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 […]

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 […]

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 […]

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. […]

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 […]

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 […]

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 […]

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 […]

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 […]

Justice Pinaki Chandra Ghose was elevated to the Supreme Court on March 8, 2013. After a tenure of more than four years, or 1541 days to be precise, Justice Ghose was the latest apex court to retire, attaining superannuation on May 27 this year. Justice Ghose enrolled at the Bar in 1976. Born to Justice SC Ghose, former Chief Justice of the Calcutta High Court, he went on to practise on both the original as well as the appellate side at the High Court. He made the switch to the Bench in 1997, when he was elevated as a judge […]

This article deals with the tax treatment proposed to be accorded to Senior Advocates under the Goods and Services Tax (‘GST’) regime. It also seeks to provide an overview of the manner in which service tax was levied on Senior Advocates under the previous tax regime and its comparison with the impending GST regime, along with the impact on recipient/client companies. Genesis of service tax on legal services In Roscoe Pound’s words, the ideas involved behind a respectable profession are “Organisation, learning, and a spirit of public service, the remaining idea, that of gaining a livelihood, is incidental.” The legal profession […]

Payal Chawla The much awaited decision of the three judge bench in relation to two-tier arbitrations in the matter of M/s Centrotrade Minerals & Metal Inc. v. Hindustan Copper Ltd. was delivered on 15.12.2016. The Supreme Court framed two issues, but answered only one.  On the first issue i.e. validity of two-tier arbitration, the court held the same to be valid and not against public policy of Indian law. On the second issue i.e. whether the award rendered in the appellate arbitration being a ‘foreign award’ is liable to be enforced under the provisions of Section 48…”, the court observed […]

Vismay P Shroff When I received an email stating that the US State Department had in conjunction with the Ohio Northern University (ONU), Centre for Democratic Governance and Rule of Law, decided to train Afghan Lawyers and that one of the means of doing so would be through an immersive technique known as ‘Moot Courts’, and that they were going to conduct the Philip C. Jessup Moot Court Competition’s Afghan National Rounds in Kabul, in January of 2017, I was hooked from the first line of the mail. I’d heard all these terrible things about Kabul, most of them through […]

The global movement to protect the environment began to show signs of life in the 1980s, at a time when the Supreme Court of India was having an awakening of its own. This period coincided with the growth of the concept of Public Interest Litigation, and marked a time when the courts were increasingly taking on issues which affect the people on a larger scale. A slew of matters came to be heard by the apex court, which seemed adamant to grant relief in cases where the . . . Facebook Comment To read the entire article, get a premium […]

President of India Pranab Mukherjee recently gave his assent to the Prohibition of Child Marriage (Karnataka Amendment) Bill, 2016, which puts in place stricter provisions to deter the practice in the state. The Bill, which was amended and passed by the state assembly last year, found its way to the Central Home Ministry, which had in turn sent it to the President for his . . . 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 […]

Nikita Agarwal   Earlier this week, the Chhattisgarh High Court ordered the authorities to produce Podiyam Panda in a habeas corpus petition filed by his wife. The press release sent by the Sukma Police to various WhatsApp groups following the production and testimony of Panda illustrates the impunity with which the Chhattisgarh police not only maligns and intimidates advocates seeking accountability for police excesses, but also resorts to actions amounting to contempt of court. On May 12, Podiyami Muiye, the Sarpanch of Chintagufa in Sukma, along with her family, approached us, the Jagdalpur Legal Aid Group. She sought legal representation […]

The Centre for Public Policy Research (CPPR), Kochi, recently released a report titled Assessment of Commercial Dispute Resolution (CDR) in South India. The report aims to highlight the shortcomings of the CDR environment in the states of Karnataka, Kerala and Tamil Nadu. The data was arrived at after consulting entrepreneurs, industrialists, practitioners, lawyers and academicians from the three states. The study was undertaken with support from the British Deputy High Commission in Chennai. CPPR’s report contains some interesting . . . Facebook Comment To read the entire article, get a premium account With a premium account you get: One year […]

Earlier this year, the Supreme Court delivered its judgement in the disproportionate assets case against former Tamil Nadu Chief Minister J Jayalalithaa and her aides. The case crawled through various courts for more than two decades, causing a significant dent to the public exchequer. So just how much did the Karnataka government spend on counsel fees to fight the case in the Special Court? Before revealing that answer, it is pertinent to note how the authorities have acted on the RTI application filed way back in November of last year. The initial response to the query ‘How much did the […]

During May 1 to 9, the last working week of the Supreme Court before it broke for the summer vacation, 10 judges recused from hearing 16 cases.   The surprise among the pack was the recusal of Justice J Chelameswar from hearing the criminal writ petition, ND Jayaprakash v Union of India, [25/2016], which was listed before himself and Justice Abdul Nazeer on May 4. A contempt petition . . . 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 […]

For the first and perhaps last time in our judicial history, a sitting High Court Judge has been sent to jail for six months for committing contempt of the Supreme Court. This is the maximum sentence contemplated by section 12 of the Contempt of Courts Act, 1971. This is also perhaps the last time that this may happen, because it is almost impossible to foresee any other judge behaving in a consistently irresponsible manner. Which High Court Judge would ever sentence seven Supreme Court Judges to imprisonment or direct them to pay compensation of Rs. 2 crore each? A controversial […]

Justice CS Karnan created history of sorts, when he became the first judge of a Constitutional Court to be sentenced to imprisonment for contempt of court. A 7-judge Bench of the Supreme Court passed the order sentencing him to 6 months in prison. Born on June 12, 1955 in Cuddalore District, Justice Chinnaswamy Swaminathan Karnan studied law at Madras Law College. In 1983, Justice CS Karnan enrolled at the Bar . . . 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 […]

It is now pre-vacation season in the Supreme Court, during which most cases get adjourned only to be heard after the summer vacation. Recusals by judges further aggravate this trend, as litigants and counsel have no clue as to which bench is likely to hear their cases after the vacation. Last week [April 24-28], Bar & Bench found that nine Judges recused from hearing 12 cases, due to various reasons.  Here are the details: Justice Deepak Gupta recused from . . . Facebook Comment To read the entire article, get a premium account With a premium account you get: One […]

Within a day of each other, the Bombay High Court and the Supreme Court passed judgments in cases both dealing with heinous crimes and involving the death penalty. Earlier today, the Supreme Court passed a 429-page judgment confirming the death penalty for the four accused in the Nirbhaya case. And just yesterday, the Bombay High Court pronounced an equally detailed judgment in a horrific incident that . . . 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 […]