SUBMITTED TO : SRG LAW

FIRM

SUBMITTED BY:
ASHWINA NAMTA
BALLB (IPR
Hons),4th year
 1. JUSTICE K.S.PUTTASWAMY (RETIRED). VS UNION OF INDIA
AND ORS., 2017

 Case Name : Justice K.S.Puttaswamy (Retired). vs Union of India And Ors., 2017.
 Citation: Writ Petition (Civil) No. 494 of 2012, (2017) 10 SCC 1
 Court: Supreme Court of India
 Parties Involved:

Appellant: Justice K S Puttaswamy (Retired)

Respondent: Union of India and Others.

 Bench: Sanjay Kishan Kaul, Dhananjaya Y. Chandrachud, R. K. Agrawal, J. S. Khehar, S.

A. Bobde, S. A. Nazeer, R. K. Agrawal, J. Chelameswar, A.M. Sapre JJ.

BRIEF FACTS:
A retired High Court Judge K.S. Puttaswamy filed a petition in 2012 against the Union of India
before a nine-judge bench of the Supreme Court challenging the constitutionality of Aadhaar
because it is violating the right to privacy which had been established on reference from the
Constitution Bench to determine whether or not the right to privacy was guaranteed as an
independent fundamental right under the constitution of India following past decisions from
Supreme Court benches.

ISSUES:
1. Whether or not there is any fundamental right of privacy under the Constitution of India?

2. Whether or not the decision made by the Court that there are no such fundamental rights in
M.P. Sharma & Ors. vs. Satish Chandra, DM, Delhi & Ors. and also, in Kharak Singh vs. The
State of U.P, is that the correct expression of the constitutional position?
PETITIONER’S ARGUMENT:

• It was argued from the side of the petitioner before the court is that the right to privacy is an
intrinsic part of the right to life and personal liberty under Article 21 and as a part of the
freedoms guaranteed by Part III of the Constitution and same is to be protected by the
constitution of India.

• It was also put forward to evaluate the correctness of the decision noted in Karak Singh vs. The
state of Uttar Pradesh and M. P. Sharma vs. Satish Chandra on the ground that it violates the
Right to Privacy under Article 21 of the constitution.

RESPONDENT’S ARGUMENT:

• It was argued from the side of the defendant that the constitution of India does not specifically
protect the Right to privacy and on this ground that the right of privacy was not guaranteed under
the Constitution, and hence Article 21 of the Indian Constitution (the right to life and personal
liberty) had no application in the case of both M. P. Sharma vs Satish Chandra and Karak Singh
vs. State of UP.

JUDGMENT:
A nine-judge bench of the Supreme Court of India passed a landmark judgment on 24th August
2017, upholding the fundamental right to privacy under Article 21 of the constitution of India.

Article 21 of the Constitution reads as:

“No person shall be deprived of his life or personal liberty except according to procedure
established by law”.

It is stated in the judgment that the privacy is to be an integral component of Part III of the Indian
Constitution, which lays down the fundamental rights of the citizens. The Supreme Court also
stated that the state must carefully balance the individual privacy and the legitimate aim, at any
cost as fundamental rights cannot be given or taken away by law, and all laws and acts must
abide by the constitution. The Court also declared that the right to privacy is not an absolute right
and any invasion of privacy by state or non-state actor must satisfy the triple test i.e.

1. Legitimate Aim

2. Proportionality

3. Legality
DECISION that has been passed by all nine judges holds:

(i) The decision in M P Sharma vs. Satish Chandra which holds that the right to privacy is not
protected by the Constitution of India stands over-ruled;

(ii) The decision in Kharak Singh vs. State of UP to the degree that it holds that the right to
privacy is not protected by the Constitution also stands over-ruled;

(iii) The right to privacy is protected as an intrinsic part of the right to life and personal liberty
under Article 21 of the constitution of India and as a part of the freedoms guaranteed by Part III
of the Constitution.

CONCLUSION:
The Supreme Court of India has once again appeared as the sole protector of the constitution
creating a legal framework for privacy protections in India. The judgment covers all the issues
and established that privacy is a fundamental inalienable right, intrinsic to human dignity and
liberty under article 21 of the constitution of India. The judgment gives a way for the
decriminalization of homosexuality in India in Navtej Singh Johar v. Union of India (2018) and
abolishing the provisions of the crime of Adultery under in the case of Joseph Shine v. Union of
India (27 September 2018.

2. Jarnail Singh and ors. vs Lachhmi Narain Gupta and ors.In the Supreme
Court of India

CASE NAME : Jarnail Singh and ors. vs Lachhmi Narain Gupta and ors.In the Supreme Court
of India

Appellant

Jarnail Singh and ors.

Respondent

Lachhmi Narain Gupta and ors.

Date of the Judegment

26th Sept. 2018

Bench

Former Chief Justice of India Dipak Misra and Justice Kurian Joseph, Justice RF Nariman,
Justice SK Kaul

Justice Indu Malhotra

BACKGROUND

Reservation has always been a contentious issue in Indian polity. After the Poona Pact, Dr. B R
Ambedkar gave up the demand of the Dalit community for separate electoral colleges.It was
agreed that the castes described by the British as “depressed classes” would be given reservation
in employment with joint electorates (in the provincial and central legislatures) for a larger
number of seats than envisaged by the Mac Donald award. There was thus, a national compact
that the “depressed classes” should be represented in appointments in public services as well as
in local bodies, in other words, reservation in public services and local bodies. The said
‘depressed classes’ came to be known as “Scheduled Castes” and “Scheduled Tribes”

FACTS

1. A vacation bench of Justice Adarsh Kumar Goel and Justice Ashok Bhushan was hearing an
SLP preferred by the Centre against the August-2017 judgment of the Delhi High Court quashing
the DoPT Office Memorandum (OM) dated August 13, 1997, which provided for the
continuation of reservation in promotions indefinitely.

