Propriety Ltd (1968) 1 WLR 1526 – referred to.

Anjuman-e-Rahmania and Others v. District Inspector of

Schools and Others [Supreme Court decision in W.P. (C)
54-57 of 1981] – referred to.
 [2024] 11 S.C.R. 1 : 2024 INSC 835

Property Owners Association & Ors.

v.
State of Maharashtra & Ors.
(Civil Appeal No. 1012 of 2002)

05 November 2024

[Dr Dhananjaya Y Chandrachud,* CJI, Hrishikesh Roy, B.V. Naga-

rathna,* Sudhanshu Dhulia,* J.B. Pardiwala, Manoj Misra, Rajesh
Bindal, Satish Chandra Sharma and Augustine George Masih, JJ.]

Issue for Consideration

(1)  hether Article 31C (as upheld in Kesavananda Bharati case) survives
W
in the Constitution after amendment to the provision by the forty-second
amendment was struck down by the Supreme Court in Minerva Mills
case; and
(2)  hether the interpretation of Article 39(b) adopted by Justice Krishna
W
Iyer in Ranganatha Reddy case and followed in Sanjeev Coke case
must be reconsidered; and whether the phrase ‘material resources of
the community’ in Article 39(b) can be interpreted to include resources
that are owned privately and not by the State.

Headnotes
A. Constitution of India – Art.31C – Art.31C (as upheld in
Kesavananda Bharati case), if survives in the Constitution after
amendment to the provision by the forty-second amendment
was struck down by the Supreme Court in Minerva Mills
case – Held: Article 31C to the extent that it was upheld in
Kesavananda Bharati case remains in force.
Held [per Dr Dhananjaya Y Chandrachud, CJI (for himself
and for Hrishikesh Roy, J. B. Pardiwala, Manoj Misra, Rajesh
Bindal, Satish Chandra Sharma, and Augustine George Masih,
JJ.)]:
1. Article 31C to the extent that it was upheld in Kesavananda
Bharati v Union of India remains in force. [Para 229(a)]

2206
 Property Owners Association & Ors. v. 2207
State of Maharashtra & Ors.

2.1. By Section 4 of the Forty-Second Amendment, the words “the

principles specified in clause (b) or clause (c) of Article 39”
in Article 31-C were replaced with the words “all or any of the
principles laid down in Part IV.” This is a case of substitution.
Section 4 of the Forty-Second Amendment was subsequently
struck down in Minerva Mills. Where an amendment substituting
certain text with certain alternate text is invalidated, the effect
is that the unamended text continues in force. This is because
the legislative intent of repeal and enactment in such cases is
composite and cannot be separated. To give effect to the repeal
and not the enactment would result in an outcome which does not
correlate with legislative intent, and, as Justice Hidayatullah noted
in Laxmibai “leave the original section truncated” resulting in
absurd outcomes. This would in effect invalidate the original, valid
and constitutional provision despite there being no constitutional
fault with it nor the legislature intending to repeal it. Thus, the
presumption would be that after Minerva Mills, the unamended
Article 31-C would continue in force. Indeed, it is evident that
cases such as Bhim Singh and Sanjeev Coke proceeded on this
presumption. [Para 69]
2.2. The only plausible exception to this presumption would be if it
could be demonstrated that Parliament, when enacting the Forty-
Second Amendment would have repealed the words “the principles
specified in clause (b) or clause (c) of Article 39” independent
of their enactment of the words “all or any of the principles
laid down in Part IV.” In this case, no reference to the broader
legislative proceedings or external aids is necessary to arrive at the
inference that Parliament would not have independently repealed
these words. The text of the amendment adopted by Parliament
itself makes it abundantly clear that there was no independent
intention to repeal. The effect of Section 4 of the Forty-Second
Amendment was to expand the scope of the immunity provided by
Article 31-C to legislation. Under the unamended Article 31-C,
immunity was only provided to legislation if it gave effect to the
Directive Principles found in clause (b) or clause (c) of Article
39. However, by Section 4 of the Forty-Second Amendment, the
scope of this immunity was significantly expanded to immunise
2208 SUPREME COURT REPORTS [2024] 11 S.C.R. 1

legislations that gave effect to any or all of the Directive

Principles in Part IV of the Constitution. Thus, the intention of
Parliament in enacting Section 4 of the constitutional amendment
was undoubtedly to expand the scope of the immunity granted
by Article 31-C. This being the situation, it cannot be suggested
that Parliament would have repealed the words “the principles
specified in clause (b) or clause (c) of article 39” if it did not
simultaneously enact the broader language expanding the scope
of Article 31-C. If Parliament had independently repealed these
words, it would have not just reduced the scope of Article 31-C but
altogether eliminated the effect of the Article. Without the words
“the principles specified in clause (b) or clause (c) of article 39”
in Article 31- C, the provision would have been rendered nugatory.
Given Parliament’s manifest intention to expand the scope of
Article 31-C by Section 4 of the Forty-Second Amendment, it is
not plausible to hold that Parliament independently sought to
repeal the words “the principles specified in clause (b) or clause
(c) of article 39” from Article 31-C. Therefore, it is evident that
the legislative intent of Parliament when adopting Section 4 of
the Forty-Second Amendment was composite, to repeal and enact
(i.e., to substitute) through one single action. This Court cannot
therefore disaggregate the steps of repeal and enactment and
give effect to the repeal even after invalidating the enactment.
After Minerva Mills invalidated Section 4 of the Forty-Second
Amendment, the composite legal effect of Section 4 is nullified
and the unamended text of Article 31-C stands revived. [Para 70]
2.3. The text of the unamended Article 31-C was challenged, and the
first part of the Article was upheld by thirteen-judge decision
in Kesavananda Bharati while the latter half of the Article was
invalidated. Therefore, the first half of unamended Article 31-
C, which is the subject matter of the present controversy, was
undoubtedly constitutional as held by the thirteen-judge decision
in Kesavananda Bharati and further by the Constitution Bench
in Waman Rao. Therefore, if as a consequence of the decision in
Minerva Mills, the unamended Article 31-C continues in force,
there can be no question of any unconstitutionality or adverse
consequences associated with the unamended Article 31-C. Indeed,
 Property Owners Association & Ors. v. 2209
State of Maharashtra & Ors.

both the Constitution Benches in Minerva Mills and Waman Rao

expressly noted that the first half of Article 31-C had been held
to be constitutional in Kesavananda Bharati. Further, given that
the unamended Article 31-C has been given effect for over four
decades as demonstrated by the decisions in Bhim Singh and
Sanjeev Coke, no argument can be raised concerning any legal
or practical difficulties with the operation of the unamended
Article 31-C. Given these findings, the unamended Article 31-C
continues in force. [Para 71]
2.4. An amendment can be invalidated when it modifies, obliterates,
or adds some feature to the Constitution that is anathema to
the principles that emerge upon a structural reading of the
constitutional text. If an amendment is invalidated because it
causes a drastic deviation from the principles that govern our
constitutional democracy, the consequences must be a return
to those principles. Article 31-C represented a delicate balance
between the goals of Part IV and the rights of Part III of the
Constitution. This balance was held to not impermissibly deviate
from the core principles that govern our Constitution by the thirteen
judges’ decision of this Court in Kesavananda Bharati. However,
in Minerva Mills, Section 4 of the Forty-Second Amendment was
held to violate these core principles that form the basic structure.
The logical result of such a ruling is that the constitutional text
must return to within the fold of the basic structure. To give
effect to the repealing portions of Section 4 of the Forty-Second
Amendment while also invalidating the enactment would not result
in a return to a constitutional text that is in conformity with the
basic structure. Rather, it would result in a novel third outcome,
the constitutionality of which would be uncertain, untested, and
may itself violate the basic structure. Therefore, the consequence
of invalidating Section 4 of the Forty-Second Amendment must be
that the unamended Article 31-C is revived. [Para 72]

Held (per B.V. Nagarathna, J.) (Concurring): I am in complete

accord with the reasoning that, in the absence of any indication
that Parliament intended a “repeal without substitution,” the
original text of Article 31C as it existed before the Constitution
(Forty Second) Amendment Act, 1976 must be reinstated
2210 SUPREME COURT REPORTS [2024] 11 S.C.R. 1

following the invalidation of the said amendment. In Minerva

Mills case, when the amendment was struck down for deviating
from constitutional principles, the logical consequence that must
follow the declaration of invalidity of the amendment is to revert
to those original principles which the amendment deviated from.
This is by giving effect to Article 31C, to the extent it was upheld
in Kesavananda Bharati case. This represents a return to the
Constitution’s original text, aligning with the basic structure of the
Constitution. Consequently, invalidating Section 4 of the Forty-
Second Amendment should automatically result in the restoration
of the unamended Article 31C. I agree that Article 31C to the
extent that it was upheld in Kesavananda Bharati remains in
force. [Paras 3 and 23(a)]
Held (per Sudhanshu Dhulia, J.) (Concurring): The unamended
Article 31-C to the extent held valid in Kesavananda Bharati
survives. [Para 2]

B 1. Constitution of India – Art.39(b) – Whether the phrase ‘material

resources of the community’ used in Art.39(b) includes privately
owned resources – Held [per Dr Dhananjaya Y Chandrachud, CJI
(for himself and for Hrishikesh Roy, J. B. Pardiwala, Manoj Misra,
Rajesh Bindal, Satish Chandra Sharma, and Augustine George
Masih, JJ.)] (Majority opinion) – Theoretically, the answer is yes,
the phrase may include privately owned resources – However, one
cannot subscribe to the expansive view adopted in the minority
judgement authored by Justice Krishna Iyer in Ranganatha Reddy
case and subsequently relied upon in Sanjeev Coke case – Not every
resource owned by an individual can be considered a ‘material
resource of the community’ merely because it meets the qualifier
of ‘material needs’ – The inquiry about whether the resource in
question falls within the ambit of Art. 39(b) must be context-specific
and subject to a non-exhaustive list of factors such as the nature
of the resource and its characteristics; the impact of the resource
on the well-being of the community; the scarcity of the resource;
and the consequences of such a resource being concentrated in
the hands of private players – Public Trust Doctrine evolved by
Supreme Court may also help identify resources which fall within
 Property Owners Association & Ors. v. 2211
State of Maharashtra & Ors.

the ambit of the phrase “material resource of the community” –

Held (per B.V. Nagarathna, J.) – Yes, privately owned resources
except “personal effects” can come within the scope and ambit of
the phrase “material resources of the community” provided such
resources get transformed as “resources of the community” – Held
(per Sudhanshu Dhulia, J.) (Dissenting) – The view of the learned
Chief Justice in this case (i.e. the majority opinon) ultimately holds
that not all privately owned resources are “material resources of
the community” – Not only this it further limits the hands of the
legislature to a non-exhaustive list of factors to determine which
resources can be considered as “material resources” – There is no
need for this pre-emptive determination – The definition of “material
resources of the community” was purposely kept in generalized
and broad-based terms – Privately owned resources are part of
“material resources of the community” – Provisions in Article 39(b)
& (c) have to be read in light of Art.38 of the Constitution – Once
one does that, one cannot but give an expansive meaning to the
phrase “material resources of the community”.

