10 leading Supreme Court decisions in March 2020

In the wake of the health crisis, all major institutions, including the Supreme Court, have shut down. We took this opportunity to get our act together and bring to you some premium content. Going in reverse order, we have cataloged 10 major decisions of the Supreme Court handed out in March 2020 in this post.

(1) Right to Information - Is is not pervasive 

In the case of Chief Information Commissioner v. High Court of Gujarat the Supreme Court (three-judge bench) has declared that every inconsistency between the RTI law and any other law as regards supply of information is not fatal. Therefore upholding the rules governing supply of information adopted by the High Court of Gujarat, the Supreme Court has opined that the High Court can imposed additional conditions for furnishing the information. In particular, the condition under the High Court Rules for filing affidavit and giving reasons as to why the information is required which, thought contrary to the RTI Act, has been upheld by the Supreme Court. The Supreme Court has also upheld the exclusion of the RTI Act, under the High Court rules, to the copies of judicial work of the High Court and the same can be sought only under the High Court rules and not under the RTI. [Civil Appeal No. 1966-1967/2020 dated 04.03.2020]

(2) Workers are also 'consumers' of Government Schemes

In this path breaking decision in the case of Joint Labour Commissioner and Registering Officer v. Kesar Lal the Supreme Court has expanded the scope of consumer laws to hold that even a worker who is denied benefit of Government schemes can successfully bring a case under the Consumer Protection Act, 1986. In this case the Respondent Worker had applied for grants under the Building and Other Construction Workers’ (Regulation of Employment and Conditions of Service) Act, 1996 for purpose of his daughter's marriage. This was rejected by the Officer of the Rajasthan Government citing that the paperwork was not complete and formalities were not complied. The worker complained against this rejection under the consumer law and this came was finally upheld by the Supreme Court. [Civil Appeal No. 2014/2020 dated 17.03.2020]

(3) Proceedings for removal of 'probationer' not entitled to strict judicial review compared to confirmed employees

In the case of Rajasthan High Court v. Ved Priya the Supreme Court was concerned with correctness of view of the High Court (on its administrative side) which has removed the Respondent probationer from services as a judge of the lower court. This proceeding was challenged by way of writ petition before the High Court. The Supreme Court in this decision exhaustively surveyed the earlier decisions regarding the right of probationers to be confirmed and the corresponding right of the employer to remove the probationers. Upholding the removal, the Supreme Court specifically observed that unsatisfactory performance is sufficient for removal in such cases and there is no necessity for a full-fledged inquiry at the end of probation period. [Civil Appeal No. 8933-8934/2017 dated 18.03.2020]

(4) Pension available even for employees who have opted for VRS scheme

Deciding the disputed question (on which even the earlier benches of the Supreme Court has a conflicting view), a three-judge bench of the Supreme Court in Assistant General Manager, State Bank of India v. Radhey Shyam Pandey has declared that even those employees opted for the Bank's Voluntary Retirement Scheme after 15 years are entitled to pension. The Court specifically concluded that the action of the Bank in denying the benefit of the pension scheme was unfair in this case and it should have considered its social obligation to its past employees as well. [Civil Appeal No. 2463/2015 dated 02.03.2020]

(5) Limitation period for execution of foreign decree has to be adopted from the foreign country

There is no limitation period under the Indian law for execution of a foreign decree. In this background in the case of Bank of Baroda v. Kotak Mahindra Bank Ltd. the Supreme Court has concluded that the limitation period for execution of foreign decree in the host country will apply even in India. For example if a decree of UK can be executed in UK only within 6 years, the same decree when sought to be executed in India, can also be executed within 6 years and after that it will be barred by limitation. The Supreme Court held that any other limitation period will imply that when the decree cannot be originally executed in its own country, it can still be executed in India, which will be an anamalous situation and cannot be accepted. [Civil Appeal No. 2175/2020 dated 17.03.2020]

(6) 5-judge bench clarifies the law on Land Acquisition

In 2013 a new land acquisition law replaced the earlier law of 1894. This 2013 law made specific provisions was lapse of a land acquisition i.e. situations where land cannot be acquired due to non-completion of conditions within the stipulated period. There were multiple proceedings before various High Courts in the country and also there were many contrary opinions in the Supreme Court itself on when do these conditions get satisfied. A five judge bench of the Supreme Court in the case of Indore Development Authority v. Manoharlal has declared the final position. This is a detailed decision running into over 300 pages with clear set of conclusions towards the end. [SLP(C) No. 9036-9038/2016 dated 06.03.2020]

