Kerala challenging the action of the President of India in withholding assent for four bills and the action of the Kerala Governor in referring those bills to the President.

The Supreme Court on Friday (July 26) agreed to consider the writ petition filed by the State of Kerala challenging the action of the President of India in withholding assent for four bills and the action of the Kerala Governor in referring those bills to the President.

A bench comprising Chief Justice of India DY Chandrachud, Justices JB Pardiwala and Manoj Misra issued notice to the Union of India (through the Secretary of the Ministry of Home Affairs) and the Additional Chief Secretary to Kerala Governor Arif Mohammed Khan.

Senior Advocate and former Attorney General for India KK Venugopal, appearing for the State, submitted that there was a need for the Court to lay down guidelines on when the Governors can return/refer bills.

"This a confusion in the minds of various Governors in the country as to what their powers are in regard to assenting to bills. In the present case, out of eight bills, two of them had been kept pending for 23 months. One for 15 months. Another for 13 months. And others for 10 months. Now, it is a very sad state of affairs. The Constitution itself is being rendered otiose," Venugopal submitted. He pointed out that the State was challenging the very reference of the bills to the President.

"Your lordships need to tell the Governor as to when they can refuse to assent, when they can refer to the President," Venugopal submitted.

While agreeing to issue notice on the petition, CJI asked Venugopal and Senior Advocate Jaideep Gupta (who is appearing in a similar petition filed by the State of West Bengal) to formulate the points. Venugopal replied that those points have been formulated in an application filed by the State of Kerala in the pending petition against the Governor's inaction on the bills.

The state of Kerala has challenged the action of President Droupadi Murmu in withholding assent for four out of the seven bills referred by the Kerala Governor.

In its writ petition filed under Article 32 of the Constitution, the State also challenged the Governor's action of referring the bills to the President, arguing that none of the bills related to Centre-State relations required the Presidential assent.

The bills are related to amendments to laws concerning State Universities and Cooperative Societies. The State pointed out that the Governor had kept these bills pending for several months, ranging from 7 months to 24 months from the date when the bills were passed by the Assembly.

Previously, the State filed a writ petition before the Supreme Court challenging the Governor's inaction. After the Supreme Court issued notice on the petition on November 20 last year the Governor referred the seven bills to the President. On November 29, 2023, while hearing the petition, the Supreme Court criticised the Governor for sitting over the bills.

On February 29, the President withheld assent from four bills and approved three other bills. Presidential assent was withheld for the following bills. 1) University Laws (Amendment) (No. 2) Bill, 2021, 2) the Kerala Co-operative Societies (Amendment) Bill, 2022, 3) the University Laws (Amendment) Bill, 2022 , and 4) the University Laws (Amendment) (No. 3) Bill, 2022.

The State of Kerala argued that no reasoning has been given for such a rejection. The actions of the Union Government in advising the President of India to withhold the assent to bills which had been passed by the State Legislature as long as 11-24 months back, and which were wholly within the domain of the State Government, subverts and disrupted the federal structure, the State contended. 

The reasons given by the Governor for reserving the bills for the President have nothing to do with the Union of India or the relationship between the State Legislature or the Union. In this regard, reference is made to the proviso to Article 213 of the Constitution, which sets out the occasions when the assent of the President is necessary for promulgating an Ordinance. The State argued that only on the existence of these factors that a reference to the President was justified.

The State seeks the following reliefs :

(a) Calling for the records leading to the File Notes of the Governor for the State of Kerala with regard to reservation of 4 bills for consideration of the President and quash the same;

(b) Declare that the act of the Governor for the State of Kerala reserving 4 bills viz for consideration of the President, as unconstitutional;

(c) Calling for the records leading to the withholding of assent by the President to four bills and quash the same;

(d) Declare that withholding of assent by the President to 4 Bills without stating any reason whatsoever, as unconstitutional; and

(e) Direct the Governor of the State of Kerala to grant assent to the six bills viz. 1) University Laws (Amendment) (No. 2) Bill, 2021 - Bill No. 50, 2) University Laws (Amendment) Bill, 2021 – Bill No. 54, 3) the Kerala Co-operative Societies Amendment Bill, 2022 - Bill No. 110, 4) the University Laws (Amendment) Bill, 2022 - Bill No. 132, 5) The University Laws (Amendment) (No. 2) Bill, 2022 - Bill No. 149, and 6) The University Laws (Amendment) (No. 3) Bill, 2022 - Bill No. 150 forthwith; and

