Month: September 2022

About the Responsibilities  

An offline internship opportunity is available in our Noida office. Noida-based candidates are preferable.

How to Apply?

Interested candidates may apply from here: –  team.achievers.legal@gmail.com

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About the Organization

A full-service law practise, Mind Legal is the ideal synthesis of years of actual expertise and profound theoretical and conceptual knowledge. The Delhi-based firm was established by a group of highly skilled, disciplined, and passionate young visionaries that combine their tremendous energy and global exposure to provide swift solutions to each and every client.

About the Responsibilities  

We are happy to let you know that Mind Legal, Advocates and Consultants, New Delhi, is accepting applications for an in-office legal internship during the months of September and October. The following will receive preference:

• Students who are in their second or third year of a five-year course, third year, or fourth year (3 year course).
• Well-versed in Indian laws, including criminal, corporate, and civil law.
• Has strong research abilities and speaks English well.
• Be a Delhi-NCR resident.

How to Apply?

Interested candidates may apply from here: –  info@mindlegal.in, shreya@mindlegal.in

Disclaimer: All information posted by us on Lexpeeps is true to our knowledge. But still, it is suggested that you check and confirm things on your level.

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About the Organization

Debt recovery, litigation and dispute resolution, mergers and acquisitions, contract management, employment law, intellectual property rights, policy and regulatory advice, due diligence, deal management, consumer protection, labour law incorporations, certifications, compliances, etc. are all areas of expertise for the boutique law firm LPJ & Partners LLP.

About the Responsibilities  

LPJ & PARTNERS LLP is seeking interns interested in pursuing litigation as a career after graduation.

Stipend

Long-term internships with stipends will be granted to promising interns.

How to Apply?

Interested candidates may apply from here: –  office@lpjpartners.com

Disclaimer: All information posted by us on Lexpeeps is true to our knowledge. But still, it is suggested that you check and confirm things on your level.

For regular updates, we can catchup at-

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Telegram:

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LinkedIn:

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INTRODUCTION

In India, the online gaming market has exploded in recent years, raising concerns about its legality and the need for regulation. The legality of numerous games, including Rummy, online poker, and fantasy games like Dream 11, has been in question. Moreover, playing real-money games comes with a lot of psychological and financial risks. Numerous states and courts have made vain attempts to control the gaming industry. Understanding and creating appropriate regulations is crucial to establishing some order in the gaming industry.

Large Indian gaming enterprises now face a hefty financial burden because there is no unified national gambling regulation. One of India’s fastest-growing businesses would get a great boost from the creation of a harmonious national gaming industry with clear actionable guidelines. 

On April 1, 2022, the Online Gambling (Regulation) Bill, 2022 (the “Bill”) was introduced in the Lok Sabha to create an efficient regulatory framework for the online gaming business to stop fraud and abuse. The Bill proposes the establishment of a regulatory body to oversee the online gaming business, acknowledging the impacts of online gaming’s addictive qualities and the sector’s significant national influence.

ASPECTS OF THE ACT

With the help of the Bill, an Online Gaming Commission (referred to as “the Commission”) will be created, and a licensing system will be put in place that would require licenses from the Commission to provide and run gaming enterprises in India. According to the Bill, it is now illegal to sell and run gaming companies without a license. There is also a bond requirement. Anyone found to have participated in gaming on an unlicensed website will also be subject to legal repercussions under the Bill.

The Commission will have the authority to keep an eye on the operation of websites that offer online gaming and to take action to stop illegal online gaming. Additionally, the Commission will create rules and regulations governing the license and permit requirements, authorization for players to use gaming websites, requirements for providing gaming services, terms for player credit facilities, fines or penalties, and any other matter it may deem appropriate.

The Bill’s highlights

Any game played on an electronic device, such as a personal computer, a mobile phone, a tablet, or another device, is considered “online gaming” under the Bill. It is clear that the Bill seeks to regulate all games played on these electronic devices because the term does not distinguish between “game of skill” and “game of chance.”

