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In a landmark judgment of Rajinder Singh versus State of Punjab, the Supreme Court of India has ruled that demand for money even after three years into marriage can come under the ambit of the Dowry Prohibition Act, 1961

In the case mentioned above, the Appellant Rajinder Singh was married to Salwinder Kaur in 1990. In August 1993, his wife committed suicide, as she was unable to bring money from her father as demanded by her husband. The Appellant was awarded seven years imprisonment by the Trial Court and the Punjab and Haryana High Court upheld this. The appeal by Rajinder Singh was mainly on the ground that there was no proximity between the demand for dowry and the death of his wife. The Apex Court dismissed the appeal.

A three-judge Bench comprising Justices T.S. Thakur, Rohinton Nariman and Prafulla C. Pant said that “any money or property or valuable security demanded by any of the persons mentioned in Section 19 of the Dowry Prohibition Act, at or before or at any time after the marriage which could be reasonably connected to the death of a married woman, would necessarily come under dowry.”

Sati and dowry deaths had plagued this nation for centuries. While Sati had been abolished, dowry had been made a punishable offence.

The Bench analyzed that there must be a nexus between the demand of dowry, cruelty or harassment. Based upon such demand and the date of death, the test of proximity will have to be applied. But, it is not a rigid test. It depends on the facts and circumstances of each case and calls for a practical and sensitive approach of the Court within the confines of law.

Sanchayeeta Das

Legal Associate

The Indian Lawyer

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Recently, the National Company Law Tribunal had admitted the application of the Industrial Development Bank of India (IDBI) to initiate insolvency proceedings against the developers, Jaypee Infratech Ltd for default on repayment of loans. As a result, a number of flat buyers in the National Capital Region protested against the undue delay on the part of Jaypee Infratech Ltd in the delivery of constructed flats due to paucity of funds. They further argued that the developers should not be allowed to take shelter under the Insolvency and Bankruptcy Code 2016 (the Code) as it allows only the financial and operational creditors to seek claims from the debtor. This would leave the other creditors high and dry without any money.

Therefore, the Home Buyers’ Group made the following appeal to the Government:

  1. To make amendments to the Code to prioritize home-buyers’ interest in insolvency proceedings,
  2. To provide powers to the regulators of the real estate sector through the Real Estate (Regulation and Development) Act, 2016, to attach assets of all the companies under Jaypee Infratech Ltd, including their personal wealth, in order to arrange funds for completion of unfinished projects, and
  3. To restrict the banks from collecting EMIs from the home buyers, who are stuck in delayed projects.

Therefore, to resolve one of the issues, the Insolvency and Bankruptcy Board of India has amended some regulations in the Code, namely, Regulation 9A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) (Amendment) Regulations, 2017, to enable persons who have to receive a payment from a company undergoing corporate insolvency resolution process, to seek the claim by submitting proof of the claim in Form F to the interim resolution professional or resolution professional.

Jaypee Infratech Ltd, which is currently undergoing the Corporate Insolvency Resolution Process, has, therefore, uploaded the new Form-F on its Website for facilitating the aggrieved home buyers to make claims for the undelivered flats.

 

Harini Daliparthy

Legal Associate

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The corporate insolvency resolution provisions (CIRP) of the Insolvency and Bankruptcy Code (IBC) 2016 came into force on December 1, 2016. The Supreme Court has passed a detailed judgment when in the matter of M/s Innoventive Industries Ltd. vs. ICICI Bank. The insolvency proceeding was initiated by ICICI Bank against M/s Innoventive Industries Ltd. The application was filed by ICICI as a financial creditor of Innoventive, under Section 7 of the IBC, on account of default made by Innoventive in payment of amounts due under certain credit facilities availed from ICICI.

