images

On December 16, 2015, a Constitution Bench of the Supreme Court, which had struck down the National Judicial Appointments Commission as unconstitutional, had left the task of preparing the Memorandum of Procedure (MoP) to the Central Government.

A year and three months later, the exercise has borne fruit after a long tug-of-war. The Supreme Court collegium has finalized the MoP for appointment of judges to Supreme Court and various High Courts.

After arriving at a consensus on Centre’s stand that “national security” ought to be part of the criteria to determine eligibility for appointment as judges, the collegium headed by Chief Justice J S Khehar and comprising Justices Dipak Misra, J Chelameswar, Ranjan Gogoi and Madan B Lokur has significantly dropped its reservation about setting up secretariats in the Supreme Court and each High Court to maintain databases on judges and assist the collegiums in the Supreme Court and the High Courts in selection of judges.

The collegium is of the view that the executive should have a veto on any candidate recommended by the collegium on the ground of “national security”, and that there should be an independent secretariat to deal with appointments and transfers.

Finalization of the MoP, which will be sent to the Centre for approval has raised hopes of speedy filling up of vacancies in High Courts, which are operating at below 60% of their sanctioned strength.

In many High Courts, court rooms have been shut because of lack of adequate number of judges. This is hampering disposal of cases, which adds to the backlog.

The members of the Supreme Court collegium held seven meetings and unanimously finalized the MoP after debating each clause and sentence of the new MoP. There were no other sore points except the national security clause and secretariat in the MoP that required resolution.

For the last one year, the draft of MoP was getting tossed back and forth between the Centre and the collegium with both sides refusing to budge over their stated positions on the national security clause which ostensibly gave veto power to the government to reject a name recommended by the collegium for appointment as judge. The collegium agreed with the Centre on the national security clause on the condition that specific reasons for application of the clause were recorded.

However, things started moving after Justice Khehar took over as CJI and the composition of the collegium changed, allowing it to meet the challenges on top of it.

 

Sanchayeeta Das

Legal Associate

The Indian Lawyer

Tags :

Picture1

A fake message that has gone viral in the social media misinforms the public about the rights of a girl, suspected to be raped or getting raped. The message propagates that the law allows the victim to kill or harm the offendor, for which she will not be held guilty by virtue of Section 233 of the Indian Penal Code (IPC) 1860. The message that is being circulated is as follows and is being reproduced so that the public is not misinformed about its rights. The message reads as follows:

Finally a new law passed by *MODI JI Govt* today. As per _Indian Penal Code_ 233. If a girl is suspected to be raped or getting raped, then she has the supreme right to *kill* the man, or *harm* that person as dangerously and girl won’t be blamed for *murder*”

This article is written in the interest of general public and clarifies that no such new anti-rape law has been enacted by the Government of India. The IPC 1860 has already provided that a person may, in the exercise of his/her right of private defense, voluntarily cause death or any other harm to an offendor, who commits any of the offences listed under Section 100 IPC:

  1. assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
  2. assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
  3. assault with the intention of committing rape;
  4. assault with the intention of gratifying unnatural lust;
  5. assault with the intention of kidnapping or abduction;
  6. assault with the intention of wrongful confinement, which may reasonably cause the victim to apprehend that he/she will be unable to have recourse to the public authorities for his/her release.

The Supreme Court has held that in the case of private defense, the onus of proof shifts between the accused, to establish his plea of private defense and the prosecution, to establish every ingredient of the offence with which the accused has been charged, beyond reasonable doubt. It has also held that while judging the nature of apprehension which the accused can reasonably entertain in such circumstances requiring him to act on the spur of moment, the court has to take into consideration the subjective point of view of the accused and the normal course of human conduct as to how would a person react under such circumstances in a sudden manner with an instinct of self-preservation.

Daliparthy Harini

Legal Associate

Tags :

Picture1

The Indian Government has been making efforts to abolish the system of orderlies also known as buddies, sahayaks and helpers in the Indian Armed Forces and the State Police Departments. They are trained uniformed people who are expected to help officers in maintenance and upkeep of uniform, answering telephone calls, attending to personal security and also run small errands. Over a period of time, low-ranking and combat soldiers and armed police constables have been made to work like orderlies and run errands for the officers and their families such as polishing of boots, ironing of clothes, cooking, washing of clothes, taking their children to school, shopping for their family members etc.