(7) Same expression can have different meaning under different laws

Can the same term mean differently when used in different laws. The Supreme Court has answered in the affirmative. In the case of Commissioner of Central Excise, Nagpur v. Universal Ferro & Allied Chemicals Ltd. the Supreme Court considered the provisions of Central Excise Act, 1944 where the expression 'sale' is defined to cover a mere transfer of possession of goods in the course of business. Holding that it was possible for the law-makers to give a different definition which was contrary to the general meaning of the expression and once such a different definition was used, the meaning under this definition was to be applied. In other words, the general meaning of the expression 'sale' was not relevant. [Civil Appeal No. 848-852/2009 dated 06.03.2020] 

(8) Obligation of the vehicle owner for insurance claim purposes

In the case of Nirmala Kothari v. United India Insurance Co. Ltd. the Supreme Court has held that it is the obligation of the insured to verify the driving licence of the person to whom the vehicle is being given. If the driving licence looks genuine, that obligation is complete. There is no obligation to take up the matter with the RTO to seek confirmation. In such cases, the Insurance Company has to give the insurance claim and it cannot deny the liability even if the licence later turns out to be forged. [Civil Appeal No. 1999-2000/2020 dated 04.03.2020]

(9) RBI Ban on crypto-currency set aside.

The Supreme Court in the case of Internet and Mobile Association of India v. Reserve Bank of India has quashed the ban imposed by the RBI on crypto-currencies. Taking note of the legal position outside India and the fast changes happening elsewhere, according to the Supreme Court the decision of the RBI was disproportionate and unreasonable making it vulnerable to constitutional stipulations. [Writ Petition (Civil) No. 528/2018 dated 04.03.2020]

(10) Anyone can work as an architect. 

Holding that there is no legal requirement to get registered with Council of Architecture, the Supreme Court in the case of Council of Architecture v. Mukesh Goyal has held that the law only prohibits an unregistered individual from using the title of 'architect'. [Civil Appeal No. 1819/2020 dated 17.03.2020]

Parliament can condemn citizens without giving them opportunity to defend: Supreme Court

Can the Parliament pass a resolution condemning a former judge of the Supreme Court? Can the Parliament condemn a person without offering an opportunity to such a person to defend its views for which he is condemned? Can the Parliament discuss the conduct of a ‘stranger’ which is not relevant for its functioning and pass a resolution on such conduct? These and many other interesting questions touching various aspects of Parliamentary functioning came up for determination before the Supreme Court recently.

Considering the writ petition filed by its former judge, the Supreme Court has in its recent judgment in Justice (Retd.) Markanday Katju versus Lok Labha and Another [Writ Petition(Civil) No. 504/2015, decision dated 16.12.2016] answered all the above questions in the affirmative. Opining that the ambit of Parliamentary activity is very wide and the members of the Parliament collectively enjoy the constitutional protection of “freedom of speech in parliament”, the Supreme Court has considered its earlier decisions on the subject of parliamentary privileges to reiterate the scope of Parliamentary powers under the Constitution. The impugned conduct of the former judge, on which the entire chain of events arose, was noted in the judgment in the following terms;

“2. On 10.03.2015, the petitioner, a former Judge of this Court published a post on his Facebook Page in respect of Mahatma Gandhi, Father of the Nation. The post was entitled “Gandhi – A British Agent” and stated that Mahatma Gandhi did great harm to India. On the same date, another post was published by the petitioner on his Facebook Page in respect of Netaji Subhash Chandra Bose referring to him as an agent of Japanese fascism.”

This led both the houses of the Indian Parliament to pass separate resolutions condemning the former judge who viewed such resolutions as incorrect as being passed “without giving him any opportunity of hearing and that rules of Natural Justice required that he should have been given an opportunity of hearing”. This led to the filing of the petition in the Supreme Court wherein it was stated “that it does not seek any relief against any Member of Parliament individually but the Resolutions in question do not fulfill jurisdictional requirement, and that whether the statements are deplorable or condemnable can be judged only by bodies performing judicial function and cannot be decided by Rajya Sabha or Lok Sabha.”