2. The high court had passed the verdict in the light of the apex court constitution bench
judgment in M Nagaraj (2006).

3. On May 17, a bench of Justice Kurian Joseph and Justice Mohan M Shantanagoudar, hearing
an SLP against the 2011 judgment of the Punjab & Haryana High Court quashing a similar OM
in pursuance of M Nagaraj, had directed “that the pendency of this Special Leave Petition shall
not stand in the way of Union of India taking steps for the purpose of promotion from ‘reserved
to reserved’ and ‘unreserved to unreserved’ and also in the matter of promotion on merits.”

4. The Constitution bench of the Supreme Court,on 26 September,2018 delivered a judgement

authored by Justice Rohinton Nariman, that reservation in promotions does not require the state
to collect quantifiable data on the backwardness of the Scheduled Castes and the Scheduled
Tribes, yet makes the “creamy layer” in either group ineligible for the benefits
ISSUES RAISED:-

1. Whether M. Nagaraj v. Union of India (Nagaraj) required reconsideration?

2. Nagaraj verdict had held that before the Scheduled Caste and Scheduled Tribe candidates can
be promoted, the states had to prove by “quantifiable data” that they were indeed “backward”

3. Whether the ‘creamy layer’ among SC/STs should be barred from obtaining promotions
through reservations?

ARGUMENTS ADVANCED

Attorney General KK Venugopal argued (rightly) that the Constitution determined the Scheduled
Castes and the Scheduled Tribes to be “backward”, and no further tests could be imposed to
verify their “backwardness”. He also contended that the concept of “creamy layer” applied to the
Other Backward Classes, not to the Scheduled Castes and the Scheduled Tribes. The
Nagarajverdict had added these riders wrongly, Venugopal argued, so the matter needed to be
referred to a larger bench.

The Supreme Court accepted his first point but not the second, refusing to refer the Nagaraj
judgement to a larger bench of seven judges.

JUDGEMENT

The court set aside the requirement to collect quantifiable data that was stipulated by its 2006
verdict in M. Nagaraj v. Union of India as it ignored the reasoning of a nine-judge bench in Indra
Sawhney (1992) that any discussion on creamy layer “has no relevance” in the context of
SC/STs.

The court has taken more than a decade to correct an anomaly in the Nagaraj case which brought
in a creamy layer filter for promotions for SC/ST employees. This resulted in thousands of
employees being denied their due promotions.

ANALYSIS

The judgment of the Supreme Court in this which confirmed the application of creamy layer to
promotions for SC/ST government employees as held in M. Nagaraj vs Union of India, showed
the meagre understanding of the nature of caste discrimination in institutions.
While on one hand, the judgment held Articles 16(4A) and 16(4B) to be valid,which allows for
reservations in promotions, on the other, it effectively neutralized this benefit by applying the
creamy layer restriction. If the current creamy layer ceiling of Rs 8 lakh per annum were to be
applied, even ‘Group D’ SC/ST employees would be barred from reservations. Like a deft
magician, the court has performed a sleight of hand on reservation in promotions –given it by
one hand and taken it away by another hand.

3. Joseph Shine vs. Union of India

Case Name : Joseph Shine vs. Union of India

Citation: 2018 SC 1676

Bench : CJI Deepak Mishra, Justice A.M khanwilkar, Justice Indu Malhotra, Justice D.Y
Chandrachud, Justice R.F Nariman.

BACKGROUND

In October 2017, Joseph Shine, a non resident Keralite, filed a petition in the Supreme Court of
India challenging the constitutionality of Section 497 read with Section 198(2)22of the CrPC.
Section 497 used to criminalise the offence of adultery. It provided for the punishment to a man
who engaged in sexual intercourse with another person’s wife without his consent. On the other
hand the consenting women had been exempted from any punishment under this provision. Also
this provision did not allow a woman to file a complaint against when she finds out that her
husband has engaged in sexual intercourse with some other woman. Thus, this provision was
considered discriminatory and in this case Supreme Court adopting a progressive approach
struck down 158 years old adultery law.

FACTS

Joseph Shine, the hotelier challenged the constitutionality of the section 497 of Indian Penal
Code. The core reason behind this petition was to shield Indian men from being punished for
extra marital relationships by vengeful women or their husbands. Petitioner's close friend in
Kerala committed suicide after a women co-worker made malicious rape charge on him. Further
section 497 is an egregious occurrence of sexuality unfairness, authoritative imperialism and
male patriotism. The traditional framework in which section 497 was drafted, is no longer
applicable in modern society.
ISSUES

 Whether section 497 of Indian Penal Code is unconstitutional?

 The petitioner wanted certain problems with section 497 to be addressed:

Adultery law provides that man to be punished in case of adultery but no action is suggested for
the women. Hence, it made the gender neutral.

As per section 497, there is no legal provision that a woman can file a complaint of adultery
against her husband.

According to section 497, if the husband gives his consent for such an act then such act is no
more considered as a crime. Therefore, women are treated as an object under adultery law.

JUDGEMENT

The court in its judgement to this case struck down Section 497 of the IPC and held that this
Section is violative of Articles 14, 15 and 21 and declared it unconstitutional. Court also held
that Section 198(2) of the CrPC is also unconstitutional to the extent it is applicable to Section
497 of IPC. Thus court here overruled all the previous judgements passed in this matter.

The court in explanation said that every individual has full autonomy to make decisions
regarding their sexual life.

If any wrong has criminal sanctions it should be a public wrong, but in adultery cases the wrongs
are considered as private wrong. The right to dignity provides that punishments should be
granted only when absolutely necessary and a proper analysis should be done before deciding it.

Also no one can treat a woman as a chattel or some property.

This law is almost ancient and has been created in a period when there was no constitution and
thus, in those times the constitutionality not even a question nut now in present times such
patriarchal laws do not hold any significance.