The NCLT order was challenged by Innoventive before the National Company Law Appellate Tribunal (NCLAT). In a seminal order passed by NCLAT, it dismissed the appeal holding that while deciding Section 7 applications, NCLT is only to look at Section 7 ingredients– i.e. presence of debt and default, CIRP application being complete and no disciplinary proceedings being pending against the Interim Resolution Professional (IRP). It also held that there is no repugnancy between Maharashtra Relief Undertaking (Special Provisions Act) 1958 (MRUA) and IBC as they both operate in different fields. However, since IBC has an overriding effect, it shall prevail over the provisions of MRUA.

Against the NCLAT order, an appeal was filed before the Hon’ble Supreme Court by Innoventive. It was argued by Innoventive that as its liabilities stood suspended pursuant to a relief order passed by the Government of Maharashtra under the MRUA no amounts were due and payable by it to ICICI and hence, Section 7 application cannot be admitted. Rejecting the argument on the basis that the IBC had an overriding effect over the MRUA, NCLT admitted ICICI’s application, declared moratorium and appointed an IRP.

The Supreme Court refused to dismiss the appeal on this aspect alone, noting that it is delivering a detailed judgment so that all courts and tribunals may take notice of the paradigm shift in the law. The Supreme Court undertook an in-depth examination of IBC provisions dealing with corporate insolvency resolution and laid down the following principles:

  1. Section 7Supreme Court held that for triggering Section 7 (1) of the IBC, a default could be in respect of default of financial debt owed to any financial creditor of the corporate debtor – it need not be a debt owed to the applicant financial creditor.
  2. The Supreme Court contrasted the IBC provisions relating to applications by financial and operational creditors. It held that under Section 8(1), an operational creditor is required to deliver a demand notice on the occurrence of a default and under Section 8(2), the corporate debtor can bring to the notice of the creditor, existence of a dispute or the record of pendency of a suit or arbitration proceedings, which is pre-existing. Existence of such a dispute will make the application of operational creditor inadmissible.
  3. On the other hand, under Section 7, the moment NCLT is satisfied that a default has occurred, the application of the financial creditor must be admitted (unless it is incomplete). The corporate debtor is entitled to point out that a default has not occurred in the sense that the “debt”, which may also include a disputed claim, is not due. A debt may not be due if it is not payable in law or in fact. Supreme Court held that it is of no matter that the debt is disputed so long as the debt is “due” i.e. payable unless interdicted by some law or has not yet become due in the sense that it is payable at some future date.
  4. The Supreme Court delved into case law and constitutional principles surrounding repugnancy between Central and State laws in the context of Article 254 of the Constitution. It held that the MRUA is repugnant to IBC as under the MRUA, the State Government may take over the management of the undertaking and impose moratorium in much the same manner as that contained in the IBC. It held that by giving effect to the MRUA, the plan/ scheme which may be adopted under the IBC will directly be hindered and/or obstructed and that there would be direct clash between moratoriums under the two statutes.
  5. The Supreme Court further held that the non-obstante clause of IBC will prevail over the non-obstante clause in the MRUA. On the issue of suspension of debt on account of the relief order under the MRUA, it held that on account of the non-obstante clause in the IBC, any right of the corporate debtor under any other law cannot come in the way of the IBC.

Taruna Verma

Senior Associate

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The corporate insolvency resolution provisions (CIRP) of the Insolvency and Bankruptcy Code (IBC) 2016 came into force on December 1, 2016. The Supreme Court has passed a detailed judgment on 31st August 2017 in the matter of M/s Innoventive Industries Ltd. vs. ICICI Bank. The insolvency proceeding was initiated by ICICI Bank for the recovery of its due as M/s Innoventive Industries Ltd. had defaulted on loan of about Rs 1,000 Crore. The application was filed by ICICI as a financial creditor of Innoventive, under Section 7 of the IBC, on account of default made by Innoventive in payment of amounts due under certain credit facilities availed from ICICI.