B 2. Constitution of India – Art.39(b) – Interpretation of – Whether

interpretation of Article 39(b) adopted by Justice Krishna Iyer in
Ranganatha Reddy case and followed in Sanjeev Coke case must
be reconsidered – Held [per Dr Dhananjaya Y Chandrachud,
CJI (for himself and for Hrishikesh Roy, J. B. Pardiwala, Manoj
Misra, Rajesh Bindal, Satish Chandra Sharma, and Augustine
George Masih, JJ.)] (Majority opinion) – The majority judgment in
Ranganatha Reddy expressly distanced itself from the observations
made by Justice Krishna Iyer (speaking on behalf of the minority of
judges) on the interpretation of Art.39(b) – Thus, a coequal bench
of this Court in Sanjeev Coke erred by relying on the minority
opinion – Held (per B.V. Nagarathna, J.) (Dissenting) – On merits
it cannot be held that Sanjeev Coke violated judicial discipline –
One cannot lose sight of the fact that in Sanjeev Coke this Court
did not decide the case only on the basis of the opinion of Krishna
Iyer, J. in Ranganatha Reddy – Therefore, Sanjeev Coke is good
law insofar as on the merits of the matter is concerned – Held
(per Sudhanshu Dhulia, J.) (Dissenting) – In Sanjeev Coke, when
the Five Judge Constitution Bench unanimously followed the
2212 SUPREME COURT REPORTS [2024] 11 S.C.R. 1

minority judgement in Ranganatha Reddy, it did not violate judicial

discipline of not following the majority, since in Sanjeev Coke, the
Five Judges did not go against the law laid down by the majority
Judges in Ranganatha Reddy but only adopted the logic of the Three
Judges on which the majority of Four Judges were silent – The
five learned judges in Sanjeev Coke relied upon the decision of the
minority judges in Ranganath Reddy as they were persuaded by
the logic and the interpretation given by Justice Krishna Iyer to
the phrase “material resources of the community” – The broad and
inclusive meaning given to the expression “material resources of
the community” by Justice Krishna Iyer and Justice O. Chinnappa
Reddy in Ranganatha Reddy and Sanjeev Coke respectively has lost
none of its relevance, or jurisprudential value, nor has it lost the
audience which appreciates these values.

B 3. Constitution of India – Art.39(b) – Phrase ‘material resources of

the community’ in Article 39(b) – Meaning of – Single-sentence
observation in Mafatlal case to the effect that ‘material resources
of the community’ include privately owned resources – Effect
of – Held [per Dr Dhananjaya Y Chandrachud, CJI (for himself
and for Hrishikesh Roy, J. B. Pardiwala, Manoj Misra, Rajesh
Bindal, Satish Chandra Sharma, and Augustine George Masih, JJ.)]
(Majority opinion) – The single-sentence observation in Mafatlal
case to the effect that ‘material resources of the community’ include
privately owned resources is not part of the ratio decidendi of
the judgement – Thus, it is not binding on the Court – Held (per
Sudhanshu Dhulia, J.) (Concurring) – The majority opinion in
Mafatlal constitutes obiter dicta and is not binding on this Court –
Held (per B.V. Nagarathna, J.) – The single-sentence observation in
Mafatlal to the effect that “material resources of the community”
include privately owned resources may be obiter but has great
persuasive value.

B 4. Words and Phrases – Term ‘distribution’ – Meaning and connotation

of – Distribution by the State – Whether acquisition of private
resources falls within the ambit of the term ‘distribution – Held
[per Dr Dhananjaya Y Chandrachud, CJI (for himself and for
 Property Owners Association & Ors. v. 2213
State of Maharashtra & Ors.

Hrishikesh Roy, J. B. Pardiwala, Manoj Misra, Rajesh Bindal,

Satish Chandra Sharma, and Augustine George Masih, JJ.)] –
The term ‘distribution’ has a wide connotation – The various
forms of distribution which can be adopted by the State cannot
be exhaustively detailed – However, it may include the vesting of
the concerned resources in the State or nationalisation – In the
specific case, the Court must determine whether the distribution
‘subserves the common good’ – Held (per B.V. Nagarathna, J.): The
term “distribution” has no doubt a wide connotation but vesting
in the State of a particular privately owned “material resource”
or nationalisation of the same are only conditions precedent
to distribution which have to comply with Article 300A of the
Constitution – Further, a resource which has vested in the State or
a resource retained by a State on nationalisation could be utilised
by the State to subserve the common good as a material resource
of the community – The public trust doctrine would apply to such
material resources – Alternatively, the State could decide to actually
distribute the “material resources of the community” to eligible and
deserving persons by way of assignment, lease, allotment, grant,
etc. – The same would also come within the scope and ambit of
the expression “distribution” – Held (per Sudhanshu Dhulia, J.):
It is for the legislature to decide how the ownership and control
of material resources is to be distributed in order to subserve
common good – How to control and distribute a material resource
is also the task of the Legislature, but while doing so what has to
be seen is that the control and ownership of the material resource
be so distributed that it subserves common good of the community
– If it does not, then such a legislation can be struck down as the
Judiciary is not deprived of its powers of judicial review.

Held [per Dr Dhananjaya Y Chandrachud, CJI (for himself and

for Hrishikesh Roy, J. B. Pardiwala, Manoj Misra, Rajesh Bindal,
Satish Chandra Sharma, and Augustine George Masih, JJ.)]
(Majority Opinion):
1. Article 39(b) is not a source of legislative power. The inclusion
or exclusion of ‘privately-owned resources’ from the ambit of the
provision does not impact the power of the legislature to enact
2214 SUPREME COURT REPORTS [2024] 11 S.C.R. 1

laws to acquire such resources. The power to acquire private

resources, in certain situations, continues to be traceable to other
provisions in the Constitution, including the sovereign power of
eminent domain. [Para 203]
2. The interpretation of Article 39(b), i.e. that all private property
is covered within the ambit of Article 39(b) is inconsistent with
the text of Article 39(b). [Para 204]
3. There is a distinction between holding that private property may
form part of the phrase ‘material resources of the community’
and holding that all private property falls within the net of the
phrase. It is here that the judgment by Justice Krishna Iyer in
Ranganatha Reddy, and the consequent observations in Sanjeev
Coke fall into error. Justice Krishna Iyer cast the net wide, holding
that all resources which meet “material needs” are covered by the
phrase and any attempts by the government to nationalise these
resources would be within the scope of Article 39(b). He clarified
that not only the “means of production” but also the goods so
produced fall within the net of the provision. The illustration which
he provides in Ranganatha Reddy indicates the unworkable nature
of such an interpretation. Justice Krishna Iyer observed, by way
of an illustration, that not only do factories which produce cars
fall within the net of Article 39(b), but even privately owned cars
are covered by the provision. Similarly, even in Sanjeev Coke,
the net is cast wide and this Court observed that “all things
capable of producing wealth of the community” fall within the
ambit of the phrase. In both decisions, it was observed that all
resources of the individual are consequentially the resources of
the community. [Para 209]
4. An interpretation of Article 39(b) which places all private
property within the net of the phrase “material resources of
the community” only satisfies one of the three requirements of
the phrase, i.e. that the goods in question must be a ‘resource’.
However, it ignores the qualifiers that they must be “material”
and “of the community”. The use of the words “material” and
“community” are not meaningless superfluities. One cannot adopt
a construction of the provision which renders these terms otiose.
The words “of the community” must be understood as distinct
 Property Owners Association & Ors. v. 2215
State of Maharashtra & Ors.

