Author: Parijat Karan

I'm a Law student who's interested in everything that comes under the Sun

Advertisement for employment and the rigours of Articles 14 and 16

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An advertisement issued by the respondent was completely silent on the aspect of total number of posts and the number of reserved quota and general quota posts.

Dealing extensively with essential ingredients of a valid advertisement, the Court observed:

Para 18 – ‘A three-Judge Bench of this Court in Renu v. District and Sessions Judge, Tis Hazari Courts, Delhi,18 discussed in detail the requirements of a valid advertisement and observed thus:-

“16. Another important requirement of public appointment is that of transparency. Therefore, the advertisement must specify the number of posts available for selection and recruitment. The qualifications and other eligibility criteria for such posts should be explicitly provided and the schedule of recruitment process should be published with certainty and clarity. The advertisement should also specify the rules under which the selection is to be made and in absence of the rules, the procedure under which the selection is likely to be undertaken. This is necessary to prevent arbitrariness and to avoid change of criteria of selection after the selection process is commenced, thereby unjustly benefiting someone at the cost of others.”(emphasis supplied). ‘

Dealing with the mandate of Article 16 in relation to advertisement, it was observed:

Para 22 – ‘it is imperative that the State must specifically mention in the advertisement the total number of reserved and unreserved seats. However, if the State does not intend to provide reservation, in view of the quantifiable data indicating adequacy of representation, this aspect must also be specifically mentioned in the advertisement.’

On the exceptions to the principle of natural justice, a case was cited by the Court which dealt sufficiently with the topic:

Para 29 – Dharampal Satyapal Ltd. v. CCE, 22 wherein it was held thus: – “38. But that is not the end of the matter. While the law on the principle of audi alteram partem has progressed in the manner mentioned above, at the same time, the courts have also repeatedly remarked that the principles of natural justice are very flexible principles. They cannot be applied in any straitjacket formula. It all depends upon the kind of functions performed and to the extent to which a person is likely to be affected. For this reason, certain exceptions to the aforesaid principles have been invoked under certain circumstances. For example, the courts have held that it would be sufficient to allow a person to make a representation and oral hearing may not be necessary in all cases, though in some matters, depending upon the nature of the case, not only full-fledged oral hearing but even cross-examination of witnesses is treated as a necessary concomitant of the principles of natural justice. Likewise, in service matters relating to major punishment by way of disciplinary action, the requirement is very strict and full-fledged opportunity is envisaged under the statutory rules as well. On the other hand, in those cases where there is an admission of charge, even when no such formal inquiry is held, the punishment based on such admission is upheld. It is for this reason, in certain circumstances, even post-decisional hearing is held to be permissible. Further, the courts have held that under certain circumstances principles of natural justice may even be excluded by reason of diverse factors like time, place, the apprehended danger and so on.…

40. In this behalf, we need to notice one other exception which has been carved out to the aforesaid principle by the courts. Even if it is found by the court that there is a violation of principles of natural justice, the courts have held that it may not be necessary to strike down the action and refer the matter back to the authorities to take fresh decision after complying with the procedural requirement in those cases where non-grant of hearing has not caused any prejudice to the person against whom the action is taken. Therefore, every violation of a facet of natural justice may not lead to the conclusion that the order passed is always null and void. The validity of the order has to be decided on the touchstone of “prejudice”. The ultimate test is always the same viz. the test of prejudice or the test of fair hearing.”

Para 31 – “when the appointment of the candidates is a nullity in law making them disentitled to hold the posts, the principles of natural justice were not required to be complied with, particularly when the same would be nothing short of an exercise in futility.“


In para 35, the Court held – “Thus, it is clear that once the appointment process is declared to be a nullity in law, every action taken in furtherance of such appointment process is also illegal, and, therefore, the constitutional courts have jurisdiction to set aside such appointments wholly and ab-initio. This power of the Court is not curtailed even in a situation where a third-party right has been created in those who have been offered appointment or have even joined the service.“

Case name – Amrit Yadav v. The State of Jharkhand and Ors. [2025] 3 S.C.R

The Judiciary as Sentinel : Israeli Supreme Court’s judgment in Quintinsky v. Knesset

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The petitions filed by concerned citizens and advocacy groups challenged the Multiple Apartments Tax Arrangement (MATA) and its legislative procedures, arguing that they were not conducted in a transparent and fair manner. The MATA, with its provisions aimed at taxing multiple apartment owners, had significant economic and legal implications for property owners and the real estate market as a whole. Therefore, it warranted thoughtful and thorough debate to fully understand its potential ramifications. However, to the surprise and dismay of many, the Finance Committee’s debate on the MATA was scheduled to take place in the late hours of the night, a time when most Knesset members were unlikely to be fully alert and engaged. This scheduling decision raised concerns that the debate was being rushed, depriving the legislators of the necessary time to carefully review and consider such a serious bill. As a result, many felt that the democratic process was not being upheld, and that proper scrutiny and discussion of the MATA were being compromised.