The National Company Law Tribunal (NCLT) order was challenged by Innoventive before the National Company Law Appellate Tribunal (NCLAT). In a seminal order passed by NCLAT, it dismissed the appeal holding that while deciding Section 7 applications, NCLT is only to look at Section 7 ingredients– i.e. presence of debt and default, CIRP application being complete and no disciplinary proceedings being pending against the Interim Resolution Professional (IRP). It also held that there is no repugnancy between Maharashtra Relief Undertaking (Special Provisions Act) 1958 (MRUA) and IBC as they both operate in different fields. However, since IBC has an overriding effect, it shall prevail over the provisions of MRUA.

Against the NCLAT order, an appeal was filed before the Hon’ble Supreme Court by Innoventive. It was argued by Innoventive that as its liabilities stood suspended pursuant to a relief order passed by the Government of Maharashtra under the MRUA no amounts were due and payable by it to ICICI and hence, Section 7 application cannot be admitted. Rejecting the argument on the basis that the IBC had an overriding effect over the MRUA, NCLT admitted ICICI’s application, declared moratorium and appointed an IRP.

The Supreme Court refused to dismiss the appeal on this aspect alone, noting that it is delivering a detailed judgment so that all Courts and Tribunals may take notice of the paradigm shift in the law. The Supreme Court undertook an in-depth examination of IBC provisions dealing with corporate insolvency resolution and laid down the following principles:

1. Section 7Supreme Court held that for triggering Section 7 (1) of the IBC, a default could be in respect of default of financial debt owed to any financial creditor of the corporate debtor – it need not be a debt owed to the applicant financial creditor.

2. The Supreme Court contrasted the IBC provisions relating to applications by financial and operational creditors. It held that under Section 8(1), an operational creditor is required to deliver a demand notice on the occurrence of a default and under Section 8(2), the corporate debtor can bring to the notice of the creditor, existence of a dispute or the record of pendency of a suit or arbitration proceedings, which is pre-existing. Existence of such a dispute will make the application of operational creditor inadmissible.

3. On the other hand, under Section 7, the moment NCLT is satisfied that a default has occurred, the application of the financial creditor must be admitted (unless it is incomplete). The corporate debtor is entitled to point out that a default has not occurred in the sense that the “debt”, which may also include a disputed claim, is not due. A debt may not be due if it is not payable in law or in fact. Supreme Court held that it is of no matter that the debt is disputed so long as the debt is “due” i.e. payable unless interdicted by some law or has not yet become due in the sense that it is payable at some future date.

4. The Supreme Court delved into case law and constitutional principles surrounding repugnancy between Central and State laws in the context of Article 254 of the Constitution. It held that the MRUA is repugnant to IBC as under the MRUA, the State Government may take over the management of the undertaking and impose moratorium in much the same manner as that contained in the IBC. It held that by giving effect to the MRUA, the plan/ scheme which may be adopted under the IBC will directly be hindered and/or obstructed and that there would be direct clash between moratoriums under the two statutes.

5. The Supreme Court further held that the non-obstante clause of IBC will prevail over the non-obstante clause in the MRUA. On the issue of suspension of debt on account of the relief order under the MRUA, it held that on account of the non-obstante clause in the IBC, any right of the corporate debtor under any other law cannot come in the way of the IBC.

Taruna Verma

Senior Associate

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The Supreme Court has held that service details of employees fall within the ambit of ‘personal information’ under Section 8(1)(j) of the Right to Information (RTI) Act, and that such details cannot be furnished unless any connection with larger public interest is shown. This was held by allowing the appeal filed by Canara Bank Ltd. in Canara Bank & Anr. v. M. Mahesh Kumar, against the judgment of the Kerala High Court.

An employee of the bank had sought information regarding transfer and postings of entire clerical staff during the period from 01.01.2002 to 31.07.2006. The Public Information Officer declined to furnish information stating it was personal information exempted under Section 8(1)(j) of the RTI Act.

On appeal, the Chief Information Commissioner (CIC) directed the Bank to furnish the information as sought for. Against the order of the CIC, the Bank approached the High Court. The Single Bench and the Division Bench concurrently held against the Bank, dismissing the writ petition.

