Somasekhar Sundaresan It was a judgment waiting to be written. The conduct of the government in litigating on issues long-decided by courts and clogging the courts, even while mouthing platitudes about how the government must not indulge in frivolous litigation, has been called out by the Supreme Court in a crisp and precise judgment. The seven-page order, imposing costs of Rs 100,000 on the government (yet again), is a must-read not only for every government department at the Centre and the states, but more importantly for every regulator that doubles up as civil courts and generates litigation by writing orders, […]

By Swaroop George The recent order dated May 4, 2018, of the National Company Law Tribunal at Kolkata, dealing with various applications in C.P.(IB) No.359/KB/2017 with regard to the Corporate Insolvency Resolution Process of Binani Cements has brought to light the plight of operational creditors and their lack of influence in the insolvency process. Once the Corporate Insolvency Resolution Process is initiated, the Interim Resolution Professional collects and verifies the claims of various debtors and constitutes a Committee of Creditors. The Committee of Creditors is the linchpin of the Corporate Insolvency Resolution Process and all major decisions are routed via […]

Arvind P. Datar & Rahul Unnikrishnan The recent Constitutional crisis in Karnataka may not be the last.  Our founding fathers perhaps never contemplated the Centre or the States to be ruled for several years by coalition governments. Indeed, the Constituent Assembly Debates on Articles 163 and 164 were completed in just one day. It is indeed ironical that coalition politics turns the principle of majority rule upside down. In Karnataka, we now have a Chief Minister who has just 37 seats out of 222. Twelve of these MLAs became ministers despite the fact that the same party had lost its […]

Santhosh Krishnan He insisted on a syntax for presentation. Miscellaneous cases commenced with his abbreviated reading of a case note, stapled to the brief. Then proceeded: “What are the facts? What did the Courts decide? Why must we interfere?” The method was not particularly formulaic, though sometimes enforced with ferocity. Lawyers not savvy with the discipline of answering the Judge’s question forthwith were peremptorily ignored. Insensitively, there were murmurs equating this sporadic harshness with his hardness of hearing. His disdain of fools was, however, no rule of law; I had more than one occasion to address him and peaceably depart. […]

The conduct of this year’s edition of the Common Law Admission Test (CLAT 2018), like many before it, has come under the scrutiny of the courts, after widespread instances of technical difficulties were reported in centres across the country. A number of challenges have been filed in various high courts calling into question the conduct of the exam held earlier this month. In one petition, the Jodhpur Bench of the Rajasthan High Court has even issued notice to the CLAT authorities, stating that the results would be dependent on its decision. Amidst the uncertainty surrounding the courts’ ultimate decisions, as […]

Suchindran BN It was BR Ambedkar who warned us that it is perfectly possible to pervert the Constitution, without changing its form by merely changing its form of administration.  The politics and the merits of the impeachment of Chief Justice Dipak Misra aside, there are many crimes against judicial and constitutional propriety that have been done in this cause. I have written earlier about the unbearable wrongness of the impeachment order. The latest steps taken by the Supreme Court in the judicial challenge to that order have further compounded that wrong. It appears that after the matter was mentioned before […]

Ashish Kabra and Mohammad Kamran Highlights of the Amendment Minimum Value of dispute (pecuniary jurisdiction) reduced to INR 3,00,000/- Commercial courts split in two – (i) District Judge Level & Below District Judge Level Commercial Appellate Courts introduced Mandatory pre-institution mediation prescribed Government to appoint commercial court judges The Government, on May 3, 2018, promulgated an Ordinance (Ordinance) amending the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (Act). These amendments are an attempt to expand the scope of commercial courts in India. They will also contribute towards improving India’s ranking on the ‘ease of […]

By Shanmugham D Jayan A coherent and consistent ideology is the bedrock of a successful legal system. The success of a rule is nothing but acceptance of the ruler’s law by the subjects. From suo moto acceptance of fended subjects emerges the lasting sustenance of a particular rule. This acceptance is a direct function of the underlying ideology and its continued coherence. Take any modern Constitution. The attempted concept of division of powers has, to a great extent, ensured that judiciary determines what the essence of the underlying ideology of a given Constitution is. Any deviation by Constitutional courts, either […]

Jyoti Sagar The first part of this article described the peculiarities of the language of the law. In this concluding part, we cover the fascinating history of the lawyers’ language, why the legal profession persists with its language even though the English language for the rest of the world has changed from the middle ages and evolved, and the green shoots of change. The characteristics and manner of composition of the language of the law are founded in antiquity. It is also an intended (or unintended) result of developments in political, societal, and technological spheres. Here are some examples: Over some […]

Chinmoy Pradip Sharma The growing rift in the relationship between the government and the Supreme Court has split wide open, with the decision of the government to return the Supreme Court’s recommendation for appointment of Justice KM Joseph. The most significant factor for the decision is the seniority of Justice Joseph at the All-India level. In support, the government has placed reliance upon certain passages from the Second Judges’ Case and the Third Judges’ Case. The first impression derived from these passages is that the rule of seniority is sacrosanct and any deviation will give a go-by to the ‘legitimate […]

