Real Time Injunction – A Boon Against Online Infringement

(By Dr.Jithin Saji Isaac, Advocate, High Court of Kerala)
 E-mail : jithinsaji.isaac@isaacs.org.in  Mob.: 9447138954

Copyright protection ensures that creative efforts are effectively protected. The rights of the holders of copyright are infringed when a person without license or authorization of the rights holder disseminates copyright protected subject matter. The Copyright Act of India has mechanisms to curb infringement. Injunction is one of the most effective reliefs for infringement of copyright.

With the development of technology and the fast pace at which data is transmitted in the digital world, the law enforcement measures which were ideal in the physical world becomes otiose.The fast pace at which data replicates in the present day digital environment makes traditional injunctions not effective for online piracy. The most affected sectors are movie productions and broadcasters of live events like sports and other online transmissions.  Digital piracy has affected the movie industry and revenues from sales of movie rentals and tickets have declined. Internet has made it easy to copy and transmit copyrighted material even across borders.

The Copyright Act of India secures broadcast reproduction right to every broad-casting organisation which shall have a special right in respect of its broadcasts.₁  Any act of re-broadcast of a broadcast, reproduction of such sound recording or visual recording where such initial recording was done without licence is considered as infringement of the broadcast reproduction right of the owner of the right.  The Act defines broadcast as communication to public by wireless diffusion or by wire. Making any work or performance available for being seen or heard by the public directly or by any means of display or diffusion other than by issuing physical copies of it is termed as communication to the public. Communication through satellite or cable or any other means of simultaneous communication is also deemed to be communication to the public. A combined reading of both the definitions shows that making available of a film for streaming or downloads in the form of digital copies on the internet comes within the scope of “communication to the public”.

Broadcast reproduction rights are usually secured by television channels and other broadcasters for high value events relating to cricket, football, badminton, tennis, hockey, domestic and international cricket matches organized by the Board of Control for Cricket in India (BCCI) and the International Cricket Council (ICC). Broadcast reproduction rights are acquired by making significant monetary investment. This necessitates stringent and timely intervention to curb infringement of broadcast reproduction rights.

Rogue websites and rogue mobile applications that infringe exclusive content of sports events such as the Indian Premier League 2025, England Tour of India 2025 and such other sporting events are becoming common nowadays.

Real time injunctions are granted by the Courts to ensure that pecuniary loss is not caused to the plaintiff in an action where time is of the essence, like a one day cricket tournament.Even when injunction orders are issued against infringing activities, the infringers are finding ways to circumvent the Orders by using alpha-numeric/mirror/redirect variants of infringing websites. Impleading the infringing web sites each time to secure an Order will prove to be ineffective due to procedural limitations. High value sporting events command value only when broadcast first and hence time is of essence. This time sensitivity necessitates real- time blocking of such rogue platforms.

The broadcast content, including footage, commentary, and other composite elements, is safeguarded under the Copyright Act. Any unauthorized use of these elements violates and infringes the copyright of the holder. Illegal streaming of ICC Champions Trophy, 2025 was blocked by the Delhi High Court by granting dynamic injunctions.₂ Communicating, screening, making available or disseminating any part of the ICC Champions Trophy, 2025 on any electronic or digital platform was restrained by the Court. Directions were also issued to ISPs/Telephone Service Providers to block such rogue websites. To make the Order more effective in the virtual world, the Court also granted liberty to the plaintiff to communicate the details of the infringing websites that are discovered subsequently to
both the Department of Telecommunications and the Ministry of Electronics and InformationTechnology and also to the internet service providers for issuance of blocking orders of the said websites so as to ensure that these websites can be blocked on a real time basis.

The real time injunctions that were granted against rogue web sites were extended to rogue mobile applications also by the Court inStar India Pvt. Ltd v. IPTV Smarter Pro.
A superlative injunction, is an extended version of the dynamic injunction. The  superlative injunction opens up an additional route for the plaintiff to avail the grant of real-time reliefs against the infringing activities of‘rogue’ defendants irrespective of the modes thereof ”₃.

While granting real time injunctions, care has to be taken to prevent blocking of entire web sites, which will include content that is legitimately placed. The Bombay High Court in Eros International Media v. BSNL₄ has laid down the three step verification process for blocking an entire web site. The process consisted of verification by an independent entity, extensive documents being placed on record, and an affidavit on oath. The rationale behind such an attempt is to prevent excessive blocking of web sites and to ensure that interference is extended to the extent necessary to protect the legitimate interests of the right holders.

Evolution of hydra headed websites resurface as mirror websites with minor changes. They also mask their registration details making it impossible to locate the operators. The recent dynamic injunction Order granted to the plaintiff, Jaggi Vasudev helps to protect personality rights on a real time basis. Rogue web sites/hydra headed websites were used by the defendants to illegally morph Doctor Sadhguru’s voice and discourses/speeches/interviews to create deep fakes like audio visual advertisements and misleading videos. The Delhi High Court granted an Order of injunction₅  directing the defendants to take down content infringing upon the personality rights of the plaintiff and also those accounts and channels which may be subsequently identified and notified by the plaintiff as infringing.

Real time injunctions are granted in many countries across the globe for the past many years. In the European Union, no fault based injunctions are granted to bring to an end such infringing activities. Rights holders are entitled to apply for injunction even against an intermediary who facilitates an infringing activity.₆ Blocking of pirate websites are available across Europe. The Court of Justice of European Union in Stichting Brein v. Ziggo BV and XS4ALL Internet BV₇ held that the making available and management of an online sharing platform, constitutes a ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29. Blocking orders were also issued in France, Germany and United Kingdom against illegal streaming websites. The United Kingdom grants no fault injunction when the service provider has actual knowledge of using their service for infringement.₈

Delay in obtaining an injunction order can cost dearly as the reach of online infringement is at rapid pace due to the recent technological developments. Dynamic injunctions and superlative injunctions are a welcome addition to the injunctive reliefs and help to combat online infringement on a real time basis as the procedural delays can be avoided.

Foot Notes:

1. Copyright Act, 1957, S.37.

2. Star India Pvt. Limited  v.1XBETCOM, CS(COMM) 175/2025, Delhi High Court Order dated 28.02.2025.

3. Star India Pvt. Ltd v IPTV Smarter Pro, CS (COMM) 108/2025, Delhi High Court Order dated 10.02.2025 

    (2025 KLT OnLine 2395 (Del.).

4. Notice of Motion (L) No.2315 of 2016 in Suit No.751 of 2016.

5. Sadhguru Jagadish Vasudev v.  Igor Isakov (2025 KLT OnLine 2396 (Del.) = 2025 SCC OnLineDel. 3804).

6. Preamble, Infosoc Directive (Directive 2001/29/EC of the European Parliament and of the
Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society), (recital 59).

7. C‑610/15, ECLI:EU:C:2017:456.

8. CDPA, S.97 A.

Holiday Period: A Roadblock to Education Loan Disputes in Commercial Courts?

(By Muhammed Farooque K.T., Advocate, Tirur)
E-mail : farooque.kt.@gmail.com      Mob.: 7012473900

Though no one has reliably addressed the question of whether education loans can be realised through the Commercial Court established under the Commercial Courts Act, 2015, I intend to plough a lonely furrow. Before delving into the issue at hand, I wish to first draw your attention to the importance of education. The importance of education was eloquently highlighted by the Supreme Court in Unni Krishnan, J.P. & Ors. v. State of Andhra Pradesh & Ors. (1993 (2) KLT OnLine 1113 (SC) = AIR 1993 SC 2178), as follows:
“14. Victories are gained, peace is preserved, progress is achieved, civilization is built up and history is made not on the battlefields where ghastly murders are committed in the name of patriotism, not in the Council Chambers where insipid speeches are spun out in the name of debate, not even in factories where are manufactured novel instruments to strangle life, but in educational institutions which are the seed-beds of culture, where children in whose hands quiver the destinies of the future, are trained. From their ranks will come out when they grow up, statesmen and soldiers, patriots and philosophers, who will determine the progress of the land.”

The Right to Education is recognized as a fundamental right under Article 21 of the Constitution. In Mohini Jain v. State of Karnataka (1992 (2) KLT OnLine 1040 (SC) = AIR 1992 SC 1858), the Supreme Court held that the right to education forms an essential part of the right to life, and declared it a fundamental right in the following terms: “Every right citizen has a ‘right to education’ under the constitution. The framers of the constitution made it obligatory for state to provide education for its citizens. The right to education is concomitant to the fundamental rights. Thus, right to freedom of speech and expression cannot be fully enjoyed unless a citizen is educated and conscious of individualistic dignity. Without education, dignity of the individual can’t be assured. Art.21 includes the right to life with dignity. The ‘right to education’ flows directly from the right to life because of its inherent fundamental importance in the life of an individual.”