On appeal, the Supreme Court was of the view that the application under Section 6 (Request for obtaining information) of the RTI Act was wrongly allowed by the Central Information Commission and the High Court.

The performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression “personal information”, the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual.

If the Central Public Information Officer or the State Public Information Officer or the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but one cannot claim those details as a matter of right.

The details disclosed by a person in his income tax returns are “personal information” which stand exempted from disclosure under clause (j) of Section 8(1) of the RTI Act, unless it involves a larger public interest and the Central Public Information Officer or the State Public Information Officer or the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information.

Sanchayeeta Das

Legal Associate

The Indian Lawyer

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The corporate insolvency resolution provisions (CIRP) of the Insolvency and Bankruptcy Code (IBC) 2016 came into force on December 1, 2016. The Supreme Court has passed a detailed judgment in the matter of M/s Innoventive Industries Ltd. vs. ICICI Bank. The insolvency proceeding was initiated by ICICI Bank against M/s Innoventive Industries Ltd. The application was filed by ICICI as a financial creditor of Innoventive, under Section 7 of the IBC, on account of default made by Innoventive in payment of amounts due under certain credit facilities availed from ICICI.

The National Company Law Tribunal (NCLT) order was challenged by Innoventive before the National Company Law Appellate Tribunal (NCLAT). In a seminal order passed by NCLAT, it dismissed the appeal holding that while deciding Section 7 applications, NCLT is only to look at Section 7 ingredients– i.e. presence of debt and default, CIRP application being complete and no disciplinary proceedings being pending against the Interim Resolution Professional (IRP). It also held that there is no repugnancy between MRUA and IBC as they both operate in different fields. However, since IBC has an overriding effect, it shall prevail over the provisions of Maharashtra Relief Undertaking (Special Provisions Act) 1958 (MRUA).

Against the NCLAT order, an appeal was filed before the Hon’ble Supreme Court by Innoventive. It was argued by Innoventive that as its liabilities stood suspended pursuant to a relief order passed by the Government of Maharashtra under the MRUA no amounts were due and payable by it to ICICI and hence, Section 7 application cannot be admitted. Rejecting the argument on the basis that the IBC had an overriding effect over the MRUA, NCLT admitted ICICI’s application, declared moratorium and appointed an IRP.

The Supreme Court refused to dismiss the appeal on this aspect alone, noting that it is delivering a detailed judgment so that all courts and tribunals may take notice of the paradigm shift in the law. The Supreme Court undertook an in-depth examination of IBC provisions dealing with corporate insolvency resolution and laid down the following principles:

1. Section 7Supreme Court held that for triggering Section 7 (1) of the IBC, a default could be in respect of default of financial debt owed to any financial creditor of the corporate debtor – it need not be a debt owed to the applicant financial creditor.

2. The Supreme Court contrasted the IBC provisions relating to applications by financial and operational creditors. It held that under Section 8(1), an operational creditor is required to deliver a demand notice on the occurrence of a default and under Section 8(2), the corporate debtor can bring to the notice of the creditor, existence of a dispute or the record of pendency of a suit or arbitration proceedings, which is pre-existing. Existence of such a dispute will make the application of operational creditor inadmissible.

3. On the other hand, under Section 7, the moment NCLT is satisfied that a default has occurred, the application of the financial creditor must be admitted (unless it is incomplete). The corporate debtor is entitled to point out that a default has not occurred in the sense that the “debt”, which may also include a disputed claim, is not due. A debt may not be due if it is not payable in law or in fact. Supreme Court held that it is of no matter that the debt is disputed so long as the debt is “due” i.e. payable unless interdicted by some law or has not yet become due in the sense that it is payable at some future date.

4. The Supreme Court delved into case law and constitutional principles surrounding repugnancy between Central and State laws in the context of Article 254 of the Constitution. It held that the MRUA is repugnant to IBC as under the MRUA, the State Government may take over the management of the undertaking and impose moratorium in much the same manner as that contained in the IBC. It held that by giving effect to the MRUA, the plan/ scheme which may be adopted under the IBC will directly be hindered and/or obstructed and that there would be direct clash between moratoriums under the two statutes.

