Recently, the Government of India had proposed certain changes in the Insolvency and Bankruptcy Code 2016 as amended thereof (the Code) which have been passed by the Union Cabinet on 17-07-2019.
The said proposed amendments to the Code are as follows:
That a time limit of 330 days has been fixed for bankruptcy resolution of a debtor company. Once the time limit expires, the corporate debtor would be liquidated.
That the bankruptcy resolution or the liquidation of a corporate debtor, as the case may be, would have a binding effect on authorities including the central, state and local governments, to whom the bankrupt firm may owe dues.
That there may be a clarity with regard to the position of financial and operational creditors in the order of priority for the purpose of distribution of sale proceeds after liquidation of debtor’s assets. Although the proposed amendments indicate primacy of secured financial creditors over operational creditors and unsecured financial creditors.
That in cases where there are a large number of creditors such as homebuyers and bondholders, etc, if more than half of these creditors, present and voting in the CoC meeting, approve a resolution plan, it would be considered that the entire class of creditors has approved it. The said voting threshold of 50% has been brought down from the earlier 66% voting threshold.
this way, these proposed amendments are aimed at facilitating decision-making
in the case of bankrupt entities such as property developers, which have a
large number of creditors, including homebuyers, and also, in ensuring a speedy
resolution of insolvency and bankruptcy process.
With a rapid enhancement in cross-border transactions,
international commercial and investment arbitrations have gained its relevance.
Though, arbitration is the more efficient and time saving procedure especially
in Indian jurisdiction, where legal disputes are most time consuming, here arbitration
exists with limited beneficiaries. The prime reason for limited use of
arbitration in Indian jurisdiction is the exorbitant costs attached to it which
makes it expansive process. Parties with disputes involving small amounts don’t
prefer arbitration due to high handed fees of arbitrators and other incidental
The concept of third-party funding agreements has helped
financially weaker claimants to successfully pursue their legitimate interests
without putting their businesses at economical risk. Under third party funding
arrangement someone who is not involved in an arbitration provides funds to a
party to that arbitration in exchange for an agreed return. Typically, the
funding will cover the funded party’s legal fees and expenses incurred in the
arbitration. The funder may also agree to pay the other side’s costs if the
funded party is so ordered, and provide security for the opponent’s costs.
The concept of third-party funding is statutorily recognized
in civil suits under the Civil Code of Procedure in states such as Maharashtra,
Gujarat, Madhya Pradesh and Uttar Pradesh. This consent to third-party funding
can be adduced from the Civil Procedure Code 1908, which governs civil court
procedure in India. Order XXV Rule 1 of the code (as amended by Maharashtra,
Gujarat, Madhya Pradesh and Uttar Pradesh) provides that the courts have the
power to secure costs for litigation by asking the financier to become a party
and depositing the costs in court. The Arbitration and Conciliation Act, 1996
does not mention about third-party funding and therefore its validity need to
be checked under Indian Contract Act, 1872. There are other issues with respect to the
enforceability of the award which may be challenged on the grounds of illegal
the concept of third-party funding is still new to Indian jurisdiction but it
may have positive implications. Especially in India where the amounts involved
in the disputes are less, there it becomes pertinent to provide financial
assistance to parties with lack of funds. Further this would promote
specialized agencies who would finance arbitration and ensure timely
enforcements of the awards. Third party funding would make India a pro-arbitration
jurisdiction and also bring it in line with international practices.
National Consumer Dispute Redressal Commission (NCDRC) has recently in a matter
of Pankaj R. Toprani and 3 others vs. Bombay Hospital and Research and
Medical and 2 others passed a Judgment dated 04-07-2019, whereby the NCDRC
held the doctor and hospital liable for post-surgery negligence and further
held that the duty of care of doctors and hospitals towards their patients does
not end with surgery.