Subsequently, Article 21A was inserted into the Constitution of India by the 86th Constitutional Amendment Act, 2002, based on the recommendations of the 165th Report of the Law Commission of India and the Standing Committee of Parliament. This amendment made the right to education a fundamental right, providing that:“Article 21A: The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.”

This author is highlighting the importance of education to underscore how our founding fathers and legislatures viewed the role of educating the younger generation. Turning to the issue at hand, I shall now present my analysis in distinct parts.

1.What is the objective of education loans?

Considering the importance of education in human resource development and its pivotal role in driving the country’s economic growth, the Government formulated the Model Educational Loan Scheme as early as 2001 as part of the Reserve Bank of India issued Circular No.RPCD.PLNFS.BC.No.83/06.12.05/2000-01 dated April 28, 2001, incorporating certain modifications suggested by the Government of India. The scheme was further reinforced following the Hon’ble Finance Minister’s Budget Speech for the year 2004–2005. Educational loans are now extended by all nationalised banks, and the Government of India has consistently urged banks to provide financial assistance to deserving and meritorious students on affordable terms for pursuing higher education in India and abroad.

The objectives stated in the model education loan scheme, 2001 is as follows: 2. OBJECTIVES OF THE SCHEME: “The Educational Loan Scheme outlined below aims at providing financial support from the banking system to deserving/meritorious students for pursuing higher education in India and abroad. The main emphasis is that every meritorious student though poor is provided with an opportunity to pursue education with the financial support from the banking system with affordable terms and conditions. No deserving student is denied an opportunity to pursue higher education for want of financial support.In short, the scheme aims at providing financial assistance on reasonable terms:   * to the poor and needy to undertake basic education…..   *to the meritorious students to pursue higher/professional/technical education."

2.What are the important features of model education loan scheme?

Under clause 10 of the model education loan scheme, repayment begins either one year after course completion or six months after securing a job, whichever is earlier. The period before repayment starts is known as the moratorium or holiday period. The loan must be repaid within 5–7 years from the start of repayment. If the student cannot complete the course on time, an extension of up to 2 years may be granted. Further extensions may be considered for reasons beyond the student’s control. Interest accrued during the moratorium is added to the principal, and repayment is made through EMIs. A 1–2% interest concession may be offered if interest is serviced during the study period.

No margin is needed for loans up to ₹4 lakhs. Loans between ₹4 lakhs and ₹7.5 lakhs require a 5% margin for domestic and 15% for overseas studies. Loans above ₹7.5 lakhs have margins at the bank’s discretion. Scholarships or assistantships are considered part of the margin, which can be brought in annually, proportionate to disbursements.No security is required for loans up to ₹7.5 lakhs. Loans above ₹7.5 lakhs require collateral or third-party guarantee for the full loan amount. The loan must be signed by both student and parent/guardian. Acceptable security includes property, government bonds, LIC policies, shares, or bank deposits. Unencumbered property can be accepted as second charge security. If the loan covers a computer, it must be hypothecated to the bank. Banks may waive security for deserving students through senior officials.For loans up to ₹2 lakhs, interest is charged at the bank’s PLR; for loans above ₹2 lakhs, it is PLR + 1%. Interest is charged simply and debited quarterly or half-yearly during the moratorium. A 2% penal interest applies to overdue amounts above ₹2 lakhs. No bank charges apply for loans up to ₹7.5 lakhs; charges for higher amounts are at the bank’s discretion.

All these features of model educational loan scheme as aforesaid outlined in the circulars of the Reserve Bank of India and the Indian Banks' Association indicate that, unlike other types of bank loans, education loans serve a distinct social welfare objective.

3. Whether Education Loans Fall Within the Scope of Commercial Transactions?

A Division Bench of the Punjab and Haryana High Court, in Ravinder Sharma v. Punjab National Bank & Ors. ((2014) 4 RCR (Civil) 580), held that an education loan is distinct from a commercial loans and that the same legal principles cannot be applied to both. As observed in the said judgment: “Education is an instrument of empowerment. This is the philosophy behind various steps taken by the Government of India and the State Governments for furtherance of education to empower the young generation. Unfortunately, the inadequacy of educational institutions as well as absence of requisite quality is, again, a matter of common knowledge. For years, no attention was paid to the important aspect of ensuring adequate remuneration to the teaching faculty, with the result that persons never took to teaching. One fine day, we could not have produced the requisite number of teaching faculty to meet the needs of teaming millions of new generation…….. The principle applicable to commerce and trade loans cannot be applied to education loans, in view of the initial paragraph of this judgment itself. A greater compassion is required for the same.”

Similarly, Justice R.Sudhakar, inG. Dhivya & Anr. v. The Branch Manager, Canara Bank, Vellore District & Anr. ((2011) 1 MLJ 1052), observed as follows:“The education loan and commercial loan are independent of each other and operate on different parameters and terms……..  Chairman of all the Nationalised Banks/Commercial Banks should suitably instruct the Bank Managers, especially at the rural areas to ensure that as and when eligible and poor students seek application form and apply for educational loan, their case should be considered sympathetically and in a customer friendly manner to promote the cause of education and nation building as the scheme is intended to fill up the vacuum that the State is feeling difficult to fill. The education loan should not be denied on hyper technicalities. The authority should not forget that it is because of education that he is holding the post of Manager. The educated youth are the bulwark of the nation. They are the building blocks of the nation. If their eyes are opened by proper education, it will benefit our country and uplift the family. Education is still a far dream to millions in this country and that is why the scheme has used the words "endeavour of all" in the "Introduction" to the Scheme.”

The aforesaid observations by the Punjab & Haryana High Court and the Madras High Court underscore that banking encompasses both non-commercial transactions and commercial transactions. Non-commercial transactions include loans taken for purposes such as housing, education, or vehicles, while commercial transactions involve loans availed for business, trade, or commercial activities.

4. What is commercial purpose?

In Punjab University v. Unit Trust of India, (2014 (3) KLT OnLine 1276 (SC) = (2015) 2 SCC 669), the Supreme Court elaborated on the meaning of the term commercial as defined in Stroud’s Judicial Dictionary. According to this definition, a commercial action includes any cause arising out of the ordinary transactions of merchants and traders. Without limiting the scope of this definition, it encompasses causes related to the construction of mercantile documents, the export or import of merchandise, affreightment, insurance, banking, mercantile agency, and mercantile usage. The Court further clarified that the expression commercial purpose refers to an undertaking whose primary objective is to earn profit.

5. What Does 'Commercial Transaction' Mean Under the CPC for Imposing Interest Under Section 34?

Explanation ii of Section 34 of CPC provides as follows: “ Explanation II.-For the purposes of this section, a transaction is a commercial transaction, if it is connected with the industry, trade or business of the party incurring the liability.”

A plain reading of Section 34 CPC makes it clear that a loan qualifies as a commercial transaction only if the borrower uses the funds for trade, business, or industry. Only then can commercial interest be imposed. In Balan v. Devaki R.Nair (2010 (1) KLT 603 = 2010 (1) KHC 565), K.M. Joseph J. clarified that where a person incurs liability in connection with their business—such as borrowing for money lending—the transaction falls within the definition of a commercial transaction under Explanation II to Section 34.

6. What is the Object and Purpose of Establishing Commercial Courts?

The objective behind the establishment of Commercial Courts is to ensure the expeditious, fair, and cost-effective resolution of commercial disputes. The Commercial Courts, Commercial Divisions, and Commercial Appellate Divisions of High Courts are envisioned as pilot initiatives aimed at broader reforms in India’s civil justice system.These courts were constituted based on the recommendations of the 188th and 253rd Law Commission Reports. The primary aim is to benefit litigants by enabling swift resolution of commercial matters, thereby also reducing case backlogs. This, in turn, is expected to support economic growth, boost foreign investment, and enhance India's appeal as a business-friendly destination. The Law Commission reports highlighted the pressing need to address inordinate delays in the adjudication of high-value commercial disputes. To reassure both domestic and international investors, the Commercial Courts framework was introduced with a commitment that such disputes would be handled by specialized courts following streamlined, fast-track procedures.