Though the act of sexual infidelity is morally wrong but it does not give sufficient conditions to
criminalize the same. The harm principle contains 3 elements. 1) harm 2) a wrongdoing 3) public
element. All of these elements are needed to be proved to classify a wrongful act as a criminal
offence.

Thus on above lines the Apex Court in its judgement declared that the law is quite discriminatory
and is not consonant with the contemporary times and hence declared void. Thus, adultery as an
offence has ceased to exist and now it can only n=be used as an excuse for divorce but its
committers can’t be penalised.

CONCLUSION
The court while declaring this law unconstitutional took a landmark step in the Indian legal
history. The Supreme Court rightly recognised the principles of equality and women’s dignity.
And once again by this judgement it has tried to improve the situation of women in a male
dominated society. It clearly shows a positive sign and it is a way ahead towards women
empowerment. This judgement preaches the idea of transformative justice.

So we can see that this story does not end here with this case, in the future when certain advert
circumstances will emerge and people will come to Apex court for justice and proper
explanation, then it would be interesting to know what stands our judiciary will take. For now we
have to keep content with what we have got from this case and have to leave the rest for the
future.

4. Competition Commission of India v. Bharti Airtel Ltd.

Case Name : Competition Commission of India v. Bharti Airtel Ltd.

Citation Civil Appeal No(s). 11843 of 2018

Year 2018

Appellant Competition Commission of India (CCI)

Respondent Bharti Airtel Limited

Bench Justice A Bhushan & Justice A. Sikri

INTRODUCTION

A two-judge bench of The Supreme Court of India (‘SC’), on 5th December, 2018 resolved the
conflict of jurisdiction between Competition Commission of India (‘CCI’) and Telecom
Regulatory Authority of India (‘TRAI’) and the interplay of roles of the two regulators. CCI is a
sector-agnostic regulator authorised to “promote and sustain competition in markets of India”.
Whereas, TRAI is sector specific regulator delegated to “promote and ensure orderly growth of
telecom sector”. The legislative intent behind both the legislations is to ensure fair-competition
in the market of India. Though both the regulators have a common goal, they differ in their
inquiry procedure and mandates.

FACTS
In December 2016, RJIL filed a case with CCI under Section 19(1) (a) of the Competition Act,
2002 („the Act‟ hereinafter) against three major Cellular Operators namely Bharti Airtel,
Vodafone and Idea Cellular („Incumbent Dominant Operators’ or ‘IDO‟ hereinafter) for
cartelisation. It further asserted that the Cellular Operators‟ Association of India (COAI) – an
industry association of mobile telecom operators, was aiding the IDOs in formation of the
alleged cartel. RJIL alleged that the IDOs were colluding against the new entrant by:

a) Denying point of interconnections (PoIs, physical interfaces between two different carriers),
which is a mandatory requirement for offering telecommunication services. Further, the IDOs
were consciously attempting to downgrade the services of RJIL by only offering one-way POIs
(from incumbents to RJIL) instead of giving two-way POIs and preventing RJIL subscribers
from making calls across different service providers; and

b) Denying requests for mobile number portability (MNP) so their customers do not switch to
RJIL‟s network.

ISSUES

1. Whether the writ petitions filed before the High Court of Bombay maintainable?
2. Whether the High Court could give its finding on merits?

RULING BY THE SUPREME COURT

The SC did not grant leave to petitioners and upheld the decision of The High Court. The SC
recognized that the TRAI is the sector-specific regulator and has the expertise to deal with the
issues in the telecom sector, which arise from the Telecom Regulatory Authority of India Act,
1997. Further, the TRAI is empowered to look into the jurisdictional issue first and then if there
is evidence to prove that the anti-competitive practice exists, the jurisdiction of the CCI can be
enforced according to the relevant provisions of the Competition Act. Also, if the TRAI takes an
action against the anti-competitive practice of the parties, the decision would be limited to the
applicability of the Telecom Regulatory Authority of India Act, 1997.

The SC further held that the CCI is delegated with an important role to curb anti-competitive
practices in the relevant markets of India and this responsibility delegated to CCI should not be
washed away completely and “the ‘comity’ between the CCI and TRAI is to be maintained”.
Therefore, the jurisdiction of the CCI is not outset completely with regard to the telecom sector
but the CCIs jurisdiction is pushed out to the later phase, once the issue is decided by the TRAI.
CONCLUSION

The tussle between the Competition Commission of India and TRAI or other sector-specific
regulatory sectors has raised serious jurisdictional concerns. The Apex Court of India has
addressed this concern in the case of Competition Commission of India v Bharti Airtel[3]. In the
United Kingdom, the regulatory sectors and OFT i.e. Office of Fair-Trading work together to
make the best possible measures in this regard. The OFT and other sectoral regulators can
themselves decide whether to follow the Competition Act or to go with other specific sectoral
statutes[4]. In essence, they follow the cooperative approach where both the authorities sit
together and find the best possible way out from the situation, however, OFT does reserve the
right to have a final say in the matter. Along with the above judgement of the Hon’ble Supreme
Court, if India adopted some elements of the U.K system, the tug of war between the different
sectoral regulators could come to an end.

5. Swiss Ribbons v. Union of India

CASE NAME : Swiss Ribbons v. Union of India

The Supreme Court’s decision in Swiss Ribbons v. Union of India upholding the
constitutionality of the provisions of the Insolvency and Bankruptcy Code, 2016 (IBC or the
Code) is a landmark in the development of the Code.

The IBC is a significant departure from prior insolvency regimes in India, and some of its key
features are novel even by global standards. The key differentiating features of the IBC (in
comparison with other developed jurisdictions) are:

 The admission threshold is low – it is based on the factum of default without an

insolvency test.
 No class rights –the constitution of a single creditors committee comprising of only
financial creditors with secured and unsecured creditors being treated equally for voting.
 Disqualification of certain bidders from participation in the resolution process.