from the “individual”. If Article 39(b) was meant to include all

resources owned by an individual, it would state the “ownership
and control of resources is so distributed as best to subserve
the common good”. Similarly, if the provision were to exclude
privately owned resources, it would state “ownership and control
of resources of the state …” instead of its current phrasing. The
use of the word “of the community” rather than “of the state”
indicates a specific intention to include some privately owned
resources. [Para 211]
5. In essence, the text of the provision indicates that not all privately
owned resources fall within the ambit of the phrase. However,
privately owned resources are not excluded as a class and some
private resources may be covered. The resource in question must
meet the two qualifiers, i.e. it must be a “material” resource and
it must be “of the community”. [Para 212]
6. To declare that Article 39(b) includes the distribution of all private
resources amounts to endorsing a particular economic ideology
and structure for our economy. Justice Krishna Iyer’s judgment
in Ranganatha Reddy, which was followed inter alia in Sanjeev
Coke and Bhim Singhji, was influenced by a particular school of
economic thought. In essence, the interpretation of Article 39(b)
adopted in these judgements is rooted in a particular economic
ideology and the belief that an economic structure which prioritises
the acquisition of private property by the state is beneficial for
the nation. [Para 213]
7. The Constitution was framed in broad terms to allow succeeding
governments to experiment with and adopt a structure for economic
governance which would subserve the policies for which it owes
accountability to the electorate. The role of this Court is not to lay
down economic policy, but to facilitate this intent of the framers
to lay down the foundation for an ‘economic democracy’. The
doctrinal error in the Krishna Iyer approach was, postulating a
rigid economic theory, which advocates for greater state control
over private resources, as the exclusive basis for constitutional
governance. The foresighted vision of our framers to establish
an ‘economic democracy’ and trust the wisdom of the elected
government, has been the backbone of the highgrowth rate of
2216 SUPREME COURT REPORTS [2024] 11 S.C.R. 1

India’s economy, making it one of the fastest-growing economies

in the world. To scuttle this constitutional vision by imposing a
single economic theory, which views the acquisition of private
property by the state as the ultimate goal, would undermine the
very fabric and principles of our constitutional framework. [Paras
214, 215 and 216]
8. The right to property was included in the Constitution as
a fundamental right under Articles 19(1)(f) and Article 31.
Subsequently, the right to property was deleted from Part III of the
Constitution by the Constitution (Forty-fourth Amendment) Act,
1978. However, a modified version was inserted and the right to
property continues to be constitutionally protected under Article
300A. Although no longer in the nature of a fundamental right, the
provision has been characterised as a constitutional and human
right. The interpretation of Article 39(b), both as a pre-cursor
to the protection of Article 31C and as an aspirational Directive
Principle, cannot run counter to the constitutional recognition
of private property. To hold that all private property is covered
by the phrase “material resources of the community” and that
the ultimate aim is state control of private resources would be
incompatible with the constitutional protection. [Paras 217, 220]
9. A construction of Article 39(b) which provides that all private
property is included within the ambit of Article 39(b) is incorrect.
However, there is no bar on the inclusion of private property as
a class and if a privately owned resource meets the qualifiers
of being a ‘material resource’ and ‘of the community’, it may
fall within the net of the provision. “Material resources of the
community” refers to either natural resources (which are those
of the nation) or those resources which in a large sense can be
said to be of community, even though they may be in private
hands. [Para 221]
10. There are various forms of resources, which may be privately
owned, and inherently have a bearing on ecology and/or the
well-being of the community. Such resources fall within the net
of Article 39(b). To illustrate, non-exhaustively, there may exist
private ownership of forests, ponds, fragile areas, wetlands
and resource-bearing lands. Similarly, resources like spectrum,
 Property Owners Association & Ors. v. 2217
State of Maharashtra & Ors.

airwaves, natural gas, mines and minerals, which are scarce and
finite, may sometimes be within private control. However, as the
community has a vital interest in the retention of the character
of these resources, they fall within the ambit of the expression
“material resources of the community”. [Para 223]
11. The majority judgment in Ranganatha Reddy expressly distanced
itself from the observations made by Justice Krishna Iyer (speaking
on behalf of the minority of judges) on the interpretation of Article
39(b). Thus, a coequal bench of this Court in Sanjeev Coke erred
by relying on the minority opinion. [Para 229(b)]
12. The single-sentence observation in Mafatlal to the effect that
‘material resources of the community’ include privately owned
resources is not part of the ratio decidendi of the judgement. Thus,
it is not binding on this Court. [Para 229(c)]
13. On the limited question of whether the acquisition of private
resources falls within the ambit of the term ‘distribution’, to hold
that the term “distribution” cannot encompass the vesting of a
private resource would amount to falling into the same error as
the Justice Krishna Iyer doctrine, i.e. to lay down a preference
of economic and social policy. The term ‘distribution’ has a wide
connotation. The various forms of distribution which can be
adopted by the state cannot be exhaustively detailed. However,
it may include the vesting of the concerned resources in the state
or nationalisation. In the specific case, the Court must determine
whether the distribution ‘subserves the common good’. [Paras
227, 228 and 229(f)]
14. The direct question referred to this bench is whether the phrase
‘material resources of the community’ used in Article 39(b)
includes privately owned resources. Theoretically, the answer is
yes, the phrase may include privately owned resources. However,
this Court is unable to subscribe to the expansive view adopted
in the minority judgement authored by Justice Krishna Iyer in
Ranganatha Reddy and subsequently relied on by this Court in
Sanjeev Coke. Not every resource owned by an individual can be
considered a ‘material resource of the community’ merely because
it meets the qualifier of ‘material needs’. [Para 229(d)]
2218 SUPREME COURT REPORTS [2024] 11 S.C.R. 1

15. The inquiry about whether the resource in question falls within
the ambit of Article 39(b) must be context-specific and subject to
a non-exhaustive list of factors such as the nature of the resource
and its characteristics; the impact of the resource on the well-
being of the community; the scarcity of the resource; and the
consequences of such a resource being concentrated in the hands
of private players. The Public Trust Doctrine evolved by this Court
may also help identify resources which fall within the ambit of
the phrase “material resource of the community”. [Para 229(e)]

Held (per B.V. Nagarathna, J.):

1. Articles 37, 38 and 39 of the Constitution of India which are part
of the Directive Principles of State Policy have to be interpreted
by bearing in mind the changing economic policies of the State
and not in a rigid watertight compartment. The flexibility of
interpretation is having regard to the dynamic changes in the
Indian socio-economic policies meant for the welfare and progress
of the people of India. An interpretation of the aforesaid Articles
or for that matter any other provision of the Constitution must
be viewed in the historical backdrop of the period in which
the interpretation was made by this Court during the course of
adjudication. Any interpretation which was found to be sound
and in consonance with the socio-economic policy of the State
during a particular period of time, cannot be critiqued at a later
point of time in any quarter including by a court of law merely
because the socio- economic policies of the State have changed
over a period of time or there is a paradigm shift in the thinking
and policies of the State. [Para 22(I)]
2. Articles 37 and 38 of the Constitution have to be borne in mind by
the Courts while considering the validity of any policy or statute
which intend to further any of the Directive Principles of State
Policy. [Para 22(II)]
3. Article 39(b) has to be read in the context of Article 39(c). Articles
39(b) and (c) supplement and complement each other and cannot
be construed in silos. Article 39(b) comprises of following five
components, namely, (i) ownership and control; (ii) material
resources; (iii) of the community; (iv) so distributed; and (v) as
best to subserve the common good.
 Property Owners Association & Ors. v. 2219
State of Maharashtra & Ors.

(i) The expression “ownership and control” must be given

its widest connotation in the context of “distribution of”
“material resources of the community” “as best to subserve
the common good”.
(ii) “Material resources” can in the first instance be divided
into two basic categories, namely, (i) State owned resources
which belong to the State which are essentially material
resources of the community, held in public trust by the State;
and (ii) privately owned resources. However, the expression
“material resources” does not include “personal effects”
or “personal belonging” of individuals, such as, clothing
or apparel, household articles, personal jewellery and
other articles of daily use belonging to the individuals of a
household and which are intimate and personal in nature
and use. Excluding “personal effects”, all other privately
owned resources can be construed as “material resources”.
Thus, all resources whether they are public resources or
privately owned resources which come within the scope
and ambit of the expression “material resources” as stated
above are included within that expression.
(iii) “Material resources” which are privately owned could be
transformed as “material resources of the community”,
inter alia, in the following five ways: a. by nationalisation,
which could be either by way of an enactment made by the
Parliament or a State legislature or in any other manner
in accordance with law; b. by acquisition, which could be
by way of a special enactment made by the Parliament or
a State legislature having regard to Entry 42 – List III of
the Seventh Schedule of the Constitution. Alternatively, the
acquisition could be made under the extant Parliamentary
or State laws dealing with acquisition; c. by operation of
law, such as vesting of private resources in the State, which
could be by virtue of statutes dealing with land reforms, land
tenures, abolition of inams, village offices or any other law
where by operation of law there would be vesting of private
material resources in the State or in any other manner
2220 SUPREME COURT REPORTS [2024] 11 S.C.R. 1

in accordance with law; d. by purchase of the material

resource from private persons by the State, its agencies
and instrumentalities in the manner known to law; and e.
by the private owner of the material resource converting
his “material resources” as a “material resource of the
community” by donation, gift, creation of an endowment or
a public trust or in any other manner known to law.
(iv) In (a) to (d) above, the provision of Article 300A which is
a constitutional right to property has to be complied with.
(v) The “material resources of the community” have to be
“distributed as best to subserve the common good”.
Distribution could be in two ways: Firstly, by the State itself
retaining the material resource for a public purpose and/
or for public use; and Secondly, privately owned material
resources when converted as “material resources of the
community” can be distributed to eligible and deserving
persons either by way of auction, grant, assignment,
allocation, lease, sale or any other mode of transfer known
to law either temporarily or permanently depending upon
the mode adopted and unconditionally or with conditions
depending upon:(a) nature of the resource and its inherent
characteristics; (b) the impact of the resource on the well-
being of the community; (c) the scarcity of the resource; (d)
the consequences of such a resource being concentrated in
the hands of the private owners; and (e) any such factors.
(vi) The expression “common good” would, inter alia, mean that
the distribution of the “ownership and control of material
resources of the community” would not lead to concentration
of the wealth and means of production in the hands of few
which is a Directive Principle in clause (c) of Article 39.
Thus, “distribution of material resources of the community”
cannot violate the Directive Principle in clause (c) of Article
39 of the Constitution. [Para 22(III)]
4. The majority judgment of this Court in Ranganatha Reddy and the
judgment in Abu Kavur Bai relate to nationalisation of contract
carriages/State carriages which were upheld by this Court.
 Property Owners Association & Ors. v. 2221
State of Maharashtra & Ors.

