Monthly Review: November 2024

November is when autumn makes way for misty winter mornings. This year, the Supreme Court also transitioned to a new season with Chief Justice D.Y. Chandrachud retiring and CJI Sanjiv Khanna taking over the helm. The month also closed the loop on several significant Constitution Bench cases heard during the Chandrachud era. 

This review highlights all the key judgements delivered and the developments that took place during the last month. 

Justice Chandrachud’s lingering legacy

CJI Chandrachud retired on 10 November as India’s 50th Chief Justice. On 8 November, a Ceremonial Bench assembled to commemorate his over eight-year tenure.

In the weeks before and after his retirement, we, at the Supreme Court Observer, published several assessments and commentaries of his long tenure. 

As a judge of the Supreme Court, he authored over 600 judgements and was a part of over 1200 benches. We published a subjective list of his top 10 judgements and his top seven dissents. We also listed the 16 Constitution Bench cases that were heard and decided during his tenure as the CJI. In our data analysis of his two-year-long tenure as CJI, we reported that the pendency of registered cases in the Supreme Court was reduced by 3588 during his term. 

While analysing the Collegium activity under his leadership, we found that he recommended 184 names for elevation to the higher judiciary out of which 15 percent were not cleared by the Union. The analysis also found that only 27 women were recommended out of the 168 recommendations of high court judges. CJI Chandrachud is also popular for his judgements on disability rights. We covered his top seven judgements and a commentary by Professor Vijay K. Tiwari on his approach to disability rights.

Beyond the courtroom, we also wrote about how his frequent public engagements and appearances—unlike the previous CJIs of the country—drew unprecedented attention to the Court and redefined the judiciary’s perception in the public eye. 

Chief No. 51: Justice Sanjiv Khanna 

On 11 November, Justice Khanna took oath as the 51st Chief Justice of India. During the last working day of his first week as CJI, he issued a one-page statement, emphasising on citizen-centric judiciary aimed at “simplifying complex legal procedures,” ensuring “accessible and affordable justice,” and the need to tackle case backlogs. CJI Khanna inherited the Court at a time when pendency stood at 82,000-plus cases. 

In the bid to reduce pendency, during his second week in Office, the Chief made an unusual announcement: regular hearings would not be heard until “further notice”. This sparked mixed reactions, with the Bar expressing disappointment that they were not consulted on listing issues. However, the move seems to have borne fruit. November saw a drop in pendency and an increase in disposal rate by 16 percent. On 10 November, the Court announced that it would resume hearing regular matters from January 2025. 

On 28 November, the Collegium led by CJI Khanna recommended Justice Manmohan, Chief Justice of the Delhi High Court, to the Supreme Court. The Court after CJI Chandrachud’s retirement was two judges short of the sanctioned strength of 34 judges. Justice Manmohan’s recommendation was cleared and he was appointed on 5 December to the Supreme Court, bringing its strength to 33 judges.

Private property, community and material resources

On 5 November, the Court delivered its judgement in Property Owners Association v State of Maharashtra (2024), one of the oldest pending Constitution Bench cases. A nine-judge bench in a 7:2 majority held that not all privately owned property falls within the ambit of “material resources of the community” under Article 39(b), a directive principle of state policy.

The bench unanimously clarified that Article 31C still existed in the Constitution. The provision protected laws aimed at redistributing material resources under Articles 39(b) and (c) from being invalidated for violating fundamental rights. An amended version, which expanded the scope of Article 31C to all directive principles, was struck down in Minerva Mills v Union of India (1980). The Court rejected arguments which claimed that the entire provision was repealed in Minerva Mills. Instead, the bench held that the original narrower version, as upheld in Kesavananda Bharati v State of Kerala (1973), continued to remain valid. 