The Government was able to establish to the Supreme Court that these features have worked and
have led to significant results in the initial years of the law. An important factor that weighed in
sustaining the law was the Government’s firm resolve to tackle the non-performing assets (NPA)
crisis through the enactment of the IBC, and that the Government has been alive to the problems
and has amended the law to suit the needs of the situation.The key implications of the Supreme
Court judgement are as follows:

(a) The distinction between promoters / management and the corporate debtor has been judicially
recognised. Displacement of the promoter or the management of a company in default can now
be done relatively quickly to protect the company and its assets.
(b) The recognition that the insolvency proceedings by nature are not adversarial to the corporate
debtor. The Supreme Court has concluded that the IBC is a beneficial legislation and is for the
benefit of the corporate debtor and therefore the admission of a company into Corporate
Insolvency Resolution Process (CIRP) cannot be seen from the traditional lens of adversarial
proceedings.

(c) The Supreme Court has imported fair and equitable treatment for operational creditors as a
requirement for the approval of resolution plans. This was prompted largely by amendments to
the regulations that provide that operational creditors need to be paid ahead of financial creditors
(without stating the amount that needs to be paid). This also advances the law laid down by the
National Company Law Appellate Tribunal (NCLAT) in Binani Industries where it was held that
the creditors cannot be discriminated against. Since the Binani Industries judgement was being
(wrongly) interpreted as a requirement to treat financial and operational creditors in the same
manner, the Supreme Court has provided much needed clarity on what is expected for
operational creditors. Bankruptcy laws in other jurisdictions also contemplate fair and equitable
treatment.

(d) In addition to the provision for withdrawal under Section 12A, withdrawal of a corporate
debtor from CIRP has been permitted up to the time the Committee of Creditors is constituted
with the approval of the National Company Law Tribunal (NCLT). What is important, though, is
that the Supreme Court applied Rule 11 of the NCLT Rules (which provides for inherent power)
to permit the withdrawal after admission but prior to constitution of the Committee of Creditors.
The recognition of the inherent powers of NCLT may introduce flexibility to the IBC process in
situations that are not contemplated by the Code. Further, if the Committee of Creditors rejects a
settlement proposal, it can be subjected to an appeal before the NCLT and thereafter, the
NCLAT.

(e) The Supreme Court has also upheld Section 29A in its entirety whilst reading down the list of
‘related parties’ who have to be tested for the disqualification under Section 29A, to those who
have a business connection with the Resolution Applicant. This will help in increasing the
number of participants. It would also help in moderating the level of diligence required by the
Resolution Applicant, the Committee of Creditors and the Resolution Professional in Section
29A compliance as regards ‘connected persons’, thereby reducing the cost and timelines of the
CIRP process.

CONCLUSION
The Supreme Court judgment will have a significant impact on a number of stakeholders in
insolvency resolution. It will aid in early identification and resolution given that the admission
process as contemplated in Section 7 of the Code as interpreted by the Supreme Court in
Innoventive has been validated after the constitutional test. The judgment also provides clarity on
the role of Resolution Professionals and balances their roles and responsibilities and considers
them as exercising administrative functions and subject to judicial supervision under Section
60(5) of the Code by the NCLT. This is an advancement of the Supreme Court’s ruling that a
Resolution Professional needs to place his prima-facie views for decision by the creditors in
ArcelorMittal’s case.

6. Ssangyong Engineering & Construction Co. Ltd. v. National Highways

The recent decision of the apex court of Ssangyong Engineering & Construction Co. Ltd. v.
NHAI, has led to three notable developments:

(1) it clarifies the scope of the “public policy” ground for setting aside an award as amended by
the Arbitration and Conciliation (Amendment) Act 2015,

(2) affirms the prospective applicability of the act and (3) adopts a peculiar approach towards
recognition of minority decisions.

FACTS

The dispute arose out of a contract concerning the construction of a four-lane bypass on a
National Highway in the State of Madhya Pradesh, that was entered into by the parties. Under
the terms of the contract, the appellant, Ssangyong Engineering, was to be compensated for
inflation in prices of the materials that were required for the project. The agreed method of
compensation for inflated prices was the Wholesale Price Index (“WPI”) following 1993 – 1994
as the base year. However, by way of a circular, the National Highways Authority of India
(“NHAI”) changed the WPI to follow 2004 – 2005 as the base year for calculating the inflated
cost to the dismay of Ssangyong. Hence, leading to the said dispute. . After the issue was not
resolved, the dispute was referred to a three member arbitral tribunal. The majority award upheld
the revision of WPI as being within the terms of the contract. The minority decision opined
otherwise, and held that the revision was out of the scope the said contract. Due to this,
Ssangyong challenged the award as being against public policy before Delhi High Court and
upon the dismissal of the same, the matter was brought in front of the apex court by way of an
appeal.

LEGAL FINDINGS

The Supreme Court ruled on various issues that were discussed during the proceedings of the
matter. The Court held that an award would be against justice and morality when it shocks the
conscience of the court. However, the same would be determined on a case to case basis. The
apex court interpreted and discussed the principles stipulated under the New York convention.
Under Para 54 of the judgement, the apex court has discussed the necessity of providing the
party with the appropriate opportunity to review the evidence against them and the material is
taken behind the back of a party, such an instance would lead to arising of grounds under section
34(2)(a)(iii) of the Arbitration and Conciliation (Amendment) Act, 2015. In this case, the SC
applied the principles under the New York convention of due process to set aside an award on
grounds that one of the parties was not given proper chance of hearing. The court held that if the
award suffers from patent illegality, such an award has to be set aside. However, this ground may
be invoked if

(a) no reasons are given for an award,

(b) the view taken by an arbitrator is an impossible view while construing a contract,

(c) an arbitrator decides questions beyond a contract or his terms of reference, and

(d) if a perverse finding is arrived at based on no evidence, or overlooking vital evidence, or

based on documents taken as evidence without notice of the parties.