For a long period of time, the low-ranking soldiers and police constables have been demanding for abolish of this orderly system in the Indian Armed Forces and the State Police Departments. The Indian Air Force and the Indian Navy have already abolished this system and the Army Chief General Bipin Rawat has also lent his support to ending the sahayak or buddy system in peace zones because according to him, orderly system is important for the functioning of the Army during war and for deployment of forces in the field areas.

The Karnataka State Police Department, where over 3,000 constables and head constables work as orderlies for senior police officers, has also taken the bold move of abolishing this system through a formal Notification on 9th March 2017. It will introduce followers in place of orderlies. According to the said Notification, 50% of followers will be appointed for eligible officials and such officials will be extended home orderly allowance to engage followers of their choice on a part-time basis to assist them in disposal of official work at their residence. But in order to claim home orderly allowance, the officer will have to certify that he has utilized the allowance for the specified purpose and has not utilized the service of any police constable, government orderly, and peon at their residence as home orderly. This move will, probably, boost the morale of soldiers and constables to do their regular jobs.

Tags :

Picture2

The Supreme Court had, on 3rd March 2017, heard a public interest litigation (PIL) petition filed by an NGO, Citizens Resource and Action Initiative, to demand compensation for the families of the farmers who have committed suicide due to crop failure. The Supreme Court has expressed deep concern over the issue of farmer suicides and has directed the Centre to address the core issues which have caused the farmers to commit suicide.

The Court said that it is not possible for it to grant compensation every time a farmer commits suicide and moreover, payment of compensation to their families of such victims post-facto will not remedy this grave issue.  The Additional Solicitor General, P.S. Narsimha has claimed that the Government initiatives for the improvement of financial capacity of the farmers such as Crop Insurance Scheme, Soil Health Card Scheme, Pradhan Mantri Fasal Bima Yojna, Parampragat Krishi Vikas Yojana, etc will solve the problem. However, there may have been other reasons behind farmers committing suicide such as sociological issues, inability to repay loans to banks, etc. Therefore, the Court has directed the Government to prepare a roadmap and set up a comprehensive framework within three weeks to address the distress and misery caused to farmers in the farm sector and to prevent the incidents of farmer suicides instead of compensating their families later.

Tags :

Picture4

The recent development in the Vijay Mallya- bank loan default case has been that the Supreme Court has adjourned the hearing of the plea of the State Bank of India (SBI) – led consortium of 17 Banks against the now-defunct Kingfisher Airlines’ (KFA) owner Vijay Mallya to February, 27, 2017. The extradition request of the Indian Government has not yet been honored by the United Kingdom (UK) but a Delegation from the UK has briefed the officials of India’s Ministry of External Affairs, Ministry of Home Affairs and investigation agencies about the legal procedure and requirements of the UK pertaining to extradition of fugitives.

The Consortium had, earlier in March 2016, approached the Supreme Court for seeking its intervention to restrain Vijay Mallya from flying abroad fearing that the debt recovery proceedings initiated by them against Mallya before the Debt Recovery Tribunal, Bengaluru would be stalled.  The Supreme Court had, earlier in April and October, 2016, directed Vijay Mallya to disclose his assets to the Consortium but the latter contended that the disclosure made by Mallya has been ‘vague’ as he had failed to disclose the severance package of Rs 515 crore that he had received from Diageo PLC, an alcoholic beverage company, as a part of his exit from the United Spirits, a subsidiary of Diageo PLC. The Consortium had also filed an F.I.R. with the Central Bureau of Investigation (CBI) against Vijay Mallya in the loan default case in 2016. The CBI had, thereafter, registered a case against Mallya and upon investigation, had arrested a few officials of KFA and IDBI Bank, for forwarding loan to KFA, a low net worth Company.

According to an interview of Vijay Mallya in England, he has claimed that the Indian Authorities do not have any grounds to extradite him from Britain and that he will be safe under the UK laws.

