Aankhi Ghosh “It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished. But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, ‘whether I do good or whether I do evil is immaterial, for innocence itself is no protection,’ and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”  These words of immense wisdom by […]

What had been initially dismissed as teething issues for institutes touted as the best law schools in the country have come back to bite hard. The events of the past few weeks have thrown up some serious questions about the NLU model, a project heralded as a gamechanger in the field of legal education in India. Recently, students at Ram Manohar Lohiya National Law University (RMLNLU), Lucknow protested the state of affairs at the law school for over a week. And now, students of National University of Study and Research in Law (NUSRL), Ranchi have resumed their protest, five months […]

In the recent nine-judge decision of the Supreme Court on the right to privacy, one argument raised was that if the right to privacy was held to be a fundamental right, it could not be waived. Such a finding would have unfortunate consequences, it was urged. The leading judgment by Justice Chandrachud also refers to this proposition and a reference is made to the decision in Behram Khurshed Pesikaka v. The State of Bombay. That a fundamental right cannot be waived is an erroneous proposition of law that has survived for over 60 years; it is necessary that this principle […]

Pragya Chaturvedi It was not long ago that the entry and operation of foreign law firms and lawyers in India seemed improbable. However, the Bar Council of India (BCI), under direction from the Ministry of Law & Justice, drafted and notified the Registration and Regulation of Foreign Lawyers in India Rules, 2016. These rules allow the entry of foreign law firms and lawyers in India and allow them to practice non-Indian law. While the journey up until now has been rocky and full of U-turns on the part of the BCI, the much awaited liberalisation of the Indian legal market is now more […]

The Department of Industrial Policy and Promotion (DIPP), Ministry of Commerce and Industry, Government of India (GOI) recently released the consolidated foreign direct investment (FDI) policy circular of 2017 (New FDI Policy). The New FDI Policy is effective immediately from the date of its publication, i.e., 28 August 2017. The New FDI Policy supersedes the consolidated FDI policy of 2016 issued by the DIPP on 7 June 2016 (Erstwhile FDI Policy) and consolidates all the press notes issued by the DIPP post 7 June 2016 until 27 August 2017. Key changes Key changes brought about in the FDI regime through the New […]

With a view to chronicling the evolution of legal education in India, over the years, Bar & Bench has been interviewing members of the academia, including Professors and Vice-Chancellors of the best law schools in India and abroad. This Teachers Day, we bring you eight such interviews with some of the best academicians out there. 1. Prof Armin Rosencranz Interview published on: February 25, 2017 Post when interviewed: Professor of Law, Jindal Global Law School Quote from the interview: “…there are too many law students in India today. No one realises it but it is true. Eventually, there is going to […]

By Pooja Mahajan The corporate insolvency resolution provisions of the Insolvency and Bankruptcy Code, 2016 (IBC) came into force on December 1, 2016. Nine months later, the Supreme Court has passed a detailed judgment in the matter of M/s Innoventive Industries Ltd. vs. ICICI Bank noting the paradigm shift in law brought about by the IBC and putting to rest certain interpretational issues that had arisen thereunder. The ruling has its genesis in an application filed by ICICI Bank Limited (ICICI) before the National Company Law Tribunal, Mumbai (NCLT) to initiate corporate insolvency resolution process (CIRP) of Innoventive Industries Limited […]

Satvik Varma Among the downpour of rights that the recent Constitution Bench decision of the Supreme Court of India has reaffirmed for the citizens, what stands out, like a rainbow, are the clear observations regarding the rights of same-sex partners. Despite being a nine-judge bench, in keeping with judicial propriety, the Supreme Court stated that since the challenge to Section 377 of the Indian Penal Code is pending consideration before another bench, its constitutional validity will be decided in those proceedings. But the writing on the wall is clear! Of the six different, yet unanimous decisions, three discuss the issue […]

Kanu Agrawal Privacy, despite not being present in the core text of the Constitution due to the exclusion by the Constituent Assembly, has been held to be a fundamental right. The nine-judge bench interprets ‘life and liberty’ in Article 21, ‘dignity’ mentioned in the Preamble and the freedoms under Article 19, to include privacy as the core of human personality and dignified existence. Much has been written about the highly persuasive judgement from the angle of expansion of rights jurisprudence. Fundamental rights are not unqualified. A common feature across various fundamental rights is the permissibility of the State intervention within […]

By Haris Beeran Consequent to the Supreme Court’s decision on the legality of Instant Triple Talaq, hasty reporting and political expediency seems to have altered the essence of what has been laid down. Since the judgment was not unanimous, the same has to be viewed with surgical precision. Let us cull out what the five Judges that constituted the Bench held in the judgment: CJI JS Khehar and Justice Abdul Nazeer – held Instant Triple Talaq to be Constitutional Justice Rohinton Nariman and Justice UU Lalit – held Instant Triple Talaq to be Unconstitutional Justice Kurian Joseph – held Instant […]