7. DR. ASHWANI KUMAR V. UNION OF INDIA AND ORS.

INTRODUCTION

A recent Judgement passed by the Supreme Court in the 5th September discussed the need of a
separate law against custodial torture. The petition filed laid a distinctive demand of having an
entirely separate legislation for the Country which deals with Custodial Torture. Another point of
law to be discussed in the judgement is the scope and extent of the doctrine of separation of
powers, which is being discussed long since Keshavananda Bharti Case.1 The petition was filed
by renowned Senior Advocate Dr. Ashwani Kumar but unfortunately, this petition was dismissed
by the Supreme Court citing various reasons amongst one which said that the issue has been laid
before the Law Commission for its perusal and that soon something worthy is expected to come
out of it.

BACKGROUND

The petition by Dr. Ashwani was premised on the UN Convention against Torture and Other
Cruel Inhuman and Degrading Treatment or Punishment.2 The Convention was opened for
signatures in 1984, although India took 13 years to sign the same in 1997. India till date has not
ratified the same. The petition was argued on various premises focussing largely on the need of
the hour in India for a law relating to Custodial Violence.

ANALYSIS
 The Court has tried to pull its hands away in the instant case when the Petitioner asked for
directing Parliament for the enactment of a law relating to Custodial Violence as it said that
when the same issue had already been sent to the Law Commission of India for its perusal. It
does not come as an amazement that Laws in India are enacted only when there looks to be a
very urgent need for the same. A comparative analysis can be drawn out of the Rape cases or
Cases of Sexual Violence with children. Beginning from the Delhi Rape Case of 2012 where a
young girl was gangraped in a moving bus, to the numerous incidents of child sex abuse till date,
there have been many changes in the law, the recent one being the Amendment brought in the
POCSO Act in 2019. Similarly, if we talk about the cases of custodial violence, they begun from
the very famous Sunil Batra case and numerous others which happened in and around the same
time period. SO, what could be drawn as a conclusion to this is that till there is no such major
happening I recent times related to Custodial Violence, my personal opinion is that Government
would not bother to make any such legislation, that too at a time when the issue is already
pending consideration before the Law Commission.

CONCLUSION

From the failed implementation of the Malimath Committee Report on Criminal Justice System
(2003), it can be easily inferred that the suggestions are not easily welcomed by the
Parliamentarians and law is not made till there is a very strong urge or reason for its making. The
opinion on custodial violence on the delayed making of law is not biased and gives similar
examples from the recent past. In the meantime, what we as responsible citizens of India can do
is to have patience and faith in the Parliament or the Judiciary till the time any of these speaks
out on the issue of Custodial Violence.

8. ROJER MATHEW V SOUTH INDIAN BANK LTD. AND ORS.

Case Name : ROJER MATHEW V SOUTH INDIAN BANK LTD. AND ORS.

Court: The Supreme Court of India

Citation: MANU/SC/1563/2019

Bench – CJI Ranjan Gogoi, N.V. Ramana, Dr. D.Y. Chandrachud, Deepak Gupta and Sanjiv
Khanna, J.J

Subject: Constitutional law

FACTS
  This case was a combined hearing by the Hon’ble Supreme Court. The constitutionality
of Part XIV of the Finance Act, 2017, and of the rules framed in consonance of section
184 of the Finance Act was constitutionally challenged before the court. Part XIV of the
Finance Act 2017 gave sweeping powers to the Union Government to administer the
Tribunals, especially the conditions of service, mode of appointment, the security of
tenure, and requisite qualifications of members and presiding officers of various
Tribunals.
 The first matter was before the Hon’ble High Court of Madras, Writ Petition (Civil) No.
267 of 2012. A three-judge Bench of the Madras High Court took consideration of two
landmark judgments, Union of India vs. R. Gandhi, President, Madras Bar Association,
and L. Chandra Kumar vs. Union of India.

In both the judgments, courts gave paramount consideration to the doctrine of separation of
powers and independence of the judiciary. The court had ordered the Government to form an
independent committee that will be responsible for the functioning of all the tribunals.

 During the pendency of the aforementioned writ petition, SLP(C) No. 15804/2017 was
filed by Rojer Mathew, assailing the final judgment and order of the High Court of
Kerala. It was brought to the notice of the Court that the appointments to the Debt
Recovery Tribunals did not align with the Constitutional spirit of judicial independence.

 The third matter to be taken note of was Writ Petition (Civil) No. 279/2017 where the
petitioner, Kudrat Sandhu, has filed a Public Interest Litigation challenging the vires of
Part XIV of the Finance Act, 2017 by which the provisions of twenty-five different
enactments were amended to effect sweeping changes to the requisite qualifications,
method of appointment, terms of office, salaries and allowances, and various other terms
and conditions of service of the members and presiding officers of different statutory
Tribunals.

ISSUES:

 Whether the Finance Act satisfies the test of a Money Bill under Article 110 of the
Constitution of India?
 Whether Section 184 of the Finance Act is unconstitutional on account of excessive
delegation of power to the Executive?
 Whether Tribunal, Appellate Tribunal, and Other Authorities [Qualifications, Experience
and Other Conditions of Service of Members] Rules, 2017 align with the parent
enactments and various decisions of the Supreme Court on the functioning of the
Tribunal?
  Whether direct statutory appeals from Tribunals to the Supreme Court ought to be
detoured?
 Whether there is a need for amalgamation of existing Tribunals and setting up of
Benches?

DECISION

The court referred to the issue and question of Money Bill, as defined under Article 110(1) of the
Constitution, and certification accorded by the Speaker of the Lok Sabha in respect of Part-XIV
of the Finance Act, 2017 is referred to a larger Bench.