The bill calls for the establishment of an oversight body called the Online Gaming Commission (OGC), which will have five members appointed by the central government and include at least one expert in each of the fields of law, cyber technology, and law enforcement. The OGC will have the authority to, among other things, supervise the operations of online gaming websites, produce periodic or one-time reports on related subjects, recommend appropriate steps to control and stop illegal online gaming, grant, suspend, and revoke licenses for such websites, and set fees for license applications and renewals of such websites.

Playing online games without a website and a non-transferable, non-assignable license would be prohibited under the proposed legislation. Without the appropriate license, operating an online gaming server or website is punishable by up to three years in prison and a fine. Six years will pass before the license expires.

If the licensee violates any of the license’s terms or Bill’s provisions, the license that is proposed to be issued under the Bill may be suspended or revoked. The Bill does not, however, apply to anyone who offers backend services in India, such as hosting and upkeep for any international gaming website based outside of India.

QUESTIONS ABOUT THE BILL

Although the Bill seeks to regulate online gaming in India through numerous checks and balances, it currently suffers from several drawbacks:

1. The difference between “games of skill” and “games of chance” is absent from the Bill. Furthermore, it is unclear from the Bill if its rules exclusively apply to for-real-money games or also apply to games played for free.
2. Although this Bill intends to be the primary piece of law controlling gaming in India, it will eventually be subject to court review because, according to the Indian Constitution, neither gaming nor gambling are federal topics and may only be regulated by state governments.
3. The conflict between the present licensing system and the state gaming laws of Meghalaya, Nagaland, and Sikkim is not addressed by the Bill.
4. The Know Your Customer (KYC) standards, customer complaint procedures, advertising and marketing regulations, user data protection, responsible gambling rules, and other issues have not been addressed by the bill.

Games of chance versus games of skill

The Constitution’s seventh schedule, List II (state list), section 34, is titled “Betting and Gambling.” the states alone have the authority to enact laws governing “games of chance.” Contrary to “games of chance,” “games of skill” are protected by Article 19 (1) (g) of the constitution.

Games of skill are not considered gambling under the gambling regulations of several states. There are several uncertainties when attempting to distinguish between a “game of chance” and a “game of skill.” In the absence of legislation defining a “game of skill,” courts have occasionally established definitions for the term.

RMDC v. State of Bombay and KR Lakshmanan v. State of Tamil Nadu

The supreme court ruled in RMDC v. State of Bombay and KR Lakshmanan v. State of Tamil Nadu that a game of skill is one in which the element of talent outweighs the element of chance. A game can be categorized as a game of skill or chance depending on the facts and circumstances of each case, the court ruled in Manoranjitham Manamyil Mandram v. State of Tamil Nadu.

The Kerala High Court ruled that playing for stakes or not is not a factor in assessing whether a game is one of skill or chance when it dismissed a notification that sought to outlaw online Rummy when played for money. “Players have the right to support themselves with their talents.”

Online skill-based gaming is legal.

Using their jurisdiction under Entry 26 of List II, the states of Karnataka, Andhra Pradesh, Telangana, Tamil Nadu, and Kerala made changes to outlaw all types of internet gaming, including skill-based games, in their respective states. They cited an increase in cases of youth suicide, gaming addiction, and financial loss.

States are outlawing online gaming for the reasons listed below:

1. Online games are prone to addiction, and if played for money, they can cause users to commit suicide.
2. instances of children committing murder and crimes to make up for losses from online gaming
3. Websites can manipulate online gaming.

Because they violate the basic right to engage in commerce, business, and occupation, these changes have been brought up in court as being unconstitutional.

As a result, the rules outlawing skill-based gaming have all been overturned by the Madras High Court, Kerala High Court, and Karnataka High Court. Although governments have the sole authority to enact laws governing skill-based gambling, courts have cited the following as key justifications: 

1. A complete prohibition on skill gaming is arbitrary, unlawful, and in violation of Article 19 (1). (g).
2. Additionally, both Article 19 (1) (a) and Article 21 mention participating in games and sports of skill.
3. Such a ban is out of proportion to the goal that governments are trying to accomplish.
4. There are no scientific studies or data about the negative effects of real-money gambling supplied by the states to support complete prohibition.
5. The stakes in the game do not affect a player’s ability to use their skills to their advantage and support themselves financially.