By Jolly Abraham Ultratech and Rajputana Properties were among the resolution applicants for Binani Cement. Based on evaluation criteria specified in a process document provided to all persons who had submitted an expression of interest to the resolution professional for Binani Cement (RP) and following the timelines specified in such process document, Rajputana Properties’ resolution plan was selected by the committee of creditors of Binani Cement (CoC) as H1 and Ultratech’s was not. Long after the date specified in the process documents as the last date for submission of resolution plans (Relevant Date) and after Rajputana Properties was declared H1, […]

By Aayush Mitruka One of the reasons why the Insolvency and Bankruptcy Code, 2016 (the Code) is being regarded as the path-breaking legislation is because unlike its predecessors it prescribes tight timelines for resolution of sick companies. The relevant provision of the Code provides that the resolution process must be completed within 180 days, which is extendable, in certain cases, up to 90 days. The stressed asset managers at financial firms as well as asset reconstruction specialists suggested the Bankruptcy Law Reform Committee that 180 days would be a reasonable time to evaluate a stressed entity and propose a solution […]

Jyoti Sagar Language is the most significant medium of communication. Other than “sign” language and “body” language, “language” is made of “words” that are used for oral and written communication. The main purpose of communication is to convey information and ideas. As lawyers, we spend a large part of our time crafting, articulating, and delivering end products which are made up of words.  Charles Alan Wright, a leading authority on legal procedures and practice of law, said, “The only tool of the lawyer is words. Whether we are trying a case, writing a brief, drafting a contract, or negotiating with […]

Payal Chawla Section 27 of the Arbitration and Conciliation Act, 1996 (the Act) makes a provision for the arbitral tribunal to seek the assistance of the court in taking evidence. Such assistance can be sought by the tribunal on its own accord, or by a party to the dispute, with the approval of the tribunal. It provides, “(T)he court may, within its competence and according to its rules on taking evidence, execute the request by ordering that the evidence be provided directly to the arbitral tribunal.” The use of the words ‘may’ and ‘execute’ have been the basis of significant […]

Suchindran BN The Chairman of the Rajya Sabha has escalated a constitutional crisis by rejecting the opposition move to impeach the Chief Justice of India. While doing so, he has undermined the Constitution and the procedure established by law, not only procedurally, but also substantively, by arrogating to himself power that he does not possess under the Constitution or the law. The procedure for removing a judge of the Supreme Court is laid down in Article 124(4) of the Constitution and states, “A Judge of the Supreme Court shall not be removed from his office except by an order of […]

The Centre has been sitting on Justice KM Joseph’s file since January 10 this year, when the Supreme Court Collegium deemed the Chief Justice of the Uttarakhand High Court as being worthy of elevation to the Supreme Court. And now, in a letter addressed to the Chief Justice of India Dipak Misra, Law Minister Ravi Shankar Prasad has disclosed the reasons for the same. Below is a rebuttal of each reason given by the government on why it thought fit to stall the elevation of Justice KM Joseph. In the All India High Court judges seniority list, Justice KM Joseph is placed […]

Yesterday, the Central government cleared the appointment of Senior advocate Indu Malhotra for Supreme Court but chose not to do the same for Justice KM Joseph whose name was recommended along with Malhotra’s name. On April 19, the Central government issued a notification extending the tenure of Justice Ramendra Jain as Additional Judge of Punjab & Haryana High Court. This came despite the fact that the collegium had stood firm by its recommendation to make Justice Ramendra Jain a permanent judge of the Punjab and Haryana High Court. Collegium had initially recommended that Justice Jain be appointed as a permanent judge of the […]

Satvik Varma Judges of India’s higher judiciary can be removed from office only on the ground of “proved misbehavior” or “incapacity” and through the constitutionally mandated Parliamentary process which requires not only an absolute majority, but also a vote of two-thirds of the elected politicians present and voting in both houses in favour of the notice of motion. Can the process of removal of a Judge still be termed as Apolitical? Such notice requires the signatures of one hundred politicians of the Lok Sabha (House of People) or fifty members (mostly elected politicians) of the Rajya Sabha (Council of States). […]

Pallav Shishodia The motion by Congress and rag-tag of political parties to impeach the Chief Justice of India has added to a tumult of our times. The views at the Bar are highly polarized. So you are part of activists’ Morcha if you support this impeachment and self-seeking Chamcha of the establishment if you oppose. If at all there is a middle ground, it has no certainty. A lot of friends at the Bar would say we are against this impeachment but something must be done to stop the rot at the top. There is a whole range of ambiguities about the […]

Court Reporter “Counsel after counsel expressed the fear that during the Emergency, the executive may whip and strip and starve the detenue and if this be our judgment, even shoot him down. Such misdeeds have not tarnished the record of Free India and I have a diamond-bright, diamond-hard hope that such things will never come to pass.” Thus wrote Justice Yeshwant Vishnu Chandrachud on April 28, 1976, concluding his concurrent opinion justifying the detention of thousands across the country by a majoritarian regime. Just nine days short of the 42nd anniversary of ADM Jabalpur v. Shiva Kant Shukla, a judgment […]

