Thursday, March 28, 2024

Judgements by one year old Chief Justice of Patna High Court, the judge who upheld Bihar Caste Survey

Justice K. Vinod Chandran (61) joined as the Chief Justice of Patna High Court on March 29, 2023. Prior to that he was a judge of High Court of Kerala since November 2011. He will retire as judge on April 24, 2025. Between April 3, 2023 and March 27, 2024, he presided over the benches which have delivered 2408 judgements. In his first judgement in Narendra Mandal v. State of Bihar, he dismissed the public interest petition saying, "We are of the firm opinion that there is no public interest involved and the above writ petition is devoid of merit and the same is liable to be dismissed; which we do." 

In his last judgement so far in Shashi Sinha v. Union of India, he observed, "The writ petition stands dismissed with the above reservation." The reservation is with regard to the submission of the petitioner that the issue of denial of honorarium between March, 2011 to May, 2022 and from January, 2023 to October 2023 has survived the verdict of a Full Bench of the High Court in L.P.A. No. 748 of 2022 in the matter of the challenge against second proviso of Section 23 of the Right to Children to Free and Compulsory Education Act, 2009. The petitioner has moved the appellate authority which has allowed the claim. Justice Chandran concluded, "In such circumstances, it is for the petitioner to seek execution of the order passed by the appellate authority. For the period beyond that considered by the appellate authority, the petitioner would be entitled to make a representation before the competent authority, who shall consider the same and dispose of the matter within three months from the date of presentation." 

In Youth For Equality v. State of Bihar, the 101-page long judgement authored by Justice Chandran reads: "we find the action of theState to be perfectly valid, initiated with due competence, with the legitimate aim of providing ‘Development with Justice’; as proclaimed in the address to both Houses and the actual survey to have neither exercised nor contemplated any coercion todivulge the details and having passed the test of proportionality,thus not having violated the rights of privacy of the individual especially since it is in furtherance of a ‘compelling public interest’ which in effect is the ‘legitimate State interest’. We dismiss the writ petitions, leaving the parties to suffer their respective costs." 

Besides Youth For Equality, the other petitioners were Dr. Bhurelal, Prof. Makkhan Lal, Prof. Kapil Kumar, Prof. Sangit Kumar Ragi, and Ahna Kumari. Notably, the judgement refers to Aadhaar Number on 16 occasions in the context of related judgements of the Constitution Bench of Supreme Court

The petioners' counsel relied on Justice (Retd) K.S. Puttaswamy II (Aadhaar) v. Union of India (2018) to point out that these three aspects are very sensitive personal information which defines the identity, autonomy, dignity and privacy of every individual. Supreme Court in Justice K.S.Puttaswamy I v. Union of India (2017) had specifically dealt with these aspects and held it to be sacrosanct; the infringement of which would also fall foul of the constitutional guarantees to preserve fundamental rights and never to be impinged; other than by way of reasonable restrictions, conforming to strict standards of scrutiny. The State by the above survey conducted amongst the residents of Bihar is imposing a caste status on every citizen, whether he desires it or chooses to distance himself/herself from it.

The judgement reproduces excerpts from Supreme Court's decision in Aadhaar case which succinctly stated the following features:
“108. It stands established, with conclusive determination of the nine-Judge Bench judgment of this Court in K.S.Puttaswamy [K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1] that right to privacy is a fundamental right. The majority judgment authored by Dr D.Y. Chandrachud, J. (on behalf of three other Judges) and five concurring judgments of other five Judges have declared, in no uncertain terms and most authoritatively, right to privacy to be a fundamental right. This judgment also discusses in detail the scope and ambit of right to privacy. The relevant passages in this behalf have been reproduced above while taking note of the submissions of the learned counsel for the petitioners as well as respondents. One interesting phenomenon that is discerned from the respective submissions on either side is that both sides have placed strong reliance on different passages from this very judgment to support their respective stances.
109. A close reading of the judgment in K.S. Puttaswamy [K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1] brings about the following features:
109.1. Privacy has always been a natural right : The correct position in this behalf has been established by a number of judgments starting from Gobind v. State of M.P. [Gobind v. State of M.P., (1975) 2 SCC 148: 1975 SCC (Cri) 468] Various opinions conclude that:

109.1.1. Privacy is a concomitant of the right of the individual to exercise control over his or her personality. 

109.1.2. Privacy is the necessary condition precedent to the enjoyment of any of the guarantees in Part III.

109.1.3. The fundamental right to privacy would cover at least three aspects — (i) intrusion with an individual's physical body, (ii) informational privacy, and (iii) privacy of choice.

109.1.4. One aspect of privacy is the right to control the dissemination of personal information. And that every individual should have a right to be able to control exercise over his/her own life and image as portrayed in the world and to control commercial use of his/her identity.”

After factoring in these aspects, Justice Chandran observed, "We have to notice that there are concerns raised by the petitioners insofar as the head of the family being asked to disclose the details of others, the caste of the mother not being recorded in any context and there being no option to refuse to declare the caste status; though the same is available insofar the religion is concerned. We have to emphasize the contention raised by the State that a mathematical precision is not warranted in identification of backward status or occupational classes or groups and caste is the best denominator available as of now; which is recognized also in Indra Sawhney, a Constitution Bench. It cannot, but be observed that caste is a matter of descent while religion is a matter of belief. India has many instances of persons belonging to the same caste practicing different religions and despite the religions other than the Hindu religion, not practicing caste system as such; those converted groups, in the other communities also are conferred with backward status and enabled privileges and benefits by the State. The details sought for in the survey are not individual centric and is not aimed at targeting an individual, which in the context of the details collected from the head of the family; is virtually impossible, as the law exists today."

His judgement reads: "As we discern, the disclosures are voluntary and it has a definite aim of bringing forth development schemes for the identified backward classes/groups. The caste status sought to be collated is not intended at taxing, branding, labeling or ostracizing individuals or groups; but it is to identify the economic, educational and other social aspects of different communities/classes/groups, which require further action by the State for its upliftment."

As to security concerms, the judgement records that "The counter affidavit of the State goes on to demonstrate that the Caste Based Survey has a full proor mechanism and there are no chances of any kind of leakage of the data. The survey operation has taken into account the following measures:
a. Provision and arrangement has been made to ensure the confidentiality and security of the data.
b. Enumerators and supervisors have been instructed and trained not to share or show the data with any unrelated individual/third party.
c. Provision has also been made in the software so that no one can take the screenshot of the mobile app.
d. Device binding has been done so that each enumerator or supervisor can work with only one mobile during the whole process.
e. Data cannot be downloaded from the mobile device.
f. Data of any person cannot be downloaded from the system. It is encrypted data and can be read only on the data base made for it.
g. Data are being stored in servers of the State Data Census of the Government of Bihar and not on any other server or on the cloud so therefore, no unauthorized person except, the Data Based Administrator can access the data.
h. The Role Based Access Control (RBAC) System is working with OTP verification to ensure the entry of only authorized users.
i. Encrypted password storage and secure coding practices are in use of security of the data." 

The judgement reproduced the letter produced as from the Officer on Special Duty to the Secretary of the General Administration Department, on the "Subject:-With regard to making available facilities of Web Portal Hosting, SMS and E-Mail at the State Center under Bihar Caste Based Census – 2022. Ref. – Your letter no. 272/23 dated 12.01.2023 and letter no. 2016/2023 dated 26.04.2023 of Beltron."

It reads: "Sir, In the light of your letter on the aforesaid subject under reference regarding declaration of secured I.T Infrastructure to those basic infrastructure under the I.T. Act where the data of caste based census have been stored at the data center of Beltron and the relevant storage, it has been declared vide letter no. 2016/2023 dated 26.04.2023 of Beltron that application and data hosting related with caste based census for State Data Center is a secured I.T. Infrastructure in accordance with the provisions of Information Technology Act 2000 (as amended) and the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules 2011.” 

