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Review: RBI’s Report on Municipal Finances Highlights the Inadequate Revenues of ULBs
Sai Krishna Muthyanolla
November 25, 2022
RBI recently released a report on municipal finances. This is the maiden report on municipal finances which shall be published regularly on an annual basis. The report highlights the inadequacy of own revenues of Municipal Corporations and their increasing dependence on grants & transfers.
The Reserve Bank of India (RBI) has been publishing reports on financial statistics related to the Central and State Governments on a regular basis. However, despite being a crucial tier in India’s three-tier governance system, data pertaining to the finances of the local governments is not published by the central bank due to the lack of consolidated data on local governments. Local governments include municipal corporations (MCs), municipal councils, municipalities/Nagar panchayats and Panchayati raj institutions. In order to address this gap in data availability, RBI recently released a report on municipal finances. This is the maiden report on municipal finances which shall be published regularly on an annual basis. Going forward, RBI will also be including municipal finances in its general government statistics. RBI has also stated that efforts will be made to broaden the coverage of local governments in the general government statistics on an ongoing basis.
Local self-governance was introduced in India through 73rd & 74th amendment to the Constitution in 1992
The 73rd and 74th amendments were made to the Indian Constitution in 1992 through which multiple powers & functions were devolved to the local governments. Functions were devolved separately for urban and rural India- Urban Local Bodies (ULBs) and the Panchayati Raj Institutions (PRIs), respectively. Urban Local governments include municipal corporations, municipal councils, and Nagar panchayats. While municipal corporations are for larger urban localities with a population of more than one million, municipal councils and Nagar panchayats govern smaller urban agglomerations and transition areas. Through the 74th amendment, Schedule 12 provides a list of 18 functions that the State governments may assign to the municipalities.
Municipal finance does not get enough attention despite its significance
Municipal finance refers to the budget, revenue, and expenditure of these municipal corporations. This is an important factor to be considered since it aids the local government to plan, mobilize, and utilize financial resources to provide services for the welfare of citizens, alongside developmental & infrastructural activities. Yet, this is not given enough attention, especially when the role of municipal corporations is becoming critical as India’s urban population is nearing 500 million.
In the RBI report, the budgetary data of 201 municipal corporations for the three years ending 2019-20 has been compiled. The revenue receipts of municipal corporations include tax revenues, non-tax revenues, assigned (shared) revenue, grants-in-aid, loans, etc. The expenditure incurred by the municipal corporations can be classified as Revenue expenditure and Capital expenditure. Revenue expenditure includes establishment expenditures, administrative expenditures, operations and maintenance expenditures and interest payments on loans, etc.
Indian municipal corporations’ revenue receipts are only 0.6 – 0.7% of GDP
According to RBI’s analysis of the sample, the revenue receipts of municipal corporations are estimated at 0.61% of GDP in 2017-18 and increased to 0.72% of GDP in 2019-20.
Own tax revenue, comprising property tax, water tax, toll tax and other local taxes, accounted for 31-34% of total revenue during the three years considered in the study. Further, there were large variations in the municipal corporations in Delhi, Gujarat, Maharashtra, Chandigarh, and Chhattisgarh which collected more tax as compared to other states. Property tax has become a prominent source now as other taxes such as octroi and local body tax (which were the major source of revenue in Maharashtra and Gujarat), have been subsumed in GST.
Non-tax revenue accounted for around 30% of total revenue receipts. Fees and user charges account for the highest share of non-tax revenue followed by income from investment, mainly in the form of interest earned and dividends, rental income from municipal properties, and sale and hire charges.
Total expenditure has increased to 1.05% of GDP in 2019-20
The total expenditure of these MCs was 0.68% of the GDP in 2017-18 which increased to 0.9% in 2018-19, and 1.05% in 2019-20. The share of revenue expenditure increased from 0.48% to 0.6% of GDP and the share of capital expenditure increased from 0.2% to 0.44% of GDP. As a share of total expenditure, the revenue expenditure dropped from 70% in 2017-18 to 58% in 2019-20 while that of capital expenditure increased from 30% of total expenditure in 2017-18 to 42% in 2019-20.  The share of capital expenditure has huge variations among states- from less than 10% in Delhi to around 80% in Sikkim & Jharkhand.
Borrowings account only for a minute share of GDP
Gross municipal borrowings account for only less than 0.05% of GDP for all municipal corporations. It was around 6% of the total receipts of municipal corporations at the national level. The share of borrowings as a proportion of total receipts was higher in Telangana, Bihar, and Kerala. Again, a large share of these borrowings is raised by a few large metropolitan corporations. For instance, in Telangana, the Greater Hyderabad Municipal Corporation (GHMC) alone accounts for more than 90% of the total municipal borrowings.
India’s Municipal Finances has been unsatisfactory since decades
The state of India’s Municipal Finances has been unsatisfactory since decades. Even after institutional amendments were made in 1992, there has been no considerable improvement in the finance of the municipal corporation. RBI’s analysis of municipal finances for the period 2017-18 to 2019-20 reveals that the combined budget size of the municipal corporations in India is much smaller than that of the Central and State governments. The composition of municipal revenue in India has changed considerably over time, with increased reliance on transfers. Also, the ratio of revenue expenditure to capital expenditure is lower than that of the Centre and States.
India lags BRICS and OECD members with respect to municipal finances
The report also noted that Indian cities are far behind in being able to generate the resources required for providing good quality infrastructure and services to their citizens and lack financial autonomy. India lags the levels achieved by OECD and other BRICS countries. The local governments in major economies like Australia, Belgium, Canada, France, New Zealand, Spain, Sweden, Switzerland, etc. were mainly dependent on their own tax and non-tax revenue sources while those in Austria, Greece, Ireland, Lithuania, Mexico, Netherlands, Turkey, United Kingdom, etc. were dependent on grants from the general government. Switzerland, Iceland, and Australia generated over 80% of their revenue through tax and non-tax sources.
Among the BRICS nations, the local governments in Brazil and Russia depended on general government grants whereas China and South Africa generated their own tax and non-tax revenues. Both China and South Africa generated more than 50% of revenue through tax and non-tax sources while India generated only about 40% through these sources.
The report suggests that the increase in urban infrastructure in India has not been on par with the pace of urbanisation as is evident in the performance of the urban local bodies. The dependence on the devolution of taxes and grants from the upper tiers has risen over the years. Alternative sustainable resource mobilization through municipal bonds may be explored as per the report.
India should invest USD 840 billion over the next 15 years as per World Bank
According to a new World Bank report’s estimates, India will have to invest USD 840 billion over the next 15 years, or an average of USD 55 billion per annum into urban infrastructure to effectively meet the needs of its fast-growing urban population. About 40% of the population is expected to live in cities by 2036 which will add more pressure on the already stretched urban infrastructure and services such as clean drinking water, power supply, road transportation, etc. Furthermore, effective governance of cities is critical to sustainable development as per Sustainable Development Goal 11- Sustainable Cities and Communities. Thus, it is high time that local governments and their finances take prominence in the governance discourse.
Featured Image: RBI’s Report on Municipal Finances