By Shanmugham D Jayan Article 12 of Indian Constitution has undergone a series of interpretations with myriad logic and reasons being used for giving meaning to the content of the Article. Presently, majority of the books on Constitutional law cite the decision in Ajay Hasia v. Khalid Mujib Sehravardi (AIR 1981 SC 487) as the decisive one with respect to interpretation of Article 12. However, if one takes the pain to traverse the case laws that have been relied for the conclusion arrived at in the said case, certain unexpected but interesting facts can be discerned. As mentioned earlier, right […]

It has been a historic week for the Supreme Court of India, with netizens raving (and thanking the government for some reason) first over its Triple Talaq judgment, and now over today’s judgment in KS Puttaswamy v. Union of India declaring the right to privacy as a fundamental right. The nine-judge Constitution Bench also talked about a variety of aspects associated with the right to privacy, including how the declaration of the same . . . Facebook Comment To read the entire article, get a premium account With a premium account you get: One year of unrestrcited access to previous […]

A scathing, vituperous, scurrilous and personal attack has been made against Hon’ble CJI Justice JS Khehar in an article titled “Why JS Khehar was arguably one of the worst Chief Justices of India” authored by Dr. Rajeev Dhavan, Senior Advocate. A judge is a sitting duck and not in a position to respond. In such circumstances, it becomes duty of the Bar to set out objective facts for the appreciation of the discerning and mature readers. I am responding to the article by Dr. Dhavan in my personal capacity. About the Author The author of the article, Dr. Rajeev Dhavan, […]

The case on Central Selection Mechanism for subordinate judiciary has generated a lot of debate in the legal circles. The hurried manner in which the Bench wanted to conclude the hearing had led to some strong submissions by Senior Advocates appearing in the matter. The hearing in the case today, however, saw Chief Justice Khehar making some remarks on candidates who opt for lower judiciary.

Even as Triple Talaq was ruled as unconstitutional by a 3:2 majority of a five-judge Constitution Bench today, another pertinent ruling emerged from the judgment penned by Justice Rohinton Fali Nariman. The judgment, which Justice UU Lalit concurred with, stated that the 1937 Shariat Act is a law made by the legislature before the Constitution came into force, and would fall squarely within the expression “laws in force” under Article 13(3)(b). Therefore, it would be hit by Article 13(1) if found to be inconsistent with the provisions of Part III of the Constitution. Three judges would ultimately strike down Triple Talaq. […]

Payal Chawla and Hina Shaheen On July 24, 2017, the Supreme Court, in the matter of Ameet Lal Chand v. Rishabh Enterprises [SLP (C) 16798/2017], was pleased to issue notice. The judgment in this matter is likely to have far reaching consequences. In addition to arbitrability of fraud, the apex court is likely to decide whether the law laid down in Sukanya Holdings (P) Ltd v. Jayesh H. Pandya [(2003) 5 SCC 531] is still good law and whether the principle laid down by Chloro Controls India Private Ltd. vs. Severn Trent Water Purification Inc. [(2013) 1 SCC 641]  of referring non-signatories to […]

While state governments more often than not exhibit a callous lack of understanding of the law, the same is not expected of courts. And a recent dereliction of duty on the part of both, as well as hospital authorities, may result in dire consequences for an HIV positive rape victim who can no longer abort her foetus. A Supreme Court Bench of Justices Dipak Misra, Amitava Roy and AM Khanwilkar

Judges of the Supreme Court and High Courts taking up post-retirement jobs has increasingly become a norm rather than an exception. With the establishment of more and more tribunals and quasi-judicial bodies that are required to be manned by retired judges, we find nearly all former Supreme Court judges holding one post or the other. However, what is interesting is that judges who have not taken up any post-retirement jobs have also been employed in one way or the other. And this is being done through judicial orders of the Supreme Court. For instance, Justice RM Lodha is currently monitoring […]

The Supreme Court of India started functioning on January 28, 1950 from the Chamber of Princes in the Parliament House, the seat of the erstwhile Federal Court. Inaugurated just two days after India’s Constitution was adopted and the nation became a sovereign, democratic republic, the Supreme Court shifted to its present building at Tilak Marg in 1958. Besides being the highest Constitutional court which can be moved directly under Article 32 against the violation of fundamental rights, the Supreme Court is also the highest appellate court of the country. As it stands today, it is not just deciding and interpreting the […]

Thulasi K Raj Nine judges of the Supreme Court of India are deliberating on the status of the constitutional right to privacy and its link with the Aadhaar scheme. The arguments made and the questions raised will have significant ramifications on our democracy. The Supreme Court proceedings have posed certain academic suspicions, even among legal scholars. For instance, Prashant Reddy seriously argues that the Supreme Court has “divorced” the privacy issue from “the Aadhaar challenge”. Another argument is that the Court is embarking on a theoretical debate without assessing the Aadhaar scheme with its nitty-gritties. I think both the apprehensions […]

Rishika Taneja and Sidhant Kumar Privacy (with data protection as its subset) in today’s context is not an abstract human rights concern alone. Over time, it has acquired elevated importance owing to the increasing use of data in our social and economic interactions. Therefore, it is imperative that we have a clear legal basis for the fundamental Right to Privacy. The Supreme Court, recently sitting as a nine-judge Constitution Bench, (Justice KS Puttaswamy (Retd.) & Anr. v. Union of India & Ors ) has been hearing arguments on the question whether privacy is a fundamental right protected by the Constitution. In […]