5. The Supreme Court further held that the non-obstante clause of IBC will prevail over the non-obstante clause in the MRUA. On the issue of suspension of debt on account of the relief order under the MRUA, it held that on account of the non-obstante clause in the IBC, any right of the corporate debtor under any other law cannot come in the way of the IBC.

Taruna Verma

Senior Associate

 

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In a recent Supreme Court judgment delivered on 24.08.2017 by a 9-Judge Bench of the Supreme Court comprising of Hon’ble Chief Justice Justice J.S. Khehar,  Justice R K Agrawal,  Justice S Abdul Nazeer and Dr Justice D Y Chandrachud,  Justice J Chelameswar,  Justice S A Bobde,  Justice Abhay Manohar Sapre,  Justice Rohinton Fali Nariman and  Justice Sanjay Kishan Kaul, in the matter Justice K S Puttaswamy (Retd.), and Anr vs. Union of India and Ors, has held that right to privacy is a fundamental right under Article 21 of the Constitution of India.

The Court has held that privacy postulates the reservation of a private space for the individual, described as the right to be let alone. The Court has also laid down the essential nature of privacy:

  1. Privacy enables an individual to take decisions relating to significant matters of human life.
  2. Privacy of an individual is an important aspect and subset of human dignity and, therefore, they are inseparably interlinked with each other.
  3. Privacy is intrinsic for the exercise of liberty and for the fulfillment of freedoms protected by the Constitution because it is in privacy that the individual can decide how liberty and freedom is best exercised. For e.g., an individual may prefer to lead a particular lifestyle, faith or religion, etc which requires a choice to be made within the privacy of the mind.
  4. But individuals may, at times, face privacy concerns because they reside in a society where they may have to interact with people, either directly or using technology or both, and share information about themselves. The Supreme Court further held that privacy is not lost or surrendered merely because the individual is in a public place and that there is also a need to examine and introduce a robust regime for data protection in India.

The Supreme Court while holding that life and personal liberty are rights that are recognized by the Constitution as inalienable and inherent to an individual came to the following conclusion:

  • Privacy is a right protected by the Constitution which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution;
  • Some aspects of privacy also arise from the other facets of freedom and dignity recognized and guaranteed by the fundamental rights contained in Part III of the Constitution;
  • But, at the same time, the right to privacy is not an absolute right and may be subjected to the following restrictions as specified in Part III of the Constitution: a. A law may impose certain reasonable restrictions, as specified under Part III, on the exercise of any fundamental right; and b. In the context of Article 21, an invasion of privacy may be justified on the basis of a law which lays down a procedure which is fair, just and reasonable as well as meet the requirements of (i) legality; (ii) need; and (iii) a rational nexus between the objects and the means adopted to achieve them.

With the pronouncement of this Judgment, the Supreme Court has declared that it has overruled the various earlier judgments which were of the view that right to privacy is not constitutionally protected.

 

Harini Daliparthy

Legal Associate

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The Islamic practice of instant triple talaq permits Sunni Muslim men to enact divorce with their wives, simply by pronouncing talaq, meaning divorce, three times. Despite, many Islamic countries have banned it and the Supreme Court finding it unconstitutional in the past, Chief Justice J. S. Khehar concluded that talaq-e-biddat constitutes a matter of faith for Sunni Muslims of the Hanafi school and has been practiced by them for at least 1,400 years.

India has two primary ways of dealing with religious matters. The Constitution protects the personal law of religious communities, allowing them to carry on practices as per their traditions without the interference of the courts. But where religious law has been codified by legislatures, such as through the Shariat Act of 1937, it becomes open to constitutional questions and the test of fundamental rights.

In a majority 3:2 Judgment, a Five-Judge Bench of the Supreme Court on 22nd August 2017, set aside talaq-e-biddat as a “manifestly arbitrary” practice, which is not protected by Article 25 (Freedom of Religion) of the Constitution in the case of Shayara Bano vs. Union of India and others (22.08.2017)

Justices Kurian Joseph and Rohinton Fali Nariman gave separate Judgments against the validity of talaq-e-biddat.

