Two years ago, I had penned a piece on the reluctance of the Supreme Court of India to judge its own ilk. From the petition against former Chief Justice of India KG Balakrishnan, to allegations of sexual harassment by Supreme Court judges, all cases were either given a decent burial, or have been pending before the Supreme Court for a very long time. The main prayer in the PIL against Justice Balakrishnan to remove him from the post of NHRC Chairperson was rendered infructuous two years ago when he retired. Likewise, the petition to transfer the trial of Justice Swatanter […]

All is not well with India’s Armed Forces Tribunals (AFT). Highly placed sources reveal that the Principal Bench at Delhi, as well as several Regional Benches across the country, are operating at a mere 25-30 per cent capacity owing to a shortage of members. This problem, coupled with legal challenges to the functioning of the Tribunal, among other things, are proving to be spokes in the wheel of the Armed Forces Tribunal Act 2007, which aimed at ensuring speedy dispensation of justice to members of the country’s Armed Forces. Tuesday saw the Bar of the AFT Chennai Region paying rich […]

Payal Chawla In India, while the contracts of indemnity are perhaps the most negotiated clauses in a contract, they are paradoxically the least litigated. The paucity of legal precedence on this subject may be one of the reasons, despite some early pronouncements on the subject. However, the recent arbitral award, passed in favour of Hindustan Petroleum Corporation Limited (HPCL), an Indian PSU, against M3nergy Berhad (M3nergy) by a three-member arbitral tribunal, which discussed several interesting aspects of contract law and damages including indemnities, may provide a fillip to this rather dormant area of Indian jurisprudence. On January 9, 2014, the […]

By Amit H Wadhwani At last, financial institutions and secured creditors of real estate projects in Maharashtra can breathe a sigh of relief. The Maharashtra Real Estate Regulatory Authority (Regulatory Authority) has provided much needed clarity on the implication of Section 15 of the Real Estate (Regulation and Development) Act, 2016 (Act). Section 15 (1) of the said Act states as follows: The promoter shall not transfer or assign his majority rights and liabilities in respect of a real estate project to a third party without obtaining prior written consent from two-third allottees, except the promoter, and without the prior written […]

Anupam Lal Das The regulatory regime in education offered through the distance mode has been marred with controversy since its inception. The regulator viz. Distance Education Council (DEC) was created under the Indira Gandhi National Open University Act, 1985 (IGNOU) in the year 1992. What was perplexing was the fact that IGNOU was the largest player in distance education, and the regulator was created under the IGNOU Act. Nonetheless, despite the said apparent conflict of interest, DEC continued to regulate distance education till the year 2012. The Supreme Court of India in the case of Orissa Lift Irrigation Corporation Limited […]

Somasekhar Sundaresan A Bench of the Supreme Court is reported to have criticized the Government of West Bengal and its advocate for filing a writ petition challenging the mandatory introduction of Aadhaar. According to news reports, a judge is reported to have asked the lawyer how a state can challenge law made by Parliament. Taking the cue, it is learnt that West Bengal Chief Minister Mamata Banerjee’s lawyer agreed to get the individual who is the Chief Minister to be the petitioner instead of the state government. According to this report in Bar and Bench, the judges are reported to […]

On October 27, a Bench of Justices AK Goel and UU Lalit had issued notice to the Central government in a matter pertaining to the delay in finalizing the Memorandum of Procedure (MoP). However, today, a 3-judge Bench headed by Chief Justice Dipak Misra was constituted to hear the case, and it subsequently disposed of the case. The Centre and the Collegium have long been at loggerheads over the finalisation of the MoP, ever since the Constitution Bench in the NJAC matter floated the idea of framing a new one. On, October 16, 2015, a Constitution Bench of the Supreme Court struck down the […]

On November 8, 2016, Prime Minister Narendra Modi announced the Centre’s decision to do away with Rs. 500 and Rs. 1000 notes, ostensibly to curb the proliferation of black money. Exactly one year later, the jury is still out on whether the demonetisation move actually proved successful in any way, shape or form. Pursuant to Modi’s announcement, citizens across the country found themselves inconvenienced by the move in various ways, whether it was having to wait in . . . Facebook Comment To read the entire article, get a premium account With a premium account you get: One year of […]

In 1959, Anna Chandy created history by becoming the first woman to be appointed as a high court judge in India. It was touted as a watershed moment that could potentially pave the way for women in India to occupy positions in the higher judiciary. But the reality has been quite different. It would take thirty more years for another woman from Kerala, Justice Fathima Beevi, to become the first woman judge to hold a post as a Supreme Court judge. Since 1989, only five other women have been appointed as judges of the apex court. And as this article […]