The court held that the Section 184 of the Finance Act, 2017 did not suffer from an excessive
delegation of legislative functions as there are adequate principles to guide the framing of
delegated legislation, which would include the binding dictums of this Court and thus it rules out
the possibility of uncertainty.

The Rules formulated by the Central Government under Section 184 of the Finance Act, 2017,
being contrary to the parent enactment and the principles envisaged in the Constitution as
interpreted by this Court, are hereby struck down in entirety. The Central Government was
directed to re-formulate the Rules strictly in conformity and following the principles delineated
by this Court.

The court issued a writ of mandamus to the Ministry of Law and Justice to carry out the ‘Judicial
Impact Assessment’ and submit the result of the findings before the competent legislative
authority. The Central Government in consultation with the Law Commission of India or any
other expert body shall re-visit the provisions of the statutes referable to the Finance Act, 2017,
and place appropriate proposals before the Parliament for consideration of the need to remove
direct appeals to the Supreme Court from orders of Tribunals. A decision in this regard by the
Union of India shall be taken within six months.

9. Central Public Information Officer, Supreme Court of India vs.

Subhash Chandra Agarwal

CASE NAME: CENTRAL PUBLIC INFORMATION OFFICER, SUPREME COURT OF

INDIA V. SUBHASH CHANDRA AGARWAL

COURT: Supreme Court of India

DATE OF DECISION: 13 November, 2019

JUDGES: D. Y. Chandrachud, Ranjan Gogoi, Sanjiv Khanna, Deepak Gupta, NV Ramana

PARTIES:

PETITIONER– Central Public Service Officer, Supreme Court of India

RESPONDENT – Subhash Chandra Agarwal, High Court of Tripura

INTRODUCTION

For better transparency in the working of all the Government institutions it is necessary to
maintain balance between right to information and principle of confidentiality and every citizen
have right to exercise his right of information. This landmark case dealt with the issues relating
to “transparency, accountability and judicial independence” and strikes an equilibrium between
right to privacy and disclosure of information in the larger public interest. Further the case deals
with the question of appointment of judges, correspondence with judges and their asset
declaration.

FACTS

In this case, three appeals were filed which arises from three different Applications filed by
respondent, Subhash Chandra Agarwal before Central Public Information Officer (CPIO),
Supreme Court.

The three Applications were-

1) In the first application, Subhash Chandra filed Right to information Application to CPIO to
furnish information about the complete correspondence of the Chief Justice of India as it was
found that the Union Minister had influenced the judicial decision of Madras High Court judge,
Justice R. Reghupathi.

2) In the second RTI Application was filed regarding a request to furnish information about
correspondence between the Constitutional authorities relating to appointment of three Supreme
Court Judges- Justice A.K. Ganguly, Justice H.L. Dutta, Justice R.M. Lodha which superseded
other senior Judges.

3) In the third Application was filed for furnishing information relating to the declaration of
assets of judges made by them to Chief Justice of India and Chief Justice of States.

On filing of these Application, the CPIO, Supreme Court denied fir furnishing requested
information by stating that the information sought is available with the registry of Supreme Court
of India.

ISSUES
 1. Whether the disclosure of information to the public relating to the office of CJI and
collegium system amounts to the interference of in the judicial independence?
2. Whether section 8(1)(j) exempt the information sought for the public disclosure?
3. Whether the disclosure of information sought for relating to judges would curtail or
prevent the constitutional authorities from expressing their free and frank expression?

ARGUMENTS OF PARTIES-

Arguments by Appellant:

The appellant contended that the disclosure of information would hamper the independence of
judiciary and judges are not supposed to be subjected to any “litigative public debate”.

As per the Right to Information Act, a person is not allowed to be provided with all the requested
details as there exist several restrictions and conditions mentioned in the Act. Under section 8(1)
(j) of RTI Act, the information which is sought in this case is exempted and cannot be furnished.

Disclosure of information relating to appointment of judges would come into the ambit of the
exempted category and if it is disclosed it would amount to hampering of their privacy and
against the larger public interest.

Arguments by Respondent:

The respondent contended that the disclosure of information do not interferes with the
independence of judiciary and the person under the Right to information Act has a right to seek
information in fact the disclosure would helps in transparency and would serve larger public
interest.

DECISION

On 13 November,2019 Supreme Court dismissed the appeal and delivered the judgment in
favour of respondent and upheld the Delhi High Court judgment by directing the Central Public
Information Officer, Supreme Court to furnish information regarding collegium decision-
making, personal assets of judges, correspondence with CJI. No general decision came up
relating to the universal disclosure of above-mentioned information.

It was further held that bar on disclosure of information can not be imposed on the ground of free
and frank expression of collegium member and the disclosure will be based on case to
case.Khanna j. is of view that “Determination of public interest will be based on case to case” .

10.Committee of creditors of Essar Steel India Limited through Authorised

signatory V. Satish Kumar Gupta and Ors.
CASE NAME : Committee of creditors of Essar Steel India Limited through Authorised
signatory V. Satish Kumar Gupta and Ors.

INTRODUCTION

The Essar Steel Case is a landmark judgment in the arena of Insolvency & Bankruptcy Law,
which decided the supremacy of the financial creditors in the Committee of Creditors in cases of
distribution of claims. It is one of the oldest cases going under the IBC process which lasted for
approximately 900 days. The Supreme Court set aside the NCLAT ruling and uphold the
decision of the Committee of Creditors on how the funds from the ₹42,000-crore offer by
ArcelorMittal would be distributed among the creditors. The law related to Insolvency and
Bankruptcy is largely settled in this major case.

BACKGROUND

Factual

ArcelorMittal India Private Limited and Numetal Limited applied as resolution applicants in the
Corporate Insolvency Resolution Process of Essar Steel. The Resolution Professional for Essar
Steel, after duly analyzing the resolution plans of both the applicants, disqualified them and
declared them ineligible for the same in accordance with the Section 29 A of the Insolvency and
Bankruptcy Code, 2016.