7. How Does the Fast-Track Procedure Work in Commercial Court Suits?

The Schedule to the Commercial Courts Act introduces significant amendments to various provisions of the Code of Civil Procedure (CPC), marking a notable departure from the general procedural framework. Notably, after Order XIII of the CPC, a new Order XIIIA titled "Summary Judgment" has been inserted. Order XIIIA outlines the scope and categories of suits to which it applies, the grounds for granting summary judgment, the procedure to be followed, the evidence to be considered, and the types of orders that may be passed by the Court in such proceedings.Similarly, following Order XV, a new Order XVA titled "Case Management Hearing" has been incorporated. This provision lays down the procedure for the first Case Management Hearing (Rule 1), mandates the recording of oral evidence on a day-to-day basis (Rule 4), defines the powers of the Court during such hearings (Rule 6), deals with adjournments (Rule 7), and prescribes the consequences for non-compliance with Case Management orders (Rule 8).These amendments aim to expedite the adjudication of commercial disputes by placing them on a fast-track procedural regime. Further, in Order XX relating to "Judgment," Rule 1 has been substituted to mandate that the Commercial Court, Commercial Division, or Commercial Appellate Division shall pronounce judgment within ninety days from the conclusion of arguments. Copies of the judgment are to be provided to all parties, either by electronic mail or by any other means. In short, summary judgments provide speedy disposal of cases as compared to ordinary civil courts.

8. What is a “Mercantile Document” under the Commercial Courts Act, 2015?

The term "mercantile document" is not specifically defined in the Commercial Courts Act, 2015. However, the Act defines "document" under Section 2(1)(f) as any matter expressed or described upon any substance by means of letters, figures, marks, electronic means, or by a combination thereof, intended to be used or which may be used for the purpose of recording that matter. This definition is broad and is not confined to formal agreements executed between parties at the commencement of a transaction. It encompasses any expression or description made on a substance through letters, marks, figures, or electronic means that serves to clarify the subject matter.

The word "mercantile", in its ordinary sense, refers to something relating to merchants or trade—essentially, something commercial in nature. The term "mercantile paper", as referenced in Black’s Law Dictionary, is synonymous with "commercial paper", which denotes an instrument, other than cash, used for the payment of money. It typically includes negotiable instruments of a specific type and is described in the following terms: “Commercial Paper: 1. An instrument, other than cash, for the payment of money. Commercial paper - typically existing in the form of a draft (such as a check) or a note (such as a certificate of deposit) - is governed by Article 3 of the UCC. But even though the UCC uses the term commercial paper when referring to negotiable instruments of a particular kind (drafts, checks, certificates of deposit, and notes as defined by Article 3), the term long predates the UCC as a business and legal term in common use. Before the UCC, it was generally viewed as synonymous with negotiable paper or bills and notes. It was sometimes applied even to non-negotiable instruments. - Also termed mercantile paper; company's paper. See NEGOTIABLE INSTRUMENT.”

“Commercial paper,” as defined in Black’s Law Dictionary, is more a popular term than a technical one. Nevertheless, it is frequently used in statutes and court decisions to refer to simple forms of contract long recognized in commerce and governed by mercantile law. Broadly speaking, commercial paper refers to any written instrument that embodies rights typically transferred by delivery of the document itself. A significant category of commercial paper is negotiable instruments—writings through which the transferee can acquire rights free from claims or defences against the transferor. (Vide: Venkatesh Vincom Private Limited v. Spice of Joy, Multicuisine Restaurant Cum Bar (2022 0 Supreme(Cal.) 295).

9. How is a 'Commercial Dispute' Defined Under the Commercial Courts Act, 2015?

A “commercial dispute” under Section 2(1)(c) is defined as one arising from a wide range of transactions and agreements. The Explanation to this section clarifies that an action for the recovery of immovable property or for the realization of money shall not fall outside the scope of a commercial dispute merely because one of the contracting parties is the State or a private body performing public functions.

S.2(1)(c) of Commercial Courts Act, 2015 provides as follows: “Commercial dispute' means a dispute arising out of - (ii) Ordinary transactions of merchants, bankers, financiers and traders such as those relating to mercantile documents, including enforcement and interpretation of such documents.

(vii) agreements relating to immovable property used exclusively in trade or commerce.“

Based on the above statutory provisions, the following conclusions may be drawn:

•The immovable property must be used exclusively for the purposes of trade or commerce to fall within the scope of the Commercial Courts Act, 2015.

•Transactions involving mercantile documents arising out of the ordinary course of business by merchants, bankers, financiers, and traders would come under the ambit of the Act.

To determine whether a dispute falls within the scope of a “commercial dispute” under the Act, it is essential to analyze the categories of persons referred to in Section 2(1)(c)(i). The provision specifically mentions: “...ordinary transactions of merchants, bankers, financiers, and traders...”. The relevant classes of persons identified in this section are as follows:

a. Merchants: P. Ramanatha Aiyar’s The Law Lexicon, 2nd Edition, Reprint 2010 defines a “merchant” as “one who buys and trades in anything and as merchandise includes all goods and wares exposed to sale in fairs or markets”. The definition of merchant extends to all sorts of traders, buyers and sellers.

b. Bankers: In Halsbury’s Laws of England, Fourth Edition, Volume 3, a banker has been defined as “one who is involved in the business of receipt of money on current or deposit account and the payment of cheques drawn by and the collection of cheques paid in by a customer”. Section 5(b) of The Banking Regulation Act, 1949 defines the work of a Banker on the same lines.

c. Traders: The commonly accepted definition of a “trader” is “one who trades in goods, buys goods and sells them at a profit”. Black’s Law Dictionary, Eighth Edition, also defines a trader as “one who sells goods substantially in the form in which they are bought or as a member of a stock exchange, buys and sells securities on the exchange floor or one who buys and sells commodities and commodity futures for others or for his / her own account in anticipation of a speculative profit”.

d. Financiers:The Oxford Universal Dictionary Illustrated defines a “Financier” as “an administrator, collector or farmer of taxes or one who is skilled in levying and managing public money or as a capitalist concerned in financial operations.” The definition proceeds to clarify that the objects of a financier are to secure an ample revenue.

10.What are the judicial interpretations of “commercial dispute”?

A property involved in a commercial transaction must be used exclusively for trade or commerce, regardless of whether the service provider earns income or profit from the business activity carried on by the landlord. In a similar vein, Justice Sanjiv Khanna, while serving at the Delhi High Court, authored a judgment in Jagmohan Behl v. State Bank of Indore (2017 (3) KLT OnLine 2231 (Del.) = 2017 ICO 4457). The judgment, rendered by a Division Bench, held as follows:“The natural and grammatical meaning of clause (vii) is that all disputes arising out of agreements relating to immoveable property when the immoveable property is exclusively used for trade and commerce would qualify as a commercial dispute. The immoveable property must be used exclusively for trade or business and it is not material whether renting of immoveable property was the trade or business activity carried on by the landlord. Use of the property as for trade and business is determinative. Properties which are not exclusively used for trade or commerce would be excluded.”

However, in M/s Ambalal Sarabhai Enterprises Limited (supra), the Supreme Court clarified the ratio laid down in Jagmohan Behl (supra) as follows:“In that regard, it is noticed that in the said case on taking note of the provision contained in Clause 2(1)(c)(vii) of the CC Act, 2015 it is held that the dispute involved therein would constitute a commercial dispute and the expression "arising out of" and "in relation to immovable property" should not be given the narrow and restricted meaning and the expression would include all matters relating agreements in connection with the immovable properties. The said conclusion reached was in a circumstance where the immovable property in question was undoubtedly being used for a trade or commerce and it was held so when the claim in the suit is for recovery of rent or mesne profit, security deposit etc. for the use of such immovable property.”

Another Division Bench of the Delhi High Court, in Asif Ali Khan v. Manoj Kumar ((2024) 0 Supreme (Del) 634), observed that the sale of a residential flat does not fall within the definition of a commercial dispute.

The Gujarat High Court in Vasu Healthcare Pvt. Ltd. (supra) and the Supreme Court in Ambalal Sarabhai Enterprises Ltd. (supra) clarified that for a transaction to qualify as a commercial transaction, there must be a clear and immediate intent to generate profit or income. Disputes involving immovable property are not inherently commercial unless they fall under Section 2(1)(c)(vii) of the Act, i.e., agreements relating to immovable property used exclusively in trade or commerce. The term used implies actual, present use—not intended, future, or potential use. A broader interpretation would undermine the Act's objective of expeditious dispute resolution.

In M/s Ambalal Sarabhai Enterprises Limited (supra), the Supreme Court considered whether the transaction between the parties in the suit under its consideration qualified as a "commercial dispute," thereby enabling the Commercial Court to entertain the suit. The Court held that a literal and strict interpretation must be applied when construing a particular statute or provision. By the same reason, Supreme Court emphasized that a mandatory construction is necessary in such contexts. Referring to various provisions of the Commercial Courts Act, 2015, the Court noted that the Act permits a proactive approach to resolving commercial disputes. It observed that the legislative intent behind the Act is to establish a procedure that expedites the disposal of commercial disputes, thereby fostering a positive environment for investment and economic development, and making India an attractive destination for doing business. The Court further held that a purposive interpretation of the Statement of Objects and Reasons and the amendments to the Code of Civil Procedure, 1908, introduced by the Act of 2015, leaves no doubt that the provisions of the Act must be strictly construed. The court also said that the intended objective can only be achieved if the provisions are interpreted narrowly and are not hindered by the procedural delays that typically burden the traditional legal system. The court said that any excluded class of litigations can approach ordinary civil courts for seeking remedy.