Justice Chandran concluded, "The security aspect argued by the petitioners are hence taken care of and that does not invalidate the survey."  It emerges from the judgement that the petioner's failed to persuade the Justice Chandran led bench. The bench comprised of the Chief Justice and Justice Partha Sarthy. This bench upheld the caste survey being undertaken by the Bihar government on August 1, 2023 on several petitions challenging the caste-based survey. Prior to this on May 4, 2023, the High Court had stayed the caste survey.

In December 2023, his bench ruled in favor of a Cooperative Society registered under the Bihar Goods and Services Tax Act, 2017 (BGST Act), stating that the Solid Waste Management Activity undertaken by the petitioner is exempt from BGST. The court quashed assessment orders and demand notices against the Cooperative Society.

His bench dismissed a lawyer's plea seeking upper age limit relaxation in the examination of 2023. The lawyer had sought a direction authorities to fix the cutoff date for determination of age limit at January 1, 2022 in place of January 1, 2023 in view of the fact that no advertisement was published in the recruitment year 2022 so that those who were eligible to participate in the recruitment year 2022 can participate in the recruitment year 2023. The Court noted that the Petitioner failed to establish any arbitrariness or infringement of his fundamental or legal rights. “Delay in issuance of advertisement by itself will not create any right or legitimate expectation in favour of a person so as to seek relaxation in the upper age limit as prescribed for a preliminary examination.”
Notably, his bench granted relief to temporary employees who have served more than 15 years are eligible for pension benefit. 

In Ravi Shankar v. State of Bihar, his bench observed that a son cannot claim a right to residence in a building exclusively owned by his father by virtue of their relationship alone. It held that, "since there is no injunction against the exclusive possession of the 8th respondent, the 1st appellant cannot claim any right of residence in the building as a co-owner, just as the father, a senior citizen, cannot seek eviction from the separate residence of the son in a building owned by him, under the Senior Citizens Act. The son also cannot claim a right to residence in a building exclusively owned by the father, by virtue of their relationship alone." It recorded that, "The parents and the son and his family are residing in different places, the former at a rented accommodation and the latter in the rest house occupying three rooms; though there is an allegation of harassment and nuisance. The fact that the parents and the son and his family are not living in one building would not enable a prayer for eviction. The rest house, which is a separate building is where the son resides with his family." It observed that there was no ground to enable an eviction by the Tribunal constituted under the Act. In that context, it was said that, "there could be no eviction ordered under the Senior Citizens Act since the claim is not under Section 23(1). The claim of the 8th respondent before the Tribunal under the Senior Citizens Act, if at all coming under Section 23(2) of the Act, there can only be an enforcement of the right of maintenance from the property. An occupation whether it is permissive or an encroachment would have the trappings of a transfer, which would dis-entitle the owner of the property from the maintenance by way of rental income generated from the occupied rooms in the rest house. We make it clear that the appellants, as of now, do not have any right to claim the income from the other rooms in the rest house, nor can they obstruct or cause harassment to the other occupants of the rooms."

In Chief Justice bench imposed a Cost of Rs.10,000/- on a man while dismissing a Public Interest Litigation (PIL) filed by him challenging the appointment of the Private Respondent who was allowed to work in a police station by the SHO of the said police station without any appointment order.

In Manoj Kumar v. University of Bihar, Raj Bhawan, his bench rejected a PIL filed by a teacher seeking exemption from attending LLB classes due to his employment in a school on January 5, 2024. A teacher seeking exemption from LLB classes on the ground of his employment in a school. Dismissing the PIL, it held held it as misconceived and a clear abuse of the jurisdiction invoked under Article 226 of the Constitution, as a PIL.Petitioner was a science teacher at Jawahar Navodaya Vidyalaya, Garhwa, Jharkhand. He sought an order to take admission to a college in Bihar for LLB course. The petitioner had  appeared in person.

