Like 2022, it seems that 2023 is also going to be quite a busy year as far as Supreme Court retirements are concerned. The Court, which just bid adieu to Justice Dinesh Maheshwari, is now gearing up to bid farewell to another of its esteemed Judge- Justice M.R. Shah. With Justice Shah’s retirement, comes down from 34 to 32.
A Judge’s retirement provides us with the chance to reminisce and understand the retiring Judge’s tenure and take in the importance and gravity of the imprint that they will leave behind in the form of their numerous decisions. As Justice M.R. Shah is retiring after a comprehensive term of 4.5 years as a Supreme Court Judge, this means that our readers get to have a glimpse of Justice Shah’s tenure and legal career so far.
Early Life, Education and Advocacy
Born on 16-05-1958, Justice Mukeshkumar Rasikbhai Shah graduated (B.Sc.) in 1979 and completed his LL. B from Gujarat University in 1982. He started his career as an advocate on 19-07-1982 and started practicing in the Gujarat High Court in Civil, Criminal, Constitutional, Taxation, Labour, Service and Company matters and specialized in Land, Constitutional, Education, Excise, Custom matters .
He was the Additional Standing Counsel for the Central government and Retainer Counsel for C.B.I. He had also represented various Municipalities, Panchayats, Educational Institutions and Insurance Companies. Justice M.R. Shah has appeared in large number of cases in various branches of law including matters of constitutional importance and involving public interest .
Judgeship of the High Courts [2005-2018]
Having served the High Court of Gujarat as an advocate for more than 20 years, Justice M.R. Shah was appointed as an Additional Judge of the Gujarat High Court on 07-03-2004 and was made a Permanent Judge on 22-06-2005. On 12-08-2018 he was appointed as Chief Justice of Patna High Court .
Notable Judgments of the High Courts
Gujarat State Road Transport Corpn. v. Firoze M. Mogal,
The 5-judge Bench of Ravi R. Tripathi, Jayant Patel, M.R. Shah, J.B. Pardiwala and A.G. Uraizee, JJ. had put an end to the controversial issue by holding that in a petition for a relief under Article of the , the Tribunal whose order is impugned in the petition must be made a party to the petition so that the writ sought from the Court can go against the Tribunal but if the petition is for a relief under Article of the , the Tribunal, whose order is impugned in the petition, need not be made a party to the petition.
Asset Reconstruction Co. (India) Ltd. v. Revenue Authority,
The 3-judge Bench of M.R. Shah, J.B. Pardiwala and N.V. Anjaria, JJ. held that the power of attorney in question and the rights conferred in favour of the power of attorney holder were liable to be and/or subjected to the stamp duty under Article 45(f) of the Stamp Act. No error and/or illegality had been committed by the Chief Controlling Revenue Authority in holding that the power of attorney in question is subjected to stamp duty as per Article 45(f) of the Stamp Act.
Vijaysinh v. State of Gujarat,
The 3-judge Bench of Jayant Patel, M.R. Shah and K.S. Jhaveri, JJ. had reached to the findings that if the order of detention is challenged at pre-execution stage under Article of the , the High Court by way of self-imposed restriction may examine as to whether the case is covered by the criteria laid down by the Apex Court in the case of Addl. Secy. to the Govt. of India v. Alka Subhash Gadia (Smt), and Deepak Bajaj v. State of Maharashtra, ) and thereafter may call for the relevant record from the detaining authority, but such would depend upon sound exercise of judicial discretion of the High Court under Article of the .
Miru Adam Rahima v. State of Gujarat,
While adjudicating a case dealing with constitutional validity of Section 2(e), definition of “Private Armed Force”, Section 3, Section 4 and Section 5 of the Gujarat Prohibition of Maintenance of Private Armed Force Act, 1989 (9 of 1989), the Division Bench of R.S. Garg and M.R. Shah, JJ., held that a bare reading of Sections 2(e), 3, 4 and 5 do not show that it puts any check on any of the fundamental right of a Simrakha/member of the Private Armed Force nor does it curtail the rights or makes an onslaught on the rights of a landholder to have a private armed guard. Consequently, the Bench held that the above-referred provisions were ultra vires the .
Rajendra Prasad Singh v. State of Bihar,
The Full Bench of the Patna High Court comprising of Mukesh R. Shah, C.J. and Ashutosh Kumar and Mohit Kumar Shah, JJ., held that there cannot be any absolute proposition of law that in case of termination of every daily-wager provisions of Section 25F of the Industrial Disputes Act shall not be applicable.