In this case, the doctors of the Bombay Hospital and Medical Research Centre of the Bombay Hospital Trust had performed a surgery on a 73-year old patient (Patient) for Carcinoma of the Sigmoid Colon, after having gone through his medical history of urticaria, glaucoma tension in the eyes, chronic depression, etc (Operation). After the Operation was performed, the family members of the Patient were informed that the Operation was successful and that they would transfer him to the ward. But instead of doing so, they transferred the Patient to post-operative ICU on third floor for keeping him under observation. The following day the Patient had complained of lack of sleep and pain in the abdomen, throat pain, breathlessness, chocking sensation and suddenly had convulsions. The family members of the Patient were then informed that he had suffered a Bradycardia Attack, which is said to be a condition wherein an individual’s heart rate goes low as much as under 60 beats per minute, as a result of which the heart cannot pump enough oxygen-rich blood to the body. After a few hours the Patient was transferred to the ICU on twelfth floor of another building stating that it had better equipments. Thereafter, when the Complainants did not give permission for a CT Scan to be performed on the Patient on the grounds that he was in a state of convulsions, he was transferred back to the ward in an unconscious state and later on taken back home in the same vegetative state, where eventually he passed away.
NCDRC has held the doctors and the Hospital liable on the following grounds:
That there was an unexplained delay of 2 ½ hours in shifting the Patient, who was not in a stable condition, from post-operative ICU on third floor of one building to another ICU on twelfth floor of another building. That the doctors and the Hospital should have taken due care and caution in shifting the Patient who had already suffered Bradycardia Attack. As a result of this negligence, the Patient slipped into coma and remained in a vegetative state for a period of almost three years and eventually, passed away.
Having regard to a number
of Supreme Court Cases, the NCDRC herein has held that the duty of care of a
medical professional, who possesses a certain degree of skill and knowledge,
starts from the time the patient gives an implied consent for his treatment and
the medical professional accepts him as a patient for treatment with a
reasonable degree of skill, care, and knowledge, and extends beyond surgery.
the NCDRC held the concerned doctors and the Hospital liable for negligence in
the treatment rendered to the Patient after the Operation was performed, on the
ground that the duty of care of a doctor and a hospital extends to taking
proper care of a patient, post-surgery. The NCDRC herein directed the Hospital
to pay Rs. 30,00,000/- and the Doctors to jointly and severally pay Rs. 1,00,000/-
as compensation to the family members of the deceased Patient.
Union Finance Minister while presenting the Union Budget 2019 gave importance
to the education sector by introducing major education policies. The Union
Government has allocated Rs 94,854 crore for the education sector in this Budget
for 2019-20. This is an increase from the revised Budget 2018-19, which was at
Rs 83,625.86 crore. Of the total Rs 94,854
crore education Budget, Rs 56, 536.63 crore
has been allocated to the school sector and the rest Rs.
38,317.01 crore has been pegged for the Department of Higher Education. In
the school sector, a total amount of Rs. 36447.4 crore has been allocated to
National Education Mission also called as Samagra Siksha Abhiyan, which
amalgamates other schemes namely Sarva Shiksha Abhiyan (elementary
education) and Rashtriya Madhyamik Shikha Abhiyan (secondary education).
Along with this a mid-day meal programme has been allocated an amount of Rs
New Education Policy to transform India’s Higher Education
System to one of the best global education systems.
of National Research Foundation to
fund, co-ordinate and promote research. A total amount of Rs 608.87 crore has
been allocated under the head ‘Research and Innovation’.
‘Study in India Program’ to help India attract foreign students
to make India a global Higher Education Hub.
up ‘Higher Education Commission of
India’ to promote autonomy and focus on academic outcomes. HECI will
replace the University Grants Commission.
up of National Sports Education Board for
development of sportsperson under Khelo India Scheme.
400 crore provided for “World Class
Institutions”, for FY 2019-20.
prepare youth for overseas jobs, focus to be increased on globally valued
skill-sets including language training, Artificial Intelligence (AI), Internet
of Things (IoT), Big Data, 3D Printing, Virtual Reality and Robotics.
is now poised for entry of foreign business in various sectors. The fact that
the Budget has made an allotment for foreign students goes a long way to show India’s
global approach not only in business but also in education. The Indian
Intelligence is recognized worldwide as being superior. This is proved by the
fact that most CEOs of large multi-nationals are from India.
89th Union Budget 2019-20 has been recently presented by Finance
Minister, Smt. Nirmala Sitharaman (the Minister) on 05-07-2019. The Government
has planned to invest Rs 100 Lakh Crore in infrastructure over next 5
Focusing on the infrastructure sector, the Minister has proposed several measures with a vision for the next 5 years for the development of infrastructure sector. The highlights of such measures are as follows:
Under the Pradhan Mantri Gram Sadak Yojana:
The Bharatmala Programme: It would help develop national road corridors and highways
The Sagarmala Programme: It would enhance port connectivity, modernization and port-linked industrialization.