The Chief Justice bench dismissed a Public Interest Litigation (PIL) alleging non-compliance of the provisions of the Rights of Children to Free and Compulsory Education Act, 2009 by schools in Bihar. It observed that the petitioner approached the court by making vague and sweeping allegations.
In Sudama Kumar v. State of Bihar, the Chief Justice bench dismissed the PIL alleging that the Bodhgaya Temple Management Committee is carrying out an illegal construction within the 100 meters radius of the World Heritage Site declared by the UNESCO. The petitioner had alleged that the construction is made in complete violation of the provisions of the Bihar Building Bye-Laws, 2014 and the Bihar Municipal Act, 2007 and the construction is without the sanction from the Bodhgaya Nagar Parishad. Justice Chandran bench dismissed a Public Interest Litigation (PIL) filed seeking direction to the respondents to handover possession of land to the grantees/surviving heirs as also to cancel the certificate of those grantees who are selling their land. The PIL filed by one Md. Abul Khair had prayed for handover of possession of land to grantees or their surviving legal heirs as certificates of settlement of land under Bihar Bhoodan Yagna Act, 1954, has been issued to them. The Court recorded that the petitioner wants action against private individuals without impleading them party respondents. The case is a fit to be dismissed solely on the ground of non-joinder of necessary parties. It concluded, “From the aforesaid facts, it is clear that a private interest litigation has been given the color of the public interest litigation. Though, this Court wanted to impose exemplary cost while dismissing the writ petition, we are refraining from doing so”.
In Sunil Kumar vs. State of Bihar, the Chief Justice bench dismissed a petition challenging the Bihar government's decision to appoint shooters for shooting vermin.The PIL was filed challenging the state government's plan to form a committee to choose shooters to shoot vermin throughout Bihar. The bench observed, "it is the duty of the state to look into the balancing considerations so as to mitigate human-animal conflict and decide on the measures to be taken which also has to be in accordance with the Act of 1972", referring to the Wild Life (Protection) Act, 1972. The State submitted that while the 1972 Act imposes a general prohibition on hunting, particularly of species threatened with extinction, the legislators were also mindful of human-animal conflicts in areas where human habitation is predominate.It was also argued that in the state of Bihar, nilgai (ghorparas) and wild boar are two animals that constantly interfere with agricultural landscapes, negatively impacting human farming activities and lives. The State claimed that the two animals have been included in Schedule III of the Act of 1972, and the Central Government declared them to be vermin under Schedule V of the Act. The petitioner submitted that rather than shooting the animals, the state should take some measures to relocate them.The bench while dealing with the PIL observed that the Chief Wildlife Warden of Bihar had issued an order under Section 5(2) of the 1972 Act delegating his powers under Section 11(1)(b) to Mukhiyas as authorised officers who could obtain the services of any expert shooter authorised by the Forest Department or from a panel prepared by the Forest Department or any other expert shooter. The judgemeyt reads: “The court noted that the Arms Rules of 2016 already contain specific provisions for a separate licencing procedure for the destruction of wild animals.” It further said that the methods used to frighten away the animals were ineffective. It observed, "Action under Section 11(b) of the Act was justified after finding that such relocation measures are ineffective in protecting agricultural operations in dense human habitations." It ruled, "We are unequivocal of the opinion that there is no room for interference under the extraordinary jurisdiction exercised by this court in the present case of public interest." 

