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The Supreme Court, in the case of Arjun Gopal v. Union of India, has issued an order dated 09.10.2017 (Order) to ban the sale of fireworks (including fire crackers) in the territory of Delhi-NCR till 01.11.2017 in order to control the deteriorating quality of air in this region and to reduce the adverse effects of bursting fireworks during the festival of Diwali. The Apex Court has, therefore, ordered for suspension of licenses for storing and selling fireworks in the Delhi and NCR area and added that it may issue further orders depending on the situation that may emerge during the Diwali season.

The Supreme Court had issued a similar order last year when the bursting of fire crackers during Diwali appeared to be one of the major causes of worsening air quality in the Delhi-NCR area as a result of which various schools had to be closed and authorities had to take various measures on health emergency basis. The Supreme Court added that the impact of that order could only be tested during the festive season of Diwali.

According to the Order, although this suspension may have an adverse effect on the business of permanent and other license holders but currently, their primary concern is public health and to ensure that people are not compelled to breathe poor quality air, there is a dire need to ban the sale of fireworks in the Delhi-NCR area and to observe its resultant effect on the air quality.

This suspension has seen a huge uproar amongst the fireworks-manufacturers but on the other side, various doctors and environmentalists have happily welcomed this decision of the Supreme Court. The affected traders had filed an interim application on 13.10.2017 seeking modification of the Order of suspension of license for sale of firecrackers in the Delhi-NCR ahead of Diwali but the Apex Court has refused to modify the Order and stated that the traders had been granted temporary licenses only up to 21.10.2017 and therefore, in pursuance of the Order dated 09.10.2017, they may seek renewal of their temporary licenses w.e.f. 01.11.2017 and this request may be considered by the police authorities.

It has also been reported that the Supreme Court has said that most of the traders had already sold their old stock of fire crackers before the pronouncement of this Order and therefore, it may not entirely be a Diwali without bursting of crackers.

As a result, the effect of the Order dated 09.10.2017 on the air quality may be observed only after 01.11.2017 when the Supreme Court may decide on lifting of the ban or pass any other order, whichever it deems fit.

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A Hindu Undivided Family (HUF) is a separate entity that can be created by members of a family, wherein the members are lineal ascendants or descendants. Hindus, Buddhists, Jains and Sikhs can open HUFs.

A single person cannot create an HUF. Usually the senior-most member of the family is considered the karta that is the person who manages the affairs of the HUF.

In a recent judgment of the Supreme Court of India in Adiveppa vs. Bhimappa, dated 6th September 2017 it was held that a property belonging to all its members is taken as joint property and a family member while staking a claim has to produce evidence if it is ‘self-acquired’.

In the case mentioned above, the Supreme Court was hearing an appeal challenging an Order passed by the Karnataka High Court in a family dispute pertaining to ownership and partition of agricultural lands. It upheld the High Court’s Order which had declared the property as joint property of the family.

The two Judge Bench comprising of Justice R.K. Agrawal and Justice Abhay Manohar Sapre said that the burden is always on a family member, claiming ownership over a part of property of joint family, to prove before a Court that it is his self-acquired property and not joint property of the family by placing oral or documentary evidence.

The Bench opined,  “It is a settled principle of Hindu law that there lies a legal presumption that every Hindu family is joint in food, worship and estate and in the absence of any proof of division, such legal presumption continues to operate in the family. The burden, therefore, lies upon the member who after admitting the existence of jointness in the family properties asserts his claim that some properties out of entire lot of ancestral properties are his self-acquired property,” the observed.

The Supreme Court further held that the Appellants had failed to prove that the property was self acquired and observed, “In order to prove that the suit properties described in Schedule ‘B’ and ‘C’ were their self-acquired properties, the plaintiffs could have adduced the best evidence in the form of a sale-deed showing their names as purchasers of the said properties and also could have adduced evidence of payment of sale consideration made by them to the vendee. It was, however, not done. Not only that, the plaintiffs also failed to adduce any other kind of documentary evidence to prove their self-acquisition of the Schedule ‘B’ and ‘C’ properties nor they were able to prove the source of its acquisition.”

The Supreme Court in its Order held that, “Not only that, they also failed to adduce any other kind of documentary evidence to prove their self acquisition of properties nor they were able to prove the source of its acquisition”. Thus, the Bench said it was obligatory upon the contesting family members to prove that despite existence of jointness in the family, properties were not part of ancestral properties but were their self-acquired properties and the petitioners failed to prove their claim.

Taruna Verma

Senior Associate

 

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Supreme Court on 30th August 2017 in the matter of Bijoy Sinha Roy, by Legal Representative vs. Biwasnath Das and the Bench comprising of Justice A.K. Goel and Justice U.U. Lalit, heard an Appeal challenging an order passed by the National Consumer Disputes Redressal Commission (NCDRC), wherein it had rejected the complaint filed by a husband alleging death of his wife due to medical negligence. The Appeal contended that surgery was performed on the deceased woman at a nursing home which did not have an ICU.

The Apex Court observed, “We however, find that neither the State Commission nor the National Commission have examined the plea of the appellant that the operation should not have been performed at a nursing home which did not have the ICU when it could be reasonably foreseen that without ICU there was post operative risk to the life of the patient. There was no serious contest to this claim by the opposite parties.”

It, however, did not remand the matter back for fresh adjudication, considering the fact that the matter had been pending for the last 23 years. It then directed the accused doctor to pay a sum of Rs. 5 Lakh to the heirs of the deceased, directing him to deposit the said amount with the State Commission within 3 months.

However, Supreme Court subsequently issued directions to ensure speedy resolution of disputes and utilization of alternate dispute resolution mechanisms by the Consumer Fora.

In order to achieve the object of providing speedy remedy to a consumer, the Bench opined that steps can be taken under Section 24B of the Consumer Protection Act, 1986. It observed that since the NCDRC has administrative control over all the State Commissions, it is competent to introduce monitoring mechanism for speedy disposal of cases. Section 24B gives the NCDRC administrative control under the Consumer Protection Act, 1986, the Section states as follows:

(1) The National Commission shall have administrative control over all the State Commissions in the following matters, namely:—

(i) calling for periodical return regarding the institution, disposal, pendency of cases;

(ii) issuance of instructions regarding adoption of uniform procedure in the hearing of matters, prior service of copies of documents produced by one party to the opposite parties, furnishing of English translation of judgments written in any language, speedy grant of copies of documents;

(iii) generally overseeing the functioning of the State Commissions or the District Fora to ensure that the objects and purposes of the Act are best served without in any way interfering with their quasi-judicial freedom.

(2) The State Commission shall have administrative control over all the District Fora within its jurisdiction in all matters referred to in sub-section (1).”

The Apex Court has therefore directed the NCDRC to consider this aspect and formulate an appropriate action plan. Besides, it observed that the Commission may also consider the use of video conferencing facility for examining expert witnesses wherever necessary.

The Supreme Court further referred to Section 89 of the Code of Civil Procedure which deals with settlement of disputes outside the Court. It then directed the NCDRC to issue appropriate directions in this regard and held, “Even though strictly speaking, the said provision is applicable only to civil courts, there is no reason to exclude applicability to Consumer Fora having regard to the object of the said provision and the object of the consumer protection law. Accordingly, we are of the view that the said provision ought to be duly invoked by the Consumer Fora,”

The Bench clarified that it would be open to the NCDRC and the State Commission to coordinate with the National Legal Services Authority and the State Legal Services Authorities to achieve this objective.

TARUNA VERMA

SENIOR ASSOCIATE

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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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