created: November 25, 2022


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Review: RBI’s Working Group makes important Recommendations on ‘State Government Guarantees’ - FACTLY
Sai Krishna Muthyanolla
February 9, 2024
The growing trend of financial guarantees given by the State Governments in India have been at the forefront of discussions in the recent times. The recent Reserve Bank of India’s Working Group Report (WGR) titled ‘Report on the Working Groups of State Government Guarantees’ has brought to limelight several issues and challenges relating to issuance and regulation of Guarantees by State Governments in India.
The growing trend of financial guarantees given by the State Governments in India has been at the forefront of discussions in recent times, due to its potential future contingent fiscal liability which affects the financial health of the governments and in turn the people.
The issuance of guarantees by the State Government is not new in India. But, due to the increasing number of guarantees and the high possibility of negative financial implications which can be caused due to the lack of proper checks and balances, administrative and legal measures, and other such reasons, the issue has been under considerable debate in the recent past.
While there have been some key legal and administrative developments at the Central level in the issuance and regulation of Guarantees, the recent Reserve Bank of India’s (RBI) Working Group Report (WGR) titled ‘Report on the Working Groups of State Government Guarantees’ has brought to limelight several issues and challenges relating to issuance and regulation of Guarantees by State Governments in India. Accordingly, the report has recommended measures that can be implemented to safeguard and ensure the financial health of the State Governments
Against this backdrop, we look at what Financial Guarantees are, the Administrative and Legal setup at the Central level, and current challenges at the State Level, as indicated in the WGR.
Guarantees are not direct Loans taken by Governments, but Potential Contingent Fiscal Liabilities which are considered as Debts/Loans
The Indian Contract Act, of 1872 defines Guarantee as a “contract to perform the promise, or discharge the liability, of a third person in case of default. Where only two parties are involved, i.e. where one party promises to save the other from loss caused by the conduct of the promisor himself, or by the conduct of any other person, such a contract is called a contract of indemnity.”
As per the above definition, the State Governments that issue Guarantees become liable in case of the default of loans by the loanee. In other words, the Public Sector Enterprises (PSEs) which undertake various types of projects or activities with projected social and economic benefits source their funding from institutions such as banks and other financial institutions in the form of loans. In such cases, the State or Central Governments become Guarantors or Promisors, in case of the eventuality where the PSEs default in clearing the debts, the onus of clearing them falls on the respective government as the contingent liable parties to clear the pending debts or loans. The principal objective with which the guarantees are given is to make them economically viable and to aid them in raising loans at lower rates.
Therefore, the WGR defines a Guarantee as “potential future liability that is contingent on the occurring of an unforeseen future event. If these liabilities get crystallised without having adequate buffer, it may lead to increase in expenditure, deficit, and debt levels for the State Government”
Several Administrative and Legal Developments at the Central Level in recent times
The system of governments acting as Guarantors on behalf of entities that take loans is most likely to have existed from the days of Independent India. However, there are no uniform applicable laws, rules, processes, and other such measures which are applicable equally to both State and Central Governments.
The recent (2022) policy document on Government Guarantees notes that the first ever basic instructions given on guarantees date back to May 1969, wherein it was stipulated that the guarantee proposal must be justified in the public interest. Thus, it means that the system of giving guarantees is likely to have its origin from the times of Independent India.
The same policy document also notes key developments in the administrative and legal measures on the issuance and control of Guarantees issued by the Government of India, which are summarized in the table below:
The table shows that there have been several key legal and administrative developments in several aspects related to the regulation of guarantees by the Government of India. However, when it comes to State Governments, there are no equal and uniform legal and administrative measures made as of today, when compared to the same measures developed at the Central Level. Some of these issues have been reported in the working group report.
Working Group Report notes Several Pressing Issues in Guarantees given by State Governments
The working group, comprising of members from the Union Ministry of Finance, RBI, and some State Governments, was constituted in July 2022, to assess the inherent risks associated with guarantees issued by State Governments on the fiscal health of states. The key issues noted by the group and pertinent recommendations made in its report are as follows:
Uniform Definition of Guarantees should be incorporated: The report noted that Guarantees are given by State Governments in various forms such as Conditional/Unconditional/Financial/ Performance Guarantees, Instruments, etc. Though the nature and scope of each of these are different, yet they are contingent liabilities on the part of the States. Accordingly, the report recommended for stipulation of a broader definition which would include all types of instruments and guarantees where the state government would have contingent liability.
Purposes for which Guarantees can be issued should be clearly defined: To ensure financial viability, and to enable state/central governments to raise loans at lower rates, and other reasons, the report recommends that the purposes for which Guarantees can be given should be clearly defined in line with Rule 276 of General Financial Rules, 2017
Uniform Ceiling on Guarantees should be stipulated: The report noted that the total sum of guarantees given by the states each year has been increasing across most of the states in recent years.
The above data shows the increase in the total amount of guarantees given each year across most of the states from the year 2018 to 2021. The States of Sikkim, Andhra Pradesh, and Telangana have crossed 10% of their annual GSDP being given as guarantees. Therefore, the report recommends that there should be a uniform ceiling on the total quantity of guarantees to be fixed to 5% of Revenue Receipts (RR) or 0.5% of Gross State Domestic Products (GSDP), whichever is lesser
Guarantee Conditions in the Central Guidelines can be incorporated by States: The report noted that the Central government Guarantee Policy stipulated several conditions such as issuance of guarantees only for the principal amount and normal interest component of the underlying loan, non-extension of guarantees to more than 80 percent of the project loan, and for external borrowings, private sector companies/institutions, etc. Accordingly, the report recommended that these guidelines be incorporated by the States also
Assigning of Risk Weight should be done: The report has also noted that one of the important issues that goes unnoticed is the prior assessment of risk factors in giving the guarantees. Pertinently, the report noted that “State Governments have been issuing guarantees on behalf of state public enterprises belonging to various sectors viz. power, co-operative, agriculture, transport, water supply, sanitation, housing, communication, industries, etc. The probability of default could vary across sectors, depending on the financial parameters of the sector and varying impact of macroeconomic shock. Therefore, reporting only the nominal value of guarantees may not present the true picture of the risk that the State Government would be exposed to. States should classify the projects/ activities as high risk, medium risk and low risk and assign appropriate risk weights before extending guarantees”
If such prior assessment and classification of projects is undertaken, it helps in making better decisions on assenting or rejecting of guarantees.
Monitoring Unit should be set up: The report recommended for setting up of an independent institution that would act as a Monitoring Unit, preferably under the Department of Finance, for the purpose of compiling, consolidating, maintenance of the database on guarantees and monitoring the same on a continuous basis
Data Disclosure should be done: The report also highlighted the necessity of regular disclosure and publishing of data relating to guarantees, so that it would help in auditing by institutions such as CAG and RBI. Therefore, it brings transparency in the entire process.
Off Budget Borrowings should be brought under Ceiling: The report also noted that state governments also take up specific projects through state agencies and provide guarantees for them. These projects do not fall within the ambit of the ceiling fixed by the Central Government and are termed as ‘Off Budget Borrowing’, though they are contingent liabilities and not reflected in the budget documents.
Recommendations of the Working Group Report should be taken up
One of the important issues noted in the WGR is that “State Government finances, already constrained by COVID-19 pandemic, have been facing new sources of risks in the form of rising expenditure on non-essential heads, expanding contingent liabilities, and the ballooning overdues of DISCOMs.”
Similarly, the WGR also noted the increasing trend in the number & amount of Guarantees given by State governments – “As upfront cash payment is usually not required in case of guarantees, that may be one of the reasons why the State Government guarantees have profligated in recent times. As these liabilities are contingent upon certain events, the quantum and timing of potential costs / cash outflows owing to guarantees are often difficult to estimate.”
Factly’s earlier story has also highlighted the fact that the total outstanding loans of most of the states have tripled between the years 2011 and 2021. Together with this, as noted by the working group report, the amount of guarantees, which are potential contingent liabilities, given by states is increasing year after year. Thus, these facts show that states are adding to the already existing high debt. Therefore, it poses serious questions on the stipulated objective of “Financial Health” of the States in the short run as well as in the long run.
The perusal of a number of issues noted and recommendations made by WGR shows several lacunae in the legal as well as administrative setup at the State level. Accordingly, the incorporation and vigorous implementation of the several measures that have been recommended by the working group would go a long way in ensuring the financial health of the states.

source: news-factly

created: February 9, 2024

license: Creative Commons - Attribution - https://creativecommons.org/licenses/by/4.0/