Pursuant to its interpretation to Section 23(1) of the Right of Children to Free and Compulsory Education (Amendment) Act, 2017, the bench of Chief Justice K. Vinod Chandran, Justices Ashutosh Kumar and Rajiv Roy pronounced its 35 page long judgement in Bibi Sakina Khatoon and nine others v. Union of India and 19 others. The opening paragraph of the judgement reads: "Unqualified and untrained teachers are the bane of any system of education, in which, the students; often celebrated as the citizens of tomorrow, wallow in ignorance and get mired in misinformation, thus, stultifying the development and growth of a Nation State. Quite realizing the importance of a robust educational system; for maintaining and upgrading the teaching standards, with a vision to strengthen the social fabric of democracy and further the Directive Principles of State Policy, the crucial role of elementary education was emphasized by the Union Parliament in enacting the Right of Children to Free And Compulsory Education Act, 2009". The Act mandates free and compulsory education to all children up to the age of 14 years.
The Chief Justice led Bench prevented unjust enrichment by Indian Oil Corporation Limited. It endorsed arguments by P. K. Shahi, the Advocate General of Bihar against unjust enrichment. It held that delay of 12 years after mistaken payment by Public Sector Undetakings (PSU) is inexcusable, PSU suffers loss of Rs.1,17,06,169. The bench of Chief Justice K. Vinod Chandran and Justice Harish Kumar concluded, "We find absolutely no reason to entertain the writ petition and dismiss the same leaving the parties to suffer their respective costs" in Indian Oil Corporation Limited, Barauni Refinery v. State of Bihar (2024).

Notably, the Chief Justice bench set aside the amendment to Bihar Minerals (Concession, Prevention of Illegal Mining, Transportation & Storage) Rules, 2019. Drawing on the principle of ejusdem generis and the principle of a delegate being prevented from further delegation, the bench of Chief Justice Chandran and Justice Harish Kumar has set aside the  amendment to Rule-38(3) of the Bihar Minerals (Concession, Prevention of Illegal Mining, Transportation & Storage) Rules in Abhay Kumar v. Union of India. The Court also set aside delegation of power to exempt given to the State by Clause-13 of Appendix-IX under Environment Impact Assessment Notification, 2006. The judgement was authored by Chief Justice Chandran. It emerges from the judgement that Bihar State Pollution Control Board (BSPCB) failed to persuade the Court to allow it to absolve the brick-kilns from getting environmental clearance. BSPCB's stance makes it a pollution abetter, and not a pollution controller. He emphasized that "the State has not been conferred with any such power of exemption by the statute; neither the MMDR Act nor the Environment Protection Act. In that circumstance the power delegated to the Union Government cannot further be delegated to the State Government on the principle of 'deligatus non protest delegare'." The petitioner was aggrieved with a notification, by which quarrying for the purpose of brick-kiln was deemed to be a non-mining activity for the purpose of environmental clearance and also required that such clearance would be imperative only if the depth of quarry is not more than one and a half meters from the adjoining ground level.

Chief Justice bench sets aside arbitrary promotion elligibility rule of the Bihar Subordinate Prohibition Service Rules, 2017. In its order dated March 4, 2024, the bench of Chief Justice Chandran and Justice Harish Kumar set aside Rule 11(4) of the Bihar Subordinate Prohibition Service Rules, 2017, which extinguished completely, the avenue of promotion to the post of Sub-Inspector; to non-graduate Assistant Sub-Inspectors. Before the introduction of these Rules of 2017, the Assistant Sub-Inspectors were considered for promotion on the basis of their suitability and seniority without any specification of minimum educational qualification. The Rules of 2017 abruptly changed the criteria and introduced graduation for promotions. The Bihar Subordinate Prohibition Service (Recruitment and Service Conditions) (Amendment) Rules, 2018 rechristened the Rules of 2017 as The Bihar Subordinate Prohibition Service Rules. It further amended sub-rule (4) of Rule 4 making provision for 50% of total sanctioned strength of Sub-Inspectors to be filled by direct recruitment and remaining 50% to be filled up by promotions from amongst Assistant Sub-Inspectors on seniority cum eligibility.  Dhananjay Kumar, the petitioners' counsel contended that even now the Sub-Inspectors who are not graduates are promoted to the post of Inspectors. The Assistant Sub-Inspectors and the Sub-Inspectors more or less are engaged in the same duties. When the prescription of a minimum eligibility of graduation is not there for promotion from Sub-Inspectors to Inspectors, it is arbitrary to totally obliterate avenues of promotion for the Assistant Sub-Inspectors who have spent a long period in the police service.
In pursuance of public interest, Rohit Kumar, the petitioner, a practicing advocate had sought an audit as well as physical verification of the arms and ammunition as well as records of arsenal and armoury kept with the Bihar Police, including the Bihar Military Police, which are situated at District Headquarters (Police Line) and the Headquarters of Bihar Military Police. Chief Justice Chandran asked the State to ensure compliance with Police Manual to deal with missing arms and cartridges. The petitioner had filed CWJC No.11642 of 2021 in the Patna High Court. The petitioner had prayed for setting up of a Special Team by the Patna High Court to investigate cases registered under Samsatipur and Siwan Mufassil Police Stations in relation to missing of huge cache of ammunition. The petitioner relied on the report of the Accountant General (Audit) about missing of arms and cartridges from the arsenal of Darbhanga Police Line in February 2019. He had alleged that the police officials themselves are responsible for missing of arms and ammunition, which find their way to the hands of extremists/miscreants/criminals. The Superintendent of Police(E), CID, Bihar, Patna has filed a counter affidavit. It is stated that in pursuance to the order of the Court dated August 2, 2021, details of the progress of the investigation in the referred crimes were called for. 

