Dushyant Dave The sad demise of Judge Loya is the biggest mystery yet to be unravelled even after three years. It is also the biggest tragedy for the Judiciary for more than one reason. On the one hand, a serving Judge handling a sensitive case has died in circumstances which raise serious doubts as to the cause of his death. On the other hand, the apathy shown by the Judiciary collectively towards it speaks clearly that no one in the system to which he belonged really cares. The Higher Judiciary is the guardian of the subordinate Judiciary. Sometimes I wonder, […]

Satvik Varma Democracy may well be in danger, as exclaimed by four senior (based solely on their appointment date) Judges of the Supreme Court of India. Amongst the many questions being asked after the unprecedented press conference are – is the threat to our democracy from within the judiciary? Or are our judicial institutions being threatened from outside by those looking to exert control through extra-judicial means?  Is the independence of our judiciary mutually exclusive to greater transparency in judicial functioning? And, should the executive be entitled to partake in judicial administration given that as elected representatives, they represent the […]

Payal Chawla  Of late, there has been the emergence of a disturbing trend whereby Indian contracting parties are choosing foreign jurisdictions to arbitrate their disputes. Resultantly, India is losing its larger domestic arbitrations, quite antithetical to the reasons for which the amendments to The Arbitration and Conciliation Act, 1996 (‘the Act’) were brought about. The Act had been amended with a view to make India into the next arbitral destination and to enhance international arbitration. Unfortunately, and quite unintendedly, the interplay of certain amendments and judgements have caused large domestic arbitrations to leave the country. There is, therefore, the urgent […]

If you thought last week’s tumultuous events would have had an impact on the Supreme Court’s productivity, think again. In this edition of Judgment Reserved, we find that the crisis the apex court’s functionaries have been facing appears to have had little disruptive effect on its hearing and disposal of matters. What does the data from January 4 to 12 tell us? The Bench of Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud in Court No.1 alone heard and reserved judgments in nine cases, whereas four other benches separately heard and reserved judgments in eight cases. This, despite the fact that the CJI […]

On January 11, Justice J Chelameswar decided to recuse from hearing a case, after passing the order. It was a civil contempt petition filed by Sant Lal Gupta and Others against the alleged contemner, Umesh Kumar Jain & Others. Justice Chelameswar, sitting with Justice Sanjay Kishan Kaul, had just passed an order directing the alleged contemnors to hand over possession of the property in dispute within a week to purge themselves of the contempt, and to remain present on the next date of hearing. Shortly after the order was passed, and after the counsel for the petitioner and the alleged […]

Harpreet Singh Giani On Friday, Justices Chelameswar, Gogoi, Lokur and Joseph came out and addressed us directly. Breaking a self-imposed convention, they spoke in one voice about their concern at the unholy shenanigans going on in the Supreme Court. It falls now to us, to consider not only their words, but also their motive in appealing to us directly. They have told us that they have failed to clean out the Aegean Stables and so now they have placed their faith in us directly. And we are failing them. Justice Chelameswar has had to restrain himself on many occasions. For […]

Harpreet Singh Giani Caesar’s wife, it was said must be above suspicion. History tells us that after Publius Clodius Pulcher was prosecuted for gaining admittance to Pompeia’s house with the intention to seduce her, Caesar divorced Pompeia, saying that “my wife ought not even to be under suspicion”. Received wisdom tells us that Caesar found it irrelevant that Pulcher was acquitted of the charge. He believed that it was impermissible for Caesar to remain married to anyone remotely connected with a scandal. Contemporary wisdom has taken the idiom and turned it on its head. Contemporary wisdom decrees that just because […]

By Kanwardeep Singh On 10 January 2018, nine (9) years after the Satyam scandal hit Indian Inc., Securities & Exchange Board of India (SEBI) has passed the Order pursuant to which a slew of directions have been issued against the global accountancy firm PW and its network entities in India. The directions, among others, include prohibiting PW and its network entities in India from issuing audit certificates to any listed company in India for a period of two years (prohibition not to be applicable to audit assignments that relate to the financial year 2017-2018). A substantial portion of the 108 […]

No matter which side you are on, January 12, 2018 will go down as a significant date in the history of the Indian Judiciary, and more specifically, the Supreme Court. The decision of four of the senior most judges to come out publicly in their criticism of the functioning of the apex court only confirms the trouble that has been slowly brewing within the body responsible for making judicial appointments. What makes these public revelations all the more surprising is the fact that historically, the working of the highest echelons of the judiciary has been shrouded in mystery. The Judges […]

By Varun Marwah & Zacarias Kanjirath Joseph Introduction In yet another landmark judgment for the bankruptcy regime in India, the Bombay High Court has ruled that an Application under the Insolvency and Bankruptcy Code, 2016 (IBC) may be made even in cases where a Winding-Up petition has been admitted by a Company Court. Such an Application under the IBC, would not be permitted, only in the event that a final order of Winding-Up is passed under Section 481 of the Companies Act, 1956. The Corporate Debtor in this case, PSL Limited (PSL), filed an application with the Bombay High Court, […]