Nationalisation of coking coal mines was upheld by this Court in

Sanjeev Coke. In Bhim Singhji and Basantibai, certain provisions
of the Urban Land Ceiling Act and the provisions of MHADA
respectively were upheld on the touchstone of Article 39(b) of the
Constitution. The nine-Judge Bench in Mafatlal referred to the
judgments of this Court in Ranganatha Reddy, Abu Kavur Bai
etc. in the context of the submission made before, i.e., the Indian
Constitution envisages Justice – social, economic and political,
to all citizens of India as enshrined in the preamble. This was
by way of an obiter but having persuasive value. [Para 22(IV)]
5. The majority judgment in Ranganatha Reddy, no doubt, did not
concur with the views of Krishna Iyer, J. expressed in his separate
opinion. However, in Sanjeev Coke the Constitution Bench of
five-Judges independently upheld what was challenged in the
said case, namely, the Coking Coal Mines (Nationalisation) Act,
1972 and while doing so in paragraphs 19 and 20 referred to
the observations of Krishna Iyer, J. in Ranganatha Reddy and
made certain observations on the majority judgment in Minerva
Mills. However, A.N. Sen, J. did not express any opinion on the
judgment of this Court in Minerva Mills. What is significant is that
the judgments in Ranganatha Reddy as well as in Sanjeev Coke
upheld the respective Nationalisation Acts. Therefore, on merits
it cannot be held that Sanjeev Coke violated judicial discipline.
One cannot lose sight of the fact that in Sanjeev Coke this Court
did not decide the case only on the basis of the opinion of Krishna
Iyer, J. in Ranganatha Reddy but on merits on the validity of the
Nationalisation Act. Therefore, Sanjeev Coke is good law insofar
as on the merits of the matter is concerned. [Para 23(b)]
6. The single-sentence observation in Mafatlal to the effect that
“material resources of the community” include privately owned
resources may be obiter but has great persuasive value. [Para
23(c)]
7. Yes, privately owned resources except “personal effects” as
explained above can come within the scope and ambit of the
phrase “material resources of the community” provided such
resources get transformed as “resources of the community” as
discussed by me above. [Para 23(d)]
2222 SUPREME COURT REPORTS [2024] 11 S.C.R. 1

8. I agree that the inquiry about whether the resource in question

falls within the ambit of Article 39(b) must be context-specific
and subject to a non-exhaustive list of factors such as the nature
of the resource and its characteristics; the impact of the resource
on the well-being of the community; the scarcity of the resource;
and the consequences of such a resource being concentrated in
the hands of private players. The Public Trust Doctrine evolved
by this Court may also help identify resources which fall within
the ambit of the phrase “material resource of the community”.
In addition, I also reiterate my discussion and conclusion on
how privately owned material resource can be transformed as
“material resource of the community”. [Para 23(e)]
9. The term “distribution” has no doubt a wide connotation but
vesting in the State of a particular privately owned “material
resource” or nationalisation of the same are only conditions
precedent to distribution which have to comply with Article 300A
of the Constitution. Further, a resource which has vested in the
State or a resource retained by a State on nationalisation could be
utilised by the State to subserve the common good as a material
resource of the community. The public trust doctrine would apply
to such material resources. Alternatively, the State could decide
to actually distribute the “material resources of the community”
to eligible and deserving persons by way of assignment, lease,
allotment, grant, etc. The same would also come within the scope
and ambit of the expression “distribution”. [Para 23(f)]
10. The judgments of this Court in Ranganatha Reddy, Sanjeev Coke,
Abu Kavur Bai and Basantibai correctly decided the issues that
fell for consideration and do not call for any interference on the
merits of the matters. The observations of the Judges in those
decisions would not call for any critique in the present times.
Neither is it justified nor warranted. [Para 24]

Held (per Sudhanshu Dhulia, J.):

1. The question as to whether privately owned resources are part of
“material resources of the community” as used in Article 39(b),
has been answered by the learned Chief Justice as “yes”, “the
phrase may include privately owned resources”, but not in the
 Property Owners Association & Ors. v. 2223
State of Maharashtra & Ors.

expansive manner as held by the three learned judges in State of

Karnataka v. Ranganatha Reddy and later in Sanjeev Coke Mfg.
Co. v. Bharat Coking Coal Ltd. The judgment further sets limits
on what could be “material resources of the community”. I am
unable to accept the above proposition as this view ultimately holds
that not all privately owned resources are “material resources
of the community”. Not only this it further limits the hands of
the legislature to a non-exhaustive list of factors to determine
which resources can be considered as “material resources”. In
my opinion there is no need for this pre-emptive determination.
The definition of “material resources of the community” was
purposely kept in generalized and broad-based terms. I entirely
endorse the view taken by the Three learned Judges in Ranganatha
Reddy and by the Five learned Judges in Sanjeev Coke, as to
the scope and ambit of “material resources of the community”.
Privately owned resources are a part of the “material resources
of the community”. [Para 3]
2. “We may have democracy, or we may have wealth concentrated
in the hands of a few, but we cannot have both.” This expression
is attributed to Justice Louis D. Brandeis, an eminent Jurist and a
former Judge of US Supreme Court. Without doubt, when Articles
38 and 39 of the Constitution of India were being incorporated
in Part IV of our Constitution, a similar thought dominated the
minds of the framers of our Constitution. It is for this reason
that Granville Austin calls the Indian Constitution, “first and
foremost a social document”. Our Constitution is not merely a
roadmap for governance, it is also a vision for a just and equitable
society. [Para 5]
3. In Mafatlal, the question before this Court primarily was of unjust
enrichment. The observations of Justice Jeevan Reddy are only
incidental and were not related to the core issue. I agree with
the learned Chief Justice on this point and I adopt the detailed
reasoning given by him in holding that the majority opinion in
Mafatlal constitutes obiter dicta and is not binding on this Court.
[Para 24]
4. The question is that when in Sanjeev Coke, the Five Judge
Constitution Bench unanimously followed the minority judgement
2224 SUPREME COURT REPORTS [2024] 11 S.C.R. 1

in Ranganatha Reddy did it violate judicial discipline of not

following the majority but the minority decision. In my opinion, it
did not break any judicial discipline, since in Sanjeev Coke, the
Five Judges did not go against the law laid down by the majority
Judges in Ranganatha Reddy but only adopted the logic of the
Three Judges on which the majority of Four Judges were silent.
[Para 30]
5. It is difficult to even come to the conclusion that the Four Judges
in Ranganatha Reddy entirely disagreed with the minority
opinion of Justice Krishna Iyer. It merely says “we must not be
understood to agree with all that he has said in his judgment in
this regard.” This is not exactly a disagreement. The majority of
the Four Judges chose to remain silent on the subject. It cannot
be said that the Four Judges, in any way, said anything contrary
or in opposition to what was laid down by the Three Judges in
Ranganatha Reddy, and therefore, no judicial discipline was
broken by Justice O. Chinnappa Reddy when he authored the
unanimous judgment in Sanjeev Coke by adopting the logic
of the Three Judges in Ranganatha Reddy. The logic is very
clear, in cases where a Judge or Judges of the Supreme Court in
minority have given a decision on a point on which the majority
has remained silent, that it would be binding on the High Courts
and all other Courts, and for this Court the least it will have is
persuasive value. The five learned judges in Sanjeev Coke relied
upon the decision of the minority judges in Ranganath Reddy
as they were persuaded by the logic and the interpretation given
by Justice Krishna Iyer to the phrase “material resources of the
community”. [Para 31]
6. The provisions in Article 39(b) & (c) have to be read in the light
of Article 38 of the Constitution of India. Once one does that, one
cannot but give an expansive meaning to the phrase “material
resources of the community”. The meaning which must be given to
“material resources of the community” is what has been given to
it in Ranganatha Reddy by the Three Judges and what has been
followed in the Constitution Bench decision in Sanjeev Coke. To
my mind, this has been the interpretation of the phrase “material
resources of the community”. [Para 48]
 Property Owners Association & Ors. v. 2225
State of Maharashtra & Ors.