However, in Ladymoon Towers Private Limited v. Mahendra Investment Advisors Private Limited, (2021 Supreme (Online) WB 1), Justice Moushumi Bhattacharya, while serving at the Calcutta High Court, took a contrary view to the one stated above and held as follows:“The qualification of the person being a Merchant, Banker, Trader or Financier imparts an unimpeachable commercial flavour to the transaction and the resulting dispute.”

In Ladymoon Towers Private Limited (supra), the Single Bench of the Calcutta High Court relied upon various judgments of the Delhi High Court, Bombay High Court, Madras High Court, as well as its own decisions, to interpret the meaning of a "mercantile document." It was held that not all money recovery suits fall within the scope of Section 2(1)(c)(i) of the Act, especially if they are not based on a transaction involving a mercantile document. The Bombay High Court in Manesh Rajkumar Kanhed v. Ramesh Bhagwansa Walale (AIR 2007 Bom. 86) observed that a suit cannot be treated as a commercial suit unless the transaction is between merchants, traders, bankers, or financiers, and thus a friendly loan between two individuals does not constitute a commercial transaction or one arising in the ordinary course of business.

The Madras High Court in S.V.D. Jeevanand v. NIC Arts through its Proprietor, S.S. Chakaravarthi, Chennai & Another ((2022) 1 CTC 273) relied on the earlier decision of a Single Bench in Ladymoon Towers Pvt. Ltd. (supra). It held that if the plaintiffs had not acted in the capacity of a financier, the transaction would not fall within the scope of the relevant definition clause. As for the view of the Calcutta High Court, as noted by the Single Bench in the above decision, it was based on the interpretation of the term "mercantile document" as defined in the First Schedule of the City Civil Courts Act, 1953. According to that definition, such a document must be one executed between merchants and traders.

If reliance is placed on Ladymoon Towers Private Ltd. (supra) for the proposition that all transactions undertaken by a merchant, banker, financier, or trader inherently possess a commercial character, it is equally important to consider the Supreme Court’s decision in M/s Ambalal Sarabhai Enterprises Limited (supra). In that judgment, the Court observed that merely stating in the memorandum of incorporation and articles of association that a company is formed for the business of estate agency and managing land and buildings does not confer a blanket commercial character upon all its transactions. The memorandum of incorporation serves as the document that connects the company to the outside world. Therefore, the contractual competence of a corporation is determined by its charter—specifically, its memorandum of incorporation. The ratio of Ashburry Railway Carriage Co. v. Richie (1875) L.R. 7 H.L 653 states that: “The Memorandum states affirmatively what the Company can do; it states negatively what the Company cannot do. The corporate life cannot be spent for any other purpose other than those specified in the Memorandum”.

By relying on the legal presumption laid down in Ashbury Railway Co. (supra), the trial court may have rendered its verdict in favour of the plaintiff company in M/s Ambalal Sarabhai Enterprises Limited (supra), concluding that the transaction in question was a commercial one. However, the Supreme Court clarified that merely because a company is incorporated for business purposes does not mean that all its transactions necessarily bear a commercial character, and held as follows: “39. It appears that the trial court has proceeded under the footing that the parties to the suit more particularly, the Appellant-Plaintiff seems to be carrying on business as Estate Agent and to manage land, building, etc. and the very object as enumerated in Memorandum and Articles of Association of the Appellant-Plaintiff company established that the property in question are being used exclusively in trade or commerce rather in the business of the Plaintiff. As rightly pointed out by the High Court, there is nothing on record to show that at the time when agreement to sell came to be executed in 2012, the property was being exclusively used in trade and commerce so as to bring dispute within the ambit of sub-clause (vii) of Section 2(1)(c) of the Act. Merely because, the property is likely to be used in relation to trade and commerce, the same cannot be the ground to attract the jurisdiction of the Commercial Court.”

11. Are all banking transactions enforceable under the Commercial Courts Act, 2015?

The answer to this question can be either ‘yes’ or‘no’ at the same time.

As observed by the Justice Moushumi Bhattacharya in Ladymoon Towers Pvt. Ltd. (supra), education loans can be realised under the Commercial Courts Act, 2015. Relying on the same judgment, it is noted that the qualification of the banker imparts an unimpeachable commercial character to the transaction and the resulting dispute.

However, a contrary view emerges from the Division Bench judgment of the Delhi High Court in Jagmohan Behl (supra), which holds that the income or profit motive of a service provider is immaterial, and the property in question must be used exclusively for trade or commerce. A similar conclusion is supported by the definition of "commercial transaction" under Section 34 of the Code of Civil Procedure.Further, the Supreme Court in M/s Ambalal Sarabhai Enterprises Ltd. (supra) clarified that not all transactions of a company established for commercial purposes possess a commercial character. It is thus evident that education loans are of a fundamentally different nature compared to commercial loans, as also recognized by the Ravinder Sharma (supra) and the G Dhivya and another (supra).In summary, education loans do not fall within the ambit of the Commercial Courts Act, 2015. Consequently, for the realisation of such loans, banks must approach ordinary civil courts rather than commercial courts.

Author’s view:

Truth has many facets. Every proposition of law, too, carries multiple dimensions, and the view one takes—whether regarding facts or law—may at times be imperfect or even erroneous. I readily admit that my perspective is neither the only one nor necessarily the correct one.

In legal discourse, certain cases may be capable of being decided either way. The decision taken by a judge or legal expert often depends on their background, temperament, ideals, and overall outlook on life. These factors constitute what the eminent American jurist Justice Oliver Wendell Holmes described as the “inarticulate major premise.”

When a case is finely balanced and can reasonably go in either direction, this “inarticulate major premise” tends to influence the final tilt of the scales. I must acknowledge that my own such premise consistently inclines in favour of the weak, the poor, and the vulnerable. In a similar vein, Article 46 of the Constitution places a duty on the State to promote with special care the educational interests of the weaker sections of the people and to protect them from social injustice and all forms of exploitation. While I agree that a judge or legal expert must ultimately rule in accordance with law rather than personal inclinations, it remains true that when lawful discretion permits two equally valid outcomes, justice demands that the balance be adjusted in favour of those who are disadvantaged. They require the court’s protection more than the rich and powerful.

In the context of the present legal discussion, it must be emphasised that education loans serve a distinct purpose compared to other types of banking transactions, as clearly outlined in the Model Education Loan Scheme. When a bank approaches a court seeking realisation of an education loan, it is the view of this author that such matters warrant the utmost care and caution by a judge.

The object and purpose of enacting the Commercial Courts Act is to promote trade, commerce, economic growth, and attract investments. However, including education loans within the ambit of commercial courts does not serve this objective, as it does little to advance trade or commerce in the country. Moreover, education loans constitute an essential service rather than a luxury or status-driven one. According to the Model Education Loan Scheme, education loans are considered a right for every poor and meritorious student. The very premise of the scheme is based on the presumption that individuals availing such loans belong to economically weaker sections of society. It is also a matter of logical inference that a wealthy person would not require an education loan, as they possess sufficient financial means.

As discussed in Part 2 of this article, education loans involve a holiday period following the disbursement of the loan amount. Unlike other types of loan transactions, the repayment of EMIs does not begin immediately in the case of education loans. This feature functions as a social welfare measure intended to support poor and meritorious students, allowing them time to secure employment before beginning repayment. The duration of this holiday period can be extended at the discretion of the sanctioning authority.Therefore, unlike other loan transactions, the commencement of EMI payments in education loans is inherently uncertain. If the argument is that the plaintiff, being a bank, can bring all loan-related disputes within the jurisdiction of the commercial court—relying on the precedent laid down in Ladymoon Private Limited (supra)—such an argument would not be applicable to education loans. This is because education loans do not involve an immediate repayment schedule or an immediate intention of profit generation. Rather, the expected profits are deferred and contingent on future developments. For this reason, such transactions are not maintainable before commercial courts, as recognized by the Supreme Court in M/s Ambalal Sarabhai Enterprises Limited (supra).

This author’s demand for the exclusion of education loans from the purview of commercial courts is due to their summary nature. Such a procedure may deprive financially weak students of the breathing time needed to repay their debts after securing employment in a highly competitive job market. Proceeding before an ordinary civil court allows for a more flexible timeline, providing students with a fair opportunity to repay the loan amount.