The Supreme Court of India [2018-2023]
After being in the post of Chief Justice of Patna High Court for about 3 months, on 02-11-2018 Justice Shah got elevated as a Judge of the Supreme Court of India.
During Justice Shah’s stint, there was a scary moment in June 2022 concerning his health and well-being when he suddenly fell sick. However, he was admitted to the hospital on time, and all was well.
Notable Judgments of the Supreme Court
*Did you Know? Since becoming a Judge of the Supreme Court, Justice M.R. Shah has authored 700+ judgments!
Probably, one of the best ways to judge a Judge’s tenure is by looking at their judgments. Given the number of judgments that were authored by Justice Shah, there is no doubt that his 4.5-year tenure was indeed dynamic. Thus, we have curated the major judgments of Justice M.R. Shah for our readers.
Maharashtra Political Crisis
The five Judge Constitution Bench of Dr. D.Y. Chandrachud (C.J), M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha JJ., in Subhash Desai v. Governor of Maharashtra, which is the matter pertaining to the , leading to a gigantic political crisis in Maharashtra in 2022; held that it cannot quash the resignation letter of Thackeray and the Governor was justified in inviting Eknath Shinde to form the Government. The Constitution Bench referred Nabam Rebia & Bamang Felix v. Dy. Speaker, Arunachal Pradesh Legislative Assembly, , to larger Bench for reconsideration of the accuracy of the judgment, wherein it was held that that the Speaker could not initiate disqualification proceedings when a resolution seeking his removal is pending was also reserved by the Court.
Delhi Govt. vs LG
In the matter titled Government of NCT of Delhi v. Union of India , which is regarding the , the Constitution bench of Dr. D.Y. Chandrachud*, C.J., M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha J.J. held the following:
There does not exist a homogeneous class of UT with similar governance structures.
NCTD is not similar to other UTs, as by virtue of Article 239 AA it is accorded a sui generis status, setting it apart from other UTs The legislative assembly of NCTD have competence over entries in List 2 and List 3 except over expressly excluded entries of LIST 2.
In addition to entries in List 1 Parliament has legislative competence over all matters in List 2 and List 3 in relation to NCTD, including entries which have been kept out of the legislative domain of NCTD by virtue of Article 239 AA.
The Union has executive power only over the three entries in List 2, over which NCTD does not have legislative competence.
The executive power of NCTD will respect to entries in List 2 and List 3 shall be subject to the executive power on the Union conferred by the Constitution or law by the Parliament.
The phrase “insofar in any such matters applicable to UT” in Article 239-AA 3(a) cannot be read to further exclude the legislative power of NCTD over entries in State List and Concurrent List except which are expressly excluded. NCTD has legislative and executive power over service that is Entry 41 List 2 Schedule 7 because the definition of State under Section 358 of the , applies to the term ‘State’ in Part XIV of the Constitution, thus Part 14 is applicable to UT.
The exercise of Rule-making power under proviso to Article 309, does not oust the legislative power of the appropriate authority to make laws over entry 41 of the State List
Upholding the Constitutionality of S. 10(a)(i) of the UAPA, 1967
In a reference made on behalf of the Union of India and the State of Assam to larger bench, against the judgment and order passed in Arup Bhuyan v. Union of India, as well as State of Kerala v. Raneef, , pursuant to the order passed by this Court in Arup Bhuyan v. State of Assam, , the full bench comprising of M.R. Shah*, C.T Ravikumar and Sanjay Karol*, JJ., in Arup Bhuyan v. State of Assam, , held that when an association is declared unlawful by notification issued under Section (‘UAPA’), a person who is and continues to be a member of such association is liable to be punished with imprisonment for a term which may extend to two years and shall also be liable to fine under Section 10(a)(i) of the UAPA, 1967. Thus, . Further, it is held that any other decisions of the High Court taking a contrary view is not good law and were specifically overruled by this Judgment.