7. It is for the legislature to decide how the ownership and control

of material resources is to be distributed in order to subserve
common good. Once the expansive meaning of “material resources
of the community” is determined, there is no necessity of drawing
further guidelines for the legislatures to determine as to what will
constitute material resources. How to control and distribute a
material resource is also the task of the Legislature, but while
doing so what has to be seen is that the control and ownership of
the material resource be so distributed that it subserves common
good of the community. If it does not, then such a legislation
can be struck down as the Judiciary is not deprived of its powers
of judicial review. The legislation in question has to establish a
nexus with the principles specified in Article 39(b) and (c) to
be a valid legislation. This is the law in terms of Kesavananda
Bharati and Minerva Mills. To put it differently what and when
do the “privately owned resources” come within the definition
of “material resources” is not for this Court to declare. This is
not required. The key factor is whether such resources would
subserve common good. Clearly the acquisition, ownership or
even control of every privately owned resource will not subserve
common good. Yet at this stage we cannot come out with a
catalogue of do’s and don’ts. We must leave this exercise to the
wisdom of the legislatures. [Para 49]
8. The incorporation of Article 38 as well as Article 39(b) and (c) in
Part IV of our Constitution was based on the prevalent philosophy
of the time and the path of development India chose to follow.
The interpretation given to the above provisions by this Court,
particularly in Ranganatha Reddy and Sanjeev Coke also has
its contextual relevance. Perhaps in some ways situations have
changed. What has not changed, however, is the inequality. There
is today a political equality and there is also an equality in law,
yet the social and economic inequalities continue as cautioned
by Dr. Ambedkar in his speech in the constituent Assembly on
November 25, 1949. The inequality in income and wealth and the
growing gap between the rich and the poor is still enormous. It
will therefore not be prudent to abandon the principles on which
Articles 38 and 39 are based and on which stands the Three
2226 SUPREME COURT REPORTS [2024] 11 S.C.R. 1

Judge opinion in Ranganatha Reddy and the unanimous verdict

in Sanjeev Coke. [Para 50]
9. The broad and inclusive meaning given to the expression “material
resources of the community” by Justice Krishna Iyer and Justice
O. Chinnappa Reddy in Ranganatha Reddy and Sanjeev Coke
respectively has stood us in good stead and has lost none of its
relevance, or jurisprudential value, nor has it lost the audience
which appreciates these values. I must also record here my strong
disapproval on the remarks made on the Krishna Iyer Doctrine
as it is called. This criticism is harsh, and could have been
avoided. The Krishna Iyer Doctrine, or for that matter the O.
Chinnappa Reddy Doctrine, is familiar to all who have anything
to do with law or life. It is based on strong humanist principles
of fairness and equity. It is a doctrine which has illuminated our
path in dark times. The long body of their judgment is not just a
reflection of their perspicacious intellect but more importantly of
their empathy for the people, as human being was at the centre
of their judicial philosophy. [Para 50]

Case Law Cited

In the judgment of Dr. Dhananjaya Y. Chandrachud, CJI:
Sanjeev Coke Manufacturing Co v. Bharat Coking Coal
Ltd. [1983] 1 SCR 1000 : (1983) 1 SCC 147 : 1982 INSC
93 and State of Karnataka v. Ranganatha Reddy [1978] 1
SCR 641 : (1977) 4 SCC 471 : 1977 INSC 196 [Minority
opinion of Justice Krishna Iyer] – held, erroneous.

State of Maharashtra v. Central Provinces Manganese

Ore. [1977] 1 SCR 1002 : (1977) 1 SCC 643; DK Trivedi
& Sons v. State of Gujarat [1986] 1 SCR 479 : (1986)
Supp. SCC 20; Shamarao Parulekar v. District Magistrate,
Thana [1952] 1 SCR 683 : (1952) 2 SCC 1 : 1952 INSC
63; Natural Resources Allocation, In Re : Special Reference
No.1 of 2012 [2012] 9 SCR 311 : (2012) 10 SCC 1 : 2012
INSC 428; Shaukat Khan v. State of Andhra Pradesh
[1975] 1 SCR 429 : (1974) 2 SCC 376; Indian Express
 Property Owners Association & Ors. v. 2227
State of Maharashtra & Ors.

Newspapers (Bombay) v. Union of India [1985] 2 SCR 287

: (1985) 1 SCC 641 : 1984 INSC 231 – relied on.

State of Maharashtra v. Basantibai Khetan [1986] 1 SCR

707 : (1986) 2 SCC 516 : 1986 INSC 40; Minerva Mills
v. Union of India [1981] 1 SCR 206 : (1980) 3 SCC 625 :
1980 INSC 142; Kesavananda Bharati v. State of Kerala
[1973] Supp. 1 SCR 1 : (1973) 4 SCC 225 : 1973 INSC
91; Waman Rao v. Union of India [1981] 2 SCR 1 : (1980) 3
SCC 587 : 1980 INSC 216; Mafatlal Industries Ltd v. Union
of India [1996] Supp. 10 SCR 585 : (1997) 5 SCC 536 :
1996 INSC 1514; IR Coelho v. State of Tamil Nadu [1999]
Supp. 2 SCR 394 : (1999) 7 SCC 580 : 1999 INSC 394;
Malpe Vishwanath Acharya v. State of Maharashtra [1997]
Supp. 6 SCR 717 : (1998) 2 SCC 1 : 1997 INSC 831;
Supreme Court Advocates-On-Record Association v. Union
of India [2015] 13 SCR 1 : (2016) 5 SCC 1 : 2015 INSC
285; Maharao Sahib Shri Bhim Singhji v. Union of India
[1985] Supp. 1 SCR 862 : (1981) 1 SCC 166 : 1980 INSC
219; ATB Mehtab Majid v. State of Madras [1963] Supp. 2
SCR 435 : (1963) 14 STC 355 : 1962 INSC 342; Koteswar
Vittal Kamath v. Rangappa Baliga [1969] 3 SCR 40 :
(1969) 1 SCC 255 : 1968 INSC 335; The Property Owners’
Association and Ors. v. The State of Maharashtra and Ors.
[1996] Supp. 2 SCR 230 : (1996) 4 SCC 49 : 1996 INSC
598; Property Owners’ Assn. v. State of Maharashtra (2001)
4 SCC 455; Property Owners’ Assn. v. State of Maharashtra
(2013) 7 SCC 522; Mulchand Odhavji v. Rajkot Borough
Municipality (1971) 3 SCC 53; BN Tewari v. Union of India
[1965] 2 SCR 421; T Devadasan v. Union of India [1964] 4
SCR 680 : 1963 INSC 183; B Banerjee v. Anita Pan [1975]
2 SCR 774 : (1975) 1 SCC 166 : 1974 INSC 246; State of
Tamil Nadu & Ors. v. L. Abu Kavur Bai & Ors. [1984] 1
SCR 725 : (1984) 1 SCC 515; Jijubhai Nanbhai Kachar v.
State of Gujarat [1994] 1 SCR 807 : (1995) Supp 1 SCC
596; National Textile Corp Ltd. v. Sitaram Mills Ltd. [1986]
2 SCR 187 : AIR 1986 SC 1234 : 1986 INSC 61; Union of
India v. Cynamide India Ltd. [1987] 2 SCR 841 : (1987) 2
2228 SUPREME COURT REPORTS [2024] 11 S.C.R. 1

SCC 720 : 1987 INSC 100; Tinsukhia Electric Supply Co.

Ltd. v. State of Assam & Ors. [1989] 2 SCR 544 : (1989) 3
SCC 709 : 1989 INSC 128; N. Parthasarathy v. Controller
of Capital Issues [1991] 2 SCR 329 : (1991) 3 SCC 153 :
1991 INSC 104; Orient Paper and Industries Ltd. v. State
of Orissa [1990] Supp. 2 SCR 480 : (1991) Supp 1 SCC
81; Assam Sillimanite Ltd. & Anr v. Union of India & Ors.
[1990] 1 SCR 983 : (1992) Suppl 1 SCC 692 : 1990 INSC
89; Mahinder Kumar Gupta v. Union of India, Ministry of
Petroleum and Natural Gas (1995) 1 SCC 85; Tata Iron &
Steel Co v. UOI [1996] Supp. 3 SCR 808 : (1996) 9 SCC
709 : 1996 INSC 770; Victorian Granites Pvt. Ltd. v. P.
Rama Rao & Ors. [1996] Supp. 5 SCR 692 : (1996) 10
SCC 665 : 1996 INSC 1018; Mafatlal Industries Ltd. &
Ors. v. Union of India & Ors. [1996] Supp. 10 SCR 585
: (1997) 5 SCC 536; Reliance Natural Resources Ltd. v.
Reliance Industries Ltd. [2010] 5 SCR 704 : (2010) 7 SCC
1 : 2010 INSC 290; Central Board of Dawoodi Bohra v.
State of Maharashtra [2004] Supp. 6 SCR 1054 : (2005)
2 SCC 673; Trimurthi Fragrances (P) Ltd. v. State (NCT
of Delhi) [2022] 15 SCR 516 : 2022 SCC OnLine SC
1247 : 2022 INSC 975; Jaishri Laxmanrao Patil v. State
of Maharashtra [2021] 15 SCR 715 : (2021) 8 SCC 1 :
2021 INSC 284; Rajnarain Singh v. Patna Administration
Committee [1955] 1 SCR 290 : (1954) 2 SCC 82 : 1954
INSC 69; Kaikhosrou (Chick) Kavasji Framji v. Union of
India [2019] 4 SCR 222 : (2019) 20 SCC 705 : 2019 INSC
378; Navtej Singh Johar v. Union of India [2018] 7 SCR
379 : (2018) 10 SCC 1 : 2018 INSC 790; Lt. Col. Nitisha
& Ors. v. Union of India & Ors. [2021] 4 SCR 633 : (2021)
15 SCC 125 : 2021 INSC 210; Sita Soren v. Union of India
[2024] 3 SCR 462 : (2024) 5 SCC 629 : 2024 INSC 161;
Islamic Academy of Education v. State of Karnataka [2003]
Supp. 2 SCR 474 : (2003) 6 SCC 697 : 2003 INSC 391;
Secunderabad Club v. CIT [2023] 12 SCR 979 : 2023 SCC
OnLine SC 1004 : 2023 INSC 736; State of Gujarat v.
Utility Users’ Welfare Assn. [2018] 9 SCR 106 : (2018) 6
SCC 21 : 2018 INSC 329; State of Madras v. Champakan
 Property Owners Association & Ors. v. 2229
State of Maharashtra & Ors.