author: Sai Krishna Muthyanolla


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SC clarifies that States should not deny ex-gratia even if the death certificate does not contain COVID-19 as cause of death.
Sai Krishna Muthyanolla
October 6, 2021
In this roundup of court judgements, we look at Constitutional Courts’ remarks & directions on implication of DNA tests on personal liberty, providing Braille textbooks for all children with special needs, reservation in promotions to PwDs, and providing ex-gratia payment for COVID-19 deaths irrespective of the cause of death mentioned in the death certificate.
Supreme Court: Forcing unwilling party to undergo DNA test impinges on personal liberty and right to privacy.
In the case Ashok Kumar Vs. Raj Gupta and others, the Supreme Court observed that forcing an unwilling party to undergo a DNA test impinges on personal liberty and right to privacy.
The court was hearing a property dispute case, wherein the plaintiff claimed to be the son of late Trilok Chand Gupta and Sona Devi and was seeking a declaration of ownership of property left behind by them. The late couple’s daughters are defendants in the suit. During the trial, the defendants filed an application seeking to direct the plaintiff to undergo a DNA test to establish his biological link with late Trilok Chand Gupta and late Sona Devi. The plaintiff objected to this and pointed out that he has produced adequate documentary evidence to support his claim.
The trial court dismissed the application saying that the plaintiff cannot be compelled to undergo the test. Challenging the trial court’s dismissal, the defendants filed an appeal before the High Court, which directed the plaintiff to undergo the DNA test. Against the High Court order, the plaintiff approached the Supreme Court.
The apex court explored whether the plaintiff, without subjecting himself to a DNA test, is entitled to establish his right over the property through other material evidence.
The Court noted that it has been held in Banarsi Dass V. Teeku Dutta that a DNA test is not to be directed as a matter of routine but only in deserving cases. Keeping in mind the issue of burden of proof, the bench of Hrishikesh Roy observed that in the present case, the Court’s decision should be rendered only after balancing the quest for truth, and the social and cultural implications involved therein.
The Supreme Court held that the trial court correctly dismissed the request for DNA testing. The plaintiff had produced SSLC (Secondary School Leaving) Certificate, domicile certificate to show his biological link with the parents. Therefore, the judgement observed that forcing an unwilling party to undergo a DNA test impinges on personal liberty and right to privacy and held that the case will have to be ultimately decided based on the quality of evidence adduced by the plaintiff.
Karnataka HC: Directed the State to provide Braille textbooks to children with special needs within a period of 15 days.
In the case National Federation Of The Blind, Karnataka Vs. State Of Karnataka, the Karnataka high court has directed the State Government to provide Braille textbooks for all children with special needs (visual disabilities) within a period of 15 days, starting from 17 September 2021.
The high court was hearing a petition filed by the National Federation of the Blind, Karnataka on behalf of the children who are specially-abled. The petitioner contended that in the State of Karnataka, textbooks are not available in Braille, and they have also not been uploaded on the website in PDF form so that a printout can be taken in Braille.
In its earlier order (dated 18 March 2020), a memo was filed by the state government before the high court where it was described that the Karnataka Textbook Society has already provided the PDF files of Classes 1-10 (Kannada medium) to Braille Press, Mysuru. The memo also mentioned that the printing press is preparing the textbooks in Braille, and they will be available from the next academic year. The memo also highlighted that the textbooks for children with visual disabilities will be provided as per the indent given by Samagra Shiksha Karnataka.
After considering the submissions, the bench of acting Chief Justice Satish Chandra Sharma and Justice Sachin Shankar Magadum directed the State government to fulfil the statement made by it last year and provide Braille textbooks for all children with special needs (visual disabilities) within a period of 15 days. The court further directed the State to file a compliance report. The matter has been posted for further hearing on 07 October 2021.
Supreme Court: Directs centre to issue instructions to implement reservation in promotions for PwDs within 4 months.
In the case Siddaraju Vs. State of Karnataka, the Supreme Court directed the Union of India to issue instructions “at the earliest and not later than four months”, in accordance with the provision in Section 34 of the Right of Persons with Disabilities Act, 2016 for giving reservation in promotions to persons with disabilities.
The apex court was hearing a Miscellaneous Application filed by the Central Government seeking clarification with respect to Supreme Court’s judgement in Siddaraju Vs. State of Karnataka case, which declared that Persons with Disabilities (PwD) have right to reservation in promotions.
The bench Justices L Nageswara Rao, B.R.Gavai and Sanjiv Khanna clarified the judgement and directed the Centre to issue instructions in terms of provisions in Section 34 of the 2016 Act for implementing reservation in promotions for PwDs.
On a previous hearing date, the apex court heard the arguments of Senior Advocate Jayna Kothari who submitted that the Centre was seeking to undo the effect of judgments under the guise of seeking clarification. The Additional Solicitor General of India (ASG) asserted that principles of merit, efficiency and adequacy of representation must be considered before extending the benefit of reservation in promotion across the board.
The ASG argued that the widespread application of reservation in promotion for persons with disabilities across the board will lead to several practical problems. She pointed out that for lateral induction from State Civil Services to Indian Administrative Services, there is no SC/ST/OBC reservation. Therefore, applying PwD reservation for such lateral induction will be anomalous. She further submitted that in the Group A category, there are several layers without quota. Reservations for SC/ST/OBC are given only in the lower rungs in Group A. Hence, there needs to be a clarification if the PwD quota in promotions applies to all Group A posts.
On the petitioner’s side, Advocate Rajan Mani submitted that 5 years have elapsed since the Right of Persons with Disabilities Act, 2016 came into force, however, no instructions have been issued for Section 34 of the Act. He submitted that the implementation of reservation for PWDs is being delayed because no instructions are being issued, even after the court’s earlier judgement.
Taking all submissions into consideration, the apex court observed that it found no reasons to issue any clarifications as sought by the Union. In conclusion, the bench directed the Central Government to issue instructions as provided under section 34 of the Persons with Disabilities Act, 2016 not later than 4 months from the date of the order.
Supreme Court: States should not deny ex-gratia for COVID-19 deaths on grounds that the death certificate does not mention COVID-19 as the cause of death.
In the case Gaurav Kuma Bansal Vs. Union of India, the Supreme Court ordered that no State should deny the ex-gratia compensation of Rs. 50,000 to the kin of persons who died of COVID-19 on the sole ground that the death certificate does not mention COVID-19 as the cause of death.
The Court highlighted that as per the National Disaster Management Authority (NDMA) guidelines, the following cases are to be treated as COVID deaths:
Therefore, irrespective of the cause of death mentioned in the death certificate, if a family member satisfies the above eligibility criteria mentioned, no State shall deny the ex-gratia payment of Rs. 50,000 on the production of requisite documents.
The bench of Justices MR Shah and AS Bopanna also clarified that the next kin of the deceased shall be paid an amount of Rs. 50,000 from the State Disaster Response Funds and it will be over and above the amounts paid by centre and state under various benevolent schemes. Such an amount is to be disbursed within 30 days of submitting an application and required documents.
In case of denial or non-receipt of the ex-gratia payment, the aggrieved claimant can approach the Grievance Redressal Committee. The Committee shall examine the contemporaneous medical record of the deceased patient and take a decision within a period of 30 days.
As per the NDMA guidelines, the Grievance Redressal Committee at the district level consists of an Additional District Collector, Chief Medical Officer of Health (CMOH), Additional CMOH/Principal or HOD Medicine of a Medical College (if one existing in the district) and a subject expert. The Committee has powers to call for the details/documents from the concerned hospitals.
The court also directed that all concerned hospitals where the patient was admitted and given
treatment shall provide all the necessary documents of treatment etc. to the family member of the deceased, as and when demanded. If any hospital and/or the place where the deceased had taken treatment refuses to furnish such documents, it will be open for the Grievance Redressal Committee to call for such information and the concerned hospital/institution where the deceased was admitted must furnish all the details as required for the purpose of establishing that the death was due to COVID-19.
In case of a family member of the deceased being aggrieved by the cause of death mentioned in the death certificate already issued, they can move the appropriate authority who issued the death certificate and/or registering authority with necessary documents. If the person is still aggrieved, they can approach the Grievance Redressal Committee and the concerned registering authority shall ratify/amend the death certificate as directed by the Grievance Redressal Committee.