On the question of the nature of private property, the majority clarified that not all private property was a material resource of the community. The majority emphasised a contextual approach, considering factors like scarcity, utility, and public need. Justice B.V. Nagarathna, in a partially dissenting opinion, defended past judicial interpretations as reflective of their time, while Justice Dhulia endorsed the view that private property was a material resource of the community. 

A 57-year-old precedent is overruled: The AMU judgement

In the first week of November, a seven-judge bench overruled S. Azeez Basha v Union of India (1967) which had denied Aligarh Muslim University (AMU) its minority status. By a 4:3 majority, the Court held in Aligarh Muslim University Through Its Registrar Faizan Mustafa v Naresh Agarwal (2024), that institutions established by minorities, even if incorporated through statute, retain their minority character under Article 30.

The majority, including CJI Chandrachud and Justices Khanna, J.B. Pardiwala and Manoj Misra emphasised that statutory incorporation does not negate the foundational minority identity of an institution. 

Dissenting opinions from Justices Surya Kant, Dipankar Datta and S.C. Sharma raised concerns about procedural lapses in the reference order and the question of state control. However, the dissents more or less agreed with a range of general issues discussed by the majority barring a few. In his commentary, Prof. Faizan Mustafa, the former Registrar of AMU, pointed out that the dissents are closer to the majority than they appear. 

The judgement also clarified that institutions established before the Constitution’s enactment in 1950 are entitled to protection under Article 30(1). Further, they, for the first time in 75 years, outlined indicators for determining an institution’s minority status.

The bench did not decide on the minority status of AMU, leaving it for a regular bench to adjudicate upon. 

Equality and fair play in arbitration

In a 3:2 majority, a five-judge Constitution Bench held that unilateral appointments of arbitrators by government entities in public-private contracts violate principles of equality and impartiality under the Arbitration and Conciliation Act, 1996.

CJI Chandrachud, authored the majority opinion on behalf of himself, Justices Pardiwala and Misra. They held that arbitration agreements mandating one party to choose arbitrators from a panel curated by the opposing party are not permissible. They emphasised that procedural equality under Section 18 of the Arbitration Act must apply at all stages of arbitration, including the appointment process. 

Partially dissenting from the majority, Justices Hrishikesh Roy and P.S. Narasimha disagreed with the majority on aspects of applicability of constitutional law principles in public matters. They held that the public law principles evolved in constitutional and administrative law, should not be applicable to arbitration law. Justice Narasimha added that it is the duty of the Court to ensure that the arbitration agreement “inspires confidence” and it will “enable establishment of an independent and impartial arbitral tribunal.”

Legal practitioners have praised this ruling as a significant advancement in the country’s arbitration jurisprudence. Senior Advocate Sajan Poovayya writes that the judgement reinforces party autonomy and ensures impartiality in arbitral proceedings, particularly in cases involving the government.

Meanwhile, AoR Hima Lawrance and Advocate Abhinav Hansaraman opined that the decision incentivises the government to act as a more accountable participant in commercial transactions.

The rules about the rules of the game 

In Tej Prakash Pathak v Rajasthan High Court (2024), a Constitution Bench unanimously held that the “rules of the game” governing recruitment processes in public posts, cannot be altered midway through the process. A recruiting authority, the Court held, could not change the eligibility criteria in the recruitment after the process has begun, unless there are existing rules explicitly allowing such a change. Even then, the changes must pass the test of arbitrability.

The judgement differentiated between “eligibility criteria” to apply for public posts and the “selection criteria”. While the rules for eligibility are stringent, the judgement observed that the selection process can be flexible as long as it is transparent, non-discriminatory and rational. It added that the inclusion of a candidate in a “Select List” does not necessarily guarantee appointment, even if vacancies exist.

Light motor vehicle license valid for light transport vehicles 

On 6 November, in Bajaj Allianz General Insurance v Rambha Devi (2024), a five-judge bench unanimously upheld Mukund Dewangan v Oriental Insurance Co. Ltd (2016). The bench held that a person with a Light Motor Vehicle (LMV) license can drive a transport vehicle of LMV class weighing less than 7500kg. 