Tax exemption for Sikkimese women and Definition of “Sikkimese”
In a big win for the Sikkimese, the bench of MR Shah and BV Nagarathna, JJ., in Association of Old Settlers of Sikkim v. Union of India, , held that:
The exclusion of Old Indian settlers, who have permanently settled in Sikkim prior to merger of Sikkim with India on 26.04.1975 from the definition of “Sikkimese” in Section of the is unconstitutional and hence struck down. Consequently, all Indians/old Indian settlers, who have permanently settled in Sikkim prior to the merger of Sikkim with India on 26.04.1975, irrespective of whether his/her name is recorded in the register maintained under the Sikkim Subjects Regulations, 1961 read with Sikkim Subject Rules, 1961 or not, are entitled to the exemption under Section 10(26AAA) of the Income Tax Act.
after 01.04.2008” from exempted category as per the proviso to Section 10(26AAA) of the 1961 Act is without any reasonable justification and hence, struck down for being unconstitutional.
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Constitutionality of Section 140(5) of the Companies Act
The Bench of MR Shah* and MM Sundresh, JJ., in Union of India v. Deloitte Haskins and Sells LLP, , held that Section of the that deals with Removal, Resignation of Auditor and Giving of Special Notice” appears in Chapter X of the Act which is titled as of India and that subsequent resignation of an auditor after the application is filed under Section 140(5) by itself shall not terminate the proceedings under Section 140(5) of the Act.
Deliberations over the constitutional infirmity of S. 6-A of the
The Bench comprising of Dr. D.Y. Chandrachud, C.J., and M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha J.J., in Assam Public Works v. Union of India , heard the primary question of the suffers from any Constitutional infirmity[/URL]. In the matter at hand, the petitioners came in the representative capacity of a majority of the indigenous tribal and non-tribal people living in Assam before the bench. The main contention of the petitioners is that Section of the inserted into the principal Act vide The Citizenship (Amendment) Act, 1985 to be repealed and declared ultra vires the Constitution.
Cancellation of Bail on merit
In State v. T. Gangi Reddy, , where the Andhra Pradesh High Court had refused to cancel the default bail on the application of the Central Bureau of Investigation (C.B.I.) after observing that once the accused was released on default bail under Section , thereafter it was on merits, the Bench of MR Shah* and CT Ravikumar, JJ., disapproved of this view and has held that there is no such absolute rule that such default bail cannot be cancelled on merits and can only be cancelled on other general grounds like tampering with the evidence/witnesses; not cooperating with the investigating agency and/or not cooperating with the concerned Trial Court etc.
Government Employees- Entitlement to increment one day prior to retirement
The issue for contemplation before the Division Bench of M.R. Shah* and C.T. Ravikumar, JJ., in KPTCL v. C.P. Mundinamani, , was whether an employee is entitled to annual increment, earned one day prior to retirement. The Supreme Court while dismissing the instant appeal, upheld the judgement of High Court of Karnataka, directing the appellants to , earned by the government employees on the last day of their service.
Validity of moratorium under Insolvency and Bankruptcy Code
The petitioner challenged the order passed by the Allahabad High Court which had dismissed the writ petition seeking directions to the respondent for consideration of the case of the petitioner under the scheme Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 (‘2019 scheme’), the division bench of M.R. Shah* and B.V. Nagarathna, JJ., in Shekhar Resorts Ltd. v. Union of India, , set aside the impugned order while stating that the Allahabad High Court had erred in refusing to grant relief to the appellant, and under 2019 scheme while issuing discharge certificate. In September 2018, Corporate Insolvency Resolution Process (‘CIRP’) was initiated against the appellant wherein unanimously approved resolution plan was submitted, which was eventually accepted by National Company Law Tribunal (‘NCLT’).
Economic offences under PMLA
Exercising its criminal appellate jurisdiction, the division bench of M.R. Shah* and C.T. Ravikumar J.J., in Directorate of Enforcement v. M. Gopal Reddy, , while stating that it did not take into consideration the nature of allegation and seriousness of the offences alleged of money laundering and offences under the (‘PMLA’) but instead dealt with the prayer for anticipatory bail in connection with the ordinary offence under the (‘IPC’).
Setting aside of Bombay HC order acquitting Prof GN Saibaba in UAPA Case
In a set of criminal appeals, against the order of Bombay High Court, wherein of the charges under the , the Division Bench of M.R Shah and C.T Ravikumar, in State of Maharashtra v. Mahesh Kariman Tirki, , allowed the appeals and set aside the High Court’s order. It was directed to remit back the appeals to the High Court for fresh disposal by another bench.
Implementation of digital DIN system for communication between State Tax Officers and taxpayers
In a significant case, the Division Bench of M.R. Shah* and B.V. Nagarathna, JJ., in Pradeep Goyal v. Union of India, , allowed the PIL filed by a Charter Accountant and directed the Union Government to consider implementing a uniform digital for all communications sent by the State Tax Officers to taxpayers and other persons concerned in all the States in the country.