India needs to regulate internet gaming

There are no regulatory frameworks in place for India’s online gaming sector. There is uncertainty over tax rates and revenue collection in the lack of any comprehensive legislation. Currently, several states have rules governing online gambling inside their borders, but due to the industry’s rapid expansion, there is a need for federal legislation that would apply to the entire nation. An effective regulatory system would also promote economic growth and other advantages.

The Online Gaming (Regulation) Bill 2022 has been introduced in Parliament to address the issues and guarantee the expansion of the online gaming sector. According to Article 249 of the Constitution, the Center may pass laws on state subjects provided they are in the “national interest.” This legislation aims to establish a central body for regulating and supervising internet gaming in India.

The 2022 ONLINE GAMING (REGULATION) BILL

A private member’s bill titled Online Gaming (Regulation) Bill, 2022 was presented in Lok Sabha.

While preserving the integrity of online gaming, the measure aims to establish a regulated framework for it.

Online gaming is defined as games played on any electronic device in Section 2(e) of the bill. A central government-created “online gaming commission” would be established under the proposed legislation as an oversight body to develop guidelines for online gaming, including licensing requirements and reporting requirements. Playing without a license is a crime that carries a fine. Any license requirement that is broken will result in license revocation.

The Know Your Consumer (KYC) requirement, the grievance redressal system, data protection or privacy, and one of the key reasons for bringing forth such a bill, mental health issues including addiction and depression, are not addressed in the bill.

The current regulations also have a lot of problems. The distinction between “game of chance” and “game of skill” is not mentioned in the definition of online gaming, which is essential given the conflicts that have arisen in the past as a result of this lack of demarcation. Furthermore, real-money gaming needs to be regulated due to its rising popularity and potential for an increase in unlawful transactions, but the bill does not offer any precise guidelines in this regard.

There is a lack of a thorough licensing structure with precise rules. Although the bill represents a big step, it does not effectively address the problems related to online gambling. The bill must be clearer and more open.

CURRENT SCENARIO

Currently, the majority of businesses that offer real money games are supervised by charters given by the All India Gaming Federation (“AIGF”) and the Federation of Indian Fantasy Sports (“FIFS”), two self-regulatory organizations created to oversee online gaming in India. The lack of enabling national legislation is felt deeply even though these charters help to streamline the conduct and governance of online gambling platforms.

CONCLUSION

Since the start of the epidemic, online gaming has grown in popularity and involvement, especially among young people. While it has been good for the economy, there are societal, psychological, and legal ramifications for online gaming in India. The internet gaming sector is in a “grey area” because there aren’t clear distinctions and rules.

For a long time now, courts have dealt with these ambiguities. The country needs a well-regulated gaming industry if it is to fully realize its enormous economic potential. The recently proposed bill does not seem to be sufficient; the only way to guarantee everyone’s safety and privacy in one of India’s fastest-growing businesses is through a thorough legal system.

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References:．

1. India’s Online Gaming Bill: Regressive Regulation – JURIST – Commentary – Legal News & Commentary [Online][Cited: 3 September 2022] https://www.jurist.org/commentary/2022/05/nishka-kapoor-online-gaming-bill-india/．

This article is written by Kanika Arora from Delhi Metropolitan Education (Affiliated to GGSIPU).

INTRODUCTION

According to the IPC, man’s relics are an integral part of the crime. However, these offenses fall under the general exceptions set out in Articles 76 to 106 of the Indian Penal Code, where there is no personal reason and the act is committed under clearly persuasive circumstances. As a result, perpetrators must be held accountable for their actions in court. Waivers are granted if the defense is successfully defended in court.  The insanity defense in a criminal case helps prove that the perpetrator was suffering from a serious mental disorder at the time of the examination. Because of this, the person may not be paying attention to their actions. Non-psychotics may, in certain circumstances¹, attempt to invoke the insanity defense to avoid paying a fine, but this is rare. Although the insanity defense was intended to improve justice, most people use it to avoid fines and other punishments. Such situations have no deterrent and are serious as people become more and more involved in such activities causing problems. 