(f) Declare that the act of the Governor of Kerala in reserving the seven bills viz. 1) University Laws (Amendment) (No. 2) Bill, 2021 - Bill No. 50, 2) University Laws (Amendment) Bill, 2021 – Bill No. 54, 3) the Kerala Co-operative Societies (Amendment) Bill, 2022 - Bill No. 110, 4) the University Laws (Amendment) Bill, 2022 - Bill No. 132, 5) Kerala Lok Ayukta (Amendment) Bill, 2022 – Bill No.133, 6) The University Laws (Amendment) (No. 2) Bill, 2022 - Bill No. 149, and 7) The University Laws (Amendment) (No. 3) Bill, 2022 - Bill No. 150 for the consideration of the President was illegal and lacks in bona fides.

Case Details : STATE OF KERALA AND ANR. Versus UNION OF INDIA AND ORS. W.P.(C) No. 211/2024

Caste-Based Discrimination In Indian Prisons

While reserving judgment on a public interest litigation highlighting the issue of caste-based discrimination in Indian prisons, the Supreme Court today expressed displeasure with some of the provisions contained in state prison manuals and remarked that they were "very disturbing".

A bench of Chief Justice of India DY Chandrachud and Justices JB Pardiwala, Manoj Misra heard the matter and concluded arguments on behalf of both sides.

Briefly put, the petition was filed by journalist-Sukanya Shantha highlighting discriminatory practices taking place in the prisons of certain states/UTs of India. To elucidate by way of example, she mentioned that the old Uttar Pradesh Prison Manual, 1941 provided for maintenance of caste prejudices of prisoners and designation of cleaning, conservancy, and sweeping work on caste basis. However, in 2022, amendments were made aligning it with the Model Manual and removing provisions for allotting work based on caste. Despite this change, the 2022 Manual continued to uphold a rule related to the preservation of caste prejudice and segregation of habitual offenders.

Shantha further claimed that there were identical discriminatory laws in the State Prison Manuals of 13 major states, including Rajasthan, Madhya Pradesh, Orissa, Uttar Pradesh, Tamil Nadu, Delhi, Punjab, Bihar and Maharashtra.

Notice was issued on her plea to the Union Government and 13 State Governments in January this year.

When the matter came up for hearing today, Senior Advocate S Muralidhar and Advocate Disha Wadekar appeared for Shantha and argued that the discrimination was taking place in three ways: (i) through division of manual labor; (ii) through segregation of barracks on caste lines; (iii) through extant provisions in state prison manuals which discriminate against prisoners belonging to de-notified tribes (referred to as criminal or wandering and nomadic tribes in the manuals) and “habitual offenders”.

Besides the above, it was contended that the Model Prison Manual was inadequate insofar as there was a need to address caste-based discrimination in Indian prisons. The counsels further pointed out that they had placed on record testimonials from undertrials (past and present), detailing their experiences of the discriminatory practices.

Sr Adv Muralidhar, in particular, drew the court's attention to an advisory issued by the Union to states/UTs in February, 2024 to address the issue of caste-based discrimination. He pointed out that in the replies filed by some of the states, there was an admission of the discriminatory practices and the same were sought to be justified.

Additional Solicitor General Aishwarya Bhati (for Union), on the other hand, urged that prisons being a state subject, the Union can do nothing more than issuing an Advisory, unless the court directs that it monitor compliance and report back.

A counsel for State of Uttar Pradesh also submitted before the court that the state had filed its reply containing provisions from its prison manual as well as stating that there was no caste-based discrimination taking place in the prisons. The submission was however countered by Sr Adv Muralidhar, pointing to one of the provisions: "your Lordships may see [Rule] 289...it's really disturbing...'a convict sentenced to simple imprisonment shall not be called upon to perform duties of degrading character unless he belongs to a class or community accustomed to perform such duties'...what kind of reply is this? It does not even mention Rule 289".

Going through the provisions of Prison Manuals of UP and other states, the bench found merit in the petitioners' objections. Justice Pardiwala could be heard expressing serious displeasure at a provision (Rule 793) contained in West Bengal's Prison Manual. "What is this rule? Just read. It's very disturbing", the judge said to West Bengal's counsel.