The Motor Vehicles Act, 1988, defines an LMV as any vehicle under 7,500 kg, yet ambiguities arose following the 1994 amendment introducing “Transport Vehicles” as a distinct category. Insurance companies contested Mukund Dewangan, arguing that insufficient training of LMV drivers could compromise road safety. The bench held that additional training and experience are required for medium and heavy transport vehicles. 

Further, they noted that the livelihood of gig workers was dependent on small-scale transport vehicles. 

Balancing religion and education 

On 5 November, the Court partially upheld the constitutional validity of the Uttar Pradesh Board of Madarsa Education Act, 2004, which regulates educational standards in over 163,000 Madarsas with 1.72 million students across Uttar Pradesh. A three-judge bench led by CJI Chandrachud overturned an Allahabad High Court judgement that had struck down the entire Act for being anti-secular and for violating Articles 14, 21 and 21A.

“The Constitutional validity of a statute cannot be challenged for violation of the basic structure of the Constitution…Allowing courts to strike down legislation for violation of such concepts will introduce an element of uncertainty in our constitutional adjudication,” the top court held.

The bench clarified that the Constitution allows the State to support minority institutions without compromising equality. However, the Court struck down provisions regulating higher education degrees, Kamil (graduation) and Fazil (post-graduation), since they conflicted with the University Grants Commission Act, 1956.

Ground rules for demolitions

A Division Bench of Justices B.R. Gavai and K.V. Viswanathan on 13 November, issued comprehensive guidelines to regulate arbitrary bulldozer demolitions nationwide. The bench was hearing a batch of petitions filed by Jamiat Ulema-i-Hind and various other petitioners who claimed that the demolitions specifically targeted the houses of persons, especially Muslims who were connected to crimes. One of the petitioners was Rashid Khan, whose home was demolished after his tenant’s son stabbed a classmate in Rajasthan.

The judges observed that the demolitions were reminiscent of a “lawless, ruthless state of affairs.” They noted that it infringed on the right to shelter, violated the rule of law, and inflicted collective punishment on families of accused individuals. 

The Court also held that any violations of the guidelines would invite contempt charges against the officials. The guidelines include a 15-day notice period, a mandated digital tracking of demolition processes and an appeal mechanism before an encroached property is demolished by officials. 

Air-pocalypse in the NCR

This year, just like every other year, the Supreme Court issued directions to curb the Delhi-NCR Air Pollution crisis. A bench of Justices A.S. Oka and A.G. Masih came down heavily on the Delhi and Union governments for glaring lapses in implementing emergency measures. They also reprimanded authorities for failing to enforce Stage IV restrictions under the Graded Response Action Plan (GRAP). It halted construction activity and non-essential truck traffic from entering the region and even appointed Court- Commissioners to check the entry points into the city.

The bench addressed the plight of school-going students, particularly those without access to online education, and directed the use of labor welfare funds to support affected workers and daily-wagers.

Justice in progress: Day 7 of Kolkata Rape and Murder Case

On 7 November, the top court continued hearing the suo motu case concerning the rape and murder of a trainee doctor at Kolkata’s R.G. Kar Medical College. The Court reviewed the Court-appointed National Task Force’s (NTF) report, which presented comprehensive pan-India recommendations to improve doctors’ safety. The Court directed all states, union territories and stakeholders to provide feedback and suggestions.

Meanwhile, the CBI submitted its sixth status report, noting charges framed against the accused and ongoing investigations into alleged financial irregularities linked to the case. The Junior and Senior Doctors Associations demanded independent monitoring of NTF recommendations. They were directed to share their concerns and recommendations with the NTF. With CJI Chandrachud’s retirement, a bench of CJI Khanna is now hearing the matter.

Other articles you cannot miss:

• And it’s a wrap

• Transition time

• A gathering of judges