The bench of Chief Justice Chandran and Justice Rajiv Roy delivered a judgement on February 29, 2024 after hearing the writ petition which challenged the constitutional validity Srimati Radhika Sinha Institute and Sachidanand Sinha Library  (Requisition And Management) Act, 2015 on January 8, 2024. Justice Chandran concluded that the law is constitutionally valid.The petition was filed May15, 2015 by Anurag Krishna Sinha against the State of Bihar. The petition was heard on some fifteen occasions. The judgment was reserved on January 8, 2024.. The judgement was authored by the Chief Justice. This dismissal reversed the interim order dated May 22, 2015 by the bench of the then Chief Justice L. Narasimha Reddy and Justice Sudhir Singh which had suspended the operation of the Act as an interim measure. 

The bench of Chief Justice and Justice Harish Kumar dismissed appeal against action taken under Enemy Property Act, 1986 in Re: LPA No. 919 of 2015 which was filed against the judgment dated September 24, 2014 rejecting the prayer for quashing order dated June 18, 2010 passed under Sections 5 and 24 of the Enemy Property Act, in so far as it relates to the original first petitioner, father of the appellants, claiming title over a property. The Court found "absolutely no reason to interfere with the judgment of the learned Single Judge."

Chief Justice held that the petitioner cannot be deprived of the benefit, due to non- constitution of the Appellate Tribunal under Bihar Goods and Services Tax Act, 2017 in Civil Writ Jurisdiction Case No. 2181 of 2023 (Amit Kumar Singh v. Union of India). The petitioner was desirous of availing statutory remedy of appeal against the impugned order before the Appellate Tribunal under Section 112 of the Bihar Goods and Services Tax (BGST) Act, 2017. But  due to non-constitution of the Tribunal, the petitioner is deprived of his statutory remedy under Sub-Section (8) and Sub-Section (9) of Section 112 of the BGST Act. As a consequence,  the petitioner was also prevented from availing the benefit of stay of recovery of balance amount of tax in terms of Section 112 (8) and (9) of the BGST Act upon deposit of the amounts as contemplated under Sub-section (8) of Section 112. The respondent State authorities have acknowledged the fact of non-constitution of the Tribunal and come out with a notification bearing Order No. 09/2019-State Tax, S. O. 399, dated 11.12.2019 for removal of difficulties, in exercise of powers under Section 172 of the B.G.S.T Act, which provides that period of limitation for the purpose of preferring an appeal before the Tribunal under Section 112 shall start only after the date on which the President, or the State President, as the case may be, of the Tribunal after its constitution under Section 109 of the B.G.S.T Act, enters office. Department of Commercial Taxes, Government is primarily responsible for Tax administration under B.G.S.T Act. So far this law has been amended twice in 2021 and 2023. 


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