created: October 6, 2021


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SC directs applications for employment under compassionate grounds must be considered within 6 months
Sai Krishna Muthyanolla
June 1, 2022
In this week’s review of Court Judgments, we look at the Supreme Court’s directions regarding the treatment of sex workers, time frame for considering applications for employment under compassionate grounds, fault, or shortcoming of the staff of the Subordinate Court or delay in compliance not being reasons for transferring cases, and Odisha High Court’s observation that every transgender has the right to choose  a gender.
SC: Sex workers should be treated with dignity, included in decision-making, and identity should not be revealed by the media
The case Budhadev Karmaskar vs. State of West Bengal And Ors involved the brutal murder of a sex worker in 1999. The appellant was convicted of the murder by the Kolkata High Court and his appeal to the Supreme Court was dismissed more than a decade ago. However, the Supreme Court then suo motu converted the case into a PIL to address the problems faced by sex workers in the country, in the absence of legislation.
Recently, the Supreme Court Bench comprising justices L. Nageswara Rao, B.R. Gavai and A.S. Bopanna issued directions invoking special powers under Article 142 of the Constitution of India that will be valid till the time the Union Government comes up with legislation. The directions also take into consideration some recommendations made by a panel on the rights of sex workers, appointed by the Court in 2011. The directions are:
However, the Union Government had accepted only some of the recommendations of the panel among the directions issued by the Court. It raised objections to the following recommendations:
Additionally, the Bench also directed UIDAI to provide them with Aadhaar cards. For those without any residence proof, Aadhar is to be issued based on “proforma certificates” issued by a Gazetted Officer at NACO or the State Health Department certifying their particulars.
SC: Applications for employment under compassionate grounds must be considered within a period of 6 months
In Malaya Nanda Sethy vs. State of Orissa & Ors., the appellant’s father was working as an Assistant Sub-Inspector in the Excise Department and passed away during service back in 2010. Following his father’s death, the appellant applied for the post of Junior Clerk on the compassionate grounds under the Orissa Civil Service (Rehabilitation Assistance) Rules, 1990 (1990 Rules) in 2011. However, it was left unattended for over 5 years, after which the Additional Secretary asked the Collector to prepare a fresh report on the financial condition of the appellant’s family.  In 2020, Odisha replaced the 1990 rules with the Odisha Civil Services (Rehabilitation Assistance) Rules, 2020 which allows one family member of the deceased government servant to be appointed on compassionate grounds to the ‘Group D’ base level post. In 2021, after 10 years of application, the application was sent to the Collector for taking necessary action under the 2020 Rules by the office of the Excise Commissioner. The appellant then approached the state High Court against the consideration of the application under the 2020 Rules. But the High Court dismissed the writ petition stating that the claim should be considered as per the amended rules at the time of consideration of the application and not the rules at the time of death. He then approached the Apex Court challenging the High Court’s decision.
The Supreme Court bench of Justices M.R. Shah and B.V. Nagarathna quashed the High Court’s order and called for consideration of such applications at the earliest point of time (not beyond 6 months) noting that the purpose of appointment on compassionate grounds was to render immediate financial assistance to the family of the deceased. It added that the consideration must be fair, reasonable, and based on relevant considerations.
It is also observed that such applications are kept pending for years which forces the applicants to approach the Courts to get their applications considered. Moreover, even after the Court issues directions, the applications are rejected citing frivolous or vexatious reasons which push the applicants to challenge the order of rejection before the High Court which further prolongs the employment.
SC: Any fault or shortcoming of the staff of the Subordinate Court or delay in compliance are not reasons for transferring cases
In Nazma Naz vs. Rukhsana Bano, the Allahabad High Court had transferred a criminal case from the Court of Additional Sessions Judge First, Aligarh to the corresponding Court at Mathura because the High Court judge was dissatisfied with the conduct of the staff of the Subordinate Court in not taking on record the order passed by the High Court.
The Supreme Court bench of Justices Dinesh Maheshwari and Aniruddha Bose dismissed the High Court’s order and restored the case to the Aligarh court, adding that any fault or shortcoming on the side of the staff of the Subordinate Court or any delay in compliance by the Court is not reasons to transfer a case.
SC: Tax on the supply of a service, which has already been included by the legislation as a tax on the composite supply of goods, cannot be allowed
In Union of India & Anr. vs. M/s. Mohit Minerals Through Director, the respondent is a company which is involved in importing non-coking coal for domestic industries from Indonesia, South Africa, and the US by ocean on a ‘Cost-Insurance Freight’ (CIF) basis. According to a 2017 notification,  an IGST rate of 5% is imposed on ocean freight services in a vessel from outside India to the customs station of clearance in India. However, prior to this, the service tax on ocean freight was exempted. According to another notification, the recipient of services of supply of goods by a person in non-taxable territory by a vessel is included as an importer under Section 2(26) of the Customs Act 1962. The respondent company stated that these notifications impose double taxation.
When the appellant approached the Gujarat High Court, it quashed the levying of IGST for being unconstitutional, following which the case was taken to the Supreme Court. The Bench comprising Justices D.Y. Chandrachud, Surya Kant, and Vikram Nat took into consideration multiple factors such as the legislative history of GST, and recommendations of the council, provisions of the IGST Act, etc. and concluded that the recommendations of the GST council only have a persuasive effect and are recommendatory in nature.  Both the Union and the States are conferred equal power to legislate on GST and considering the council’s recommendations as binding will be a disruption of fiscal federalism.
It also held that the levy of GST on ocean freight on import is unconstitutional where Indian importer is already paying IGST on CIF value on the composite value of goods, transportation, insurance etc. Additionally, levying a separate amount on the Indian importer for the ‘supply of services’ by the shipping line would violate Section 8 of the CGST Act.
Odisha HC: Every transgender has the right to choose the gender
In Kantaro Kondagari @ Kajol vs. State of Odisha & Ors, the petitioner’s father was a government servant working in Rural Development Department. Following his demise, the family pension was disbursed to his wife, who passed away due to old age-related health issues, after which the petitioner, a transgender (women) and unmarried daughter of late Balaji Kondagari applied for sanction of the family pension in her favour in line with the State’s existent civil service pension rules. Though the petitioner’s application was found to be eligible for the pension, the authorities did not consider the application since the petitioner belonged to the transgender community, and so treated them in a discriminatory manner.
In 2021, the petitioner was given legal recognition by the District Magistrate as a transgender (Women) as per the Transgender Persons (Protection of Rights) Rules, 2020 and the Transgender Persons (Protection of Rights) Act, 2019. The High Court noted that the petitioner’s application was sanctioned but not disbursed. The High Court Bench of Justice Aditya Kumar Mohapatra held that a transgender has every right to choose their gender. In this case, the petition was allowed, and the High Court directed the concerned authority to immediately calculate, sanction, and disburse the family pension to the petitioner within six weeks.
Featured Image: Important Court Judgements