 

Daliparthy Harini

Legal Associate

The Indian Lawyer

Tags :

Picture1

The Prevention of Corruption Act (the PC Act), 1988 seeks to combat and eliminate bribery and corruption amongst public servants; and punish those who abet or conspire with a public servant in the commission of any offence punishable under this Act.

In the case of State of Karnataka vs. Selvi. J. Jayalalitha and others decided by the Supreme Court on 14th February, 2017, the Court has held late Selvi. J. Jayalalitha, the then Chief Minister of the State of Tamil Nadu (a public servant at the time of institution of the case) [A1], Sasikala Natarajan [A2]; V.N. Sudhakaran [A3]; and J. Elavarasi [A4] guilty under the PC Act and the Indian Penal Code (IPC) 1860, on the grounds that a public servant (or person connected to the public servant) being in possession of pecuniary resources or properties disproportionate to his known sources of income during service which cannot be satisfactorily accounted for.

In this case, A1 was held guilty of:

criminal misconduct (four years imprisonment and a fine of Rs.100 crores); and

committing criminal conspiracy with the object of acquiring and possessing pecuniary resources and assets to the extent of Rs.53,60,49,954/- beyond the known sources of income of A1 (six months imprisonment and a fine of Rs. one lakh).

Whereas, A2, A3, and A4 have been held guilty:

of committing criminal conspiracy with the object of acquiring and possessing pecuniary resources and assets to the extent of Rs.53,60,49,954/- beyond the known sources of income of A1 (imprisonment of six months each and a fine of Rs.10,000/- each); and

for abetting the commission of offence of acquisition and possession of pecuniary resources and properties to the extent of Rs.53,60,49,954/- beyond the known sources of income of A1 (imprisonment of four years each and a fine of Rs.10 crores each).

The Supreme Court has ruled that any of the aforesaid accused, A1/A2/A3/A4, who is in default of payment of the fine amount, shall undergo one more year of imprisonment.

The aforesaid verdict of the Supreme Court has been based on the following significant findings of the Trial Court (“the Court”):

The value of disproportionate assets and pecuniary resources found in possession of A1 as on4.1996, which have not been satisfactorily accounted, has been calculated by the Court as Rs. 53,60,49,55,954/-;

The huge amounts of cash credits have not been explained by the Respondents. Also, a few Prosecution Witnesses have testified that huge amounts of cash deposits were made in the current accounts of A2 to A4 (but not A1) and their firms during the check period (7.1991 to 30.4.1996). The Court, thereby, concluded that these resources that were at all relevant times held by A2 to A4 on behalf of A1 for veiling her otherwise unexplained disproportionate assets is unassailable.

The Balance Sheets and the Income Statements of the Companies of A3 and A4 have reflected that there has been no conduct of business activities or profit earning during the Check Period and a few Prosecution Witnesses have stated that huge sums of money have been disbursed to the accounts of A3 and A4 by the staff of A1 on the instructions of A2, the in-charge of A1’s financial affairs. Thus, the Court concluded that all the assets and pecuniary resources found to be possessed by A2 to A4 and their firms had actually belonged to A1. Thereby, establishing the ingredients of the offence under section 13(1) (e) of the PC Act.

The free flow of money from one account to the other of the Respondents and their firms/companies also proved beyond reasonable doubt that all the Respondents have actively participated in the conspiracy to launder the ill-gotten wealth of A1 for purchasing properties in their names.

The Supreme Court has, thereby, restored the order of the Trial Court and has set aside the order of the Karnataka High Court on the grounds that it had been based on completely wrong reading of the evidence on record compounded by incorrect arithmetical calculations.

 

Daliparthy Harini

Legal Associate

The Indian Lawyer

 

Tags :

Picture1

The Central Bureau of Investigation (CBI) had, earlier on 31st January 2017, filed an affidavit before a special CBI Court seeking the extradition of Vijay Mallya, the promoter of now-defunct Kingfisher Airlines, from the United Kingdom (UK) where he had been residing since March 2016. By virtue of the Extradition Treaty signed by India with the UK in 1993, the Indian Government has handed over a formal request of extradition of Mr. Vijay Vittal Mallya as received from the CBI to the U.K. High Commission in New Delhi on 9th February 2017.