In this second part and final part of the yearly Recusal Watch, we take a look at some more data regarding recusal of Supreme Court judges in 2017. When six judges recused from hearing the same case The hearing of the civil writ petition No.793 of 2015, Suraksha Foundation v Union of India, a PIL, has turned out to be bizarre. Filed by Sanjay Jain, advocate, on behalf of the NGO, the petitioner had made the following prayer: “Issue a writ of mandamus or certiorari, any other appropriate writ, order or directions thereby striking down the exemption granted to transport […]

Meera Emmanuel and Chandan Goswami Another eventful year at the Supreme Court of India has come to a close. Like the previous year, 2017 had its fair share of highs and lows, as the apex court grappled with the Executive over judicial appointments, and faced allegations of impropriety against two Chief Justices. With the retirement of former Chief Justice of India, TS Thakur and the appointment of Justice JS Khehar as the new CJI, the equation between the Central government and the Supreme . . . Facebook Comment To read the entire article, get a premium account With a premium […]

Unexpected verdicts, commuting of death sentences, and even celibate peacocks; High Courts across the country spent a considerable amount of judicial time hearing and ruling on issues that ranged from grave, to downright bizarre this year. Here is a wrap of some of the highlights that dotted and blotted the legal landscape in 2017. Justice is Mute The Allahabad High . . . 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 […]

By Aankhi Ghosh “I often wonder whether we do not rest our hopes too much upon Constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no Constitution, no law, no court can save it” – Judge Learned Hand.         The battle for power between the various organs of the State in general, and the Executive and the Judiciary in particular, is as old as the Constitution itself. While there are several prominent cases that immediately come to mind for having hastened […]

As Bar & Bench continues its Recusal Watch series, a point commonly raised is that to say that a judge has recused from a case means nothing, unless we also report the reasons for the recusal. While we agree with the broad tenor of this criticism, it also underlines the importance of making intelligent guesses about the reasons for the recusals, given that the judges, in general, tend to be reticent about them. Independence and impartiality, it is said, are the two pillars without which justice cannot stand, and the purpose of judicial recusal is to underpin them. But despite […]

Nakul Dewan On December 16, 2017, speaking at an arbitration conference in Delhi, Mr. Fali Nariman literally tore into bits India’s proposed BITs (Bilateral Investment Treaties).  Expressing a strong disagreement with the suggestion set out at page 111 of the Report of the High-Level Committee to Review the Institutionalisation of Arbitration Mechanism in India, Mr. Nariman said, “I do not agree because so-called ‘dispute prevention strategies’ are impossible to guarantee and equally impossible to achieve and accomplish.”  Mr. Nariman then went on to say that, “[t]here needs to be a re-thinking about Bilateral Investment Treaties for India. I would definitely say, avoid them. So far, they have been a disaster.” It is interesting to follow Mr Nariman’s reasoning […]

In a judgment that has captured the attention of everyone in the country, a Special CBI court today acquitted former Union Telecom Minister A Raja and sixteen others of cheating and criminal conspiracy charges in the alleged 2G scam that was said to have cost the state exchequer 1.76 trillion rupees. In his 1500+ page verdict, CBI judge OP Saini has held that given the lack of evidence mounted by the prosecution, he had no choice but to give a clean chit to the accused. In fact, in para 1811 of the judgment, the judge states that he had been […]

In the democratic process, Parliamentary Questions are important tools to hold ruling dispensations accountable for their policies. They also serve to bridge the gap between the common man and the government he might have helped elect, and are used to gauge the performance of a Member of Parliament. Quite often, Question Hour is the most interesting part of a Lok Sabha or Rajya Sabha session. But apart from providing entertainment, the first hour of a session also reveals important information on how the government aims to tackle the problems faced by the people. As the Winter Session of 2017 kicks […]

Payal Chawla and Aastha Bhardwaj As arbitrations enhance in India, so will arbitration claims and their quantum. There will be a consequent rise in arbitration costs, be it legal fees, arbitrators’ fees, security on costs, and/or costs payable by the unsuccessful party. Arbitral costs can be exorbitant, and sometimes even prohibitive – even for a party with a legitimate and meritorious claim. As India matures as an arbitral market, access to funds will not only be desired, but also required. Jurisdictions around the world have been bringing about necessary changes to their legal regimes in order to legalise and provide […]

Sixteen Supreme Court judges deliver 42 judgments as six of the 19 reserved judgments get delivered within the same week The past week has been a frantic one for the Supreme Court, as it closed for the winter vacation starting December 18. While the general tendency in all the courts during this period is to adjourn hearings to a date after the vacation, the pressure to conclude arguments and deliver the judgments well in time is also very high. At least two cases decided last week bordered on delay, if the time of two or three months after a bench […]