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SC directs Government to frame Guidelines for compensation to COVID-19 victims & issuance of Death certificate
Sai Krishna Muthyanolla
July 7, 2021
In this roundup of important court judgments, we look at constitutional court remarks & directions regarding the State’s obligation to frame guidelines on ex-gratia compensation to families of COVID-19 victims,  issuance of death certificate to COVID-19 related deaths, implementation of ‘One Nation, One Ration Card’ scheme. The courts also took note of unfair restrictions placed on unvaccinated people in the state Mizoram.
Supreme Court: NDMA has a statutory obligation to frame guidelines for recommending ex gratia assistance for the victims of the COVID pandemic.
In hearing the plea regarding granting ex gratia monetary compensation to families of COVID-19 victims, the supreme court held that National Disaster Management Authority (NDMA) has a statutory obligation to frame guidelines for recommending minimum ex gratia assistance for the victims of the COVID pandemic.
The court was hearing writ petitions filed in Public Interest seeking ex gratia monetary compensation of Rs. 4 lakhs or notified ex gratia monetary compensation to the families of the deceased who have succumbed to the COVID-19 pandemic, in view of Section 12 of the Disaster Management Act (DMA), 2005. In a previous hearing, the apex court reserved judgement when the Centre informed the apex court that payment of ex gratia compensation to all deceased persons due to COVID-19, is beyond the fiscal affordability of the Governments, as the finances of State Governments and the Central Government are under severe strain, due to the reduction in tax revenues and increase in health expenses on account of the pandemic.
The Central Government submitted that it has adopted a multi-pronged, multi-sectoral approach and that there is a large-scale increase in the health infrastructure during the course of the pandemic. The government submitted the following details to the court.
The Central government thus held that due to the peculiar nature of the COVID-19 pandemic, it was advisable not to formulate a straitjacket guideline and a cast in stone formula on “Minimum Standards of Relief”. The submission also emphasised that the Union of India has taken a conscious policy decision to provide relief depending upon the ever-changing needs through various Ministries/Departments and such actions are coordinated and monitored by the National Executive Committee, as contemplated in the Disaster Management Act, 2005 in general and under Section 10 in particular.
Upon examining all submissions, the court observed that it is required to be noted that some States are paying ex gratia assistance to the family members of the persons who have died due to the COVID-19 pandemic, like the State of Bihar paying Rs. 4 lakhs, Karnataka paying Rs. 1 lakh and Delhi paying Rs. 50,000. However, it is to be noted that the same is paid from the Chief Minister Relief Fund or other relief funds, but not from SDRF.
Therefore, the court held that in order to avoid any discriminatory treatment, it would be appropriate for the National Authority to recommend uniform guidelines while providing for the minimum standards of relief in the form of ex gratia assistance on account of loss of life, as mandated under Section 12 of the Act.
The court recognised that no writ of mandamus can be issued directing the Central Government/State Governments to pay a particular sum by way of ex gratia assistance as the utilization of the fund by the Central Government would depend upon the priorities fixed by them which includes the money/fund to be used for prevention, preparedness, mitigation, recovery, etc. Therefore, what amount is to be paid by way of ex gratia assistance to the family members of the persons who died due to the COVID-19  pandemic should be left to the National Authority/Central Government.
In conclusion, the apex court directed the appropriate authority i.e., National Authority to frame simplified and uniform guidelines within 6 weeks on providing ex gratia assistance to COVID-19 victims.
Supreme Court: Death due to COVID-19 or COVID-Related Complications should be specifically mentioned In Death Certificate
In the same plea regarding granting ex gratia monetary compensation to families of COVID-19 victims, the supreme court held that a death certificate issued in respect of a COVID-19 fatality must clearly specify the cause of death as COVID-19. If a person has died due to any other complications or disease due to COVID-19, then also the death certificate should specifically mention the cause of death as COVID-19.
The plea submitted that it is in the larger public interest also to issue correct/accurate death certificates with the correct cause of death. The plea also highlighted that there is a requirement of simplifying the procedure for issuance of death certificate mentioning the cause of death arising out of COVID-19. The plea submitted that by not issuing the correct/accurate death certificates mentioning the correct cause of death vis-à-vis COVID-19 pandemic would result in the following.
In response to this, the Central government submitted that with respect to the issuance of the correct and accurate death certificates with the correct cause of death due to COVID-19, there is a statutory mechanism and any breach of the guidelines on the same would be a criminal offence as stipulated under Section 188 of the IPC. Under these provisions, any death resulting from COVID-19 shall have to be certified, failing which, everyone responsible (including the certifying doctor) shall be responsible for penal consequences.
The Central government also highlighted that the broad guidelines for appropriate recording of COVID-19 related deaths in India were prepared by the Indian Council of Medical Research (ICMR) and were issued in May 2020 for all States for implementation and subsequently placed on the ICMR website. The office of the Registrar General of India (ORGI) had issued directions/guidelines to the Chief Registrars of all States/UTs during April 2020 to collect and certify the information on the cause of death due to COVID-19 as per two emergency codes created by World Health Organization (WHO) for COVID-19 in the 10th revision of International Statistical Classification (ICD-10) of Diseases and Related Health Problems.
After considering all submissions, the apex court observed that there is a need for simplified procedure/guidelines to be issued by the Central Government and/or appropriate authority for issuance of an official document. The death certificate/official document must be issued to the family members of the deceased who died due to COVID-19 stating the cause of death as “Died due to COVID-19”, including if he/she might have died due to other complications, however, due to COVID-19.
The court added that the guidelines should also provide for a grievance redressal mechanism. If the family member(s) of the deceased who died due to COVID-19 has/have any grievance that in the death certificate the correct/exact cause of death is not mentioned, they must be provided with some remedy to approach the appropriate authority to get the death certificate/official document corrected.
In conclusion, the court directed the appropriate authority to issue simplified guidelines for issuance of Death Certificates/official documents stating the exact cause of death, i.e., “Death due to COVID-19”, to the family members of the deceased who died due to COVID-19.
Supreme Court: States must implement the ‘One Nation, One Ration Card’ scheme by 31 July
In continuance of suo-moto proceeding regarding problems and miseries of migrant workers aggravated due to COVID-19 pandemic, the supreme court issued a slew of directions for the benefit and welfare of migrant workers.
The apex court recognised that one of the groups, which were severally affected by the pandemic, was the migrant labourers. The measures taken by different governments although could not fully ameliorate the conditions of migrant labourers. The court noted that a large number of migrant labourers have again proceeded to their workplace in search of employment since at their native place as they were not able to get suitable employment to sustain themselves.
The judgement highlights that while both the Central Government and the State Governments have floated various schemes for unorganized workers, building and construction workers, the ground reality is that a large number of beneficiaries are deprived of access to these welfare schemes of the Central Government or the State Governments.
In earlier proceeding to this petition, the apex court had issued various directions regarding the registration of migrants and unorganized workers in the common national database so that they can avail of the various statutory welfare schemes, but the judgement notes that the progress has not been satisfactory rather shows lethargy on the part of the concerned Government. The Supreme had also directed States and Union Territories to provide dry rations and community kitchens for migrant workers who are stranded due to the lockdowns imposed in the wake of the COVID-19 pandemic.
In light of these developments, the Supreme Court passed the following directions for the benefit and welfare of migrant workers:
Gauhati HC: Restriction on Unvaccinated Persons for leaving from their Homes, Debarring them from earning livelihood, Violative Of Art 14,19 and 21
In the case Dinthar Incident Aizawl vs. the State of Mizoram, the high court held that placing restrictions on unvaccinated persons by not allowing them to leave their house or pursue livelihood activities is violative of Article 14, 19 and 21.
According to certain clauses of the Standard Operating Procedure (SOP) issued by the state government of Mizoram on 29 June 2021, it requires all persons in the State of Mizoram to be vaccinated or else they would not be allowed to leave their houses to procure essential items or earn their livelihood by working in shops, driving public/commercial transport vehicles, etc.
The high court was adjudicating on the question, with regard to the above clauses, whether a person can be vaccinated against his will and whether the non-vaccination of the said individual can debar him from earning his livelihood, keeping in mind the fundamental right of a person to practice any profession or to carry on any occupation or trade or business under Article 19(1)(g) and his right to livelihood in terms of Article 21 of the Constitution.
The court noted that the submissions clearly show that 33% of the targeted persons are still to be vaccinated. There can be any number of reasons for a person to leave their house, for example, it could be for the purpose of procuring essential supplies, like food, medicines, attending to their near and dear/sick ones, etc. However, the said clause has virtually put them under house arrest in violation of Article 21 of the Constitution of India, while persons who have been given the first dose of vaccine are allowed to leave their houses/compounds.
Therefore, the court observed that with respect to Clause 6(1) and 6(5) of the SOP, there is discrimination at large, as persons who have been vaccinated with the first dose of the vaccine are allowed to earn their livelihood, but not the unvaccinated persons.
The judgement further highlights that even persons who have been vaccinated can still be infected with the virus, which would, in turn, imply that vaccinated persons who are COVID-19 positive, can also spread the said virus to others. It is not the case that vaccinated persons cannot be infected with the virus or are incapable of spreading the virus. Thus, even a vaccinated infected COVID-19 person can be a super-spreader. If vaccinated and unvaccinated persons can be infected by the COVID-19 virus and if they can both be spreaders of the virus, the restriction placed only upon the unvaccinated persons, debarring them from earning their livelihood or leaving their houses to obtain essential items is unjustified, grossly unreasonable and arbitrary.
Due to the above reasons, the court concluded that Clause 6(1) and 6(5) of the SOP are also violative of Article 14 of the Constitution, especially when achieving the target for vaccinating the targeted population may take many more months, in which case unvaccinated persons would be deprived of their right to livelihood, which would, in turn, violate their right to life that is guaranteed under Article 21 of the Constitution.
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SC directs Patriarchal notions about women to be avoided in judicial pronouncements
Sai Krishna Muthyanolla
March 24, 2021
In this roundup of the important court judgments, we look at directions about gender sensitisation in judiciary, ballot facility for absentee voters, participation of transgenders in NCC, deaths due to manual scavenging.
Supreme Court: Patriarchal and stereotypical notions about women to be avoided under all circumstances; gender sensitization training to judges and courses in LLB and AIBE syllabus
In the case Aparna Bhat vs. State of Madhya Pradesh, the apex court held that the use of  patriarchal and stereotypical reasoning/language which diminishes sexual crimes and tends to trivialize the survivor, is to be avoided under all circumstances.
The supreme court was hearing an appeal against certain bail conditions in the case of Vikram vs State of Madhya Pradesh in Madhya Pradesh high court. In this case involving a sexual offence against a woman, the bench of Justice Rohit Arya ordered the bail for the accused on the condition that he visits the house of the complainant and requests her to tie the Rakhi band to him “with the promise to protect her to the best of his ability for all times to come.”
The present appeal in the supreme court was against the adverse precedent set by the abovementioned part of the judgment of the Madhya Pradesh High Court. The appellants brought to notice various decisions and orders involving offences against women where the observations made by the judges were extraneous. In many cases, especially under the POCSO Act (Protection of Children from Sexual Offences Act), the courts have granted bail on the plea that an agreement to marry had been reached between the accused and prosecutrix. The appellants also submitted that while adjudicating matters of sexual harassment and rape, judges have made shocking remarks on the character of the prosecutrix.
Upon examining all submissions, the Supreme court opined that in a legal system where judgments of courts set precedents, and particularly within a common law system, judgments have significance beyond their authoritative resolution of a specific dispute. Thus, the judge is not only communicating to the concerned parties; the judge is also addressing the broader legal community— other lawyers, judges, legal academics, law students—and the public at large.
The bench of Justice AM Khanwilkar and Justice S. Ravindra Bhat emphasised that the judgment is not only about the merits of the conditions of the bail order but is meant to address a wider canvas of entrenched paternalistic and misogynistic attitudes that are regrettably reflected at times in judicial orders and judgments. The judgement notes that the role of all courts is to make sure that survivors of sexual assault can rely on their impartiality and neutrality, at every stage in a criminal proceeding. Therefore, reinforcement of patriarchal stereotypes, in court utterances or orders, through considerations that are extraneous to the case, would impact fairness.
While condemning the MP High Court’s order directing ‘rakhi tying’ as a condition for bail, the judgement explains the term ‘judicial stereotyping’, which refers to the practice of judges perpetuating harmful stereotypes, particularly for women victims and survivors of violence.
In conclusion, the judgement held that the use of reasoning/language which diminishes the offence and tends to trivialize the survivor, is to be avoided under all circumstances. The judgement mentions the instructions to be followed in cases of sexual violence:
The SC directed that the bail conditions in the judgment of MP high court be set aside and expunged from the record. The judgement mandates that a module on gender sensitization be included, as part of the foundational training of every judge. The National Judicial Academy has been requested to devise, speedily, the necessary inputs which have to be made part of the training. Public Prosecutors and Standing Counsel were directed to undergo mandatory training in this regard. The Bar Council of India (BCI) was also directed to mandatorily include courses on sexual offences and gender sensitization in the syllabus for the All India Bar Examination (AIBE) and consult subject experts in regard to similar courses that should be taught at the undergraduate level, in the L.L.B. (Bachelors of Law) program.
Madras HC: Upholds postal ballot facility for absentee voters.
In the case Dravida Munnetara Kazhagam v. Union of India & Ors., the Madras high court upheld the validity of Section 60(c) of the Representation of People Act, 1951 which enables certain classes of persons their basic right to participate in the democratic process.
The high court was hearing a writ petition filed by political party Dravida Munnetara Kazhagam (DMK) challenging the constitutional validity of Section 60(c) of the Representation of Peoples Act 1951. The provision allows the issue of postal ballot to certain classes of persons (or absentee voters) i.e., electors above the age of 80 years, electors with a physical disability, electors in quarantine due to COVID-19, and electors rendering essential services, in the upcoming elections to the Tamil Nadu legislative assembly.
The DMK party submitted that under the guise of this provision, the Central Government and Election Commission have issued several amendments, rules, and notifications with respect to “class of persons” as postal ballot voters, without any guiding principle. By notification published on 19 June 2020, the Central Government introduced COVID-19 suspects or affected persons as another class of persons who could exercise their franchise without physically coming to cast the ballot at the election booth. The latest amendment to the Conduct of Election Rules, 1961 was the lowering of the age of senior citizens from 80 years to 65 years. In this context, the petition also challenged the 2019 and 2020 amendments to the Conduct of Election Rules 1961 together with the guidelines issued by the Election Commission on 17 September 2020 and  02 February 2021 & 27 February 2021.
The bench of Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy held that the provision has enabled the inclusion of certain classes of persons, who would have been otherwise excluded from exercising their franchise, with the right to use the postal ballot and participate in the celebration of the festival of democracy.
The Bench noted that DMK has failed to establish that the provision is in derogation of any constitutional provision or principle or statute. The judgement recognises that there does not seem to be any arbitrariness in the classification of the persons permitted by the Rules of 1961 to cast their vote by postal ballot. Since the consideration of postal ballet is about who may not be able to physically attend a polling booth to cast her vote, there is no arbitrariness in the classes of persons enumerated by the amendments of 2019 and 2020. Particularly because the object of such changes appears to be to enable such classes of persons their basic right to participate in the democratic process.
Kerala HC: Government and Established obliged to provide full and effective participation of Transgender person and their inclusion.
In the case Hina Haneefa vs. State of Kerala, National Cade Corps. & Ors., the high court gave a green signal to the enrolment of a transgender person (the petitioner) in the National Cadet Corps (NCC) and instructed to amend the enrolment criteria prescribed under Section 6 of the NCC Act, 1948 to include the transgender community.
The court was hearing a petition filed by a transwoman, who was denied permission to apply for enrolment in her University’s unit of the National Cadet Corps (NCC). The petitioner, who is a student at the University College, Thiruvananthapuram, stated that she was assigned male gender at the time of birth and that at the age of 21, a sex reassignment surgery was performed. She was declined admission to the NCC unit on the ground that there is no provision for the enrolment of transgender students.
A counsel statement was placed on record by the Central Government Counsel which stated that the NCC was raised with an aim to provide a suitable environment to train the youth to take up a career in Armed Forces. It follows a curriculum and training module following the Armed Forces which is sometimes gender-specific due to differences in physical, biological, and psychological aspects. Since training parameters of boys’ and girls’ cadets are different, the statement clarifies that trans-women in a girls’ unit will have an unfair advantage over other girls’ cadets and trans-men in a boys unit will have an inherent disadvantage.
The judgement notes that the provisions of the National Cadet Corps Act, 1948 recognises NCC units and cadets only from males and females. It originally provided for enrolment of only male members and amendments were introduced to include a senior division for women cadets as well.
The bench of Justice Anu Sivaraman observed that one cannot take recourse to the outdated provisions of a 1948 enactment to deal with the realities of life in the year 2021. The judgement states that with the further march of the times, the change in perceptions and declarations by the Apex Court as well as the statutory enactments recognising the rights of the transgender persons must be taken into account by the respondents. The present situation has to be viewed in the light of the Transgender Persons (Protection of Rights) Act, 2019 which recognises the right of transgender persons to a life with dignity and prohibits discrimination against them.
In view of the specific provisions of the 2019 Act by which a transgender person has a right to be recognized not only as a transgender but also a right to self-perceived gender identity, the judgement rules that the petitioner is entitled to enrolment in the NCC unit reckoning her as a transgender and further as a member of her self-perceived gender, that is, the female gender.
A further direction was given to the government to amend the enrolment criteria prescribed under Section 6 of the NCC Act, 1948 to include the transgender community and to provide guidelines for enrolling transgender persons in the NCC.
Madras HC: Heads of Corporations and Municipalities are ‘personally liable’ for death due to manual scavenging.
In a significant observation, the Madras high court held that the heads of Corporations and Municipalities are held ‘personally liable’ for any death to anyone engaged in manual scavenging within their territories.
In a previous order on 10 March 2021, the high court sought immediate information from all the districts, including the municipalities and municipal corporations, pertaining to manual scavenging work undertaken or to be undertaken through contractors. However, there was no response from the State and no report has been filed.
The judgement notes the petition has been pending from 2017 to stop this inhuman practice which amounts to exploitation of a particular class that has suffered for generations. It also highlights that while Municipalities and Corporations may have stopped directly engaging in manual scavenging work, it appears that the contractors are engaged for the purpose, and Corporation and Municipal officials look another way, while manual scavengers are still sent down the pits. In several cases, people appear to slip and fall into the pits and die after inhaling the noxious fumes. It is important to note that there have already been 6 deaths till the end of February 2021.
The Bench of Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy held that it is high time that the heads of Corporations and Municipalities are held personally liable for any death to anyone engaged in manual scavenging within their territories.
The judgement clearly states that any manual scavenging death within the jurisdiction of the relevant Municipality or Corporation will result in the Commissioner or Chairperson or the controlling authority of the relevant body facing criminal charges and be subjected to immediate arrest.
Featured Image: Significant Court Decisions