Justice Sohlberg took note of it and held that the lack of opportunity to conduct a proper debate which violated the principle of participation and the circumstances surrounding the legislative proceedings of the Tax Arrangement in the course of the preparation of the bill by the Finance Committee for a second and third reading leads to the conclusion that there was a defect that went to the heart of the legislative process“.

It was proposed by the Respondents that a ‘warning of voidness’ would suffice but Sohlberg J. opined that a mere warning would be inadequate given the seriousness of the defect in the legislative process.

Ultimately, it was concluded that while the defect in the legislative procedure was substantial, its impact was limited to the Committee’s preparatory debates for the subsequent readings. Consequently, the corrective action should be targeted at rectifying these particular shortcomings, rather than discarding the entire legislative endeavor and beginning anew, which would result in more detriment than advantage.

Justice Sohlberg proposed that the Multiple Apartments Tax Arrangement be deemed relatively void, that is, the legislature could “return” to the legislative process from the stage of deliberation in the Finance Committee – the stage at which the defect occurred – and continue as required.

The majority of the judges concurred with Justice Sohlberg’s judgment. This significant judicial decision shed light on the inherent problems associated with accelerated legislative proceedings, bringing attention to the potential risks and implications of such processes. The Supreme Court applied transformative constitutionalism, by not adopting a narrower jurisprudence and acting as a guardian of the Knesset, in order to promote Israeli democracy.

In addition, it underscored the importance of allowing the opposition to play an active and substantive role in parliamentary proceedings, rather than being marginalized or reduced to a mere rubber stamp. Furthermore, the case served as a powerful reminder of the vital role of the Courts in safeguarding and upholding the democratic process, particularly in relation to the other branches of the government, ensuring the preservation of fundamental democratic principles and values.

A classic case of missing the point of contention – the refusal of protection to inter-faith couple by the MP High Court

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The Madhya Pradesh High Court recently denied protection to an inter-religious couple in a very concerning order. The couple, a Muslim man and a Hindu woman, wanted protection from the woman’s family, who were threatening them. They had tried to get married under the Special Marriage Act, 1954, which allows interfaith marriages without conversion. However, the woman’s family objected, preventing them from getting married. The couple asked the Court to protect them so they could safely appear before the Marriage Officer.

Denying the protection, the Court not only determined an issue which wasn’t raised but also neglected the very purpose for which the Special Marriage Act was enacted.

Erroneous – the context and the law

The petitioners approached the Court for police protection relying on the judgment in Lata Singh v. State of Uttar Pradesh (2006), wherein the Supreme Court directed – “that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, and any one who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law.” 

This judgment was binding on all the authorities including the High Courts. In its order, the MP High Court didn’t even address the applicability of this judgement on the case and proceeded to decide on the issue of a valid marriage, which was not even raised in the petition.

The High Court solely relied on the judgment in Mohammed Salim through LR v. Shamsudeen (D) through LR (2019), which was analyzed without paying attention to the context and issues raised in the case. In Md. Salim’s case, the issue before the Supreme Court was – whether a child being born out of an irregular marriage (fasid) is entitled to claim share in his father’s property. The Supreme Court held that the marriage between a Muslim man and a woman who is an idolator (worshipper of an idol) or fire-worshipper is irregular. The marriage in the said case was performed under Muslim personal law and therefore the observation was made in that context.

In this case, on the other hand, the petitioners were desirous of getting married under the Special Marriage Act and not under the personal laws. The Court completely ignored this fact and went on to apply the ratio of Md. Salim’s case in the present case.

The petitioners solely sought protection from the Court to perform marriage under the Special Marriage Act. The question that ought to be addressed in this case was – whether, based upon the facts, the petitioners shall be granted protection or not, but rather the Court addressed – “whether marriage of a Muslim boy with a Hindu girl would a valid marriage or not?“

Even after an incorrect reading of the facts, to start with, the observation of the High Court in its concluding paragraph is even more erroneous. In para 12 of the order the Court observed – “Under personal law, performance of certain rituals are necessary for solemnization of marriage. However, if marriage is performed under Special Marriage Act, then such marriage cannot be challenged on the ground of non-performance of such mandatory rituals. But marriage under Special Marriage Act would not legalise the marriage which otherwise is prohibited under personal law. Section 4 of Special Marriage Act provides that if the parties are not within prohibited relationship then only marriage can be performed.”

The Court has misinterpreted “prohibited relationship” to include interfaith unions. The term is generally used to denote blood relations and that a martial relationship between couples falling under the ‘degrees of prohibited relationship’ is prohibited. It doesn’t include prohibitions imposed by personal laws.

An unfortunate precedent

The Court’s reading of Section 4 is completely missing the very object of enacting the Special Marriage Act which was enacted to facilitate interfaith and interreligious couples in solemnizing and registering their marriages, irrespective of their personal laws. Specifically, it was designed to allow couples to marry outside their caste and religion, which would otherwise be prohibited by their personal laws or religious texts. Section 4 of the Special Marriage Act (contains the conditions for solemnizing marriages under the act) starts with “Notwithstanding any other law currently in effect regarding the solemnisation of marriages.”