Somasekhar Sundaresan The Law Commission has published a report titled Assessment of Statutory Frameworks of Tribunals in India. While the report is a response to five specific issues referred to the Commission by the Supreme Court last year, it promises to be a catalyst to a new debate on the legitimacy of the tribunal framework that has come to dominate justice delivery in India. First, while repeated constitutional challenges to the creation of tribunals have met with mixed results, with the institution of tribunals largely being upheld (with tweaks to composition and manner of appointment), one fundamental issue has eluded […]

Aankhi Ghosh The Triple Talaq case decided by the Supreme Court has won it a lot of appreciation in the last couple of months. A catena of similar judgments has been delivered by constitutional Courts in India in the recent and not-so-recent past in the matters of regulating noise pollution levels – be it the azaan or during Diwali, regulating the formation of pyramids (dahi-handi) during Janmashtami or even the ban on animal sacrifice for religious festivals. Although each of these individual cases seemingly stems from a completely different subject area, the common strain that ties all of them in […]

By Swaroop George The Law of Limitation has sounded the death knell for many a claim by creditors at the very threshold, regardless of how strong the claim may have been on merits. While traditional legal systems for recovery of debts are bound by the provisions of the Limitation Act, 1963, the newly introduced Insolvency and Bankruptcy Code, 2016 (the Code) has, till date, not attracted the full rigour of the Limitation Act, 1963. The issue of applicability of the Limitation Act, 1963 to the working of the Code was considered by the National Company Appellate Tribunal (NCLAT) in the […]

A couple of weeks ago, the resignation of Justice Jayant Patel of the Karnataka High Court caused quite the furore among the legal fraternity in Karnataka, with members junior and senior unequivocally condemning the treatment meted out to the much-respected judge. However, another judge of the High Court – outgoing Chief Justice SK Mukherjee – has not quite received the same unanimous support of lawyers in the state. This fact was made most clear last week, when the Karnataka State Bar Council and the Advocates Association, Bangalore refused to organize the customary farewell ceremony for the former Calcutta High Court […]

By Harini Subramani The Reserve Bank of India’s notification on peer to peer (P2P) lending issued on October 4 this year (“Regulations”) seems to have only added an element of ambiguity in the minds of stakeholders. Eighteen months since the RBI issued the consultation paper and it is not certain how and whether stakeholder comments have been internalised in the paper. In fact, a few concerns were discussed in a recent call organised by the Digital Lenders Association of India (DLAI) involving stakeholders. Primary among these include the scope of these Regulations, who exactly it aims to cover and the commercial […]

Payal Chawla It is common knowledge that an arbitral tribunal is not bound by the Indian Evidence Act, 1872 and the Code of Civil Procedure, 1908. This is enshrined in s.19(1) of the Arbitration and Conciliation Act, 1996 (ACA). S.19(1) has sometimes been misunderstood as to its scope and whether the Code and the Evidence Act apply to arbitrations or not. ‘These are words of amplitude and not of restriction, as Chanderchud, J. eloquently explicated in the matter of Maharashtra State Electricity Board vs. Datar Switchgear Ltd. [(2002) SCC Online Bom 983] (“MSEB Matter”). According to the single judge of […]

Purushottam Sharma Tripathi On September 13 2017, my former senior Shri PP Rao, Senior Advocate, Supreme Court of India, departed from this mortal world after completing 50 years of a remarkable and distinguished law practice. An expert in Constitutional law, service law and election law, his outstanding contribution to the legal field was accepted and recognised by the Bench, the Bar, jurists, academicians and litigants, in acknowledgement of which he was bestowed the Padma Bhushan by the nation. My association with Mr. Rao began in 2006 when I completed the LL.M course at the National Law School of India, Bangalore and […]

Twenty-four years ago this very day (October 6, 1993), a 9-judge Bench of the Supreme Court of India pronounced a landmark judgment, which would spark a debate in the years to come. Interpreting Article 124 of the Constitution of India, the Court, in the Second Judges case, went on to hold that, “….if conflicting opinions emerge at the end of the process, then only the question of giving primacy to the opinion of any of the consultees arises. For reason indicated earlier, primacy to the executive is negatived by the historical change and the nature of functions required to be […]

Rupali Samuel The Delhi High Court’s decision to overturn the trial court’s conviction of Mahmood Farooqui under Section 376 raises several far-reaching questions, not only about the meaning of consent and the standard for proving lack of consent in a rape prosecution, but also about the purpose of Criminal Law and the limits of the criminal trial process. The Verdict In the judgement dated September 25, a Single Judge of the High Court set aside the conviction on the basis that, “it remains in doubt as to whether such an incident, as has been narrated by the prosecutrix, took place […]

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 […]