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SC directs states to immediately start identification process of ‘Street Children’ in the country
Sai Krishna Muthyanolla
November 17, 2021
In this roundup of court judgements, we look at Constitutional Courts’ remarks & directions about free and fair elections, rehabilitation of street children, and vacancies and burden on State/District Consumer Forums.
Supreme Court: Directs Tripura authorities to ensure free & fair elections, peaceful campaigning.
In a plea by the All India Trinamool Congress (AITC), the Supreme Court held that it is the responsibility of the Tripura police authorities to ensure that no political party is prevented from exercising their rights in accordance with law for political campaigning in a peaceful manner.
The apex court was hearing a petition was filed by AITC and its Rajya Sabha MP Sushmita Dev alleging violence against its members in Tripura and seeking protection for them for the upcoming municipal polls, due to be held on 25 November 2021. The petitioners tabulated in the synopsis, incidents of violence that have allegedly taken place against them on 22 October 2021, when a team of AITC leaders and workers were in midst of public contact proceedings. Though FIR was registered, no arrests have been made, the petitioners stated.
The petitioners argued that the AITC members have been prevented from the right of an electoral campaign because of actual and threatened violence.
The bench of Justices DY Chandrachud, Surya Kant and Vikram Nath passed an interim order directing the Tripura police authorities to consider the nature of threats that have been averred in the petition so that appropriate arrangements are made to ensure maintenance of law and order.
The bench also called for an affidavit by the Home Secretary of Tripura explaining the steps taken in pursuance to the present order to ensure that elections in Tripura shall remain free and fair. The Court has directed the DGP and the Home Secretary to file a joint report of compliance.
The matter has been posted for further hearing after two weeks.
Supreme Court: Directs States to immediately start identification process; 15-20 lakh street children in the country estimates NCPCR.
In a suo moto case, the Supreme Court directed all the District Magistrates/ Collectors of all the state governments/UTs to take steps for care and protection of children in street situations prepared by the National Commission for Protection of Child Rights (NCPCR) in 2020.
The court was hearing about the children who are adversely affected due to the COVID-19 pandemic by losing either one or both the parents. This has led to increased incidents of child trafficking, especially of the girl child.
The apex court had earlier directed the state governments/UTs to file a status report on the rehabilitation of children on the streets (exacerbated by the pandemic), within a period of two weeks.
A study conducted by NGO ‘Save the Children’ mapped about 2 lakh children in 10 cities of Lucknow, Kanpur, Chandoli and Prayagraj in Uttar Pradesh, Pune and Nasik in Maharashtra, Kolkata and Howrah in West Bengal and Delhi, whose rights to protection, education, health, shelter, sanitation have not been addressed so far. The Amicus Curiae also pointed out that “hardly any steps have been taken” to ensure these children get their rights.
It was also brought to the court’s notice that there are about 70,000 children in the streets of Delhi alone. Additional Solicitor General KM Nataraj, appearing for NCPCR submitted that in his estimate, the number of such children might be to the tune of 15-20 lakhs across the entire country.
The Additional Solicitor General also pointed out other states are yet to identify and upload the required information on the portal. Further, the ASG highlighted that many states do not cooperate in meetings with NCPCR officials.
Upon considering all submissions by the Amicus Curiae and ASG, the supreme court directed the state governments/UTs to take steps for care and protection of children in street situations prepared by the National Commission for Protection of Child Rights (NCPCR) in 2020.
The Bench also directed the Secretary, Women and Child Welfare Departments of each state government/ UT to be made the nodal officer ensures that all DMs and Collectors take prompt action for the implementation of Standard Operating Procedure (SOP) 2.0 of NCPCR.
Supreme Court: Legislative Impact Assessment Study recommends revision of pecuniary jurisdiction to reduce the burden on District Consumer Forums.
In an earlier order, the Supreme Court had directed the Union Government to carry out a legislative impact study with respect to the Consumer Protection Act 2019 within 4 weeks. The order was primarily concerned with filling up the vacancies in the State Consumer Dispute Redressal Commissions.
The study was carried out in the context that the new Act i.e. Consumer Protection Act (COPRA) 2019 that expanded the jurisdiction of the consumer fora, resulting in litigation shifting to the consumer fora, apart from variation in the pecuniary jurisdiction by increasing the jurisdiction of the state and district fora.
In pursuance, the Central Government has filed an affidavit containing the Legislative Impact Assessment (LIA) of the Consumer Protection Act, 2019. The LIA was conducted by the Centre for Consumer Affairs, India Institute for Public Administration, New Delhi.
The objective of the study is four-fold:
High pendency due to vacant positions: The Report notes that between the time 20 July 2020 and 30 August 2021, 90% of the cases filed in District Commissions were pending. The corresponding figures for the State and National Commission are 83.9% and 79.3%. The Report notes that low disposal and high pendency during the period July 2020 to August 2021 can be attributed to a large number of vacancies at the three-tier Consumer Commissions.
The report finds that 50.4% of the posts of members in State Commissions are lying vacant and 45.4% in the District Commissions. In sync with earlier court observations, the report also highlights the importance of filling up the vacancies to increase the functionality of these institutions.
Infrastructural deficits: The Report also notes that 54% of District Commissions have the inadequate infrastructure, 50% face financial crunch, 37% do not have adequate storage space.
Despite the existence of a scheme to provide funds for the construction of buildings by the Central Government, the Report notes that the State Government has not allotted the required space to construct the building and hence the Central Government has not released the money. Further, the existing buildings are in a poor state and have no funds for maintenance.
Further, it is noted that while one-time grant has been provided by the Central Government, regular budgets are not granted by the State government. The report recommends that a mechanism should be put in place so that the State Government releases the amount for office expenses.
Increased burden and revised jurisdiction: The burden of cases before the District Consumer Commissions is going to increase manifold by enhancing pecuniary jurisdiction under the ambit of COPRA, 2019. Timely disposal of complaints will require adequate infrastructure, manpower and expertise of members. The report recommends that the pecuniary jurisdiction should be revised as under:
In addition, the State Government must ensure additional benches for district commissions to deal with increased jurisdiction along with regional benches for State Commissions and National Commission. Moreover, the report also makes other notable recommendations with respect to the infrastructure, manpower and financial powers of the Commissions.
In connection to this issue, in the case regarding the inaction of the Governments in appointing President/Members/Staff of Districts/State Consumer Disputes Redressal Commission and inadequate infrastructure across India, the Supreme Court has warned that costs in the range of Rupees 1 to 2 lakhs will be imposed on States which fail to submit a status report within a week regarding the vacancies in State Consumer Dispute Redressal Commission.
In its earlier directions also, the Supreme Court has expressed anguish at the continued inaction by the State in filling up vacancies at Districts/State Consumer Disputes Redressal Commission.
Supreme Court: Compensation cannot be restricted to the value of illegally mined mineral; cost of restoration of environment also to be considered.
In the case Bajri Lease LoI Holders Welfare Society vs. State of Rajasthan, the Supreme Court observed that the compensation/ penalty to be paid by those indulging in illegal sand mining cannot be restricted to the value of the illegally-mined mineral. The cost of restoration of the environment, as well as the cost of ecological services, should be part of the compensation.
The apex court was hearing a case regarding rampant illegal sand mining in Rajasthan. To understand and address the issue, the court had directed the Central Empowered Committee (CEC) to submit a report on the problems relating to sand mining that are faced by traders, consumers, transporters, the State and other stakeholders and recommend measures to stop illegal sand mining.
In its report, the CEC has recommended the imposition of an exemplary penalty of Rs.10 lakh per vehicle and Rs. 5 lakh per cubic metre of sand seized, which would be in addition to what has already been ordered/collected by the State agencies as compensation.
The court, however, noticed that the basis for imposition of exemplary penalty of Rs. 10 lakh per vehicle and Rs. 5 lakh per cubic metre of sand has not been stated by the CEC in its report.
Therefore, the apex court directed the CEC to follow the directions given by the National Green Tribunal (NGT) in respect of imposition of penalty/ determining the scale of compensation for illegal mining and the provisions of the 2020 Sand Mining Guidelines and determine the penalty/ compensation afresh and submit a revised report within a period of 8 weeks.
Further, the bench of Justices L. Nageswara Rao, Sanjiv Khanna and BR Gavai emphasised that the polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology.
Featured Image: Important Court Judgements