The Jal Marg Vikas Project: It aims at smoothening internal trade carried out through inland water transport and at reducing the cost of transportation through waterways.
The Ude Desh Ka Aam Nagrik (UDAN) Scheme: It would make way for cheaper air travel and also, connect remote parts of the country.
Metro Rail Projects: Out of a total route length of 300 kilometers
approved during 2018-19, about 210 kms metro lines have been operationalized in
Incentives for advanced battery and registered e-vehicles:
GST rate on electric vehicles is proposed to be lowered from 12% to 5%
Proposed additional income tax deduction of INR 1.5 Lakh on the interest paid on loans taken to purchase electric vehicles. Provided the loan has to be taken on or before 31-03-2023
Customs duty would be exempted on certain parts of electric vehicles such as e-drive assembly, on board charger, e-compressor, charging gun
Comprehensive restructuring of National Highways and development of State
road networks. Further, the Government has proposed to increase Special Additional
Excise duty and Road and Infrastructure Cess each on petrol and diesel from Rs
8 per litre to Rs 9 per litre.
Movement of cargo on River Ganga to increase four times with the construction
of two more terminals at Sahibganj and Haldia
supply: Jal Shakti Mantralaya to focus on creation of local
infrastructure including rainwater harvesting, groundwater recharge and
management of household wastewater for reuse in agriculture
Railways: Proposal to use Public-Private Partnership
to hasten the process of development and completion of tracks, rolling stock
manufacturing and delivery of passenger freight services.
Power connectivity: Proposal to implement One
Nation, One Grid that would ensure power availability to states at affordable
the Government has aimed at increasing investments for the development of the
aforesaid infrastructure sector and also other sectors
including digital economy, job creation in small and medium enterprises, and water
management in India.
Civil Aviation sector is facing plethora of issues in the aftermath of the
collapse of Jet airways and debt ridden Air India. The domestic airlines are
facing operational issues and most of them are debt ridden due to thin profit
margins, lack of level playing field in the market. Keeping these issues at their priorities the
government has made some promising announcements in the union budget 2019. These reforms can have curative implications
on the civil aviation sector.
Highlights of the announcements –
interventions to be made for the development of Maintenance, Repair and
Overhaul (MRO), to achieve self- reliance in aviation segment.
in sectors to be promoted in Aviation segment.
roadmap for making India a hub for aircraft financing and leasing activities
from Indian shores, to be laid by the Government.
Government has proposed to hike the Foreign Direct Investment (FDI) limit in
domestic air carriers from existing 49 per cent, though no fix percentage has been
quoted it has been said that the Government will examine suggestions of further
opening up FDI in aviation. Earlier Union Cabinet allowed 100 per cent foreign
direct investment in Indian aviation for automatic route. Even on previous occasions the
government tried to divest its stake in Air India. An earlier attempt by the
government to divest 76% stake in the national carrier did not find any taker. The government now intends to sell 100% in the
national carrier and the move to relax FDI may interest buyers of Air India.
However, there is no clarity on the Substantial Ownership and Effective Control
(SOEC) clause yet. The SOEC clause bars any foreign investor from taking
complete control of the operations of the airline and be run by a board that
has two third members as Indian.
government has also proposed to implement measures to make the country a hub of
aircraft leasing and aviation finance.
“As the world’s third-largest domestic aviation market, the time is ripe
for India to enter into aircraft financing and leasing activities from Indian
shores. This is critical to the development of a self-reliant aviation
industry, creating aspirational jobs in aviation finance, besides leveraging
the business opportunities available in India’s financial special economic
zones (SEZs), namely, International Financial Services Centre (IFSC),”
Ms.Sitharaman said in her budget speech.
The emphasis of the Finance
Minister on development of Maintenance, Repair and Overhaul (MRO) industry was welcomed by MRO
Association of India. It is estimated
that this move will help to turn India from an importer of MRO to net exporter
and will create over 100,000 direct jobs and revenues exceeding Rs. 35,000
crore in next five years.