Dorairjan [1951] 1 SCR 525 : AIR 1951 SC 226 : 1951

INSC 26; Mohd Hanif Qureshi v. State of Bihar [1959]
1 SCR 629 : 1957 SCC OnLine SC 17; Golak Nath v.
State of Punjab [1967] 2 SCR 762 : [1967] SCC OnLine
SC 14 : 1967 INSC 45; Indian Handicrafts Emporium v.
Union of India [2003] Supp. 3 SCR 43 : (2003) 7 SCC 589
: 2003 INSC 427; M.R.F. Ltd. v. Inspector, Kerala Govt
[1998] Supp. 2 SCR 632 : (1998) 8 SCC 227 : 1998 INSC
423; Workmen v. Meenakshi Mills Ltd. [1992] 3 SCR 409
: (1992) 3 SCC 336 : 1992 INSC 164; Pathumma v. State
of Kerala [1978] 2 SCR 537 : (1978) 2 SCC 1 : 1978
INSC 7; State of Gujarat v. Mirzapur Moti Kureshi Kassab
Jamat [2005] Supp. 4 SCR 582 : (2005) 8 SCC 534 :
2005 INSC 525; State of Kerala v. N.M. Thomas [1976] 1
SCR 906 : (1976) 2 SCC 310 : 1975 INSC 224; Bandhua
Mukti Morcha v. Union of India [1984] 2 SCR 67 : (1984)
3 SCC 161 : 1983 INSC 203; Ashok Kumar Thakur v.
Union of India [2008] 4 SCR 1 : (2008) 6 SCC 1 : 2008
INSC 473; Olga Tellis v. Bombay Municipal Corpn. [1985]
Supp. 2 SCR 51 : (1985) 3 SCC 545 : 1985 INSC 151;
S.R. Chaudhuri v. State of Punjab [2001] Supp. 1 SCR 621
: (2001) 7 SCC 126 : 2001 INSC 373; K.S. Puttaswamy
v. Union of India [2017] 10 SCR 569 : (2017) 10 SCC 1
: 2017 INSC 1235; Maharashtra State Electricity Board
v. Thana Electric Supply Co. [1989] 2 SCR 518 : (1989) 3
SCC 616 : 1989 INSC 127; Tinsukhia Electric Supply Co.
Ltd. v. State of Assam [1989] 2 SCR 544 : (1989) 3 SCC
709 : 1989 INSC 128; Assam Sillimanite Ltd. v. Union of
India [1990] 1 SCR 983 : (1992) Supp. 1 SCC 692 : 1990
INSC 89; Hardeep Singh v. State of Punjab [2014] 2 SCR
1 : (2014) 3 SCC 92 : 2014 INSC 21; Rohitash Kumar v.
Om Prakash Sharma [2012] 13 SCR 47 : (2013) 11 SCC
451 : 2012 INSC 509; Chandigarh Housing Board v. Major
General Devinder Singh [2007] 3 SCR 1049 : (2007) 9
SCC 6 : 2007 INSC 291; Lachhman Dass v. Jagat Ram
[2007] 2 SCR 980 : (2007) 10 SCC 448; Vidya Devi v.
State of Himachal Pradesh [2020] 1 SCR 749 : (2020) 2
SCC 569 : 2020 INSC 23; Kolkata Municipal Corporation
2230 SUPREME COURT REPORTS [2024] 11 S.C.R. 1

& Anr v. Bimal Kumar Shah & Ors. [2024] 5 SCR 831 :
2024 INSC 435; M.C. Mehta v. Kamal Nath [1996] Supp.
10 SCR 12 : (1997) 1 SCC 388 : 1996 INSC 1482; M.I.
Builders (P) Ltd. v. Radhey Shyam Sahu [1999] 3 SCR
1066 : (1999) 6 SCC 464 : 1996 INSC 1482; Fomento
Resorts and Hotels Ltd. v. Minguel Martins [2009] 3 SCR 1
: (2009) 3 SCC 571 : 2009 INSC 39; Intellectuals Forum v.
State of A.P. [2006] 2 SCR 419 : (2006) 3 SCC 549 : 2006
INSC 101; Vedanta Limited v. State of Tamil Nadu [2024]
2 SCR 1121 : 2024 INSC 175; Centre for Public Interest
Litigation v. Union of India [2012] 3 SCR 147 : (2012) 3
SCC 1 – referred to.

Property Owners’ Association v. State of Maharashtra,

1991 SCC OnLine Bom 521; Laxmibai v. State of Madhya
Pradesh, AIR 1951 Nag 94; Shriram Gulabdas v. Board of
Revenue, Madhya Pradesh (1952) 3 STC 343 – referred
to.

Frost v. Corporation Commissioner, 278 U.S. 505; Texas

Company v. Cohn Wash, 2d 360 (17 April 1941, Supreme
Court of Washington); Mazurek v. FM Ins Company,
Jamestown 320 Pa 33 (Pa. 1935) (25 November 1935,
Supreme Court of Pennsylvania) – referred to.

In the judgment of B. V. Nagarathna, J.

Sanjeev Coke Manufacturing Co. v. Bharat Coking Coal
Ltd. [1983] 1 SCR 1000 : (1983) 1 SCC 147 : AIR 1983
SC 239; State of Tamil Nadu v. L. Abu Kavur Bai [1984] 1
SCR 725 : (1984) 1 SCC 515 : 1984 INSC 17 and State of
Maharashtra v. Basantibai Mohanlal Khetan [1986] 1 SCR
707 : (1986) 2 SCC 516 – affirmed.

Property Owners’Association v. State of Maharashtra [1996]

Supp. 2 SCR 230 : (1996) 4 SCC 49; H.H. Kesavananda
Bharati Sripadagalvaru v. State of Kerala [1973] Supp.
1 SCR 1 : (1973) 4 SCC 225 : AIR 1973 SC 1461; State
 Property Owners Association & Ors. v. 2231
State of Maharashtra & Ors.

of Karnataka v. Ranganatha Reddy [1978] 1 SCR 641 :

AIR 1978 SC 215; Mafatlal Industries v. Union of India
[1996] Supp. 10 SCR 585 : (1997) 5 SCC 536; IR Coelho
v. State of Tamil Nadu [1999] Supp. 2 SCR 394 : (1999) 7
SCC 580 : 1999 INSC 394; Minerva Mills Ltd. v. Union of
India [1981] 1 SCR 206 : (1980) 3 SCC 625 : AIR 1980
SC 1789; State of West Bengal v. Anwar Ali Sarkar [1952]
1 SCR 284 : AIR 1952 SC 75; Supreme Court Advocates-
On-Record Association v. Union of India [1993] Supp. 2
SCR 659 : (1993) 4 SCC 441; Zee Telefilms Ltd. v. Union
of India [2005] 1 SCR 913 : AIR 2005 SC 2677; Justice
K.S. Puttaswamy (Retd.) v. Union of India [2017] 10 SCR
569 : (2017) 10 SCC 1; National Legal Services Authority
v. Union of India [2014] 5 SCR 119 : (2014) 5 SCC 438;
Joseph Shine v. Union of India [2018] 11 SCR 765 : (2019)
3 SCC 39; Navtej Johar v. Union of India [2018] 7 SCR 379
: (2018) 10 SCC 1; Anuj Garg v. Hotel Association of India
[2007] 12 SCR 991 : AIR 2008 SC 63; Secretary, Ministry
of Defence v. Babita Punia [2020] 3 SCR 833 : (2020) 7
SCC 469; Lt. Colonol Nitisha & Others v. Union of India
[2021] 4 SCR 633 : AIR 2021 SC 1797; Bhim Singhji v.
Union of India, AIR 1981 SC 234; Waman Rao v. Union of
India [1981] 2 SCR 1 : (1980) 3 SCC 587 : 1980 INSC 216;
AIR 1981 SC 271; Centre for Public Interest Litigation v.
Union of India [2012] 3 SCR 147 : (2012) 3 SCC 1; In Re
: Natural Resources Allocation, Special Reference No.1 of
2012 [2012] 9 SCR 311 : (2012) 10 SCC 1; H.H. Maharaja
Rana Hemant Singhji v. CIT [1976] 3 SCR 423 : (1976)
1 SCC 996; State of West Bengal v. Subodh Gopal Bose
[1954] 1 SCR 587 : AIR 1954 SC 92; Jilubhai v. State of
Gujarat [1994] 1 SCR 807 : AIR 1995 SC 142; Rustom
Cavasjee Cooper v. Union of India [1970] 3 SCR 530 : AIR
1970 SC 564; State of Bihar v. Kameshwar Singh [1952] 1
SCR 889 : AIR 1952 SC 252; Coal India Ltd. v. CCI [2023]
7 SCR 827 : (2023) 10 SCC 345; Madhusudan Singh v.
Union of India [1984] 1 SCR 849 : (1984) 2 SCC 381;
2232 SUPREME COURT REPORTS [2024] 11 S.C.R. 1

Tinsukhia Electric Supply Co. Ltd. v. State of Assam [1989]

2 SCR 544 : (1989) 3 SCC 709; Assam Sillimanite Ltd. v.
Union of India [1990] 1 SCR 983 : (1992) Supp. 1 SCC
692; Kolkata Municipal Corporation v. Bimal Kumar Shah
[2024] 5 SCR 831 : 2024 INSC 435 – referred to.

In the judgment of Sudhanshu Dhulia, J.

State of Karnataka v. Ranganatha Reddy [1978] 1 SCR 641
: (1977) 4 SCC 471 [Minority opinion of Justice Krishna
Iyer]; and Sanjeev Coke Mfg. Co. v. Bharat Coking Coal
Ltd. [1983] 1 SCR 1000 : (1983) 1 SCC 147 : AIR 1983
SC 239 – impliedly affirmed.