The Special Court for CBI cases has heard the bail applications of the Industrial Development Bank of India (IDBI) officials who were arrested on 23rd January 2017 for sanctioning and disbursing loan of Rs 1,300 crore to Kingfisher Airlines, a low credit rated company. It has refused to grant bail, on 10th February 2017, to Yogesh Aggarwal (former CMD of IDBI Bank), A Raghunathan (former CFO of Kingfisher Airlines) and B K Batra (Deputy Managing Director of the IDBI) on the grounds that they have been involved, since the beginning, in applying, processing, facilitating and sanctioning of such loan. However, it has granted bail to the IDBI executives O V Bundellu, S K V Srinivasan, R S Sridhar, and the Kingfisher executives Shailesh Borke, A C Shah and Amit Nadkarni on bonds of Rs 50,000 subject to several conditions.

Meanwhile, Vijay Mallya, pending his extradition from the UK, remains a wanted accused in the Kingfisher Airlines-bank loan default case. Earlier, when the Indian Government had made a deportation request, with regard to Vijay Mallya, to the UK, the latter had responded saying that India’s deportation request was not covered by the UK laws as their laws permitted visitors to stay back even if their passport wasn’t valid any longer.

 

Daliparthy Harini

Legal Associate

The Indian Lawyer

Tags :

Picture1

The Union Budget 2017-18 was presented by Mr. Arun Jaitley, the Finance Minister of India, on 1st February 2017. The Finance Minister states that there has been 36% increase in the foreign direct investment (FDI) inflows in India. In order to encourage more investments and participation from the private sector the Government has proposed in the Budget the following opportunities and policy reforms pertaining to the infrastructure sector and the FDI in India:

PROPOSED INFRASTRUCTURE SECTOR REFORMS

  1. Budget allocation: The Government has made an allocation of Rs. 396135 crores (USD 5894 crores approx) for infrastructure, which has been the biggest ever allocation for infrastructure so far; It has decided to provide Rs. 2,41,387 crore (USD 3592 crores approx) for the transport sector including roads, railways and shipping; It has decided to allocate Rs. 64900 crore (USD 965 crores approx) for national highways;                                
  2. Government to introduce a Bill to streamline institutional arrangements for resolution of disputes in infrastructure related construction contracts, PPP and public utility contracts by amending the Arbitration and Conciliation Act 1996;
  3. Government to launch a Trade Infrastructure Export Scheme which will aim at building export infrastructure for which the Centre and the states will equally share the cost of development;
  4. Proposed relaxation in the norms for startups in India for getting tax exemptions;
  5. Government to unveil a new metro rail policy;
  6. Government to develop selected airports in tier-II cities under the PPP mode.

PROPOSED FDI REFORMS

The Government has stated that there has been 36% increase in FDI inflows in India during 2016-17 and the foreign exchange reserves at USD 361 billion as on 20th January 2017 will be sufficient to cover the 12 months needs. It further states that more than 90% FDI inflows have been allowed through the automatic route, where no approval of the Reserve Bank of India (RBI) has to be sought for. The Government has proposed to further liberalize the FDI policy. The following changes have been made:

i) The Foreign Investment Promotion Board (FIPB), a single window clearance for processing the applications for FDI in India, which are under the approval/Government route, and making recommendations for Government approval, has successfully implemented e-filing and online processing of applications. Therefore, the Government has decided to abolish the FIPB in 2017;

ii) Exemption of the category I foreign portfolio investors (FPIs), i.e. Government and Government related investors such as central banks, sovereign wealth funds and international or multilateral organizations, etc, and category II FPIs, i.e. mutual funds, pension funds, etc from the provisions of indirect transfer. Indirect transfer provision shall not apply in case of redemption of shares or interests outside India as a result of or arising out of redemption or sale of investment in India which is chargeable to tax in India;

iii) Ease of business environment for the FPIs by introducing a common application form for registration, opening of bank, dematerialized accounts and issue of PAN;

iv) Government to introduce a Bill on illegal deposit schemes to protect the investors from various dubious schemes;

v) Government also to introduce a Bill relating to the resolution of financial firms to protect the consumers of various financial institutions.