Few long pending demands,
which is, quotes as key demands by aviation industry such as to reduce taxation
on aviation turbine fuel (ATF) or Jet fuel was not addressed by the Government.
At present, jet fuel accounts for 35% to 50% of airline costs.
announcements are welcomed by stakeholders and it reflects the government
intentions to revitalize the civil aviation segment. Primarily the government
is aiming to make the segment more investment friendly so that sufficient
amount capital can be injected. The civil aviation segment is facing
profitability issues due to cutthroat competition amongst the domestic
airlines. After the collapse of Air India, Jet airways which was one of the
prominent domestic airlines got defunct and there are many more who are facing
fiscal issues. In such an alarming environment FDI promotion and relaxing the
norms could be a curative measures to get back the segment its good fiscal
health. One prominent reason to focus
aviation sector is to secure the revenue generation from the sector.
Maintenance Repair and Overhaul (MRO) sector would require tax rebate from the
government to ensure that the cost of servicing planes in the country are at
par with countries like Sri Lanka and Singapore. This will make the
segment competitive and make it more profit generating.
Other announcement of making India a hub for
aircraft leasing is also a work in progress and the civil aviation ministry has
a committee with various stakeholders, including airlines, to make Ahmedabad’s
GIFT city – a tax free zone – as the hub for aircraft leasing.
over the civil aviation sector –
The impact of these announcements over the
civil aviation sector can be summarized as follows
The promotion of FDI can help in easy disinvestment of Air
India, earlier government was selling the majority of its stakes in Air India
but unable to found the investors. This time by relaxing the investments norms
government may plan for 100% disinvestments in Air India.
It will create a level playing field in the domestic aviation,
which will make the sector profitable and attractive for the investment.
India a hub for aircraft
leasing is also a work in progress and the civil aviation ministry has a
committee with various stakeholders, including airlines, to make Ahmadabad’s
GIFT city – a tax free zone – as the hub for aircraft leasing.
This will indirectly create
employments in the segment.
Things that needs clarifications –
There is no clarity on the
Substantial Ownership and Effective Control (SOEC) clause yet. The SOEC clause
bars any foreign investor from taking complete control of the operations of the
airline and is run by a board that has two third members as Indian. Further
rebates and exemptions need to be given for making environment investment
Government needs to clarify on
the role played by the DGCA in the segment and need to ensure that the market
remains profit yielding.
The Indian Institute of Technology (IIT) Madras has recently
launched an Integrated Database on Infrastructure Projects in India (IDIP)
at the 15th World Conference on Transport Research Conference held
at IIT Bombay on 29-05-2019.
The IDIP is a service from GeoNomics Research and Technologies Private
Limited, an Infrastructure Analytics and Consulting Firm, partnered with Akara
Research and Technologies, a Startup Company in India.
For developing the database on the Platform, various researchers
are said to have collaborated with state governments and private sector
infrastructure developers. The said database provides comprehensive data about
the entire life cycle of a particular infrastructure project including the
various stages of development, construction, operation, etc (Platform).
The IDIP has primarily stressed on the road sector, as the
public-private partnership in the road sector in India is the highest in the
world. But eventually, this Platform would cover other areas of infrastructure
sector as well such as railways, ports, airports, power, transmission, water
supply, sanitation, solid waste management, etc.
As soon as the users, such as project managers, financiers,
researchers, etc, log into the Website http://www.idip.co.in/, they can search for projects based on
specifics such as projects developed by a specific developer or developed in a
specific location, or road projects exceeding a certain length, etc.
This would enable various stakeholders to make informed decisions,
monitor the investment trends and also make way for overall development of the
Furthermore, it is believed that the roll out of IDIP would also help in achieving transparency and accountability among the stakeholders of this sector.
Informed consent is the subject
matter of several medico-legal litigation as invariably the consent taken from
a patient or his attendant is not informed consent. Informed consent means that
the patient must be made fully aware of the pros and cons of the line of
treatment that he will be given by the treating Doctor and the concerned
hospital staff. The very idea of informed consent is that the patient should be
allowed to make a sensible decision concerning his or her treatment. In the
legal parlance informed consent is always based on the basis of the treating
doctors diagnosis, treatment, prognosis. A patient may gather some knowledge on
his medical problem via discussions with medical/nursing staff, via the
media/internet, or from friends who have undergone a similar procedure but this
can not be equated to the information that the treating Doctor shares with the
patient. Hence informed consent occurs only when the patient after being
informed by the Doctor takes the decision to go ahead with the treatment
decided by the Doctor. In informed consent the patient is fully aware of the
risks and benefits of his treatment.