Justice Nariman’s Judgment says, talaq-e-biddat allowed a Muslim man to “whimsically and capriciously” divorce his wife. The practice is “manifestly arbitrary” and does not enjoy the protection of Article 25. Furthermore, Justice Nariman opined, talaq-e-biddat was merely permissive and not a absolute religious practice, and so, does not deserve the protection of Article 25, again. This view was supported by Justice U.U. Lalit.

Justice U. U. Lalit further stated that the 1937 Shariat Act is a law made by the legislature before the Constitution came into force, and would fall squarely within the expression “laws in force” under Article 13(3)(b). Therefore, it would be hit by Article 13(1) if found to be inconsistent with the provisions of Part III of the Constitution.

Justice Kurian Joseph, in his Judgment, concurs with Justice Nariman on the ‘arbitrariness aspect’ stating that,“However, on the pure question of law that a legislation, be it plenary or subordinate, can be challenged on the ground of  arbitrariness, I agree with the illuminating exposition of law by Nariman, J. I am also of the strong view that Constitutional democracy of India cannot conceive of a legislation which is arbitrary.

The minority view of Chief Justice of India J. S. Khehar, who led the Bench, held that talaq-e-biddat is an integral part of Article 25 (Freedom of Religion). He said it had been followed for over 1,400 years by the Hanafis and become a part of religious pratice. He held that instant talaq does not violate Articles 14, 19 and 21 of the Constitution, and has passed it on to the Legislature to decide a law invoking extraordinary jurisdiction within six months of the Judgment.

The opinion of Justice J.S. Khehar and Justice S. Abdul Nazeer is that, “Till such time as legislation in the matter is considered, we are satisfied in injuncting Muslim husbands, from pronouncing ‘talaq-e-biddat’ as a means for severing their matrimonial relationship. The instant injunction, shall in the first instance, be operative for a period of six months,

If it is decided that the practice of ‘talaq-e-biddat’ be done away with altogether, the injunction would continue, till legislation is finally enacted. Failing which, the injunction shall cease to operate.”

Chief Justice J.S. Khehar’s dissenting opinion concluded that instant talaq-e-biddat did not come under codified, statutory law – as argued by the Petitioners calling for it to be struck down – and instead accepted the All India Muslim Personal Law Board’s contention that it was personal religious law, and could not be changed by the court.

Religion is a matter of faith, and not of logic. It is not open to a court to accept an egalitarian approach, over a practice which constitutes an integral part of religion,” the dissenting opinion says. “We cannot accept the Petitioners’ claim, because the challenge raised is in respect of an issue of ‘personal law’ which has constitutional protection.

We hope and expect, that the contemplated legislation will also take into consideration advances in Muslim ‘personal law’ – ‘Shariat’, as have been corrected by legislation the world over, even by theocratic Islamic States. When the British rulers in India provided succor to Muslims by legislation, and when remedial measures have been adopted by the Muslim world, we find no reason, for an independent India, to lag behind,” the dissenting opinion said. “We would also beseech different political parties to keep their individual political gains apart, while considering the necessary measures requiring legislation.

Ultimately, however, this opinion was only supported by two of the Five Judges on the Bench and so, rather than leaving talaq-e-biddat to the Legislature, the Supreme Court of India has decided to strike down talaq-e-biddat as unconstitutional regardless of the above dissenting opinions of two Judges that it comes under personal law.

Taruna Verma

Senior Associate

The Indian Lawyer

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Owners of liquor shops in Maharashtra have approached the Supreme Court challenging the State Government’s decision to declare State Roads as Highways without following the procedure mandated under the Bombay Highways Act, 1955.

The petition is an appeal against the decision of the Bombay High Court, which had dismissed the challenge.

