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 […]

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 […]

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 […]

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 […]

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 […]

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 […]

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 […]

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 […]

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 […]

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 […]

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 […]