Levy charges other than provided in Section 15(2-A) of U.P Urban Act, 1973
In Mathura Vrindavan Development Authority v. Rajesh Sharma, , which challenged the order passed by the High Court of Judicature at Allahabad, wherein the High Court had quashed and set aside the various demand notices, except the levy of development charges, raised by the respective Development Authorities and the State of Uttar Pradesh (‘petitioners’), the Division Bench of M.R Shah* and C.T Ravikumar, JJ., upheld the High Court’s order quashing the demand notices levying charges and held that the other than provided under Section 15(2-A) of the .
POCSO Offenders
In a case where a , the bench of MR Shah* and BV Nagarathna, JJ., Nawabuddin v. State of Uttarakhand, , observed that any act of sexual assault or sexual harassment to the children should be viewed very seriously and all such offences of sexual assault, sexual harassment on the children have to be dealt with in a stringent manner and no leniency should be shown to a person who has committed the offence under the POCSO Act.
Bullet Train Project
In the where Japan International Cooperation Agency (JICA) had rejected Montecarlo Limited’s technical bid, the bench of MR Shah* and AS Bopanna, JJ., National High Speed Rail Corporation Limited v. Montecarlo Ltd., held that under the contractual obligation, it was not open for National High Speed Rail Corporation Limited (NHSRCL) and/or even the Republic of India to deviate from any of the terms and conditions of the loan agreement and/or the decision of JICC/JICA.
Retrospective Applicability of Arbitration Amendment Act, 2015
Applying the rule against bias and neutrality of the Arbitrator, the Division Bench of M.R. Shah* and B.V. Nagarathna, JJ., Ellora Paper Mills Ltd. v. State of Madhya Pradesh, , reiterated that , the appointment of the arbitrator would be beyond the pale of the arbitration agreement.
Conundrum of res judicata and rejection of plaint
A Division Bench comprising of Dr D.Y. Chandrachud and M.R. Shah, JJ., in Srihari Hanumandas Totala v. Hemant Vithal Kamat, , upheld the order of the Karnataka High Court whereby an application under Order 7 Rule 11 CPC (Rejection of plaint) filed by the appellant was dismissed. While deciding the appeal, the Supreme Court .
Kerala Assembly Ruckus
A Division Bench of Dr D.Y. Chandrachud and M.R. Shah, JJ., State of Kerala v. K. Ajith, , upheld the order of the Chief Judicial Magistrate, Thiruvananthapuram, who refused to consent to the application filed by the Public Prosecutor under Section for withdrawal of a criminal case filed against six MLAs in relation to the ruckus and damage of public property caused by them in an .
All attempts of the accused MLAs seeking to claim immunity under Article of the were rejected by the Supreme Court while observing:
“Privileges and immunities are not gateways to claim exemptions from the general law of the land, particularly as in this case, the criminal law which governs the action of every citizen.”
[Covid-19] National Task Force
With the number of COVID-19 cases skyrocketing and nation facing severe shortage of oxygen, leading to several deaths, the bench of Dr. DY Chandrachud and MR Shah, JJ., in Union of India v. Rakesh Malhotra, , to the States and UTs.
Permanent Commission to Women in Army
In , the division bench of Dr. DY Chandrachud* and MR Shah, JJ., in Nitisha v. Union of India, , held that the administrative requirement imposed by the Indian Army authorities while considering the case of the Women Short Service Commissions Officers (WSSCO) for the grant of Permanent Commission (PC), of benchmarking these officers with the officers lowest in merit in the corresponding male batch is arbitrary and irrational. The Court hence, directed that the such requirement shall not be enforced while implementing the decision in Ministry of Defence v. Babita Puniya, .
Loan Moratorium Case
In an , particularly the MSMEs, facing the financial strain due to the Corona Virus Pandemic, the 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah*, JJ., in Small Scale Industries Manufacturers Association v. Union of India, , held that there shall not be any charge of interest on interest/compound interest/penal interest from any of the borrowers who availed RBI’s loan moratorium scheme for the period between March 1, 2020 till August 31, 2020 during the COVID-19 lockdown.
Constitutionality of GST on lotteries
The 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ., in Skill Lotto Solutions v. Union of India, , . The Bench held that the inclusion of actionable claim in definition “goods” as given in Section of is not contrary to the legal meaning of goods nor it is in conflict with the definition of goods given under Article 366(12).