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Review: SC Directs That Caste or Religion of Parties Shouldn’t be Mentioned in Any Court Documents
Sai Krishna Muthyanolla
February 7, 2024
In this edition of the Court judgements review, we look at SC’s directions that Offence must be committed on ground of caste for conviction under SC/ST PoA Act, SC’s observation that if a woman’s consent was secured through a false promise of marriage from the beginning, it would constitute rape, SC’s directions that Caste or religion of parties should not be mentioned in any court documents.
SC: Offence must be committed on ground of caste for conviction under SC/ST PoA Act
In Dashrath Sahu vs. State of Chhattisgarh, the accused-appellant was convicted by the trial court for offences under Sections 451, 354 of the IPC, and Section 3(1)(xi) of the SC/ST PoA Act which deals with trespassing, criminal intent to offences against women and atrocities against members of Scheduled Castes or Scheduled Tribes. He was sentenced to undergo simple imprisonment of one year and a fine.
The accused, dissatisfied with the conviction, appealed to the High Court. The High Court upheld the conviction under the SC/ST PoA Act but acquitted the accused for the offence under the IPC. The reason for sustaining the SC & ST PoA Act conviction was cited as the non-compoundable nature of the offence committed by the accused under this Act. He then filed an appeal before the Supreme Court.
The Supreme Court Bench of Justices B R Gavai, Prashant Kumar Mishra and Sandeep Mehta observed that according to Section 3(1)(x) of the SC/ST PoA Act, the offence must be committed upon a person belonging to Scheduled Castes or Scheduled Tribes with the intention that it was being done by virtue of their caste. In this case, even upon considering the most serious accusations made by the complainant, the court noted that the accused did not commit the alleged act to target a person belonging to the Scheduled Caste and acquitted him of the charge.
SC: If a woman’s consent was secured through a false promise of marriage from the beginning, it would constitute rape
The appellant in the case Sheikh Arif vs. State of Maharashtra was accused of establishing a physical relationship with a woman under a false promise of marriage. The woman later discovered pictures of the man’s engagement to another woman following which she filed an FIR. However, the appellant contended that he had married her in 2017. He produced a copy of ‘nikahnama’. They also had a child born out of their relationship. Following Bombay High Court’s refusal to quash the rape allegations against him, the appellant filed the plea before the Supreme Court.
Supreme Court Bench of Justices Abhay S Oka and Pankaj Mithal observed that the second respondent (the woman) was an adult when she entered into a physical relationship with the accused. Further, she also admitted that they got engaged willingly. Nevertheless, she refutes that she got married to the appellant. The bench concluded that the accusation of a false promise to marry was not valid from the beginning as the woman engaged in a physical relationship was not solely due to the appellant’s promise of marriage. If a woman’s consent was obtained through a false promise of marriage right from the beginning, it would have constituted the offence of rape, according to the Bench. Even though the woman denied the marriage, the man had submitted sufficient evidence, in the form of a Nikahnama (marriage certificate), to support his claim of having married the woman. Stating that pursuing the case further would be a serious abuse of legal procedures, the court quashed the allegations and allowed the appeal.
SC: Doctor was directed to pay an additional fine of Rs. 50,000 to complainant for false representation
An 84-year-old PC Jain claimed that he lost his vision in his left eye in a surgical procedure carried out by the respondent, Dr R P Singh. He filed a consumer case in 2005 in the District Consumer Disputes Redressal Commission in Faridabad in 2005. The commission held the doctor guilty and directed the doctor to give compensation of Rs. 2 Lakhs with interest from the date of filing of the complaint till the date of realization. The order was challenged by the respondent in the State Commission which held that the surgery took place in New Delhi and the Faridabad Court had no territorial jurisdiction to decide the case.
The appellant approached the National Commission which reversed the State Commission’s decision and allowed the compensation at a lower interest. He then appealed to the Supreme Court seeking the release of the compensation amount, challenging the ex-parte order from the NCDRC that documented the patient as having received the compensation. Contrarily, according to the patient’s account, they had not received any part of the compensation from the doctor. The patient alleges that the doctor misrepresented the facts to the NCDRC, leading to the issuance of such an order.
The Justices B.R. Gavai and Sandeep Mehta, upon acknowledging that the patient had not received any compensation for the loss of vision due to medical negligence, instructed the doctor to pay Rs. 2 Lakhs in compensation along with a 12% per annum interest within two months. Failure to comply would result in an increased interest rate of 15% per annum. Further, the court levied a penalty of Rs. 50,000 on the doctor for falsely claiming that the compensation had been disbursed to the patient.
Bombay HC: Split verdict given on constitutional validity of new IT amendment rules
In Kunal Kamra vs. Union of India, the petitioner asserted that he was a political satirist who was heavily dependent on social media for content sharing. He claimed that the latest amendment to the IT Rules would result in arbitrary censorship and lacked the essential safeguards to preserve the freedom of satire. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 empowers the Centre to establish a fact-checking unit (FCU) to identify fake, false and misleading information about the government’s business on social media platforms.
His concern was that his content could be blocked, or removed, or his social media accounts might face suspension or deactivation. The Ministry of Information and Technology argued that ensuring “authentic information” about government matters undergoes fact-checking by a government agency (FCU) is in the public’s best interest. This is intended to contain any potential harm to the general public.
The Bench of Justices Gautam Patel and Neela Gokhale of the Bombay High Court heard the case and delivered a split verdict. Justice Gautam Patel’s decision favoured the petitioners while Justice Neela Gokhale’s decision favoured the amendment.
Justice Gautam Patel’s decision stated that it was unthinkable that one entity, would be unilaterally identified by the State and be given the authority to pick and decide what is true, fake, false, or misleading. He added that the government’s argument is flawed, assuming that it needs to act like a parent ensuring citizens only receive what it deems ‘correct information.’ This contradicts the fact that the government already has a strong and authentic voice.
Meanwhile, Justice Gokhale argued that the rule, involving a government official-staffed FCU, doesn’t violate Article 14. According to her, users have the right to approach grievance redressal mechanisms and the courts. She emphasized that the rule doesn’t restrict content unless it’s patently false, communicated with malice, and deceptively presented as truth. She stated that challenges based on potential abuse are unfounded and premature, given the FCU’s unknown character and concluded that the government’s measures align with the law’s objective, emphasizing citizens’ right to authentic information in a participative democracy.
SC: Caste or Religion of parties should not be mentioned in any court documents
Justices Hima Kohli and Ahsanuddin Amanullah, presiding over a family dispute transfer petition, Shama Sharma vs. Kishan Kumar, objected to the mention of the parties’ caste in the court documents. They emphasized discontinuing this practice, stating it should be ‘shunned.’ The petitioner’s counsel explained the registry’s objection to altering the memo of parties filed in lower courts. The Supreme Court thus issued a general order explicitly directing that the caste or religion of parties should not be mentioned in any petition or proceeding filed before the Courts, regardless of prior disclosure in lower courts. To ensure immediate compliance, the Court directed the circulation of this order to the Registrar Generals of all the High Courts after placing a copy before the concerned Registrar.