Procedural

Both the companies approached the NCLT, Ahmedabad Bench in 2018, and it concurred with
the decision of the RP to disqualify the Resolution Applicants.

This was because in the case of Numetal, one of the shareholders was Rewant Ruia and whose
father i.e. Ravi Ruia was a promoter of the Essar Steel. It has also issued a guarantee in favour of
the creditors of Essar Steel. Therefore, Numetal was held ineligible in view of Section 29A (c)
and Section 29A (h) of the Indian Bankruptcy Code.

In the case of Arcelor Mittal, Netherlands was found to have been the promoter or exercised
control over two companies namely, Uttam Galva Steels Limited and KSS Petron Limited
becoming ineligible under Section 29A (c) of the Indian Bankruptcy Code.

When the case was taken to the appellate authority i.e. NCLAT, it held that the AMIPL shall stay
disqualified but gave a different judgment for Numetal, contrary to what NCLT held. The reason
being that Rewant Ruia had divested his interest in Numetal in favour of a third party. The
NCLAT order brought parity between financial and operational creditors of Essar Steel in
matters of distribution of proceeds.

Thereafter, AMIPL approached the SC against the decision of the NCLAT.

JUDGMENT

The final judgment of the SC was that both the Resolution Applicants were disqualified from
submitting resolution plans as the plans submitted by them were in contravention of Section 29A
of the Code.

But, exercising its extraordinary power under Article 142 of the Constitution of India, SC gave
the Resolution Applicants one final opportunity which was to clear any outstanding dues
regarding their NPA accounts within 2 weeks of the SC verdict.

CONCLUSION

The final outcome in the Essar Steel case will provide a significant boost to efforts to revive
several corporate entities which are in a distressed state. It also lays down an important
responsibility for NCLT and NCLAT to look at cases under the IBC beyond their legal issues
and monetary claims. The implicants and consequences on the creditors, stakeholders,
promoters, along with everyone whose interest depends on the revival of the company, should be
kept in mind while exercising the adjudicatory power by these authorities.

This judgment will set a precedent for other corporations which are going through an insolvency
process and are awaiting resolution over the distribution of funds between different classes of
creditors.

11.Keisham Meghachandra Singh vs The Honble Speaker Manipur

ANALYSIS

Though the legislative transactions have taken place in the Parliament, the lack of debate on the
passed Bills has deprived the countrymen to know the perspectives of different political parties.
Also, as a law student, we are aware of the significance of the parliamentary debates in clarifying
any ambiguity in the provisions of a law. The discourse and debate in the House not only reflect
the connectedness of the parliamentarians with the electorates but also the accountability of the
executive towards the legislature.

Disruptions per se may not be impermissible considering the strength of the treasury benches. If
disruptions become the order of the House, then the custodian of the Lok Sabha needs to invoke
the necessary powers to restore the sanctity of the Parliament. It appears that the Speaker has
been enveloped with requisite powers to run the session of the Parliament and any evasion to not
to exercise the power strikes at the root of constitutional democracy.

The Speaker is expected to assert all the power at her disposal and not to limit only to counsel
the treasury and opposition benches to cooperate for the functioning of the House. Considering
the amenities enjoyed by the members during the session of the House, it is incumbent upon the
Speaker to ensure meaningful legislative transactions or to disallowance of the perks and
perquisites to the parliamentarians.

Continuous stalemate does not only display the failure of the parliamentary tradition but also
dilutes the constitutional significance of the office of Speaker.

12.SUSHILA AGGARWAL V. STATE OF NCT OF DELHI

FACTS

This case i.e. Sushila Aggarwal v. State of NCT of Delhi arises from the final judgment and
order in Neetu Aggarwal v. State , the case pertains to the year 2012, and brief facts of the case
was that the Petitioner i.e. Neetu Aggarwal being the second wife of the father of the
Complainants i.e. the daughters (S and M ‘names withheld’ aged 17 years and 23 years
respectively) from the first wife, was alleged to bring home her male friends and the
complainants have seen her with such friends of her in indecent condition and posture. After
being aware of the fact that the complainants know of it, the petitioner along with her male
friends threatened them not to disclose it to her husband.

On the other hand, there have been allegations against the Petitioner’s male friend and his father
of touching the complainants to sexually harass them and use of force to disrobe them along with
rape.

In this instant matter, the FIR was filed by the two sisters in the year 2017 under Section- 376,
354, 354 (A), 354 (B) and 506, IPC 1860 & Section- 6 of Protection of Children from Sexual
Offences Act, 2012 against the petitioner, her male friend, and his father at PS Subzi Mandi,
Delhi .

FINAL JUDGMENT AND ORDER OF THE HIGH COURT OF DELHI

The Petitioner immediately filed an application before the High Court of Delhi seeking bail
under Section- 438 apprehending an arrest in FIR No. 120/ 2017 registered at PS Subzi Mandi,
Delhi. The High Court (Hon’ble Justice Pratibha Rani) after taking into consideration nature as
well as the gravity of the offence alleged against the Petitioner (Section- 506, IPC) and the
character of her, Court granter her bail under Section- 438 of CRPC on furnishing personal bond
for Rs 50,000/- along with one surety subjecting her to the conditions as specified under clause 2
of the section.

ISSUES
Later, the Petitioner was summoned by the District Court for trial, and the Public Prosecutor
appearing on behalf of the State was of the view that such summon ends the life of the bail
granted under Section- 438 in anticipation of arrest. As a result of which a Special Leave Petition
was filed on behalf of the Petitioner before the Supreme Court, and the following issues were
framed by it-

1. Whether protection granted to a person under Section- 438 CRPC should be limited to a
fixed period to enable the person to surrender before the Trial Court and seek regular bail.
2. Whether the life of anticipatory bail should end at the time and stage when the accused is
summoned by the Court.