The Supreme Court examined the constitutional provisions relating to parliamentary functioning and the ambit of its privileges the conclude upon the legal position on the subject in the following terms;

21. The observations of this Court in the aforesaid cases make it clear that “freedom of speech in Parliament” is absolute and unfettered; that the freedom of speech so conferred is subject only to such of the provisions of the Constitution which relate to regulation of procedure in Parliament; that this is recognition of the fact that Members need to be free of all constraints of what they say in Parliament; that clause (2) of Article 105 puts negatively what clause (1) states affirmatively; that both clauses must be read together to determine their content; that a vote, whether cast by voice or gesture is an extension of speech or a substitute for speech; that what has protection under these sub-Articles is what has been said and a vote that has been cast; that the protection is broad, being “in respect of”; that if the impugned speech amounts to libel or becomes actionable or indictable under any provision of law, immunity has been conferred from any action in any Court; and that the Constitution makers attached so much importance to the absolute freedom in debates that they thought it necessary to confer complete immunity on the legislators from any action in any Court in respect of their speeches

…

24. In so far as debates or discussion in the Houses of Parliament are concerned, the only substantive restriction found in the Constitution is in Article 121 of the Constitution which specifically mandates that no discussion shall take place in Parliament in respect of the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties. Barring such provision under Article 121, the Constitution has placed no restriction on what can be debated or discussed in Parliament. It is completely left to the wisdom or discretion of the individual Houses and the presiding authorities in terms of the Rules of Procedure of each House. It is for this reason that this Court in Keshav Singh’s case (supra) observed that the “freedom of speech in Parliament” is subject only to such provisions of the Constitution and to the rules and standing orders regulating the procedure of Parliament. Substantively, apart from Article 121, the Constitution itself places no restriction on the subject matter of discussion or debate.

25. The history of parliamentary privileges as found by this Court in the aforementioned cases shows that the privileges have been defined as the sum of the fundamental rights of the House and of its individual Members inter alia, as against the prerogatives of the Crown and the authority of the ordinary courts of law, that the term privilege denotes certain fundamental rights of each House which are generally accepted as necessary for the exercise of its constitutional functions, and that the privileges of Parliament are rights which are absolutely necessary for the due execution of its powers. The privileges are enjoyed by individual Members, because the House cannot perform its functions without unimpeded use of the services of its Members, and by each House for the protection of its Members and the vindication of its own authority and dignity. The expression “...… there shall be freedom of speech in Parliament…….” occurring in first clause of Article 105, is general in nature; not confined to individual members and is applicable to all discussions and debates in Parliament. Secondly, the fact that this privilege is available to strangers who publish under the authority of either House of Parliament under sub-Article (2) and to those who have a right to speak in, and otherwise take part in the proceedings of a House of Parliament or any Committee thereof, is sufficient to refute the argument that it is only an individual privilege of a member of the House. All privileges belong to the House, though some of them may also protect and shield individual members composing the house.”

Having concluded such, the Supreme Court thereafter dwelled upon the factual dimensions relating to the petition to opine that the cause therein was unsustainable in the following terms;

“32. The submission of the petitioner however is, when Parliament is claiming a privilege what is to be considered is whether the act in respect of which privilege is claimed, is fundamental to the functioning to the Parliament. It is submitted by the petitioner that the power available with the Houses to deal with a stranger is only in relation to such act of that stranger which interferes with the functioning of the House and since the remarks of the petitioner did not in any way impede or interfere with the proceedings of Parliament, it was not within the jurisdiction of any of the Houses to take notice of such remarks and pass the Resolutions in question.

…

34. If any action is sought to be initiated against any citizen, whether Member or Non-Member, either in exercise of contempt or breach of privilege, the law that has developed is that the action of such citizen must have interfered with fundamental functioning of the House so as to enable the House to initiate any proceedings against the citizen. The petitioner is right that in cases concerning breach of privilege or contempt such aspect whether the actions of the citizen had interfered with the functioning of the Houses, is crucial and fundamental. But in the present case no action for either breach of privilege or contempt was initiated or exercised. Chapter 20 of Lok Sabha Rules entitled Privileges and Rules 222 to 228 thereof deal with matters of privileges. Similarly Rules 187 to 203 of Rajya Sabha Rules deal with issues concerning privileges. If an action for breach of privilege was initiated, the enquiry would certainly be on the lines submitted by the petitioner, in that whether his remarks had in any way impeded or interfered with the functioning of the Houses.