When the matter came up in the Supreme Court for hearing on Friday (18.08.2017) before a Bench of Justices Dipak Misra and AM Khanwilkar, the Court directed that the matter should be heard by the same Bench which had passed the order banning liquor shops within 500 meters of National and State Highways.

It is the Petitioner’s case that they are operating their liquor shops along roads which are neither National Highways nor State Highways. The Petitioners have submitted that the State Government has merely changed the name of the roads into State Highways without declaration in the Official Gazette which is mandatory as per Section 3 of the Bombay Highways Act, 1955. The Petitioner’s have averred that:

“The liquor shops of the Petitioners are neither operating on National Highway nor State highway.. Mere change of name of the road without any notification whatsoever would not give a State Road, status of State Highway. Section 3 of the Bombay Highways Act, 1955 is a mandatory section for declaring/converting any road into State Highway.”

The Petitioner goes on to state that when the case had come up before Bombay High Court, the State Government had, in fact, admitted that there exists no Notification by which the State Roads were declared as State Highways. They further say:

“The Hon’ble High Court erred in not taking any action against the Respondents, who in fact have admitted before the Hon’ble High Court that there exists no notification vide which the State Roads are converted/declared as State Highways, where the Petitioners are carrying out their businesses.”

On December 15, 2016, a three-judge Bench of the Supreme Court comprising Chief Justice JS Khehar and Justices DY Chandrachud and L Nageswara Rao had ordered a ban on sale of alcohol within a distance of 500 meters from National and State Highways. The matter may now come up before the same Bench.

 

Sanchayeeta Das

Legal Associate

The Indian Lawyer

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In a landmark judgment of Shayara Bano versus Union of India (22.08.2017), the Supreme Court set aside the Triple Talaq system of divorce followed by Sunni Muslims under personal law as unconstitutional.

The affected Muslim women in a bunch of petitions had challenged the validity of instant Triple Talaq on the grounds that it violated their fundamental right to equality. A five-judge bench, taken from different religious backgrounds, comprising Chief Justice J.S. Khehar and Justices Kurian Joseph, Rohinton F. Nariman, Uday U. Lalit and S.A. Abdul Nazeer, in a 395-page verdict by a majority of 3:2, held that instant Triple Talaq is unconstitutional, arbitrary and unreasonable.

Justices Kurian Joseph, UU Lalit and RF Nariman delivered the majority Judgment. Justice Nariman’s view is that Triple Talaq does not fall within the sanction of the Quran. Even assuming that it forms part of the Quran, Hadis or Ijmaa, it is not something that is “commanded”. Talaq itself is not a recommended action and therefore, he argued, Triple Talaq will not fall within the category of sanction ordained by the Quran. While the practice is permissible in the Hanafi jurisprudence, that very jurisprudence criticizes Triple Talaq as being sinful.

A practice that is clearly arbitrary is obviously unreasonable and, being contrary to the rule of law, would violate Article 14 of the Constitution. If an action is found to be arbitrary and unreasonable, it would negate the equal protection of the law contained in Article 14 and would be struck down on this ground. Pointing out that Triple Talaq is sanctioned under the Muslim Personal Law (Shariat) Application Act, 1937, Justice Nariman said it is constitutionally invalid.

Justice Joseph’s view on the said point is as follows:

“What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.”

He further held the simple question that needs to be answered in this case is only whether Triple Talaq has any legal sanctity.

“The Holy Quran has attributed sanctity and permanence to matrimony. However, in extremely unavoidable situations, talaq is permissible. But an attempt for reconciliation and if it succeeds, then revocation are the Quranic essential steps before talaq attains finality. In Triple Talaq, this door is closed, hence, Triple Talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat. Therefore, in any case, after the introduction of the 1937 Shariat Act, no practice against the tenets of Quran is permissible. Hence, there cannot be any Constitutional protection to such a practice. When issues of such nature come to the forefront, the discourse often takes the form of pitting religion against other constitutional rights.”

Sanchayeeta Das

Legal Associate

The Indian Lawyer

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