FINAL JUDGMENT

The judgment of the Court was unanimous i.e. all the 5 Judges concurred with the opinions that
were kept before them and while giving its verdict in the present case answered the two issues
based on the reasoning it gave, regarding the first issue it held that order under Section- 438
should not be limited to a fixed period ordinarily although the conditions should be imposed
under Section- 437(3) read with Section- 438(2) if the situation demands and regarding the
second issue this Court held that the life- span of anticipatory bail does not end as soon as
summon gets issued by the Trial Court, but can be extended till the time the trial gets concluded,
so collectively the views of the Constitutional Bench on both the questions were in negative.

CONCLUSION

Bail i.e. the right to be set free from lawful detention is one of the essential aspects of Criminal
Law Jurisprudence not just in India but in other common law countries as well, as this right acts
like insurance against detention and protects the liberty of an individual. The Supreme Court of
India has been very much cautious about this right from the very starting and in most cases has
reminded the authorities of its prominent value, the Court several times has stated that Bail
cannot be used in the form of an instrument to punish the accused and while dealing with such
applications the Court has to emphasise on the fact that whether such Bail would hamper trial/
investigation in case of Section- 438, and in case the answer is in negative then such application
can be sustained.

The observation and the decision that was produced by the Apex Court, in this case, is one such
illustration of the idea that the Indian Judiciary possesses, and this case law no doubt will serve
the interests of the general public in the future by acting as a legal precedent, although there have
been some recent decisions of some High Courts[24]that have under some kind of influence
deviated from the basic idea behind the provisions of Bail in Criminal procedure Code, 1973; but
the Supreme Court at times had come up strongly against these orders and setting a benchmark
for all the Subordinate Courts throughout the country.

13.Internet And Mobile Association of India v. Reserve Bank Of India

In a judgment of Supreme Court of India, given on 4rth march, 2020 in the case of Internet and
Mobile Association of India v. Reserve Bank of India, the court bashed down the circular issued
by Reserve Bank of India. The circular issued, tends to put a ban on the trading of virtual
currencies also known as crypto currencies. The court as of the view that the restrictions imposed
by the Reserve Bank of India on banks and other entities in regard to the trading of virtual
currency is unfair and therefore declared the restrictions to be un-viable.

INTRODUCTION

Supreme Court declared the circular issued by Reserve Bank of India (RBI) as illegal that is
declared the guidelines of the circular to unenforceable. The circular directs the bank to not to
deal with the transactions involving the trade of virtual currencies. The hon'ble court declared the
instructions by RBI to be inappropriate and hence declared it to be un-enforceable. Justice
Rohinton Nriman, Anirudhha Bose and V. Ramasubramanion were the judges of Supreme court
of India, under whom the judgement to the petition filled by Internet and Mobile Assiociation of
India (IMAI) was pronounced.

BACKGROUND OF THE CASE:

Reserve Bank of India (RBI) issued a circular dated 6th april,2018. The circular do prohibits the
bank and other entities too from trading in virtual currencies. Moreover the circular do barred the
banks to provide any kind of services to any individual or entity dealing or setting virtual
currencies. The prohibition issued by the Reserve Bank of India had a negative effect on the
Indian economy as because the mediums (the bank accounts), through which virtual currencies
were traded could no longer be maintained or operated therefore an end to the business through
virtual currencies do prevailed.

In reference of the same, at the time of issuance of the circular by Reserve Bank of India there
was no legislation passed imposing a ban on the trade of virtual currencies. In other words the
virtual currency was separated from the assets of the economy. The reason why Reserve Bank of
India issued the circular was there concern which was related to the hacking of the virtual
currencies.

 Which could lead to numerous problem in the economy such as:

 loss to the economy
 money laundering can promote terrorist activities too.

FACTS

On 5th April, 2018 Reserve Bank of India issued a press release raising the concern about the
consumer protection from trade of virtual currency. They were of the view that trading in virtual
currency also referred as crypto currencies are prone to hacking and therefore would lead to
money laundering, terrorist activities, etc. In this view RBI asked the banks to not to deal with
the transactions related to the trading of virtual currency.

The services which RBI directed the bank not to deal with were- maintaining the accounts,
registering, trading, settling, clearing, giving loans against virtual currencies, accepting virtual
currency as collateral, opening accounts of exchanges dealing with them and transfer or
sale/purchase of virtual currencies.

The matter was challenged by Internet and Mobile Association of India. The Supreme court of
India allowed the petition on the ground of proportionality. Earlier in 2013 the Reserve Bank of
India do issued a public caution to the traders and holders of virtual currency in context with the
legal and security related risks associated with it.

ISSUES:

Petitioner's contentions

 The petitioner contended that Reserve Bank of India do lacks the jurisdictions to disallow
the trade of virtual currency (crypto currency) moreover the ban imposed by RBI is based
on the mis-understanding of RBI.
 The Petitioner also contended that the Virtual currency or the crypto currencies are not a
kind of currency note or coin but a medium of exchange or a store of value.

Respondent's contentions
  Replying to the 1st contention of petitioner (as mentioned above), the respondent dis-
agreed with the fact that it do not have jurisdictions, moreover said that crypto currency
is a mode of digital payment which RBI do holds the power to have a control.

 Replying to the 2nd contention of petitioner, the respondent said that crypto currency is a
stainless digital currency which is used for trading. They (RBI) further contended that
since crypto currency do operate independently they are immune to government's
interference.

JUDGMENT

The court was of the view that although Reserve Bank of India has wide powers and do plays an
important role in the upliftment of Indian economy, but here they are unable so show any sought
of damage suffered by it's regulated entities. Therefore the guidelines issued by the Reserve
Bank of India, directing the banks to stop dealing or providing services to the entities trading in
virtual currencies are illegal hence unenforceable.