The aforesaid reforms have focused on transformation; infrastructure development; higher investments; and greater private participation in the development of India.

 

Daliparthy Harini

Legal Associate

The Indian Lawyer

Tags :

Picture1

In the recent Vijay Mallya bank loan default case, the accused nine officials of the government-owned financial service company, i.e. Industrial Development Bank of India (IDBI) and the now-defunct Kingfisher Airlines have been arrested by the CBI on 23rd January 2017 and kept in judicial custody till 7th February 2017. Upon their arrest, the CBI had filed a chargesheet against all the accused-arrested, except, Vijay Mallya, the promoter of Kingfisher Airlines, who is a wanted accused, stating that its special investigation team had found that there were many commissions and omissions on the part of IDBI officials while sanctioning and disbursing the loan of Rs 1,300 crore to Kingfisher Airlines. Moreover, about Rs 260 crore of the borrowed amount was diverted by Kingfisher Airlines; and Rs 263 crore was used to pay salaries, tax deducted at source, income tax and loan installments; while a portion of the loan amount was allegedly diverted by Vijay Mallya for his personal expenses.

The accused-arrested have filed bail applications in a special CBI Court. The hearing of the arguments on bail applications of all the accused-arrested has been scheduled to be held on 7th February 2017. Whereas, as against Vijay Mallya, on 31st January 2017, the CBI had filed an affidavit seeking his extradition from the United Kingdom (UK) by providing his precise address of the UK and thereupon, the Court had issued a non-bailable warrant against him.

In order to curb the situations where economic offenders like Vijay Mallya try to escape the reach of law, the Government has proposed, in the Union Budget 2017-18, to enact a law which will provide for the confiscation of property of such economic offenders until they submit to the court of law.

 

Daliparthy Harini

Legal Associate

The Indian Lawyer

Tags :

Picture1

Supreme Court imposes ban on sale of liquor along National and State Highways

The year 2016 brought with it commendable regulations and initiatives, aimed towards providing and ensuring promotion of public interest and safety.

The Supreme Court of India, in one of its landmark judgments titled “The State of Tamilnadu Rep. by its Secretary Home, Prohibition & Excise Dept. &Ors. vs. K. Balu&Anr.”, passed in December,2016, imposed a ban on sale of liquor in and around the National and State Highways. Vide the said judgment, all existing liquor licenses shall cease to exist w.e.f. 01st April, 2017 and no new liquor licenses will be grantedin areas which fall within the ambit of “those stretches of the national or state highways which pass through the limits of any municipality corporation, city, town or local authority”.

Concerned with the safety of citizens and in order to avoid accidents being caused by consumption of alcohol, the apex Court even issued directions for introducing and implementing essentialmeasures to ensure that “liquor vends are not visible or directly accessible from the national and state highways, within a stipulated distance of 500 metres from the outer edge of the highway, or from a service lane along the highway”.

In the light of the evidence and statistical data produced before the court, it was observed that amongst other reasons, accidents occurring on highways and expressways,were also primarily attributable to consumption of liquor and other intoxicating substances.

It was further observed that drivers undertaking long journeys and otherwise, had easy access to liquor, which in a way leads to unnecessary temptation. Even though one could purchase liquor before the journey commences, however, such accessibility should not be available in the due course of the journey. This preventive action was taken in consideration of the fact that accidents being caused due to unforeseen circumstances cannot be controlled, however, factors like consumption of liquor can always be regulated, if not completely eliminated. Keeping utmost regard for security of citizens, the apex Court imposed precautionary measures in order to increase safety of citizens on roadways.

This measure was undertaken in light of the rights and duties enshrined in our Constitution and comes as a relief for certain public authorities as episodes of driving under the influence will substantially reduce.

Even though this restrictive measure will have an impact on the livelihood of all those who are running restaurant with liquor licenses, however, it is likely to save thousands of lives, which are at risk while driving on such highways and expressways.

 

Trishla Harish
Senior Associate
The Indian Lawyer

Tags :