35. We are however concerned in the present case with exercise of power in terms of Sub-clause (1) of Article 105 which guarantees ‘freedom of speech in Parliament’ as against the cases of the first kind mentioned in the present case is one under Article 105 (1) and (2) of the Constitution, without there being any layer of breach of privilege. The question therefore is whether while exercising such power under Article 105(1), is there any restriction on the scope and debate or discussion in Parliament and whether acts of a citizen, whether Member or Non-Member, could not be noticed or debated. As mentioned hereinabove, the only restriction in the Constitution as regards subject matter of any debate or discussion is to be found in Article 121 of the Constitution. It is axiomatic for the free functioning of Houses of Parliament or Legislatures of State that the representatives of people must be free to discuss and debate any issues or questions concerning general public interest. It is entirely left to the discretion of the Presiding Officer to permit discussion so long as it is within the confines of Rules of Procedure.

36. We now deal with the concerned Rules and the Resolutions in question. Rule 156 of Rajya Sabha Rules quoted hereinabove shows that a resolution could relate to a matter of general public interest and under Rule 155 a resolution could be in the form of a declaration of opinion by Rajya Sabha. Under Rule 157 certain conditions are specified, inter alia that the resolution shall not refer to the conduct or character of persons except in their official or public capacity. Rules 171, 172 and 173 of Lok Sabha Rules are also on similar lines. Resolution dated 11th March, 2015 passed by Rajya Sabha expressed “unequivocal condemnation of the recent remarks” of the petitioner against Mahatma Gandhi and Netaji Subhash Chandra Bose. Similarly resolution dated 12th March, 2015 passed by Lok Sabha condemns the statement of the petitioner relating to Mahatma Gandhi and Netaji Subhash Chandra Bose. The condemnation by both the Houses was of the opinion and remarks and did not refer to the conduct or character of the petitioner. These resolutions were purely in the form of declaration of opinion. Both the resolutions made reference to the offices held by the petitioner as a Judge of this Court and Chairman of the Press Council and show that both Houses were conscious of the fact that the remarks about Mahatma Gandhi and Netaji Subhash Chandra Bose were made not by an ordinary person but by one who had occupied high public office. In the context of such remarks from a person of the stature of the petitioner, which were put in public domain, if both Houses thought it fit to pass resolutions in the form of a declaration, it was certainly within their competence. The nature of remarks regarding Mahatma Gandhi and Netaji Subhash Chandra Bose pertain to general public interest and as such the Houses were certainly within their jurisdiction to pass resolutions.

37. It is not as if any action was deliberately undertaken or sanction was issued against the petitioner. The petitioner in exercise of his right under Article 19(a) made certain statements concerning two famous personalities. We are not for a moment suggesting that he could not or sought not to have made those statements. He is entitled to his views and put those views in public domain for consumption of public in general. The response by both Houses of Parliament was also natural in that the Resolutions in question dealt with his statements in public domain. All that the resolutions did was to condemn his remarks and did not refer to the conduct or character of the petitioner. As stated earlier, the remarks made by the petitioner regarding Mahatama Gandhi and Netaji Subhas Chandra Bose, which were in public domain, were touching subject of general public interest and as such could well be discussed in the Houses. The learned Attorney General is right in submitting that the resolutions had no civil consequences in so far as the conduct and character of the petitioner is concerned. Unlike all the cases referred to herein above which visited upon the concerned individual certain civil consequences, the present resolutions do not inflict any penalty or visit the petitioner with any civil consequences.

…

39. According to the petitioner, a stranger who makes a speech outside the House, not connected with the functioning of the Parliament and not derogatory to Parliament, could not be taken notice of by Parliament to punish him. The power to punish a stranger, if his acts in any way impede or interfere with functioning of Parliament, will certainly entitle Parliament to initiate action for breach of privilege or in contempt. Such limitation is definitely read into the exercise of power for breach of privilege or contempt. However, such limitation or restriction cannot be read in every debate. A pure and simple discussion or debate may touch upon or deal with a stranger.

As stated above, freedom of speech in Parliament is subject only to such of the provisions of the Constitution which relate to regulation of procedure in Parliament. No separate law is required to confer jurisdiction to deal with the opinions expressed by individuals and citizens during debates. If the nature of opinions expressed by such citizens or individuals pertain to matters of general public interest, it would certainly be within the powers of the House to have a discussion or debate concerning such opinions. So long as the debate or discussion is within the confines of the Rules, it will be expressly within the powers of the House to disapprove such opinions.