MEANING OF INSANITY

Insanity is the inability of a person to understand the meaning of his actions or to realize that he is wrong or illegal. This alludes to mental illness, in which a person’s mental faculties are severely impaired and he is unable to comprehend the consequences of his actions. Insanity is difficult to define in a way that meets legal standards. For ordinary people, insanity is usually associated with mental illness or some kind of mental illness. 

According to Black’s Law Dictionary², any mental illness serious enough to deprive a person of legal capacity and exempt them from criminal or civil liability is considered insanity. “Mental illness,” “mental condition,” and “mental disorder” refer to illnesses that require psychiatric or psychological help, while insanity is a legal term. As a result, one can have a mental illness, illness, or disability without being legally considered insane. However, the reverse is also true.

INSANITY AS DEFENCE AND ITS TYPE

The defendant, who is defending himself on the charge of insanity, admits to having committed the crime but claims that his insanity absolves him of responsibility. It’s more of an explanation for what the person did than an apology. A defendant may raise this defense during a criminal trial in court. It has become necessary to determine the psychology of criminals. While criminal law focuses on the suspect’s “state of mind,” it also deals with “men’s rea.” Men’s rea is a legal term that focuses on a person’s mental health. It is necessary to consider not only the physical behavior of the offender but also the emotional state. The mental state of the mentally ill person prevents him from having criminal intentions, 

In the Indian criminal justice system, the ‘insanity defense is a strategy used to acquit criminal suspects. It is based on the idea that the person was suffering from a mental illness and could not understand his actions.

There are two kinds of reasons for him: 

Permanent Insanity: The condition in which a person is permanently insane. Past actions and experiences can indicate that a person is permanently insane and obscure the seriousness of the situation. 

Temporary Insanity: Occasional or temporary loss of consciousness. Examples of temporary insanity include depression, anxiety disorders, schizophrenia, and other temporary mental illnesses. There are two possible consequences of this transient madness: he is “insane and therefore innocent” and “guilty but insane and therefore not a crime”.³

To qualify for an exception under Section 84 of the Indian Penal Code, the suspect must have engaged in an illegal or unlawful act at the time the offense was suspected or he had a mentally ill comprehension and must indicate that when there is suspicion of a crime. No one is allowed to cite mental illness as a valid reason for committing a crime. The suspect’s mental state is so bad that he cannot fully comprehend the nature of the crime.⁴

REPERCUSSIONS OF SANITY DEFENCE

Insanity Defense has been misused time and time again, releasing guilty people under various scenarios of insanity and undermining the effectiveness of the rule of law. Due to the prevalence of misuse, many countries have eliminated this defense including Germany, Argentina, Thailand, and much of the United Kingdom. It is difficult to prove insanity legally and requires concrete evidence, but it is easy to prove insanity medically. It is difficult to meet all the requirements of Section 84 to avoid criminal liability. Therefore, most insanity defense cases end with the defendant being criminally detained and punished. Mental illness defenses are commonly misused because it is difficult to determine whether a person was “healthy or unhealthy” at the time the crime was committed.

CRITICISM

Although rarely used in criminal cases, the defense of insanity remains controversial. The question of whether the defense of insanity is necessary often comes to our minds. Due to evidence of insanity, defendants charged with more gruesome and serious crimes cannot be found guilty of committing such crimes. If the defense alleges insanity, the suspect pleads guilty and demands a plea of ​​not guilty based on his mental state. Criminals sometimes pretend to be insane to avoid punishment. In reality, claiming an insanity defense is a dangerous defense at best. A basic rule of criminal law seems to be at stake. The insanity defense is based on the idea that punitive action is acceptable only if the accused deserves it. As a prerequisite for punishment, the perpetrator of the crime must bear the moral responsibility of being a moral agent. When a person’s mental illness is so severe that he can no longer control his irrational or compulsive behavior, he can no longer act as a moral agent would be unfair. 