Parting with the matter, the bench indicated that it would appoint nodal officers and ask the Central government to give clarification on provisions which were pointed out by petitioners as having ambiguity. It was also conveyed that the judgment to be passed would implicate role of District Legal Services Authorities, to ensure that it is duly implemented. 

The petitioner's written submissions can be read here.

Case Title: Sukanya Shantha v. Union of India, W.P.(C) No. 1404/2023

Click Here To Read/Download Order

If Prosecuting Agency Cant Ensure Speedy Trial They Shouldnt Oppose Bail Citing Seriousness Of Offence Supreme- Court-262328

Chastising the National Investigating Agency for delaying the trial in a case under the draconian Unlawful Activities (Prevention) Act 1967, the Supreme Court stated that if the prosecuting agency cannot protect the right to speedy trial of an accused, then they cannot oppose his bail application on the ground that the offence was serious.

"Howsoever serious a crime may be, an accused has a right to speedy trial as enshrined under the Constitution of India," observed the Court while granting bail to a man, who has been under custody since February 2020 in a case over alleged smuggling of counterfeit Indian currencies from Pakistan.

The Court underscored that the right to speedy trial, as enshrined in Article 21 of the Constitution of India, applies to all accused irrespective of the nature of the crime. The bench comprising Justices JB Pardiwala and Ujjal Bhuyan, hearing an appeal filed by the accused against the judgment of the Bombay High Court denying him bail, observed :

"If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime."

Criticism of Trial Delays

The Court also lamented that the trial courts and the High Courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment.

The Court cited various precedents - Gudikanti Narasimhulu & Ors. v. Public Prosecutor, High Court reported in (1978) 1 SCC 240, Gurbaksh Singh Sibba v. State of Punjab reported in (1980) 2 SCC 565 - which emphasise that the bail is to be granted if the presence of the accused at the trial can be secured.

The judgment in Hussainara Khatoon v. Home Secy., State of Bihar reported in (1980) 1 SCC 81, which declared that the right to speedy trial was a part of Article 21, was also cited.

Reference was made to the recent judgment in Mohd. Muslim v. State (NCT of Delhi) 2023 LiveLaw (SC) 260 which held that bail can be granted if there is undue delay in trial regardless of the stringent provisions of special statutes like NDPS Act. The judgment in Union of India vs. K.A. Najeeb (2021), which held that UAPA does not bar constitutional courts from granting bail on the ground of long delay in the trial was also relied upon.

The Court also noted that  Section 19 of the NIA Act 2008 mandated that trials should be held on a day-to-day basis.

In the instant case, the Court observed that the manner in which the NIA(Prosecuting Agency) and the trial court handled the proceedings resulted in the infringement of the right to speedy trial of the accused. It was noted that the trial court has not even framed the charges, despite the passage of four years. Since the prosecution intended to examine at least 80 witnesses, the Court wondered by when the trial would actually conclude.

"We may hasten to add that the petitioner is still an accused; not a convict. The over-arching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly, howsoever stringent the penal law may be," the Court said.

Humanistic Approach to Criminal Justice

Advocating a humanistic approach towards criminals keeping in mind the fact that most crimes are products of socio-economic circumstances, the Court further stated :

"Criminals are not born out but made. The human potential in everyone is good and so, never write off any criminal as beyond redemption. This humanist fundamental is often missed when dealing with delinquents, juvenile and adult. Indeed, every saint has a past and every sinner a future. When a crime is committed, a variety of factors is responsible for making the offender commit the crime. Those factors may be social and economic, may be, the result of value erosion or parental neglect; may be, because of the stress of circumstances, or the manifestation of temptations in a milieu of affluence contrasted with indigence or other privations."

The Court allowed the appeal and granted bail to the appellant subject to the terms and conditions to be fixed by the trial court.

Case Title : JAVED GULAM NABI SHAIKH Versus THE STATE OF MAHARASHTRA AND ANR | SLP(Crl) No. 3809/2024

Citation : 2024 LiveLaw (SC) 437 

Clickhttps://www.livelaw.in/supreme-court/if-prosecuting-agency-cant-ensure-speedy-trial-they-shouldnt-oppose-bail-citing-seriousness-of-offence-supreme-court-262328

 Here To Read/Download Order