“The Constitution framers were well aware of the definition of goods as occurring in the when the Constitution was enforced. By providing an inclusive definition of goods in Article , the framers never intended to give any restrictive meaning of goods.”
Interpretation of Domestic Violence Act
Answering important question pertaining to the of the (DV Act) in relation to right of residence in the shared household, the 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ., in Satish Chander Ahuja v. Sneha Ahuja, , held that “The living of woman in a household has to refer to a living which has some permanency. Mere fleeting or casual living at different places shall not make a shared household.”
Coparcenary Rights of Daughters
The 3-judge bench of Arun Mishra, SA Nazeer and MR Shah, JJ., in Vineeta Sharma v. Rakesh Sharma, , held that and that it is not necessary that the father coparcener should be living when the came into force.
“The conferral of right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth.”
Death Row Convicts
The 3-judge bench of Dr. AK Sikri, SA Nazeer and MR Shah, JJ., in Ankush Maruti Shinde v. State of Maharashtra, , and has directed reinvestigation in a crime that was committed in June, 2003. The Court was hearing the case where 5 people were brutally killed and a woman was raped. However, the accused were falsely implicated in the matter as they were all nomadic tribes coming from the lower strata of the society and are very poor labourers.
Refusal to accept compensation for land acquisition
In a landmark ruling the 5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah, and Ravindra Bhat, JJ., in Indore Development Authority v. Manohar Lal Sharma, , unanimously held that the land owners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the under Section of the (Land Acquisition Act, 2013).
Sub-classification of Scheduled Castes
After noticing that a 5-Judge Bench decision in E.V. Chinnaiah v. State of A.P., , is required to be revisited, the 5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ., in State of Punjab v. Davinder Singh, , referred the matter to a larger bench. While doing so, the Court observed: “ by the framers of the Constitution. On the one hand, there is no exclusion of those who have come up, on the other hand, if sub-classification is denied, it would defeat right to equality by treating unequal as equal.”
Applicability of SARFAESI Act to Co-operative Banks
The 5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ., in Pandurang Ganpati Chaugale v. Vishwasrao Patil Murgud Sahakari Bank Ltd, , held that, “ can be included within the purview of Entry 45 of List I, and it cannot be said to be over inclusion to cover provisions of recovery by cooperative banks in the SARFAESI Act.”
Acquittal under NDPS Act
The 5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and S. Ravindra Bhat, JJ., in Mukesh v. State (Narcotic Branch of Delhi), , held that the accused under the (NDPS Act) is merely because the complainant is the investigating officer. The Court said that
“… merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case to case basis.”
100% reservation for Scheduled Tribe candidates for the post of teachers
Holding the Government Office Ms. No.3 dated 10.1.2000 issued by the erstwhile State of out of whom 33.1/3% shall be women for the post of teachers in the schools in the scheduled areas in the State of Andhra Pradesh, unconstitutional, the 5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ., in Chebrolu Leela Prasad Rao v. State of Andhra Pradesh, , held that there was no rhyme or reason with the State Government to resort to 100% reservation.
Legacy
*Did you Know? In July 2022, when the Supreme Court resumed after its summer vacations, Justice MR Shah, pronounced 20 judgments in a single day! Furthermore, all the 20 judgments were authored by him!
In his 4.5-year tenure as a Supreme Court Judge, Justice M.R Shah has surely provided moments that have generated intense discourse across the spectrum of law and politics. He is known among the legal circles to be someone who does not beat around the bush and is very frank.
There are many instances where his frankness came forth. Once while hearing a Special Leave Petition, Justice Shah reprimanded the way judgements are written in the High Courts. Stating that a judgement must be as simple as it can be so that everyone can understand and is not supposed to be a thesis, Justice Shah went on to say that he had to use “tiger balm” in order to understand a judgment rendered by the Himachal Pradesh High Court .
Another such instance was when Justice Shah advised lower court judges to “worry about their performance and not their looks. He also advised them not to take unnecessary leave as they are serving the nation” .
Whether in his decisions or opinions, Justice M.R. Shah has showcased his dynamism and we are sure that the Supreme Court and the legal fraternity will miss it as well. As for us, we wish Justice Shah a happy retirement and it goes without saying that we wish him the very best for his future endeavors.
“Judges Only” feature
Civil Appeal 2357 of 2017
Writ Petition (Civil) 274 of 2009
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