Minerva Mills v. Union of India [1981] 1 SCR 206 : (1980)

3 SCC 625; Kesavananda Bharati v. State of Kerala [1973]
Supp. 1 SCR 1 : (1973) 4 SCC 225; State of Madras v.
Champakam Dorairajan [1951] 1 SCR 525 : 1951 SCC
OnLine SC 30; In Re : Kerala Education Bill, 1957 [1959]
1 SCR 995 : 1958 SCC OnLine SC 8; Mohd. Hanif
Quareshi and others v. State of Bihar and others [1959] 1
SCR 629 : 1957 SCC OnLine 17; State of Kerala v. N.M.
Thomas [1976] 1 SCR 906 : (1976) 2 SCC 310; State of
Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and others
[2005] Supp. 4 SCR 582 : (2005) 8 SCC 534; Mafatlal
Industries v. Union of India [1996] Supp. 10 SCR 585 :
(1997) 5 SCC 536; Waman Rao & Others v. Union of India
[1981] 2 SCR 1 : (1981) 2 SCC 362; State of T.N. v. L.
Abu Kavur Bai [1984] 1 SCR 725 : (1984) 1 SCC 515;
Tinsukhia Electric Supply Co. Ltd. v. State of Assam [1989]
2 SCR 544 : (1989) 3 SCC 709; Madhusudan Singh v.
Union of India [1984] 1 SCR 849 : (1984) 2 SCC 381; State
of Maharashtra v. Basantibai Mohanlal Khetan [1986] 1
SCR 707 : (1986) 2 SCC 516; Assam Sillimanite Ltd. v.
Union of India [1990] 1 SCR 983 : (1992) Supp 1 SCC
692; Jilubhai Nanbhai Khachar v. State of Gujarat [1994]
1 SCR 807 : (1995) Supp 1 SCC 596; KT Moopli Nair v.
 Property Owners Association & Ors. v. 2233
State of Maharashtra & Ors.

State of Kerala [1961] 3 SCR 77 : 1960 SCC OnLine SC

7; Shankari Prasad Singh v. Union of India, AIR 1951 SC
458; State of Bihar v. Kameshwar Singh [1952] 1 SCR 889
: (1952) 1 SCC 528; State of West Bengal v. Bela Banerjee
[1954] 1 SCR 558 : (1953) 2 SCC 648; Vajravelu v. Special
Deputy Collector [1965] 1 SCR 614 : 1964 SCC OnLine
SC 22; State of Madras v. D. Namasivaya Mudaliar [1964]
6 SCR 936 : 1964 SCC OnLine SC 169; Union of India
v. Metal Corporation of India [1967] 1 SCR 255 : 1966
SCC OnLine SC 15; State of Gujarat v. Shri Shantilal
Mangaldas & Ors. [1969] 3 SCR 341 : AIR 1969 SC 634;
RC Cooper v. Union of India [1970] 3 SCR 530 : (1970)
1 SCC 248; Video Electronics Pvt. Ltd. v. State of Punjab
[1989] Supp. 2 SCR 731 : (1990) 3 SCC 87; Bangalore
Water Supply & Sewerage Board. v. A. Rajappa & Others
[1978] 3 SCR 207 : (1978) 2 SCC 213; Maneka Gandhi v.
Union of India [1978] 2 SCR 621 : (1978) 1 SCC 248; MH
Hosket v. State of Maharashtra [1979] 1 SCR 192 : (1978) 3
SCC 544; Hussainara Khatoon v. Home Secretary, State of
Bihar (I) [1979] 3 SCR 169 : (1980) 1 SCC 81; Sunil Batra
v. Delhi Administration [1980] 2 SCR 557 : (1980) 3 SCC
488; Bijoe Emmanuel v. State of Kerala [1986] 3 SCR 518 :
(1986) 3 SCC 615; Vishaka v. State of Rajasthan [1997]
3 Supp. SCR 404 : (1997) 6 SCC 241; K.S. Puttaswamy
v. Union of India [2017] 10 SCR 569 : (2017) 10 SCC 1;
Navtej Singh Johar v. Union of India [2018] 7 SCR 379 :
(2018) 10 SCC 1 – referred to.

V. Padmanabha Ravi Varma Raja v. Deputy Tahsildar, 1962

SCC OnLine Ker 98; Mahinder Bahawanji Thakur v. S.P.
Pande, 1963 SCC OnLine Bom 28; Sudha Tiwari v. Union
of India, 2011 SCC OnLine All 253; Raja Suryapal Singh
v. U.P of Govt., 1951 SCC OnLine All 183 – referred to.

Hunter v. Southam Inc (1984) 2 SCR 145 (Canada Supreme

Court); Fay v. New York 332 U.S. (1947) (Jackson, J.) –
referred to.
2234 SUPREME COURT REPORTS [2024] 11 S.C.R. 1

Books and Periodicals Cited

In the judgment of Dr. Dhananjaya Y. Chandrachud, CJI:

DD Basu, ‘Constitution of India’, Vol 9, p. 9917; Advanced
Law Lexicon by Ramanathaier, 3rd Edn., Vol. III, p. 2509;
Halsbury, 2nd Edn, Vol 19, para 556; Eugene Wambaugh,
The Study of Cases (Boston: Little, Brown & Co., 1892); HM
Seervai, Constitutional Law of India, Vol 2 (4th ed, Universal
Law Publishing 2002) 1934–40; Constituent Assembly
Debates, Vol VII (15th November 1948); Black’s Law
Dictionary, 8th Edition, South Asian Edition, 2015; Hughes,
The Supreme Court of The United States, (1930) American
Bar Asson. Journal.; Rahul De, A History of Economic
Policy in India: Crisis, Coalitions, and Contingency, 2023
(Oxford University Press); Ministry of Finance (Department
of Economic Affairs), Government of India, The Indian
Economy: A Review, January 2024; Ministry of Finance
(Department of Economic Affairs), Government of India,
Economic Survey 2023-24, July 2024 – referred to.

In the judgment of Sudhanshu Dhulia, J.

Mr. Justice Brandeis, Great American: Press Opinion &
Public Appraisal (The Modern View Press, Saint Louis,
1941), Pg.42; Granville Austin, The Indian Constitution:
Cornerstone of a Nation (Oxford University Press, New
Delhi, Second Impression 2000), Pgs. 50, 51; Aharon
Barak, The Judge in a Democracy (Princeton University
Press, 2006), Pgs. 4-5, 308; Aharon Barak, Purposive
Interpretation in Law (Universal Law Publishing Co.,
2007), Pgs. 370, 372, 377; Aharon Barak, Hermeneutics
and Constitution Interpretation, 14 Cardozo L. Rev. 767,
(1992-93), Pg. 772; A. M Zaidi et al., The Encyclopaedia of
The Indian National Congress (VOL.-10: 1930-1935): The
Battle For Swaraj (S. Chand & Co. Ltd., 1980), Pg. 183;
Rakesh Batabyal (ed.), The Penguin Book of Modern India
Speeches (Penguin Books, 2007), Pg. 365; O. Chinnappa
 Property Owners Association & Ors. v. 2235
State of Maharashtra & Ors.

Reddy, The Court and The Constitution of India: Summits

and Shallows (Oxford University Press, 2008), Pg. 137,
139; Bipan Chandra, Nationalism & Colonialism in
Modern India (Orient Longman, 1979), Pgs. 145, 158; Sir P.
Thakurdas, Jrd Tata et al., A Plan of Economic Development
for India (Part II) (1944); Sanjay Baru (ed.), The Bombay
Plan (Rupa Publications India Pvt Ltd., 2018), Pg. 292;
Aditya Mukherjee, Political Economy of Colonial and Post-
Colonial India (Primus Books, 2022), Pg.192; Justice O.
Chinnappa Reddy, The Court and The Constitution of India:
Summits and Shallows (Oxford University Press, 2008),
Pgs. 74-75, 76; Constituent Assembly Debates, Vol. I, Pg.
62; Vol. II, Pg. 316; Vol. V, Pg.341; Vol. VII, Pgs. 41, 225,
473, 518-19 and 539; Vol. IX, Pg. 1195; Vol. XI, Pg.979;
P.K. Tripathy, Spotlights on Constitutional Interpretation
(N.M Tripathi Pvt. Ltd., 1972), Pg. 295; Shylashri Shankar,
Scaling Justice: The Supreme Court, Social Rights and Civil
Liberties in India (Oxford University Press, 2009), Pg. 124;
H.M. Seervai, Constitutional Law of India (4th Ed., Vol. II,
1993), Pgs. 1923-1924, 1932; Lael K. Weis, Constitutional
Directive Principles, 37 (4) Oxford Journal of Legal
Studies 916 (2017), Pg. 923; Parliamentary Debates (Part
II-Proceedings Other Than Questions and Answers), Pgs.
8830, 8831-8832; Aditya Mukherjee, Political Economy of
Colonial and Post-Colonial India (Primus Books, 2022), Pg.
511; C.H Hanumantha Rao, Rural Society and Agricultural
Development in Course of Industrilisation: Case of India,
26 Economic and Political Weekly (1991), Pg. 691; Report
of the Monopolies Inquiry Commission 1965; Lok Sabha
Debates (Part II- Proceedings Other Than Questions and
Answers), Vol-III, Pgs. 4833-4834; A. Moin Zaidi, The Great
Upheaval 1969-1972 (Orientalia, 1972), Pgs. 103-105;
Anatole France et. al., Crainquebille (Dodd, Mead & Co.,
Inc., 1922), Pg. 171; Global Hunger Index 2024; National
Multidimensional Poverty Index: A Progress Review 2023,
Niti Aayog, Government Of India – referred to.
2236 SUPREME COURT REPORTS [2024] 11 S.C.R. 1

List of Keywords

Article 31C of the Constitution; Amendment struck down

by Supreme Court; Interpretation of Article 39(b) of the
Constitution; Article 300A; Phrase ‘material resources of
the community’; Kesavananda Bharati case; Minerva Mills
case; Sanjeev Coke case; Ranganatha Reddy case; Privately
owned resources; Qualifier of ‘material needs’; Public
Trust Doctrine; Minority opinion; Term ‘distribution’;
Distribution by the State; Vesting of resources in the State;
Nationalisation; Common good.
 [2024] 12 S.C.R. 28 : 2024 INSC 847

Tej Prakash Pathak & Ors.

v.
Rajasthan High Court & Ors.
(Civil Appeal No. 2634 of 2013)

07 November 2024

[Dr Dhananjaya Y Chandrachud, CJI, Hrishikesh Roy,

Pamidighantam Sri Narasimha, Pankaj Mithal
and Manoj Misra,* JJ.]