Section 84 considers mental illness a cognitive impairment. Other types of mental illness are not admissible in court. Various mental illnesses can affect your ability to work to the point where you lose control of your activities. Many crimes are committed out of anger and emotion. A person can understand what he has done only after he has performed the act. However, his actions were governed by the emotions of the time. His cognitive abilities can be fairly normal.⁵

Although Section 84 seeks to provide appropriate treatment for mentally ill offenders, there are circumstances in which false acquittals or convictions are made. Therefore, broader ideas such as emotions, pre-action states, etc. should be included. The definition of legal insanity has been expanded to include other features of medical insanity. Instead of focusing on criminals, we need to focus on eliminating crime.  On the contrary, in the general interest of society, these criminals should not be released, given proper mental health evaluations to avoid false acquittals or convictions, and placed in psychiatric facilities. In all these situations, a psychiatrist should be consulted and an individual’s fate should not be left to the discretion of a single judge. Judges may be required by law to make certain decisions. He should get a medical opinion.

LANDMARK CASE LAWS

Ashirudeen Ahmed v. The King⁶ was intended to create a new test. It has been determined that to be eligible for protection under Section 84 of the IPC, 

1. a defendant must produce evidence of one of the following: 
2.  did not know that the act was illegal; 
3.  did not know that the act was illegal; 

Dayabhai ChhaganBhai Thakkar v State of Gujarat⁷ found that consideration of the defendant’s mental state depends on the period during which the crime was committed. If the suspect was in a  state of mind eligible for protection under Section 84 of the  IPC, only the events before, during, and after the crime can be used to make that determination.

The Supreme Court has indicated which diseases are covered by this defense and which are not included in her Bapu Gajraj Singh v State of Rajasthan⁸. By law, this defense does not apply to bizarre, selfish, or impatient behavior or illnesses that impair the intellect and affect emotions and willpower. Also, it is not enough for the defendant to experience occasional insanity or epileptic seizures but otherwise behave normally. 

In Hari Singh Gond v. State of Madhya Pradesh⁹ case, the Supreme Court ruled that Section 84 of the IPC is the legal standard of accountability in cases of suspected mental illness. Courts, on the other hand, have largely associated the phrase with insanity. But the definition of “madness” is vague. It is a term used to describe varying degrees of mental illness severity. Therefore, people with mental illness are not always exempt from criminal responsibility. A distinction must be made between medical insanity and legal insanity. Medical insanity is not a matter of court. It’s legal madness. 

In Surendra Mishra v. State of Jharkhand¹⁰, the Supreme Court held that “legal insanity,” not “medical insanity,” must be proven to acquit a suspect of criminal liability under section 84 of the IPC. 

CONCLUSION

The section on insanity deals with all forms of insanity, such as “temporary or permanent,” “natural or consequential,” and “caused by disease or birth,” and treats the suspect as the sole criterion for establishing criminal liability. completely dependent on the behavior of the person. As it is difficult to determine whether someone is mentally unstable at the time of a crime, it is also difficult to determine their mental health status. Also, defending oneself is quite a challenge for an insane person. In addition, rational individuals use this defense to avoid punishment. This state makes it difficult for the law to achieve its main purpose, turning it into a loophole. The fact that a court must determine a person’s truthfulness in itself a very difficult situation makes this rule an additional loophole.  Only legitimate entities should be allowed to use insanity defenses. Ultimately it is left to the discretion of the courts, but laws made in the public interest must be applied fairly. It is reasonable to assume that the laws on insanity no longer serve their original purpose and is being used by criminals as a defense against law enforcement. Indian courts have often sought a more progressive approach to enforcing the concept of “mental insanity” in criminal law in the light of advances in medicine, and psychiatry in particular.