In a recent case, reported by Times
of India, the Delhi State Consumer Disputes Redressal Commission (DSCDRC) held
that merely asking patients to sign a consent form is not enough, as they ought
to be informed about the consequences of a surgery. The panel clearly stated
that an informed consent was when a patient was explained the consequences in
layman’s language to decide on the surgery. It went as far as stating the
merely writing “informed consent” on top of a form does not make it so. The
clauses mentioned are very vague and signing such a form is no consent in the
eyes of the Law.
The Commission observed this while
awarding Rs. 8 lakh compensation to the family of a city-based journalist,
Bhushan Raina, who lost vision in one of his eyes after cataract surgery in
2008. He was advised to undergo a
surgery after his right eye started giving him trouble. He consulted Dr. Sudeep K Jain. He was given
an option to wait for 2-3 months or in the alternative to undergo the surgery immediately.
The surgery was performed and his eye checkup showed retinal detachment and
thereafter he was advised to undergo another surgery, but was warned that he
might not get his eyesight back. The real suffering came when he was asked to
lie on his stomach for almost two months and he has to eat and sleep in same
position. Due to aforementioned sufferings he lost his mental and physical
strength and independence and lead a poor quality of life, which jeopardized
his future. Mr. Raina died during the pendency of the case.
International guidelines state that,
consent should begin with a brief explanation of the planned operation,
including the anesthetic involved. It is wise to describe what the patient may
expect to experience during surgery, if under a local anesthetic. Medical
jargon should be avoided as it only serves to reduce understanding. Sufficient
information to make a decision should also include an explanation of the risks
and benefits involved; any alternative treatments; and the risks and benefits
of abstaining from the treatment.
DSCDRC Member (Judicial) Mr. OP Gupta rightly found that the doctors are guilty
of negligence and said, “ The life of a
person is almost like death without eyesight. He cannot see properly or walk or
eat with comfort. He feels secluded from society and his near and dear ones.”
This judgment not only holds
importance in the life of Doctors but also for patients as they need to
understand that consent is an opportunity to guide the patient to the right
decision for them, and also dispel any unrealistic expectations concerning the
procedure. Ultimately it is an opportunity to create a relationship of openness
and trust between doctor and patient, which may help if operative complications
are encountered. With high health-care expectations, a poorer than expected
outcome may lead to surprise and subsequent anger: good patient education,
during the informed consent process, is the surgeon’s chance to forge a
relationship with the patient and make sure that the patient’s expectations are
India along with many other
countries,as part of the League of Nations, has considered mental illness as a
mitigating circumstance for the imposition of lenient sentences as the
offender, due of his mental incapacity, is unaware of his actions. This has
been the country’s policy for several years.
In the recent judgement in the
case of Accused ‘X’ v. State of Maharashtra [Review Petition (Criminal) No.
301 of 2008] that was decided on 12th April 2019,
the Hon’ble Supreme Court of India, has issued directions on the execution of
mentally ill convicts. The ruling arises from the Supreme Court’s miscellaneous
decisions where it has laid down the test of severity for the conviction of
person’s with mental disability. The bench comprising of Justice NV Ramana,
Justice Mohan M. Shantanagoudar and Justice Indira Banerjee has opined that the
sole purpose of awarding a punishment is that it should act as a deterrent,
however, when a condemned prisoner loses cognitive power by reason of post
conviction mental illness, the essence of sentence awarded is lost.
In the instant case the
accused was convicted and sentenced to death for sexually assaulting and
murdering two minor girls in December 1999 at Gulumb in Maharashtra by the
Trial Court in 2001. The High Court of Bombay confirmed the death sentence.