Recent reports suggest Reliance Jio’s user data was breached, jeopardising the personal details of its 120 million subscribers, including their Aadhaar details. While Reliance has claimed that the information is (prima facie) unauthentic and investigations are still underway, this incident has once again underlined the debate over the Right To Privacy. While the issue is . . . Facebook Comment To read the entire article, get a premium account With a premium account you get: One year of unrestrcited access to previous interviews, columns and articles One year access to all archival material Access to all Bar & Bench reports Register Already […]

Payal Chawla The purpose of arbitrating a dispute is to avoid a protracted court battle. But that purpose can oft be defeated, if the parties get caught in a dispute on the interpretation of the arbitration clause itself. Therefore, it is important to keep the arbitration clause simple, only incorporating essential aspects. An example of a basic arbitration clause is: “Dispute Resolution: Any claim, dispute or difference relating to or arising out of this Agreement shall be referred to the arbitration, of a sole arbitrator.  The arbitration shall be subject to the Arbitration and Conciliation Act, 1996 as may be […]

Two persons with a legal background have emerged as frontrunners for this year’s presidential election. By July 20, we will know who out of Supreme Court Advocate-on-Record Ramnath Kovind and law graduate Meira Kumar will become the fourteenth President of India. We will also know which of the above will likely face a round of litigation before the Supreme Court of India. If there has been something almost as certain as death and taxes over the last few decades, it is a challenge to the election of the President of India. The election of all but two Presidents – Sarvepalli […]

Sumit Agrawal After the merger of commodity derivatives regulator Forward Market Commission’s (FMC) with Securities and Exchange Board of India (SEBI) through Finance Act, 2015, the supervision and regulation of commodity derivatives market and its brokers has been vested with SEBI. Hitherto, qualifications for membership of a recognized stock exchange as prescribed under Rule 8 of Securities Contracts (Regulation) Rules, 1957 and Regulation 18C of SEBI (Stock Brokers and Sub-Brokers) Regulations, 1992 carried a barrier between broking activity in securities market and in commodity derivative market. According to these provisions, a stock broker or clearing member carrying on the broking […]

Dr. Amit George It needs no gainsaying that the enactment of the Arbitration and Conciliation (Amendment) Act, 2015 (Act) has brought about a sea-change in the independence and impartiality requirements for arbitrators in India. The appointment of an arbitrator is now subject to scrutiny under the detailed parameters that exist under the Fifth and Seventh schedules of the Act. What the Act had seemingly left untouched, however, was the power of a party under an arbitration agreement to nominate the arbitrator in question, if the agreement otherwise bestowed such a power upon the party concerned. The only caveat was that […]

Anuroop Omkar and Kritika Krishnamurthy It is our personal opinion that to truly understand mediation, we need to first re-learn the anatomy of disputes. A dispute is like an abstract painting where each party sees different aspects, angles and facets and each party thinks what they see is absolute, unlike connoisseurs of art. While the most logical conclusion to a dispute ought to be a viable solution, with the passage of time, it has branched out into other conclusions such as proving one is right and setting a precedent. Accordingly, the means by which we resolve disputes have also become […]

The Supreme Court is currently functioning with twenty-seven judges as against a sanctioned strength of thirty-one. Just fourteen of the sitting Supreme Court judges have disclosed their assets on the website of Supreme Court of India. The assets of the remaining thirteen judges are yet to be published. Interestingly, the thirteen include all the three judges who have been elevated directly from the Bar. The thirteen judges, whose assets are yet to be published, are: RF Nariman AM Sapre UU Lalit Amitava Roy AM Khanwilkar DY Chandrachud Ashok Bhushan L Nageswara Rao Sanjay Kishan Kaul Mohan M Shantanagoudar S Abdul Nazeer Navin Sinha […]

Sumit Agrawal The introduction of Goods and Services Tax (GST) is one of the biggest tax reforms in India. A “Dual GST” model has been adopted under the Constitution of India, whereby Centre and States will simultaneously levy GST on every supply of goods or services or both which takes place within a State or a Union Territory. Therefore, given the federal structure of Indian democracy under the Constitution, there are three enactments pertaining to GST: Central tax (CGST) (levied & collected under the authority of Central Goods and Services Tax Act, 2017) State tax (SGST) (levied & collected under […]

M Rishi Kumar It’s a coincidence that in the same year Wonder Woman broke the glass ceiling when it stomped on the box-office record of another super-hero movie, Iron Man, history was created at the Madras High Court when the First Bench was an all-woman bench of Chief Justice Indira Banerjee and Justice Bhavani Subbaroyan. In the Madras High Court’s 135 years, it is a first. It took seventy years since independence, in the male-dominated world of higher judiciary, for the four chartered and oldest high courts in Bombay, Delhi, Calcutta and Madras to be headed by women. To trace the first instances of […]