Issue for Consideration

(a) When the recruitment process commences and comes to an end;
(b) Basis of the doctrine that ‘rules of the game’ must not be changed
during the course of the game, or after the game is played; (c) Whether
the decision in K. Manjusree is at variance with earlier precedents on the
subject; (d) Whether recruiting bodies can devise an appropriate procedure
for concluding recruiting process; (e) Whether the procedure prescribed in
the Extant Rule can be violated; (f) Whether appointment could be denied
even after placement in select list.

Headnotes

Service Law – Recruitment – Commencement and end of the recruitment

process:
Held: The process of recruitment begins with the issuance of advertisement
and ends with the filling up of notified vacancies – It consists of various
steps like inviting applications, scrutiny of applications, rejection of defective
applications or elimination of ineligible candidates, conducting examinations,
calling for interview or viva voce and preparation of list of successful
candidates for appointment. [Para 13]

Service Law – Recruitment – Basis of the doctrine that ‘rules of the

game’ must not be changed during the course of the game, or after the
game is played:
Held: The doctrine proscribing change of rules midway through the game,
or after the game is played, is predicated on the rule against arbitrariness

2237
2238 SUPREME COURT REPORTS [2024] 12 S.C.R. 28

enshrined in Article 14 of the Constitution – Article 16 is only an instance

of the application of the concept of equality enshrined in Article 14 – In
other words, Article 14 is the genus while Article 16 is a species – Article
16 gives effect to the concept of equality in all matters relating to public
employment – These two articles strike at arbitrariness in State action and
ensure fairness and equality of treatment – Eligibility criteria for being
placed in the Select List, notified at the commencement of the recruitment
process, cannot be changed midway through the recruitment process unless
the extant Rules so permit, or the advertisement, which is not contrary to the
extant Rules, so permit – Even if such change is permissible under the extant
Rules or the advertisement, the change would have to meet the requirement
of Article 14 of the Constitution and satisfy the test of non-arbitrariness.
[Paras 14, 42(2)]

Service Law – Recruitment – Whether the decision in K. Manjusree is

at variance with earlier precedents on the subject:
Held: K. Manjusree case is not at variance with earlier precedents – The
decision in K. Manjusree does not proscribe setting of benchmarks for various
stages of the recruitment process but mandates that it should not be set after
the stage is over, in other words after the game has already been played –
This view is in consonance with the rule against arbitrariness enshrined in
Article 14 of the Constitution and meets the legitimate expectation of the
candidates as also the requirement of transparency in recruitment to public
services and thereby obviates malpractices in preparation of select list – The
decision in K. Manjusree case lays down good law and is not in conflict
with the decision in Subash Chander Marwaha case – Subash Chander
Marwaha deals with the right to be appointed from the Select List whereas
K. Manjusree deals with the right to be placed in the Select List – The two
cases therefore deal with altogether different issues. [Paras 18, 30, 42(3)]

Service Law – Recruitment – Whether recruiting bodies can devise an

appropriate procedure for concluding recruiting process:
Held: Recruiting bodies, subject to the extant Rules, may devise appropriate
procedure for bringing the recruitment process to its logical end provided
the procedure so adopted is transparent, non-discriminatory/non-arbitrary
and has a rational nexus to the object sought to be achieved. [Para 42(4)]
 Tej Prakash Pathak & Ors. v. Rajasthan High Court & Ors. 2239

Service Law – Recruitment – Whether the procedure prescribed in the

Extant Rule can be violated:
Held: Procedure prescribed in the Extant Rule cannot be violated – Extant
Rules having statutory force are binding on the recruiting body both in terms
of procedure and eligibility – Where there are no Rules or the Rules are
silent on the subject, administrative instructions may be issued to supplement
and fill in the gaps in the Rules – In that event administrative instructions
would govern the field provided they are not ultra vires the provisions of
the Rules or the Statute or the Constitution – But where the Rules expressly
or impliedly cover the field, the recruiting body would have to abide by the
Rules. [Paras 39, 42(5)]

Service Law – Name in select list – Right to appointment – Whether

appointment could be denied even after placement in select list:
Held: Appointment may be denied even after placement in select list – A
candidate placed in the select list gets no indefeasible right to be appointed
even if vacancies are available – But there is a caveat – The State or its
instrumentality cannot arbitrarily deny appointment to a selected candidate
– Therefore, when a challenge is laid to State’s action in respect of denying
appointment to a selected candidate, the burden is on the State to justify its
decision for not making appointment from the Select List. [Para 40]

Service Law – Recruitment – Legitimate Expectation – Discretion of

Public Authority – Public Interest:
Held: Candidates participating in a recruitment process have legitimate
expectation that the process of selection will be fair and non-arbitrary –
The basis of doctrine of legitimate expectation in public law is founded on
the principles of fairness and non-arbitrariness in government dealings
with individuals – However, the doctrine of legitimate expectation does not
impede or hinder the power of the public authorities to lay down a policy
or withdraw it – The public authority has the discretion to exercise the full
range of choices available within its executive power – The public authority
often has to take into consideration diverse factors, concerns, and interests
before arriving at a particular policy decision – The courts are generally
cautious in interfering with a bona fide decision of public authorities which
denies legitimate expectation provided such a decision is taken in the larger
public interest – Thus, public interest serves as a limitation on the application
2240 SUPREME COURT REPORTS [2024] 12 S.C.R. 28

of the doctrine of legitimate expectation – Courts have to determine whether

the public interest is compelling and sufficient to outweigh the legitimate
expectation of the claimant. [Para 16]

Case Law Cited

K. Manjusree v. State of A.P. [2008] 2 SCR 1025 : (2008) 3
SCC 512 – held good law.

Sivanandan CT & Ors. v. High Court of Kerala & Ors.

[2023] 11 SCR 674 : 2023 INSC 709 – followed.

Ramesh Kumar v. High Court of Delhi [2010] 2 SCR 256 :

(2010) 3 SCC 104; K. H. Siraj v. High Court of Kerala &
Ors. [2006] Supp. 2 SCR 790 : (2006) 6 SCC 395; M.P.
Public Service Commission v. Navnit Kumar Potdar [1994]
Supp. 3 SCR 665 : (1994) 6 SCC 293; Union of India v.
T. Sundararaman [1997] 3 SCR 792 : (1997) 4 SCC 664;
Tridip Kumar Dingal v. State of W.B. [2008] 15 SCR 194
: (2009) 1 SCC 768; Salam Samarjeet Singh v. The High
Court of Manipur at Imphal & Anr. [2024] 8 SCR 885 :
2024 INSC 647 – relied on.

State of Haryana v. Subash Chander Marwaha [1974]

1 SCR 165 : (1974) 3 SCC 220; Tej Prakash Pathak &
Others v. Rajasthan High Court and Others (2013) 4 SCC
540; Shankar K. Mandal v. State of Bihar [2003] 3 SCR 796
: (2003) 9 SCC 519; Mohd. Sohrab Khan v. Aligarh Muslim
University and Others [2009] 2 SCR 907 : (2009) 4 SCC
555; A.P. Public Service Commission v. B. Sarat Chandra
[1990] 2 SCR 463 : (1990) 2 SCC 669; Rakhi Ray v. High
Court of Delhi [2010] 2 SCR 239 : (2010) 2 SCC 637;
E.P. Royappa v. State of T.N. [1974] 2 SCR 348 : (1974)
4 SCC 3; State of Jharkhand v. Brahmputra Metallics Ltd.
[2020] 14 SCR 45 : (2023) 10 SCC 634; Shankarsan Dash
v. Union of India [1991] 2 SCR 567 : (1991) 3 SCC 47; All
India SC & ST Employees Association v. A. Arthur Jeen &
Others [2001] 2 SCR 1183 : (2001) 6 SCC 380; M. Ramesh
v. Union of India [2018] 6 SCR 763 : (2018) 16 SCC 195;
Tej Prakash Pathak & Ors. v. Rajasthan High Court & Ors. 2241

P.K. Ramachandra Iyer v. Union of India [1984] 2 SCR

200 : (1984) 2 SCC 141; Hemani Malhotra v. High Court
of Delhi [2008] 5 SCR 1066 : (2008) 7 SCC 11; Ashok
Kumar Yadav v. State of Haryana [1985] Supp. 1 SCR 657
: (1985) 4 SCC 417; Lila Dhar v. State of Rajasthan and
Others [1982] 1 SCR 320 : (1981) 4 SCC 159; Santosh
Kumar Tripathi v. U.P. Power Corporation (2009) 14 SCC
210; Banking Service Recruitment Board, Madras v. V.
Ramalingam (1998) 8 SCC 523 – referred to.

Books and Periodicals Cited

United Nations Handbook of Civil Service Laws and
Practices.

List of Acts

Constitution of India; Rajasthan High Court Staff Service

Rules 2002; Kerala Judicial Service Rules, 1991.

List of Keywords

Service Law; Recruitment; Appointment; ‘Rules of

the game’; Recruiting bodies; Appropriate procedure;
Recruiting process; Name in select list; Right to appointment;
Procedure prescribed in the Extant Rule; Recruiting
process; Article 14 of the Constitution; Article 16 of the
Constitution; Article 309 of the Constitution; Transparent;
Non-discriminatory; Non-arbitrary; Eligibility criteria;
Select List; Extant Rule; Principle of fairness; Legitimate
expectation; Rule against arbitrariness.