No restriction is placed by the Constitution or the Rules of Procedure and none can be read in any of the provisions. It is true that a citizen or an individual may find himself in a situation where he has no way to reply to the discussion or a resolution passed by the concerned House. The concerned individual or citizen may also find himself in a position where the resolution is passed without giving him any opportunity of hearing. This definitely is a matter of concern and has engaged attention of the concerned in some countries.”

Legal challenge to Demonetization - Supreme Court Constitution Bench to decide

Recently we had updated our readers with the decision of the Delhi High Court holding that restrictions on cash-withdrawal under demonetization policy were not illegal. A challenge to this decision and other legal points were before the Supreme Court last week. Opining that these were important constitutional issues and were required to be addressed by a Constitution Bench of the Supreme Court, these challenges have been referred to such bench.

It is noteworthy that Article 145 of the Constitution of India postulates that the "minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution" shall be five. Accordingly such questions cannot be decided by benches of lesser judge composition. In its order in Vivek Narayan Sharma v. Union of India [Writ Petition (Civil) No. 906/2016, order dated 16.12.2016], a bench of three-judges of the Supreme Court has formulated nine questions which in its view are such substantial questions to be decided by the constitution bench. These are as under;

(i) Whether the notification dated 8th November 2016 is ultra vires Section 26(2) and Sections 7,17,23,24,29 and 42 of the Reserve Bank of India Act, 1934;

(ii) Does the notification contravene the provisions of Article 300(A) of the Constitution;

(iii) Assuming that the notification has been validly issued under the Reserve Bank of India Act, 1934 whether it is ultra vires Articles 14 and 19 of the Constitution;

(iv) Whether the limit on withdrawal of cash from the funds deposited in bank accounts has no basis in law and violates Articles 14,19 and 21;

(v) Whether the implementation of the impugned notification(s) suffers from procedural and/or substantive unreasonableness and thereby violates Articles 14 and 19 and, if so, to what effect?

(vi) In the event that Section 26(2) is held to permit demonetization, does it suffer from excessive delegation of legislative power thereby rendering it ultra vires the Constitution;

(vii) What is the scope of judicial review in matters relating to fiscal and economic policy of the Government; 

(viii) Whether a petition by a political party on the issues raised is maintainable under Article 32; and

(ix) Whether District Co-operative Banks have been discriminated against by excluding them from accepting deposits and exchanging demonetized notes.

These questions have been referred as in view of these three judges these questions are of "general public importance" and there are "far reaching implications which the answers to the questions may have".

Further, noting that the interim order prayed by the parties i.e. to suspend the operation of the demonetization notifications, would amount to interfering with the executive policy of the Government, the Court declined to issue any interim directions. The Court, to arrive at this conclusion, duly noted the submission of the Government that "for the nature of decision taken by the Government - to unearth the black money or unaccounted money and to dry up the terror fund and defeat the attempt of circulation of large scale counterfeit currency, maintaining complete secrecy of such a decision was imperative."

The Supreme Court confined its observations to "commend to the Authorities to fulfill their commitment made in terms of the stated Notification permitting withdrawal of Rs.24,000/- per account holder of the Bank per week to the extent possible and review that decision periodically and take necessary corrective measures in that behalf."

The outcome of this challenge will be really interesting and can have, beyond the realm of these questions, far reaching implications on the flexibility and powers of the executive government to take action on issues affecting the society at large.

State of Jammu & Kashmir does not have any distinct sovereignty; intergral part of India - Supreme Court

In what can be described as a seminal primer, the Supreme Court in a recent decision has expounded upon the Legislative relationship between State of Jammu & Kashmir and Union of India. The case concerned challenge against a decision of the High Court of Jammu & Kashmir which declared Parliament as incompetent to apply the provisions of the SARFAESI Act to the State of Jammu & Kashmir. According to the High Court the State retained legislative competence and superiority to the extent that it denuded the power of the Parliament. The Supreme Court, exploring the nature and status of the State of Jammu & Kashmir under the Constitutional precincts of India, has expounded upon the extent upto which the State enjoys preferential treatment compared to the other State of India. 

 

In State Bank of India v. Santosh Gupta [Civil Appeal No. 12237/2016, decision dated 16.12.2016], the Supreme Court noted a number of contentions put forth to the effect regarding the restrictions on operation of Parliamentary law in the State of Jammu and Kashmir. Some of these are noted as under;

• "since both the Constitution of India and the Constitution of Jammu & Kashmir are expressions of the sovereign will of the people, they have equal status and none is subordinate to the other." 