For the reasons stated above, the exclusion of education loan disputes from the scope of the Commercial Courts Act does not offend the principle of intelligible differentia. On the contrary, such a classification enhances reasonableness and guards against arbitrariness, thereby upholding the mandate of Article 14 of the Constitution (vide: Maneka Gandhi v. Union of India (1978 KLT OnLine 1001 (SC) = AIR 1978 SC 597), E. P.Royappa v. State of Tamil Nadu (1974 KLT OnLine 911 (SC) = (1974) 4 SCC 3). In the same vein, to borrow the words of Justice V.R. Krishna Iyer in State of Kerala v. N.M.Thomas (1976 KLT SN 5 (C.No.11) SC = (1976) 2 SCC 310), such a classification may well be regarded as an 'emphatic
restatement' of the principle of equality.In light of the aforesaid contentions, it is this author’s view that,suits for the realisation of education loans are appropriately triable before ordinary civil courts not in commercial courts.

In conclusion, I would like to recall the words of civil rights leader Dr. Martin Luther King Jr., who once said:“The arc of the moral universe is long, but it bends toward justice.”

The State of Tamil Nadu v.
The Governor of Tamil Nadu and Anr. 2025

(By Joseph James Nedumpara, B.A. LLB. (Hons.), NUALS, Kochi)
E-mail : josephjamesned@gmail.com          Mob.9567332525

The Supreme Court of India delivered a landmark judgment in State of Tamil Nadu v. Governor of Tamil Nadu (2025)₁ addressing a significant constitutional impasse that had arisen between the Tamil Nadu government and the Governor of the State. The case centred on the Governor's prolonged inaction and subsequent actions regarding 12 bills passed by the state legislature, some of which had been pending since January 2020. The Court's pronouncements unequivocally declared the Governor's conduct as "illegal," "arbitrary," and "erroneous in law," thereby establishing definitive constitutional limits on gubernatorial powers under Articles 200 and 201 of the Constitution. This verdict has been widely recognized as a "major win for the non-negotiable constitutional ideals of federalism and representative democracy," serving to reinforce legislative primacy and state autonomy against potential executive overreach.  

A pivotal aspect of the judgment was the explicit rejection of the concepts of "pocket veto" and "absolute veto," which had allowed Governors to indefinitely stall legislative processes. The Court mandated timely and reasoned action by Governors on bills. To prevent future delays, clear and specific timelines were prescribed for both Governors and the President to act on state legislative bills. In a remarkable exercise of its extraordinary powers under Article 142, the Supreme Court deemed 10 repassed bills to have received the Governor's assent, effectively setting aside the Governor's unconstitutional reservation of these bills for the President. The judgment firmly reaffirms the principle of judicial review over the actions and inactions of both gubernatorial and presidential offices, ensuring the accountability of high constitutional functionaries.  

The Court's decision represents a fundamental reassertion of the original constitutional design. The Constitution, particularly Article 200, contains phrases such as "as soon as possible" but lacks explicit timelines for gubernatorial action. This textual ambiguity has historically been exploited by Governors, leading to legislative paralysis and de facto vetoes. Historical records, specifically the Constituent Assembly Debates, reveal a deliberate removal of the phrase "in his discretion" from Article 200's draft, indicating the framers' clear intention to limit the Governor's independent discretion and ensure adherence to the aid and advice of the Council of Ministers. By imposing specific, judicially enforceable timelines and declaring "inaction" as constitutionally impermissible, the Court directly addresses this historical exploitation. This action is not merely a procedural adjustment but a profound reassertion of the Constitution's intended operational framework. It compels the executive—both the Governor and the President—to operate within the spirit of the Constitution, thereby preventing any de facto veto that could undermine the authority of elected legislatures. The judgment thus serves as a powerful reminder that constitutional silence on timelines does not grant unbridled discretion or permission for indefinite delay; rather, it implies a duty to act reasonably and expeditiously in furtherance of democratic governance, effectively enforcing the framers' original intent.  

Furthermore, this case highlights the evolving role of the judiciary in resolving federal disputes. The prolonged standoff between the Tamil Nadu government and its Governor is emblematic of a recurring pattern of Centre-State friction, particularly in states governed by opposition parties, where Governors are often perceived as agents of the Centre. The Supreme Court's decisive intervention, particularly its unprecedented use of Article 142 to "deem assent," signifies an increased judicial willingness to engage with what might traditionally be considered political disputes. This intervention is presented as a direct response to a "constitutional breakdown" and a "lack of bona fides" on the part of the Governor. While some critics have voiced concerns that this might constitute judicial overreach, the Court's actions simultaneously underscore the judiciary's indispensable role as the ultimate guardian of the federal structure and democratic principles, especially when other constitutional mechanisms of checks and balances prove insufficient or fail to function as intended. The judgment solidifies the Supreme Court's proactive stance in resolving such inter-institutional deadlocks, particularly those that impinge upon the principles of federalism, potentially redefining the boundaries of judicial activism in India by asserting its authority to ensure constitutional functionality.  

Introduction

The legal dispute originated from the "prolonged inaction" and "subsequent reservation" of several legislative bills by the Governor of Tamil Nadu. Between January 13, 2020, and April 28, 2023, the Tamil Nadu Legislature enacted and forwarded 12 bills to the Governor for his assent, as mandated by Article 200 of the Constitution. Despite assuming office on November 18, 2021, the Governor failed to take the necessary action on these bills for an extended and unjustified period, with some remaining pending for over three years. The State government contended that this indefinite delay, without any accompanying explanation, amounted to an unconstitutional obstruction of governance and severely undermined the legislative process. The petitioner characterized this inaction as an unauthorized "pocket veto," which fundamentally thwarted the democratic will of the elected legislature. A significant number of these bills aimed to transfer the authority for appointing Vice-Chancellors from the Governor to the State government, highlighting a key area of institutional friction and a perceived overreach by the Governor.  

The Governor's prolonged inaction, particularly on bills concerning university appointments, was not merely an administrative oversight. These bills directly challenged the Governor's existing powers, indicating a clear conflict of interest and a clash over executive authority. The timing of the Governor's eventual actions—withholding assent or reserving bills—occurred only after the Supreme Court's intervention in the State of Punjab v Principal Secretary to the Governor of Punjab case₂ and the Tamil Nadu government's petition to the Court. This sequence of events strongly suggests that the inaction was a calculated political manoeuvre rather than a genuine constitutional deliberation. It appears to have been a deliberate tactic to stall legislation perceived as detrimental to the Union's interests or the Governor's perceived prerogatives.   

The Supreme Court's observation that the Governor failed to show "due deference and respect to the judgments and directions of the court" further underscores this dynamic, implying that executive functionaries are expected to be guided by judicial pronouncements. This demonstrates that judicial pronouncements, even those preceding the specific case, can serve as a powerful catalyst for executive action, reinforcing the judiciary's role in upholding constitutional norms against executive inertia and illustrating the persuasive power of judicial authority.  

The Core Constitutional Questions before the Supreme Court

The lawsuit primarily focused on interpreting Article 200 of the Constitution, which governs the Governor's powers concerning state bills. The Supreme Court was tasked with addressing several fundamental legal questions:  

* Can the Governor indefinitely delay assent to bills, effectively exercising a "pocket veto"?.  

* Is the Governor constitutionally required to state reasons for refusing assent or for reserving bills for the President?.  

* What constitutes a "reasonable timeline" for the Governor to act on bills presented by the state legislature?.  

* Crucially, can the Governor reserve a bill for the President after it has been re-passed by the legislature in the same form, given the explicit language of Article 200?.  

* To what extent can a Union-appointed Governor intervene in the legislative functions of a state government, raising fundamental questions about India's federal structure?.  

* Does the Supreme Court possess the authority and obligation to intervene to protect democratic governance in such constitutional deadlocks?.  

Legal Framework: Articles 200 and 201 of the Indian Constitution

Powers and Obligations of the Governor regarding State Bills (Article 200)

Article 200 of the Constitution meticulously outlines the Governor's options and responsibilities when a bill passed by the state legislature is presented for assent. Upon presentation, the Governor "shall declare" one of three mandatory courses of action:  

* Grant assent : The bill receives the Governor's approval and consequently becomes law.  

* Withhold assent : The Governor refuses to approve the bill. However, this option is inextricably linked to the first proviso, mandating the Governor to return the bill with a message for reconsideration by the legislature (this does not apply to Money Bills).  

*Reserve the bill for the President's consideration: This option is exercised when the Governor deems it necessary for presidential review.  