In Hans Christian Andersen’s fairytale The Emperor’s New Clothes, it was a child that drew the public’s attention to the fact that the King was indeed naked. Similar attempts to expose one of the most powerful men in the Indian government were shot down earlier this week by the Supreme Court, which held that the petitions seeking an independent probe into the death of Judge Loya were politically motivated and aimed at bringing disrepute to the judiciary. In Andersen’s story, two weavers, in an attempt to swindle the vain Emperor, stitch up make-believe clothes for him to parade around in. […]

Pavan Narang Recently, the Delhi High Court, in its judgment titled Rajbhushan Omprakash Dixit v. UOI, referred to a larger Bench certain important questions of law that need to be settled. One of the questions referred is “Do the provisions of Chapter XII Cr.P.C. apply to Prevention of Money Laundering Act (PMLA) insofar as offences under PMLA are concerned and if so, to what extent?” Although it has been held in a spate of judgments that courts have powers to remand the accused arrested by officers of the Enforcement Directorate (ED) under PMLA, they have failed to address the more fundamental issue […]

In this new series, Bar & Bench tries to assess the consequences of laws on the people they are intended for. How do laws, framed in Delhi, impact people in the corners of India? Do people understand laws framed for them? What is their impact on the targeted people? Read the fifth story at the intersection of law and society by Raksha Kumar here: Successful Dilution of the LARR Act of 2013 (Part II) Understanding land rights in contemporary India cannot be done without understanding the impact of one of independent India’s landmark legislations, Right to Fair Compensation and Transparency in […]

By Ravichandran Iyer The judgment rendered by the Supreme Court on April 11, 2018 in Asok Pande v. Supreme Court reiterated the salutary position that it is the Chief Justice of India (CJI) alone who is the “Master of the Roster”. First of all, let’s understand the need for “roster”. American Supreme Court receives about 7,000 requests every year to review cases and actually hears around 100 to 150 cases annually. Supreme Court of Canada receives 700 to 800 applications in a year seeking leave to appeal and grants leave in 65 to 80 cases. Both these Courts do not hear the […]

The contributions made by Dr BR Ambedkar to the foundational beginnings of the Indian nation certainly attest to the fact that the Father of Indian Constitution lived up to this standard. As we commemorate Ambedkar Jayanti this year, we take a look at Dr. Ambedkar’s final speech in the Constituent Assembly, dated November 25, 1949. In this address, Dr. Ambedkar presents his justification for the Constitution, in terms of the process undertaken to draft it, as . . . Facebook Comment To read the entire article, get a premium account With a premium account you get: One year of unrestrcited […]

Arunav Kaul Shouldn’t a state that receives the highest number of filings and has the most number of cases pending in the country have the highest number of judges? Data from the Supreme Court’s Annual Report for subordinate courts collated for the year of 2015-2016 and 2016-2017 shows otherwise. Subordinate courts are courts of first instance, forming the bedrock of the judicial system in India. They are burdened with close to 2.5 crore pending cases. In 2016-2017, as many as 2 crore cases were filed across the subordinate courts in the country. It is therefore important to delve into the […]

The Court of the Chief Justice of India was privy to a curious hearing on Monday this week. A public interest litigation petition titled Asok Pande v. Supreme Court of India & Ors was listed before the Bench of Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud as item 11. The petitioner, Asok Pande, a lawyer practicing at the Allahabad High Court, was praying for framing of rules to regulate the procedure for constitution of Benches in the Supreme Court and the High Courts. It was also Pande’s prayer that Constitution Benches constituted by the Supreme Court […]

By Aditya Swarup The past few months in India have witnessed the admission of insolvency petitions of some high value companies, including Essar Steel and Videocon Industries. Such companies may have assets in jurisdictions outside India and one of the crucial questions that arises is the treatment of these assets. The problem is attenuated by the nature of the assets in question. A company may operate in a foreign jurisdiction through local subsidiaries or branches/offices. It may also have physical assets in such foreign jurisdiction. In the former case, each subsidiary is a separate legal entity and the winding up/insolvency […]

Satvik Varma Principles of ‘Causality’ emanating from the universal laws of ‘Cause and Effect’ apply to the unprecedented and looming impeachment motion against the current Chief Justice of India Dipak Misra. Classical science believes no event happens by chance. Causality, as defined, is what connects one process (the cause) with another process (the effect), where the first is responsible for the second, and the second is dependent on the first, thereby establishing a direct nexus between the two. Philosophy, on the other hand, makes a distinction between a cause that produces something new and one that produces a change to the existing. […]

M Rishi Kumar Dugar “…We should avoid relying on high-profile lawyers (with political inclinations) because with their argumentative skills, they are able to rationalize all forms of tyranny.” India’s pre-eminent Senior Advocate and internationally admired and respected lawyer Mr. Fali  Nariman shared this view in his autobiography, Before Memory Fades. The excerpt is taken from the chapter very aptly titled for the current times, Judicial Governance and Judicial Activism. While capturing the evolution of Article 226 (Power of High Courts to issue certain writs) and how three prominent practising lawyers, forming part of the Constitution Committee with their specific mandate to clip […]