The case of Dheeraj Mor v Hon’ble High Court of Delhi, which came up for hearing on December 15 before a bench of Justices AK Goel and UU Lalit, from which Justice UU Lalit recused, has an interesting background. Listed before different benches since 2015, this civil SLP deals with the question of eligibility of serving judicial officers to apply for direct recruitment as District Judges. The case is an appeal against a Delhi High Court judgment that had disqualified members of the judicial service from being appointed under the direct recruitment procedure, and held that only advocates were eligible […]

In this 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 third story at the intersection of law and society by Raksha Kumar here: Why Will the Proposed Anti-Trafficking Bill be Ineffective Conflation of sex work and trafficking will not only curb women’s freedoms but make it tough to police trafficking Chanda Wazne, sex worker, Sangli. Photo: Raksha Kumar Chanda Wazne is […]

By Amit H Wadhwani The Maharashtra Real Estate Regulatory Authority (Regulatory Authority) has by its Circular No. 12/2017 dated 4 December 2017 read with Circular No. 13/2017 dated 4 December 2017 (collectively the Circular) replaced its earlier Order dated 11 May 2017 (the Co-promoter Order) wherein the Regulatory Authority had coined the definition of ‘Co-promoter’ of a real estate project that is registered with the Regulatory Authority. By virtue of the Circular, the Regulatory Authority has withdrawn the concept or definition of Co-promoter as defined in the Co-promoter Order and termed such Co-promoter as a ‘Promoter’ itself subject to the qualifications […]

In this week’s edition of Judgment Reserved, we find that the Supreme Court pronounced its judgment in a case seven months after reserving it. The Bench of Justices J Chelameswar and S Abdul Nazeer delivered the judgment in Atma Ram Properties Private Ltd v The Oriental Insurance Company Ltd, on December 6, seven months after reserving it. Arguments in the case were concluded on April 25. The judgment, authored by Justice Nazeer, decided an important question of law as to whether property tax recoverable from the tenant under Section 67(3) of the New Delhi Municipal Council Act, 1994, as arrears of […]

With the new Supreme Court website slowly becoming fully functional, we are re-launching the Recusal Watch series, which was discontinued when the Supreme Court migrated to the new website. Here is a look at the recusals from December 4 to December 8. From December 4 to 8, seven Supreme Court judges recused from hearing ten cases. First, the Judge who recused from hearing most number of cases. Justice AM Khanwilkar was in the news recently for refusing to recuse, as prayed for by the petitioner, in Kamini Jaiswal v Union of India. That was a plea for an independent and impartial […]

Sairam Sanath Kumar The question whether Application Programming Interfaces (APIs) should enjoy protection under copyright laws has been controversy’s child for decades. The long-drawn litigation between Google and Oracle, now pending with the United States Court of Appeals for the Federal Circuit, has managed to polarize technology and intellectual property lawyers globally. The case boils down to one legal question built on a technical premise: did Google infringe Oracle’s copyright by verbatim replicating 37 packages in the Java API (Oracle owns the programming language Java) in Google’s development of the Android software platform for mobile devices? Both Google and Oracle […]

The Vidhi Centre for Legal Policy has published a data-driven assessment report on the lower judiciary’s recruitment process, including rankings of state-wise performance in this regard. The report was compiled in the backdrop of deliberations undertaken by the Supreme Court as to the feasibility of a Central Selection Mechanism for appointment of judges to the subordinate judiciary earlier this year. The state-wise rankings in the report was made based on two metrics i.e. average time taken to complete a recruitment cycle and percentage of vacancies potentially filled. The report was made based on information available on the websites of each […]

Pallav Shishodia In Shayara Bano, now reported in 2017 (9) SCC 1, a Constitution Bench of the Supreme Court pronounced that “the practice of Talaq-e-biddat Triple Talaq is set aside” by  a majority of 3:2. This split verdict is interesting in many ways, and even more interesting is the split ratio within the majority. As analyzed hereafter, the debate among the judges in the Constitution Bench raise several interesting questions. Justice Kurian Joseph addressed the question “whether what is Quranically wrong can be legally right” after Shariat has been declared as the personal law for Muslims. According to him, “What […]

By Sakal Bhushan For invoking insolvency proceedings against a corporate debtor, an operational creditor is required to issue a notice of demand under Section 8(1) of the Insolvency and Bankruptcy Code, 2016 (IBC). Then under Section 8(2)(a) of IBC, the corporate debtor shall within 10 days of the receipt of that notice bring to the notice of the operational creditor “existence of dispute, if any, and record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute”. This portion of the statute was interpreted by the NCLAT in […]

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 other corners of the country? Do people understand laws framed for them? What is their impact on the targeted people? Read the second story at the intersection of law and society by Raksha Kumar here: How Governments are Thwarting The Forest Rights Act If FRA was a game changer, what went wrong? The FRA was passed in December 2006 to recognise the rights of traditional forest dwellers, who had been […]