The phrase "as soon as possible" in the first proviso is critical; the Court emphasized that this mandates expediency and explicitly prohibits indefinite delay or inaction by the Governor. A crucial aspect of Article 200 is that if the legislature re-passes the bill (with or without amendments) after it has been returned by the Governor, the Governor "shall not withhold assent therefrom," implying a mandatory obligation to grant assent in the second instance. The second proviso to Article 200 imposes a specific obligation on the Governor to reserve a bill for the President's consideration if, in the Governor's opinion, it would derogate from the powers of the High Court.  

The Constituent Assembly Debates reveal a conscious decision to remove the phrase "in his discretion" from the draft of Article 200, clearly indicating an intent to limit the Governor's independent discretion and ensure their role is primarily guided by the aid and advice of the Council of Ministers. However, the retention of the phrase "as soon as possible" without specifying a hard timeline created a constitutional "silence" or ambiguity regarding the precise timeframe for gubernatorial action. This ambiguity, rather than being a mere oversight, was subsequently exploited by Governors to exercise a de facto "pocket veto," effectively stalling legislation without formal refusal. The Supreme Court's judgment essentially fills this deliberate ambiguity, transforming a vague directive into a judicially enforceable obligation. By doing so, the Court rectifies a long-standing constitutional vulnerability that allowed for the subversion of democratic legislative processes. The judgment thus exposes how textual ambiguities in constitutional provisions can be strategically leveraged for political ends, and how judicial interpretation becomes essential to uphold the foundational principles of representative democracy and prevent the executive from undermining legislative autonomy when such exploitation occurs.  

Role of the President concerning Reserved Bills (Article 201)

Article 201 delineates the procedure and powers of the President when a bill is reserved by the Governor for presidential consideration. Upon receiving a reserved bill, the President must either grant assent (the bill becomes law) or withhold assent. The President also has the power to direct the Governor to return the bill to the state legislature for reconsideration (this option is not available for Money Bills). While Article 201, like Article 200, does not provide explicit timelines for the President's action, the Court underscored that action must be taken within a "reasonable period" to prevent legislative gridlock.  

A critical distinction emerges when comparing the language of Article 200 (governing the Governor's actions) and Article 201 (governing the President's actions) regarding re-passed bills. Article 200 explicitly states that if a bill is re-passed by the state legislature after being returned by the Governor, the Governor "shall not withhold assent". This imposes a mandatory assent obligation on the Governor in the second instance. In contrast, Article 201 does not impose a similar mandatory assent obligation on the President for bills that have been returned for reconsideration and then re-passed by the state legislature. The President retains discretion to assent or withhold assent even after re-passage. This asymmetry grants the President a more potent and discretionary veto power over state legislation, even after re-passage, compared to the Governor. The Court acknowledges this "element of political hue" in the President's role under Article 201. This implies a subtle yet significant hierarchical aspect within India's federal structure, where the Union (through the President) retains a stronger ultimate check on state legislative autonomy than the Governor, who is largely bound by the state legislature's will in the second instance. The judgment implicitly highlights a structural power imbalance in India's quasi-federal system, where the President retains a stronger discretionary veto over state legislation compared to the Governor, even after re-passage, underscoring the layered nature of checks on state legislative power.  

Reasoning

Interpretation of Gubernatorial Assent and Withholding Powers

The Supreme Court unequivocally held that the constitutional scheme under Article 200 does not permit either an "absolute veto" or a "pocket veto" by the Governor. The Court clarified that "inaction" is not a constitutionally recognized mode of action, and the phrase "shall declare" in the substantive part of Article 200 signifies a mandatory obligation to act. The Court strongly emphasized that the expression "as soon as possible" in the first proviso to Article 200 is not merely advisory but mandates expediency. It infuses the provision with a clear sense of urgency, thereby preventing the Governor from indefinitely delaying action on bills. Furthermore, the Court clarified that if the Governor intends to withhold assent, he or she must return the bill to the Assembly with a message requesting reconsideration. A "simpliciter withholding of assent"—that is, withholding without returning the bill or providing reasons—is impermissible. This finding aligns with and reinforces the earlier ruling in State of Punjab v Principal Secretary to the Governor of Punjab (2023).  

Limits on Reservation for Presidential Consideration

A critical pronouncement by the Court is that, generally, the Governor cannot reserve a bill for the President's consideration if it is presented for assent in the second round, i.e., after being returned to the House as per the first proviso and subsequently re-passed. The phrase "shall not withhold assent therefrom" in the first proviso to Article 200 clearly establishes a "strict constitutional prohibition" against the Governor withholding assent or reserving the bill at this stage.  

The Court did carve out a narrow exception: if the bill re-passed in the second round is materially different from the one initially presented, or if it introduces changes that fall foul of the second proviso to Article 200 (e.g., derogating from the High Court's powers), then the Governor may regain the three original options under the substantive part of Article 200. While this exception seems logical, the term "materially different" is inherently subjective and open to interpretation. This subjectivity creates a potential new interpretive challenge and a possible loophole. Governors or the Central government could strategically argue that even minor legislative changes constitute "material differences" to justify a second round of reservation for the President, thereby attempting to circumvent the Court's clear mandate for assent. This could lead to future litigation centred on defining the precise scope of "material difference," potentially creating a new arena for Centre-State friction and requiring further judicial clarification. The "materially different" exception, while seemingly a logical carve-out, could become a future point of contention and a potential loophole for Governors to reassert discretionary power, necessitating further judicial clarification and potentially leading to a new wave of constitutional disputes.  

The Principle of "Aid and Advice" and the Governor's Discretion

The Court reiterated the fundamental principle that, as a general rule, the Governor must act on the aid and advice of the Council of Ministers. The historical context of the Constituent Assembly Debates, particularly the deletion of the phrase "in his discretion" from the draft of Article 200, was cited to demonstrate the framers' clear intent to limit the Governor's independent discretion in legislative matters. The Court clarified that the Governor may act in discretion only when explicitly required by the Constitution (e.g., the second proviso to Article 200 concerning bills derogating from High Court powers) or in truly exceptional circumstances where the State Council of Ministers has disabled itself, or there is a clear peril to democracy or democratic principles (drawing from precedents like M.P. Special Police and Nabam Rebia cases). Any reservation of a bill by the Governor on grounds other than these, such as personal dissatisfaction, political expediency, or extraneous considerations, is impermissible and liable to be set aside.  

Judicial Review of Gubernatorial and Presidential Actions

A cornerstone of the judgment is the emphatic affirmation that the exercise of discretion by both the Governor (under Article 200) and the President (under Article 201) is subject to judicial review. The Court stressed that no constitutional power, however high, is beyond the scope of judicial scrutiny. The Court explicitly declared the view expressed in
B.K. Pavitra (2019)₃, which had suggested that the Governor possessed unfettered discretionin reserving bills beyond judicial scrutiny, to be per incuriam (rendered without due regard to previous binding precedents, specifically Samsher Singh v State of Punjab (1974)₄. Significantly, the Court held that if the President withholds assent to a bill reserved by the Governor, the State government has the right to directly challenge this action before the Supreme Court.  

The Court's judgment is replete with normative language, repeatedly emphasizing that Governors must act with "constitutional morality" and not "political expediency". By rejecting the "pocket veto," mandating timely and reasoned action, and clarifying the limited scope of discretion, the Court is not merely interpreting the law but actively shaping the conduct and ethical framework for constitutional functionaries. The explicit declaration of B.K. Pavitra as per incuriam sends a strong signal that judicial precedents granting unbridled discretion to Governors, particularly when contrary to the spirit of responsible government and federalism, will be overturned. This signifies a profound judicial commitment to ensuring that high constitutional offices serve the overarching constitutional scheme and democratic principles rather than partisan interests or individual whims. It is an attempt to elevate the standard of public conduct in constitutional roles. The judgment therefore marks a significant judicial assertion of "constitutional morality," actively curtailing politically motivated delays and discretionary abuses by Governors. This reinforces the normative framework of democratic governance, ensuring that constitutional functionaries prioritize the spirit of the Constitution over narrow political considerations.  

Specific Directives and Prescribed Timelines

The Court, recognizing the constitutional silence on specific time limits, prescribed clear judicial standards for timeliness. It emphasized that these timelines are not constitutional amendments but practical measures designed to give effect to the constitutional principle of reasonableness and to prevent legislative gridlock.  

Timelines for Governor's Action under Article 200

* Withholding of assent or reservation for President (when acting on the aid and advice of the State Council of Ministers):This action must be taken "forthwith," subject to a maximum period of one month.  

*  Withholding of assent contrary to the advice of the State Council of Ministers: In such a scenario, the Governor must return the bill with a message for reconsideration within a maximum period of three months.  

*  Reservation of bills for President contrary to the advice of the State Council of Ministers: Such a reservation must be made within a maximum period of three months.  

