The High Court should normally consider the possibility of the implementation of the directions given by it, and such directions which are incapable of being implemented should be avoided.
The doctrine of impossibility, in our view, would be equally applicable to Court orders as well. While concluding, we may also mention that in matters which have transnational and international ramifications, the High Court should normally refrain from issuing directions in such matters,especially when such matters of national level are being considered by this Court in separate proceedings.
The sanction of a resolution plan and finality imparted to it by Section 31 of Insolvency and Bankruptcy Code, 2016 does not per se operate as a discharge of the guarantor’s liability.As to the nature and extent of the liability, much would depend on the terms of the guarantee itself.
Approval of a resolution plan does not ipso facto discharge a personal guarantor (of a corporate debtor) of her or his liabilities under the contract of guarantee. As held by this court, the release or discharge of a principal borrower from the debt owed by it to its creditor, by an involuntary process, i.e. by operation of law, or due to liquidation or insolvency proceeding, does not absolve the surety/guarantor of his or her liability, which arises out of an independent contract.
West Bengal’s Chief Minister and Law Minister’s Mobocracy:
Arrest of Ministers and members of Legislative assembly of West Bengal by CBI on charges of corruption in an investigation directed by High Court. Grant of Bail of Special Court to the accused. Chief Minister entering the office of CBI and stayed there for 6 hours allegedly demanding release of arrested persons. Request by CBI for transfer of Trial.
Law Minister of the State along with supporters mobbed the Court where the accused were to be presented along with charge sheet. The Law Minister remained in the Court complex throughout the day till the arguments were heard. In these facts and circumstances if any order is passed by the Court the same will not have faith and confidence of the people in the system of administration of justice. Confidence of the people in the justice system will be eroded in case such types of incidents are allowed to happen in the matters where political leaders are arrested and are to be produced in the Court. Public trust and confidence in the judicial system is more important, it being the last resort. They may have a feeling that it is not rule of law which prevails but it is a mob which has an upper hand and especially in a case where it is led by the Chief Minister of the State in the office of CBI and by the Law Minister of the State in the Court Complex. If the parties to a litigation believe in Rule of Law such a system is not followed.
Order of Division Bench dated 17 May 2021:
In our opinion aforesaid facts are sufficient to take cognizance of the present matter with reference to the request of the learned Solicitor General of India for examination of the issue regarding transfer of the trial. We are not touching the merits of the controversy but the manner in which pressure was sought to be put will not inspire confidence of the people in the rule of law. As during the period when the arguments were heard, the order was passed by the Court below, we deem it appropriate to stay that order and direct that the accused person shall be treated to be in judicial custody till further orders.
In restricting ourselves to the specific grievances that have been urged by the EC,regarding the remarks made by the judges of the Madras High Court, we find that the High Court was faced with a situation of rising cases of COVID-19and,as a constitutional Court, was entrusted with protecting the life and liberty of citizens. The remarks of the High Court were harsh. The metaphor inappropriate. The High Court-if indeed it did make the oral observations which have been alluded to -did not seek to attribute culpability for the COVID-19 pandemic in the country to the EC. What instead it would have intended to do was to urge the EC to ensure stricter compliance of COVID-19 related protocols during elections.
Having said that, we must emphasize the need for judges to exercise caution in off-the-cuff remarks in open court, which may be susceptible to misinterpretation. Language,both on the Bench and in judgments,must comport with judicial propriety. Language is an important instrument of a judicial process which is sensitive to constitutional values.Judicial language is a window to a conscience sensitive to constitutional ethos. Bereft of its understated balance, language risks losing its symbolism as a protector of human dignity. The power of judicial review is entrusted to the High Courts under the Constitution. So high is its pedestal that it constitutes a part of the basic features of the Constitution. Yet responsibility bears a direct co-relationship with the nature and dimensions of the entrustment of power. A degree of caution and circumspection by the High Court would have allayed a grievance of the nature that has been urged in the present case. All that needs to be clarified is that the oral observations during the course of the hearing have passed with the moment and do not constitute a part of the record. The EC has a track record of being an independent constitutional body which shoulders a significant burden in ensuring the sanctity of electoral democracy. We hope the matter can rest with a sense of balance which we have attempted to bring.
These oral remarks are not a part of the official judicial record, and therefore, the question of expunging them does not arise. It is trite to say that a formal opinion of a judicial institution is reflected through its judgments and orders, and not its oral observations during the hearing. Hence, in view of the above discussion, we find no substance in the prayer of the EC for restraining the media from reporting on court proceedings. This Court stands as a staunch proponent of the freedom of the media to report court proceedings. This we believe is integral to the freedom of speech and expression of those who speak, of those who wish to hear and to be heard and above all, in holding the judiciary accountable tothe values which justify its existence as a constitutional institution.
The present order has primarily considered the submissions (written and oral) of the UOI. These submissions have been reproduced here as a matter of public record and to contextualize the clarifications that are being sought by our Court in order to serve its dialogic role. We reiterate, for abundant caution, that the data and submissions reproduced above are not its endorsement or acceptance. In terms of the above discussion, we hereby pass the following directions:
(i)The UOI shall ensure, in terms of the assurance of the Solicitor General, that the deficit in the supply of oxygen to the GNCTD is rectified within 2 days from the date of the hearing, that is, on or before the midnight of 3 May 2021;
(ii) The Central Government shall, in collaboration with the States,prepare a buffer stock of oxygen for emergency purposes and decentralize the location of the emergency stocks. The emergency stocks shall be created within the next four days and is to be replenished on a day to day basis, in addition to the existing allocation of oxygen supply to the States;
(iii) The Central Government and State Governments shall notify all Chief Secretaries/Directors General of Police/Commissioners of Police that any clampdown on information on social media or harassment caused to individuals seeking/delivering help on any platform will attract a coercive exercise of jurisdiction by this Court. The Registrar (Judicial) is also directed to place a copy of this order before all District Magistrates in the country;
(iv) The Central Government shall,within two weeks,formulate a national policy on admissions to hospitals which shall be followed by all State Governments. Till the formulation of such a policy by the Central Government, no patient shall be denied hospitalization or essential drugs in any State/UT for lack of local residential proof of that State/UToreven in the absence of identity proof;
(v )The Central Government shall revisit its initiatives and protocols, including on the availability of oxygen, availability and pricing of vaccines, availability of essential drugs at affordable prices and respond on all the other issues highlighted in this order before the next date of the hearing, that is, 10 May 2021. Copies of all affidavits to be served upon the Amiciin advance; and
(vi) Several other suggestions have been made before this Court in IAs and writ petitions filed by diverse parties. In order to streamline the further course of hearing, we have requested the Amicito collate and compile these suggestions which would be taken up later. The present order has focused on certain critical issues in view of the urgency of the situation