The intention behind its enactment is very clear from the word ‘notwithstanding’. The intention was to override the pre-existing laws. The High Court got the basics wrong in the present case and didn’t analyse the essentials of the special act. The Court resorted to personal laws (based on religion) to adjudicate a matter which concerned a secular marriage and completely contradicted the well established principles of marital laws. This order might serve as a precedent to deny protection to every inter-faith couple, concerning a Hindu and a Muslim, which essentially goes against the concept of communal harmony for which the Special Marriage Act was enacted and, therefore, shall be overruled in appeal.

FIR is a public document but a Chargesheet is not: The curious reasoning of the SC

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The Supreme Court recently dismissed a PIL filed by Sourav Das (Journalist) seeking the free public disclosure of all chargesheets in criminal trials on the internet and held that chargesheets are not public document for the purposes of the Indian Evidence Act, 1872 & Right to Information Act, 2005.

In a previous case – Youth Bar Association of India v. Union of India – the Supreme Court itself directed the police across the states to publish copies of First Information Reports (FIRs) on their websites within 24 hours of being registered.

Therefore, it is important to go through to judgement to understand – whether the difference between the FIR and chargesheet is well reasoned or not.

FIR is a public document

In Court on its Own Motion through Mr. Ajay Chaudhary vs. State (2010), the Delhi High Court sedulously examined the nature of an FIR, in view of various precedents, and concluded that an FIR, being a record of the acts of the public officers prepared in discharge of the official duty, is a public document under Section 74 of the Indian Evidence Act, 1872.

This reasoning was then adopted in the judgement of Youth Bar Association of India v. UOI and the police were directed to upload the copies of FIRs on their websites.

But the chargesheet is not – the flawed reasoning behind it

In his PIL, Sourav Das, apart from relying on the precedent in the Youth Bar association case, based his contentions on the substantial jurisprudence on the right to information, which is established as a facet of the right to free speech & expression under Article 19(1)(a).

The petitioner then emphasized on the obligation upon the authorities to disclose public records, citing Section 4 of the Right to Information Act that requires the proactive disclosure of public records on government websites.

Dismissing his contentions, the Supreme Court carved out a contradictory path with its view hitherto. In para 4.1, the Supreme Court observed –

“From the entire judgment it appears that this Court directed the copies of the FIRs to be published within 24 hours on the police websites or on the websites of the State Government. Looking to the interest of the accused and so that the innocent accused are not harassed and they are able to get the relief from the competent court and they are not taken by surprise. Therefore, the directions issued by this Court are in favour of the accused, which cannot be stretch to the public at large so far as the chargesheets are concerned.”

This observation did not ponder upon the ‘why’ behind it. The Court outrightly held that the publication of FIR is in favour of the accused but it didn’t examine why the chargesheet isn’t. The right to information or the jurisprudence regarding Article 19(1)(a) was never trundled into view. Both the phrases didn’t find any single mention throughout the judgement. Logically, if the publication of FIRs would strengthen the rights of the accused, I don’t understand how the publication of chargesheets won’t.

In para 4.5, it was observed –

“Therefore, if the relief as prayed in the present petition is allowed and all the chargesheets and relevant documents produced along with the chargesheets are put on the public domain or on the websites of the State Governments it will be contrary to the Scheme of the Criminal Procedure Code and it may as such
violate the rights of the accused as well as the victim and/or even the investigating agency. Putting the FIR on the website cannot be equated with putting the chargesheets along with the relevant documents on the public domain and on the websites of the State Governments.”

Again, the logic behind this observation is unclear. In Youth Association Case, the Supreme Court examined the provisions and scheme of the Criminal Procedure Code but still came to the conclusion that the FIRs shall be uploaded. Parting ways with that observation, the Court didn’t elaborate why doing the same, with respect to a chargesheet, will go against the scheme of the Criminal Code. The Court, also, did not elaborate on the violation of rights, of the accused as well as the victim, that can be a consequence of putting the chargesheets on the public domain.

Then the Court went on to held that a chargesheet is not a public document under Section 4 of the Evidence Act in the incomprehensible (the only way to describe it) para 5. The Court observed –

“Documents mentioned in Section 74 of the Evidence Act only can be said to be public documents, the certified copies of which are to be given by the concerned police officer having the custody of such a public document. Copy of the chargesheet along with the necessary documents cannot be said to be public documents within the definition of Public Documents as per Section 74 of the Evidence Act.”

By a bare reading of Section 74 and keeping in mind the established nature of FIR, being a public document, it can be clearly said that chargesheets, prepared by police officers in discharge of official duties, are public documents. It is beyond my understanding – how can there be a difference between an FIR and a chargesheet, as far as them being a public document is concerned.

With that said, these contradictory observations by the Supreme Court hinders the transparency in the criminal justice system. Besides that, the contradiction also throw light on the problem of pendency of cases – which is only furthered by such discrepancy. The Court should also deliver well reasoned judgments to further the jurisprudence on a particular subject otherwise the same problems keep arising in different contexts. The question – whether chargesheet is a public document or not – will surely come before the Supreme Court again and, hopefully, the Court will then deliver a well reasoned judgment on it touching upon the right to information and balancing it with the right to privacy of the accused and victims.