* Presentation of a bill after reconsideration (as per the first proviso to Article 200): The Governor must grant assent "forthwith," subject to a maximum period of one month. At this stage, the power to reserve the bill for the President cannot be exercised unless the bill is materially different.  

Timelines for President's Action under Article 201

The Court extended the principle of timely action to the President's role under Article 201, adopting timelines previously prescribed by the Ministry of Home Affairs' Office Memorandum. It explicitly stated that inaction exceeding these periods would render the President's conduct subject to a writ of mandamus.  

* Decision on the bill by the President (after initial reservation by Governor):This decision must be made within four months from the date the reference is received by the Union Government.  

* Returning the bill for reconsideration by the State Legislature (if the proviso to Article 201 is exercised):This action must occur within two months from the date the original reference is received by the Union Government.  

* Decision on the bill by the President (once received with clarifications from State Legislature after reconsideration):This final decision must be made within four months of the date the reconsidered bill is received by the Union Government.  

The Supreme Court's prescription of explicit timelines is a significant step, as it fills a constitutional void. Critics might argue this amounts to "judicial overreach" or "effectively amending the Constitution under the guise of interpretation," as it appears to add a new dimension to the constitutional text. However, the Court frames these as "judicial standards" necessary to give "practical effect to the constitutional principle of reasonableness in public decision-making" and to prevent "legislative gridlock". The Court's rationale is that these timelines are essential to operationalize the "as soon as possible" clause and ensure that the "will of the people" expressed through elected legislatures is not thwarted by indefinite executive delay. This highlights the ongoing tension between strict textualism and purposive interpretation in constitutional law, especially when constitutional silence leads to functional paralysis. The imposition of explicit timelines, while appearing to be judicial legislation, is presented by the Court as a necessary interpretative tool to operationalize constitutional principles, prevent executive paralysis, and uphold the spirit of democratic governance, thereby reinforcing the judiciary's role as a guardian of constitutional functionality.  

Furthermore, the Court's assertion that inaction beyond the prescribed timelines would render the Governor's, and potentially the President's, conduct subject to a "writ of mandamus" is a powerful and direct enforcement mechanism. This directly challenges the traditional understanding of Article 361(1), which grants immunity to the President and Governors from judicial proceedings in their official capacity. While the Court did not explicitly overrule Article 361(1), its pronouncement implies that while personal immunity from legal proceedings remains, official actions or inactions that violate constitutional duties are subject to judicial direction to ensure constitutional functioning. This could redefine the scope of executive immunity in India, making high constitutional offices more directly accountable to judicial oversight for the timely and proper discharge of their official duties, thereby strengthening the system of checks and balances. The implicit threat of mandamus against the Governor and President for non-compliance with timelines signifies a significant expansion of judicial oversight, potentially re-calibrating the balance between executive immunity and constitutional accountability, and ensuring that high offices are not beyond the reach of judicial directives for constitutional adherence.  

Application of Article 142

The Supreme Court exercised its extraordinary, inherent powers under Article 142 of the Constitution, which allows it to pass such decree or make such order as is necessary for doing "complete justice" in any cause or matter pending before it. Given the Governor's "prolonged inaction," his "simpliciter withholding of assent without a message," and his subsequent act of "reserving the repassed bills for the President"—all deemed clear violations of constitutional procedure—the Court found it "absolutely necessary and appropriate" to grant the requested relief. In an unprecedented move, the Court declared that assent is "deemed to have been granted" to the ten bills that were re-passed by the Tamil Nadu State Assembly and presented to the Governor. This was based on the understanding that, at that stage, the only constitutionally permissible option for the Governor was to grant assent. This extraordinary remedy provided "immediate legal effect" to the bills, allowing the state government to proceed with implementing these laws as though the Governor had formally signed them. Consequently, any steps taken by the President on the basis of these unconstitutionally reserved bills were also set aside, rendering them null and void.  

Rationale and Implications of Invoking Extraordinary Powers

The Court's decision to invoke Article 142 was deeply rooted in its observation that the Governor failed to show "due deference and respect to the judgments and directions of the court," making it "difficult to repose trust and remand the matter to the governor with a direction to dispose of the bills". Article 142 is considered a "constitutional safeguard" that enables the judiciary to uphold justice and constitutional principles even in the absence of explicit legislative provisions or in situations where executive action is lacking. However, the use of Article 142 in this manner has also drawn criticism, with some arguing that while its powers are broad, it is not a "legislative tool" and cannot be used to rewrite the Constitution.  

The Court's decision to invoke Article 142 was not merely to resolve a legal technicality or procedural impasse. It was explicitly linked to a perceived "lack of bona fides" and a "blatant disregard for the Constitution" on the part of the Governor. The Court's strong phrasing, "it was difficult to repose trust and remand the matter to the governor," is highly significant, indicating a judicial finding of executive untrustworthiness and a deliberate attempt to obstruct constitutional processes. This suggests that Article 142 is being deployed not just for "complete justice" in a general sense, but specifically to rectify situations where a constitutional functionary has acted with deliberate obstructionism or in bad faith. It serves as a powerful judicial mechanism to prevent further abuse of office and to enforce constitutional integrity. The application of Article 142 in this case therefore transcends mere legal resolution; it serves as a robust judicial check against executive actions perceived as mala fide or deliberately obstructionist, transforming it into a potent tool for enforcing constitutional integrity against recalcitrant officeholders.  

The "deemed assent" mechanism is described as "extraordinary and unprecedented". It represents a direct judicial bypass of the executive's role in the legislative process. While applied in specific circumstances of extreme executive recalcitrance and constitutional breakdown, it sets a powerful precedent. It implies that if constitutional authorities fail to perform their duties within prescribed or judicially deemed reasonable timelines, the judiciary can step in to directly validate legislative outcomes. This could potentially reduce the frequency of such standoffs in the future by making Governors acutely aware that prolonged inaction or unconstitutional conduct carries the risk of judicial bypass, thereby streamlining legislative processes. However, it also raises fundamental questions about the judiciary's role in directly giving effect to laws, even if implicitly, and the potential blurring of lines in the separation of powers. The "deemed assent" mechanism, while a radical solution to a constitutional impasse, creates a new judicial lever to ensure legislative efficacy. It potentially deters future gubernatorial obstructionism by establishing a pathway for direct judicial validation of bills, thereby reshaping the dynamics of legislative approval in India.  

Reinforcing Legislative Primacy and State Autonomy

The judgment fundamentally "redefines the constitutional role of Governors" and "emphasizes the principles of cooperative federalism and accountability" within the Indian constitutional framework. It reinforces the critical understanding that Governors are expected to act as "friend, philosopher, and guide" to the State Cabinet, rather than functioning as "instruments of the Centre". By curtailing the Governor's ability to indefinitely delay legislative processes and mandating timely action, the Supreme Court has safeguarded the legislative independence of states. This ensures that the will of the democratically elected state legislatures is respected and given due effect, preventing the paralysis of governance that prolonged gubernatorial inaction can cause. The verdict is a significant affirmation of the constitutional principle that state governments, as constitutionally empowered entities, possess autonomy in their legislative functions, and that this autonomy cannot be undermined by the arbitrary actions of a centrally appointed Governor.  

Redefining the Role of the Governor

The ruling significantly curtails the discretionary powers of Governors, particularly concerning legislative assent. It clarifies that the Governor's role is primarily ceremonial and that they should not obstruct the governance of an elected state government. The Court's observation that "authorities occupying high offices must be guided by the values of the Constitution" and act as "facilitators, not obstacles, in governance" sets a new standard for gubernatorial conduct. This redefinition aims to ensure that Governors discharge their duties with constitutional morality, rather than political expediency, thereby restoring dignity to the office and strengthening the democratic process. The judgment explicitly overrules previous interpretations that granted Governors unfettered discretion in reserving bills, aligning the law with the principle that India is a Republic and Governors are not super-legislators.  

Enhancing Judicial Oversight and Accountability

The judgment expands the scope of judicial review over the actions of both Governors and the President, affirming that no constitutional power is beyond judicial scrutiny. By enabling state governments to approach courts and seek a writ of mandamus if prescribed timelines are not followed, the Court has provided a powerful legal avenue to challenge undue delays or procedural overreach. This reinforces the Supreme Court's role as the ultimate protector of democratic governance and the federal structure, ensuring that constitutional functionaries are held accountable to constitutional norms. The Court's intervention underscores its commitment to preventing prolonged inaction by constitutional authorities from disrupting legislative functioning.  