• "subjects mentioned in the State List of the 7th Schedule under the Constitution of India were frozen and can never be delegated or conferred on Parliament so long as Article 370 remains and therefore any transference of a State List subject to the Concurrent List later cannot apply to the State of Jammu & Kashmir."

• "it is not enough under Article 370 to confer power on Parliament by a Presidential Order, but that every time Parliament enacts a law under such power, before such law can operate in the State of Jammu & Kashmir, the State Government’s concurrence must be obtained." ... "an amendment made to the Constitution of India will not apply unless the State concurs in applying it to the State of Jammu & Kashmir, in which case only a Presidential Order applying such amendment would take effect."

• SARFAESI Act "encroaches upon the property rights of permanent residents of the State of Jammu & Kashmir and must be read down so that it will not be permissible under this Section to sell property belonging to a permanent resident of the State to a person who is not a permanent resident of the State"

Considering these objections, the Supreme Court delineated the legal position on the special status of the State of Jammu & Kashmir inter alia in the following terms;

"10. ... Amendments that are made in the Constitution of India are made to apply to the State of Jammu & Kashmir only if the President, with the concurrence of the State Government, applies such amendments to the State of Jammu & Kashmir. The distribution of powers between the Union and the State of Jammu & Kashmir reflects that matters of national importance, in which a uniform policy is desirable, is retained with the Union of India, and matters of local concern remain with the State of Jammu & Kashmir. And, even though the Jammu & Kashmir Constitution sets up the District Courts and the High Court in the State, yet, the supreme authority of courts to interpret the Constitution of India and to invalidate action violative of the Constitution is found to be fully present. ... We may also add that permanent residents of the State of Jammu & Kashmir are citizens of India, and that there is no dual citizenship as is contemplated by some other federal Constitutions in other parts of the world. All this leads us to conclude that even qua the State of Jammu & Kashmir, the quasi federal structure of the Constitution of India continues, but with the aforesaid differences. It is therefore difficult to accept the argument of Shri Hansaria that the Constitution of India and that of Jammu & Kashmir have equal status. Article 1 of the Constitution of India and Section 3 of the Jammu & Kashmir Constitution make it clear that India shall be a Union of States, and that the State of Jammu & Kashmir is and shall be an integral part of the Union of India." 

"12. The first thing that is noticed in Article 370 is that the marginal note states that it is a temporary provision with respect to the State of Jammu & Kashmir. However, unlike Article 369, which is also a temporary provision limited in point of time to five years from the commencement of this Constitution, no such limit is to be found in Article 370. Despite the fact that it is, therefore, stated to be temporary in nature, sub-clause (3) of Article 370 makes it clear that this Article shall cease to be operative only from such date as the President may by public notification declare. And this cannot be done under the proviso to Article 370 (3) unless there is a recommendation of the Constituent Assembly of the State so to do. ..."

"13. ... The scheme of Article 370(1), therefore, is clear. Since the Instrument of Accession is an agreement between the erstwhile Ruler of Jammu & Kashmir and the Union of India, it must be respected, in which case if a matter is already provided for in it, it would become applicable straightaway without more, and only consultation with the Government of the State is necessary in order to work out the modalities of the extension of the provisions of the Government of India Act corresponding to the Constitution of India referred to in it. However, when it comes to applying the provisions of the Constitution of India which are not so reflected in the Instrument of Accession, they cannot be so applied without the concurrence of the Government of the State, meaning thereby that they can only be applied if the State Government accepts that they ought to be so applied. Under Article 370(2), the concurrence of the Government of the State, given before the Constituent Assembly is convened, can only be given effect to if ratified by the Constituent Assembly. This legislative scheme therefore illustrates that the State of Jammu & Kashmir is to be dealt with separately owing to the special conditions that existed at the time of the Instrument of Accession."

"15. It has been argued that Parliamentary legislation would also need the concurrence of the State Government before it can apply to the State of Jammu & Kashmir under Article 370. This is a complete misreading of Article 370 which makes it clear that once a matter in either the Union List or the Concurrent List is specified by a Presidential Order, no further concurrence is needed. Indeed, the argument is that a Constitutional amendment does not ipso facto apply to the State of Jammu & Kashmir under the proviso to Article 368 as applicable in the said State unless there is concurrence of the State Government and therefore, logically, it must follow that Parliamentary legislation would also require concurrence of the State Government before it can be said to apply in the State of Jammu & Kashmir. We fail to understand or appreciate such an argument. A constitutional amendment is different in quality from an ordinary law and, as has been held by us, it is clear that the language of Article 368 proviso and the language of Article 370 are different and have to be applied according to their terms."