Relieving him of the execution and commuting his death sentence to life
imprisonment the Bench noted that the reports of psychiatrist suggested that the
accused has been reeling under bouts of some form of mental irritability since
1994. The three judge Bench held that:
75. “In this state ‘accused x’ cannot be ignored and left to rot away, rather, he
requires care and treatment. It needs to be understood that prisoners tend to
have increased affinity to mental illness. Moreover, due to legal constraints
on the recognition of broad spectrum mental illness within the Criminal
Justice System, prisons inevitably become home for a greater number of mentally
ill prisoners of various degrees. There is no overlooking of the fact that the
realities within the prison walls may well compound and complicate these
The Court further noted that there are no set
parameters for determining the degree of disability however a ‘test of
severity’ can be a guiding factor for recognizing certain types of mental
illness which qualify for an exemption. The Court said:
68. “The test envisaged herein predicts that
the offender needs to have a severe mental illness or disability, which simply
means that a medical professional would objectively consider the illness to be
most serious so that he cannot understand or comprehend the nature and purpose
behind the imposition of such punishment. These disorders generally include
schizophrenia, other serious psychotic disorders, and dissociative disorders
The Bench issued the following directives:-
post-conviction severe mental illness will be a mitigating factor that the
appellate court, in appropriate cases, needs
to consider while sentencing an accused to death penalty.
The assessment of such disability should be
conducted by a multi-disciplinary team of qualified professionals (experienced
medical practitioners, criminologists etc), including professional with
expertise in accused’s particular mental illness.
The burden is on a accused to prove by a
preponderance of clear evidence that he is suffering from severe mental
illness. The accused has to demonstrate active, residual or prodromal symptoms,
that the severe mental disability was manifesting.
The State may offer
evidence to rebut such claim.
Court in appropriate
cases could set up a panel to submit an expert report.
The test envisaged
herein predicts that the offender needs to have a severe mental illness or
disability, which simply means that a medical professional would objectively
consider the illness to be most serious so that he cannot understand or
comprehend the nature and purpose behind the imposition of such punishment.
Relying upon the
Provisions of Mental Health Care Act, 2017, the Court stated that as per
Section 20(1) of the Mental Health Care Act, 2017 “every person with mental illness shall have a right to live with
The Judicial authorities in India have on previous
occasions pronounced Judgements barring execution of death row convicts
suffering from mental illness. The
Hon’ble Supreme Court, in the case of Shatrughan
Chauhan and Anr v. Union of India and Ors. (2014) 3 SCC 1, based on the
report of Neuro Psychiatrist set aside the death penalty awarded to the convict
Sundar Singh. The three judge Bench held that insanity/mental illness/schizophrenia is also one of the supervening
circumstances for commutation of death sentence to life imprisonment.
Similarly in the case of Navneet Kaur v. State(NCT of Delhi) (2014) 7 SCC 264 the Court
held that execution of persons suffering from mental illness or insanity
violates Article 21 of the Constitution and that such mental illness or
insanity would be a supervening circumstance meriting commutation of the death
sentence to life imprisonment.
This Judgement of the Supreme Court of India is a big step forward for the people sufferring from serious mental illness. India by joining the League of Nations and barring execution of mentally ill convicts has shown its concern over a long ongoing discussion on the subject of mentally ill convicts.
India has given its mandate to
Prime Minister, Mr. Narendra Modi for his second term, thereby, ushering in an
era of stability to the business community and investors. There were several
sweeping changes that were introduced by Mr. Modi during his first term which
included demonetisation, introduction of a new tax regime, etc which had its
fair share of teething problems. This led to doubts about his re-election, as
the general feeling was that many people were disgruntled with the stringent
changes. However, patriotism got the better of most voters and they have voted
in favour of the Prime Minister once again giving him a second term.
The mandate given by India has
given Mr. Modi a full and clear majority validating that though he introduced several
changes, people understood that changes are for the better of the country.
India has now arrived in the
international arena as a good business destination. The fact that foreign
investments in India has grown by leaps and bounds in the last 5 years, even
overtaking foreign investments in China, speaks for itself. With Prime Minister,
Mr. Modi, there are bound to be several further changes that will assure global
business houses regarding successful business ventures in India.
The General Elections 2019 has
also proved the popularity of Mr. Modi as a global Leader and the victory assures
the people of India of speedy growth, stability and prosperity. This win is a
signal to the global business community that India is stable and India will
shine. Hats off! Prime Minister Modi.