Impact on Centre-State Relations

The verdict has significant implications for Centre-State relations, particularly in states governed by opposition parties, where confrontations between state governments and Governors have been frequent. The ruling provides a powerful legal precedent for states to challenge perceived overreach by Governors, who are often seen as agents of the Union government. The Tamil Nadu Chief Minister hailed the judgment as "a big victory not just for Tamil Nadu but for all Indian states," emphasizing the ongoing struggle for state autonomy and federal polity. The judgment sets important guardrails, but the underlying political dynamics that give rise to such constitutional crises are likely to continue shaping Centre-State relations across the country. The decision serves as a reminder to constitutional officials that their positions are subject to the law and that democratic rule must overcome bureaucratic bottlenecks and political overreach.  

Conclusion

The Supreme Court's judgment in State of Tamil Nadu v. Governor of Tamil Nadu stands as a seminal pronouncement in Indian constitutional jurisprudence. It meticulously clarifies the constitutional boundaries of the Governor's and, by extension, the President's powers regarding state legislation under Articles 200 and 201. By unequivocally rejecting the notions of "pocket veto" and "absolute veto," the Court has eliminated ambiguities that previously allowed for indefinite executive inaction, thereby upholding the legislative primacy of elected state assemblies. The prescription of clear, judicially enforceable timelines for gubernatorial and presidential actions marks a proactive step by the judiciary to ensure the smooth functioning of democratic processes and prevent legislative gridlock.

The extraordinary application of Article 142 to "deem assent" to the stalled bills underscores the Supreme Court's commitment to delivering "complete justice" and intervening decisively when constitutional functionaries demonstrate a lack of bona fides or a deliberate disregard for constitutional norms. This powerful exercise of judicial authority, while unprecedented in its direct effect on legislative outcomes, serves as a potent deterrent against future executive obstructionism.

Ultimately, this verdict reinforces the foundational principles of Indian federalism and representative democracy. It reasserts that Governors are constitutional officeholders obligated to operate within the framework of the Constitution, guided by the aid and advice of the Council of Ministers, rather than acting as political counterweights to elected state governments. The judgment strengthens judicial oversight, holding high constitutional offices accountable for their actions and inactions. While the ruling resolves the immediate dispute in Tamil Nadu, its broader impact will resonate across the nation, providing a crucial legal framework for addressing similar Centre-State tensions and ensuring that the spirit of constitutional governance prevails over political expediency. The decision reaffirms the Supreme Court's indispensable role as the ultimate guardian of the Constitution, ensuring its vitality and functionality in the face of evolving political dynamics. 

Foot Notes:

1. State of Tamil Nadu v. Governor of Tamil Nadu & Anr. (2025 KLT OnLine 1733 (SC) =  2025 INSC 481).

2. State of Punjab v. Principal Secretary to the Governor of Punjab & Anr. (2023 (6) KLT 492 (SC) = (2024) 1 SCC 384.

3. BK. Pavitra v. Union of India (2019 (2) KLT OnLine 3161 (SC) = (2019) 16 SCC 129.

4. Samsher Singh v. State of Punjab (1974 KLT OnLine 936 (SC) = (1974) 2 SCC 831.

The Intersection of Technology and Law :
Electronic Monitoring in Bail Decisions

(By P.B.Sahasranaman, Advocate, High Court of Kerala)  E-mail : sahasram@gmail.comMob: 9446544339

When an accused person is granted bail, law enforcement agencies raise a concern if he is released the may flee or may destroy evidence.  In some cases, there may also be the need to track co-accused who are absconding. As a result, the investigating agency oppose bail applications, fearing the possibility of flight or evasion. The question arises: Can modern technology assist the police in tracking such individuals through electronic devices?

Currently, in India, there is no specific law that authorizes the use of electronic tracking devices on accused individuals. However, a look at how this issue is handled in other countries provides some useful insight.

Legal Precedents in the United States

In the United States, the Supreme Court¹ ruled that installing a Global Positioning System (GPS) device on a vehicle and using it to track the vehicle’s movements constitutes an unreasonable search under the Fourth Amendment. The Court concluded that such tracking is considered a “search” under the Fourth Amendment’s protection against unreasonable searches and seizures. This decision was based on the premise that the government’s use of a GPS device to monitor a suspect’s movements is essentially a trespass aimed at gathering private information.

In another case, the Court² held that while police may obtain cell tower data under the Stored Communications Act, real-time GPS tracking typically requires a court order. This reflects the need for judicial oversight to balance law enforcement needs with individual rights.

Electronic Surveillance in European Countries

Similarly, in Europe, the European Convention on Human Rights, along with national legal frameworks, protects individuals from unreasonable surveillance. In countries like Germany, judicial approval is generally required before electronic surveillance can be carried out. Courts usually demand probable cause (reasonable suspicion of criminal activity) before granting approval for tracking devices or surveillance. Some jurisdictions may allow warrantless tracking in exceptional circumstances, such as terrorism-related investigations or imminent danger, but even then, such actions are subject to later judicial review.

In cases where an individual is released on bail or parole, courts may impose electronic monitoring, such as ankle bracelets, as a condition of release. This ensures ongoing monitoring while safeguarding individual rights.

The Right to Privacy and Electronic Monitoring in India

In India, the right to privacy is a fundamental constitutional right, as established in the Puttaswamy case .However, it is worth considering that the use of electronic monitoring in exceptional circumstances, and with judicial oversight, could be an acceptable exception to this right. Specifically, permitting the installation of tracking devices, such as GPS or ankle monitors, on individuals accused of serious crimes could help address concerns about flight risk or evasion, while also facilitating early bail, thus allowing the accused to exercise their right to personal freedom.

For this to be feasible in India, there would need to be clear legislative or decision of the court authorizing the use of such monitoring tools. In some cases, individuals may voluntarily agree to wear tracking devices as a condition of bail or probation. This would help avoid daily reporting requirements at police stations while still allowing law enforcement to track the individual’s movements. The law in the country is that that bail is a rule and jail is an exception. It requires some exception wherein the exceptions may arise.

Foot Notes

1. United States v. Jones, 565 U.S. 400 (2012).
2.  Carpenter v. United States (585 U.S. 296 (2018).

Justice P.B. Suresh Kumar -- The Judge Who Understands !

(By Aswini Sankar R.S., Advocate, High Court of Kerala) E-mail : aswinisankar333@gmail.com   Mob.: 8547089333

On this occasion marking Justice P.B. Suresh Kumar’s retirement, let me share some personal memories.

First, as a nervous junior lawyer with a week of practice experience at bar, I stood before his Lordship, with shivering and shaking voice, hands and legs, seeking an adjournment in a civil appeal’s admission. Lordship asked, “Why don’t you argue?” Upon our compulsion and I started, with feeble voice, stammering through the little I knew,
I cannot recall what I argued or even the facts of the case, but I remember his lordship’s expression vividly: serious, focused, with his cheek resting on his hand, resembling the expressions of my Mom who listen carefully to my kindergarten (LKG) adventures.

After I completed my facts and law, I paused,  he smiled gently and asked,

“What do you want now?”

Though I never expect, that question, I genuinely replied,

“My Lord, the appeal may be allowed.”

You raised eyebrow slightly, “At this admission stage?”

 I without hesitation but with tension said,

“Then, then…. the appeal may be admitted, My Lord.”

The entire courtroom burst into laughter, all except two; his Lordship and myself.

After cross checking to the files, his lordship kindly, dictated: “Admit. Issue notice. Stay further proceedings.”

The second incidenthappened years ago, in the chamber of my senior, a genius in
law, Mr.K.Ramakumar. The team was preparing feverishly for a matter listed in the Miscellaneous Court. We were cross-checking a bunch of case law printouts, chronologically arranged, labelled, and highlighted to clarify a tricky legal point.

Suddenly, our Clerk, Rajeevan Chettan, came to the senior’s chamber and informed us that the judge was on leave, and the matter would be taken up by Justice PBS instead. My senior immediately said, “Don’t waste Justice Suresh’s time. One telling judgment is enough—he’ll understand.”

And that’s true, you did understand.

The third incidenthappened during a difficult time when tensions rose between the Bar and the Press. A classmate of mine, a fellow lawyer, was injured during that unrest. The very next day, His Lordship along with some others came to the Bar Association Hall to meet the Bar. He walked up to my friend, placed your hand on his shoulder, and asked gently,

“Are you okay?”

After a month, in open court, while taking the petition list of hislordship miscellaneous jurisdiction, at 4:15 p.m. (a notorious list then, among the advocates, for shortage of time for which no one can be blamed though)while my friend, asking for a stay extension in his matter, you asked him again,

“Are you okay?”

That gesture spoke volumes.

Yes, what my senior said is absolutely true, Justice P.B.SureshKumar, easily and genuinely understands the law. Not only the law but the facts, the emotions and the Bar.

Even though in my personal statistics, I got more dismissals and rejections from his court, but never once did I feel unheard or disrespected as a lawyer. Lordship, we thank you! We will miss you personally, and we also miss a judge like you in the Bench too.