 18. ... The argument that Article 370(1)(b) ‘limits’ the power of Parliament is answered by the fact that the entire Constitution of India, as it exists in 1964, has been made applicable by Presidential order to the State of Jammu & Kashmir, availing both Articles 370(1) (b) and (d) for this purpose. And the expression ‘limited to’ does not occur in Article 370(1)(d),under which it is open to adopt the entire Constitution of India subject to exceptions and modifications, as has been noted above.

21. What is important to note in this Constitution, which was drafted by a Constituent Assembly elected on the basis of adult franchise, is that the State of Jammu & Kashmir is stated to be an integral part of the Union of India, and that the executive and legislative power of the State extends to all matters except those with respect to which Parliament has power to make laws for the State under Article 370 of the Constitution of India. A combined reading, therefore, of Article 370 of the Constitution of India, the 1954 Presidential Order as amended from time to time, and the Constitution of Jammu & Kashmir, 1956 would lead to the following position insofar as the legislative competence of the Parliament of India vis-à-vis the State of Jammu & Kashmir is concerned:

1. All entries specified by the 1954 Order contained in List I of the 7th Schedule to the Constitution of India would clothe Parliament with exclusive jurisdiction to make laws in relation to the subject matters set out in those entries. 

2. Equally, under the residuary power contained in Entry 97 List I read with Article 248, the specified subject matters set out would indicate that the residuary power of Parliament to enact exclusive laws relating to the aforesaid subject matters would extend only to the aforesaid subject matters and no further. 

3. Parliament would have concurrent power with the State of Jammu & Kashmir with respect to the entries that are specified in the Presidential Order of 1954 under List III of the 7th Schedule of the Constitution of India. This would mean that all the decisions of this Court on principles of repugnancy applicable to Article 254 would apply in full force to laws made which are relatable to these subject matters. 

4. Every other subject matter which is not expressly referred to in either List I or List III of the 7th Schedule of the Constitution of India, as applicable in the State of Jammu & Kashmir, is within the legislative competence of the State Legislature of Jammu & Kashmir."

40. ... The High court judgment begins from the wrong end and therefore reaches the wrong conclusion. It states that in terms of Section 5 of the Constitution of Jammu & Kashmir, the State has absolute sovereign power to legislate in respect of laws touching the rights of its permanent residents qua their immovable properties. The State legislature having enacted Section 140 of the Jammu & Kashmir Transfer of Property Act, therefore, having clearly stated that the State’s subjects/citizens are by virtue of the said provision protected, SARFAESI cannot intrude and disturb such protection. The whole approach is erroneous. As has been stated hereinabove, Entries 45 and 95 of List I clothe Parliament with exclusive power to make laws with respect to banking, and the entirety of SARFAESI can be said to be referable to Entry 45 and 95 of List I, 7th Schedule to the Constitution of India. This being the case, Section 5 of the Jammu & Kashmir Constitution will only operate in areas in which Parliament has no power to make laws for the State Thus, it is clear that anything that comes in the way of SARFAESI by way of a Jammu & Kashmir law must necessarily give way to the said law by virtue of Article 246 of the Constitution of India as extended to the State of Jammu & Kashmir, read with Section 5 of the Constitution of Jammu & Kashmir. This being the case, it is clear that Sections 13(1) and (4) cannot be held to be beyond the legislative competence of Parliament as has wrongly been held by the High Court. 

41. It is rather disturbing to note that various parts of the judgment speak of the absolute sovereign power of the State of Jammu & Kashmir. It is necessary to reiterate that Section 3 of the Constitution of Jammu & Kashmir, which was framed by a Constituent Assembly elected on the basis of universal adult franchise, makes a ringing declaration that the State of Jammu & Kashmir is and shall be an integral part of the Union of India. And this provision is beyond the pale of amendment. ..."

...

43. It is thus clear that the State of Jammu & Kashmir has no vestige of sovereignty outside the Constitution of India and its own Constitution, which is subordinate to the Constitution of India. It is therefore wholly incorrect to describe it as being sovereign in the sense of its residents constituting a separate and distinct class in themselves. The residents of Jammu & Kashmir, we need to remind the High Court, are first and foremost citizens of India. ...