created: February 7, 2024


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SC holds that claim of juvenility can be raised before any Court, at any stage, even after final disposal of the case
Sai Krishna Muthyanolla
December 8, 2021
In this roundup of court judgements, we look at Constitutional Courts’ remarks & directions about personal liberty vis-à-vis pending trials, claims of juvenility, rights, and dignity of PwDs at airport security checks, and Right Against Sexual Harassment as part of Right to Life & Dignity under Article 21.
Supreme Court: UAPA- Period of deprivation of personal liberty pending trial cannot be unduly long.
In the case Asim Kumar Haranath Bhattacharya vs. National Investigation Agency, the Supreme Court has observed that the period of deprivation of personal liberty pending trial/appeal cannot be unduly long.
The apex court was hearing an appeal filed on behalf of an under trial accused (Ashim @ Asim Kumar Haranath Bhattacharya) out of the total number of 14 accused persons seeking post-arrest bail, which came to be rejected by the Trial Court on 25 February 2020 and also by the High Court on 15 March 2021. The case has been filed under Sections 120B, 121, 121A, 122 IPC, Section 25(1A) of the Arms Act 1959, Section 5 of the Explosive Substances Act, 1908 and Sections 18,20,40(1)(b)(c) of the Unlawful Activities (Prevention) Act (UAPA), 1967.
The accused is currently 74-year-old and has been in custody since 06 July 2012, thereby completing 9.5 years of incarceration as an undertrial prisoner.
The bench of Justices Ajay Rastogi and Abhay S. Oka held that the Courts would ordinarily be obligated to enlarge the accused on bail as he has suffered incarceration for a significant period of time, and it is obvious that a timely trial would not be possible.
The bench also reiterated that the charges against the accused are serious, but these charges will have to be balanced with factors like the period of incarceration and the likely period within which the trial can be expected to be finally concluded. The court also noted that only one Special Court has been designated by the State of West Bengal to try cases under the National Investigation Agency Act, 2008.
Therefore, the bench concluded that deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21 of the Constitution of India. While deprivation of personal liberty for some period may not be avoidable, a period of deprivation pending trial/appeal cannot be unduly long.
The appeal was allowed, and the judgment and order of the High Court was set aside, to pave way for the release of the accused on bail.
Supreme Court: Claim of juvenility can be raised before any Court, at any stage, even after final disposal of the case.
In the case Ashok vs. State of Madhya Pradesh, the Supreme Court observed that the claim of juvenility can be raised before any Court, at any stage, even after final disposal of the case.
The apex court was hearing an appeal filed by an aggrieved petitioner challenging his conviction and sentence, claiming juvenility at the time of the commission of the offence. On 29 July 1999, the Additional Sessions Judge convicted the petitioner under Section 302 IPC and had sentenced him to life imprisonment with regards to an incident that took place on 26 July 1997. In the cause title of the said judgment and order, the petitioner was addressed as Ashok, s/o Balram Jatab age 16 yrs 9 months and 19 days.
However, the petitioner filed a Criminal Appeal challenging this conviction, claiming that the petitioner was born on 5 January 1981 and was, therefore, approximately 16 years and 7 months old on the date of the incident. The Counsel for State argued that the claim of juvenility was raised for the first time in the Special Leave Petition.
The bench of Justices Indira Banerjee and JK Maheshwari held that if the Court finds a person to be a juvenile on the date of commission of the offence, it is to forward the juvenile to the Juvenile Justice Board for passing appropriate orders. Any sentence or order passed by a Court shall be deemed to have no effect.
Additionally, the bench also emphasised that the claim of juvenility can be raised before any Court, at any stage, even after the final disposal of the case.
The apex court noted that the birth certificate issued by the Gram Panchayat, Endouri, District Bhind, Madhya Pradesh indicates the date of birth of the petitioner as 05 January 1982, and not 01 January 1982, as recorded in the school certificate, which was referred to earlier. The bench also notes that the entry in the records of the Gram Panchayat Endouri does not appear to be contemporaneous and the certificate was issued in the year 2017.
Therefore, the apex court directed the Sessions Court to examine the claim of the petitioner to juvenility in accordance with law and submit a report to the Supreme Court within one month.
Supreme Court: Persons with Disabilities should not be asked to remove prosthetic limbs at airport security checks.
In the case Jeeja Ghosh vs. Union of India, the Supreme Court observed that Persons with Disabilities (PwDs) with prosthetic limbs/calipers should not be asked to remove the prosthetics at airport security checks so as to maintain human dignity.
The apex court was following up on a petition filed in 2012 by Jeeja Ghosh, a disability rights activist, who was forcibly de-boarded from a SpiceJet flight due to her disability. In 2016, the Supreme Court had SpiceJet pay 10 lakhs as compensation for violating the petitioner’s right to dignity. Further, the Supreme Court issued a slew of directions to the Directorate General of Civil Aviation (DGCA) to modify its guidelines to ensure the dignity of PwDs during air travel.
On 2 July 2021, the DGCA came up with a new draft Guidelines ‘Carriage by Air of Persons with Disability and/or Persons with Reduced Mobility’. The draft guidelines mentioned the scanning of prosthetic limbs/calipers through a full-body scanner. The Senior Advocate, representing the petitioner, raised multiple objections to the draft guidelines. As part of the follow-up, the Supreme Court considered the subsequent guidelines framed by the DGCA in this regard.
The Bench of Justice Hemant Gupta and Justice V Ramasubramanian has granted liberty to the petitioners to submit their suggestions and objections to the Ministry of Civil Aviation regarding the revised draft Civil Aviation Requirements (CAR) guidelines within 30 days. The bench also expressed hope that the Ministry of Civil Aviation will consider such suggestions and objections even if the time limit for submission of the suggestions has come to an end.
In addition to the above direction, the bench also made two crucial observations:
Supreme Court: Right Against Sexual Harassment part of Right to Life & Dignity under Article 21.
In the case Union of India and Ors vs. Mudrika Singh, the Supreme Court observed that the right against sexual harassment is vested in all persons as a part of their right to life and right to dignity under Article 21 of the Constitution. In the same vein, the Supreme Court stressed that it is important that the spirit of this right is upheld instead of rejecting sexual harassment complaints on “hyper-technical” grounds.
In the present case, the complainant is a constable at the Border Security Force (BSF), who had lodged a complaint against the head constable (his superior) under the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013. The Calcutta High Court had quashed disciplinary proceedings against the accused and had reinstated him to his initial position in the BSF.
Going through the High Court’s order and case details, the Supreme Court observed that the alleged discrepancy regarding the date of occurrence was of a minor nature since the event occurred soon after midnight and on the next day.
The bench of Justices D.Y Chandrachud and A.S Bopanna emphasised that it is important that Courts uphold the spirit of the right against sexual harassment. In this view, it becomes imperative to interpret service rules and statutory regulations governing the prevention of sexual harassment at the workplace in a manner that metes out procedural and substantive justice to all the parties.
In conclusion, the appeal was allowed, and the order of the Calcutta High Court was set aside.
Featured Image: Important Court Decisions

created: December 8, 2021