... 

We have been constrained to observe this because in at least three places the High Court has gone out of its way to refer to a sovereignty which does not exist."

Armed-force personal cannot insist on keep 'beard' unless prohibited by religion: Supreme Court

Affirming the view of the High Court the Supreme Court in its decision pronounced yesterday [Mohammad Zubair Corporal versus Union of India Civil Appeal No. 8643/2009, decision dated 15.12.2016] has approved the policy of the armed-forces that its personnel cannot maintain a beard unless 'prohibited' on religious grounds. The policy stated as under;

“425. Growth of Hair etc. by Air Force Personnel.

(a) Except as in sub para (b), the hair of the head will be kept neatly cut and trimmed. The hair of airman under detention/sentence will be cut no shorter than is customary/ throughout the service except on medical advice and except where on an application made by the airman he has been permitted to keep long hair. Face will be clean shaven. Whiskers and moustaches, if worn will be moderate length.

(b) Personnel whose religion prohibits the cutting of the hair or shaving of the face of its members will be permitted to grow hair or retain beard. However, such hair and/ or beards will be kept clean, properly dressed and will not be removed except on medical grounds or on application duly approved”.

The concerned person "submitted an application seeking permission to keep a beard on religious grounds, since he is a Muslim" and this application stood rejected, an action which was sustained by the High Court. According to the Supreme Court, under these regulations, "[t]he touchstone for being allowed to grow one’s hair or to retain a beard is where there is a religious command which prohibits either the hair being cut or a beard being shaved." Thus there was no merit in the plea that Muslim officers could insist upon retaining the beard. The Supreme Court explained the rationale for its conclusion in the following terms;

"5. The Air Force is a combat force, raised and maintained to secure the nation against hostile forces. The primary aim of maintaining an Air Force is to defend the nation from air operations of nations hostile to India and to advance air operations, should the security needs of the country so require. The Indian Air Force has over eleven thousand officers and one lakh and twenty thousand personnel below officers rank. For the effective and thorough functioning of a large combat force, the members of the Force must bond together by a sense of Espirit-de-corps, without distinctions of caste, creed, colour or religion. There can be no gainsaying the fact that maintaining the unity of the Force is an important facet of instilling a sense of commitment, and dedication amongst the members of the Force. Every member of the Air Force while on duty is required to wear the uniform and not display any sign or object which distinguishes one from another. Uniformity of personal appearance is quintessential to a cohesive, disciplined and coordinated functioning of an Armed Force. Every Armed Force raised in a civilised nation has its own ‘Dress and Deportment’ Policy.

6. India is a secular nation in which every religion must be treated with equality. In the context of the Armed Forces, which comprise of men and women following a multitude of faiths the needs of secular India are accommodated by recognising right of worship and by respecting religious beliefs. Yet in a constitutional sense it cannot be overlooked that the overarching necessity of a Force which has been raised to protect the nation is to maintain discipline. That is why the Constitution in the provisions of Article 33 stipulates that Parliament may by law determine to what extent the fundamental rights conferred by Part III shall stand restricted or abrogated in relation inter alia to the members of the Armed Forces so as to ensure the proper discharge of their duties and the maintenance of discipline among them.

...

10. During the course of the hearing, we had inquired of Shri Salman Khurshid, learned senior counsel appearing on behalf of the Appellants whether there is a specific mandate in Islam which "prohibits the cutting of hair or shaving of facial hair". Learned senior counsel, in response to the query of the Court, indicated that on this aspect, there are varying interpretations, one of which is that it is desirable to maintain a beard. No material has been produced before this Court to indicate that the Appellant professes a religious belief that would bring him within the ambit of Regulation 425(b) which applies to "personnel whose religion prohibits the cutting off the hair or shaving off the face of its members". ...

11. We see no reason to take a view of the matter at variance with the judgment under appeal. The Appellant has been unable to establish that his case falls within the ambit of Regulation 425(b). In the circumstances, the Commanding Officer was acting within his jurisdiction in the interest of maintaining discipline of the Air Force. The Appellant having been enrolled as a member of the Air Force was necessarily required to abide by the discipline of the Force. Regulations and policies in regard to personal appearance are not intended to discriminate against religious beliefs nor do they have the effect of doing so. Their object and purpose is to ensure uniformity, cohesiveness, discipline and order which are indispensable to the Air Force, as indeed to every armed force of the Union."