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References:

1. Parthasarathy Ramamurthy & Vijay Chatoth, How does India decides Insanity Plies? A review of the High Court judgements in the past decades, https://journals.sagepub.com/doi/abs/10.4103/IJPSYM.IJPSYM_373_18 (Visited on May 29, 2021).
2. Black’s Law Dictionary, 8th Ed., p.810.
3. Russell Covey, “Temporary Insanity: The Strange Life and Times of the perfect defense”, Available at: https://www.bu.edu/law/journals-archive/bulr/documents/covey.pdf (Visited on May 28, 2021).
4. Manas Shrivastava & Adatsa Hota, “Privacy and Legal Rights of People with Mental Illness”, available at: https://www.ijlmh.com/wp-content/uploads/Privacy-and-Legal-Rights-of-People-with-Mental-Illness.pdf (Visited on May 30, 2021).
5. Ashiruddin Ahmed v The King, 1949 CriLJ 255.
6. Dayabhai Chhaganbhai Thakkar v. State of Gujarat AIR 1964 SC 1563.
7. Bapu Gajraj Singh v. State of Rajasthan (2007) 3 SCC Cri.509.
8. Hari Singh Gond v. State of Madhya Pradesh, (2008) 16 SCC 109
9. Surendra Mishra v State of Jharkhand, AIR 2011 SC 627

This article is written by Jay Kumar Gupta, a second-year BBA LL.B.(Hons.) student at the School of Law, Narsee Monjee Institute of Management Studies, Bangalore.

-Report by Lynda Mayengbam

The Securities and Exchange Board of India v. Rajkumar Nagpal is an appeal filed in response to the single judge’s ruling on October 28, 2021, which stated that the case concerned a Debenture Trust Agreement between the parties as
issuers and trustees of Debenture Trustees, respectively. The 17 debenture holders had filed a lawsuit to defend their rights and the amount due to them. The case was filed before the Bombay High Court on July 1, 2021.

FACTS

Reliance Commercial Finance Limited as ‘Issuer’ and Vistra ITCL as ‘Debenture Trustee’ executed a Debenture Trust Deed on 3rd May 2017. In response to the first default committed by RCFL, Vistra wrote to SEBI to inform them of the
actions it had taken in its status as Debenture Trustee and to request guidance about the ICA and its implementing mechanisms.

In a circular titled “Standardization of procedure to be followed by Debenture Trustee(s) in case of “Default” by Issuers of Listed Debt Securities,” SEBI published information on October 13, 2020. (“SEBI Circular”). The Plaintiffs, who are 17 Debenture Holders, filed a lawsuit in Bombay High Court on July 1, 2021, seeking an order to restrain RCFL, BoB, and RBI from executing the RBI Circular.

The court ruled that the SEBI circular did not govern the debenture trust deeds and that it could not be allowed to apply retrospectively. The SEBI circular will not precede any of the debenture trust deeds’ specific provisions. Therefore, SEBI challenged the order passed by the Single Judge’s order of the Bombay High Court and submitted an appeal.

RESPONDENT’S ARGUMENTS

The respondents contended that SEBI is not a party to the lawsuit, hence SEBI cannot be deemed an aggrieved party. Any order approving a merger scheme under Section 391 of the 2013 Companies Act is not subjected to appeal by SEBI. The SEBI Circular does not apply to this case because it does not include a scenario in which the holders of the debentures would reach a compromise, settlement, or agreement with the debenture issuer. Given that the SEBI circular has a retrospective application, SEBI’s appeal cannot be upheld. As in Principles of Statutory Interpretation by Justice G.P. Singh, it stated that

‘ The rule against retrospective construction does not apply to a statute merely because a part of the requisites for its action is drawn from a time antecedent to its passing.

APPELLANT’S ARGUMENTS

The Appellant contended that following Section 13 of the Commercial Courts Act of 2015, this appeal has been submitted as according to Section 13 (1A), “Any person aggrieved” by a decision or order of the Commercial, the
Commercial Appellate Division may hear the appeal. Due to specific remarks made by the Ld. Single Judge in the impugned orders to the effect that the ruling will not set a precedent against SEBI, SEBI’s statutory right to initiate an appeal cannot be revoked. The SEBI Circular makes no mention of its application to defaults that occurred before October 13, 2020. Lawfully, any legislation—delegated or otherwise—is regarded as prospective unless it has been
explicitly or obliquely given retrospective effect. If a debt cannot be settled through the compromise or settlement method, SEBI contends that debenture holders are entitled to receive the whole amount that is owed (principal and
interest). The argument, however, is that the solution reached in accordance with the Division Bench’s directive will also bind all the other debenture holders, who weren’t involved in the initial lawsuit brought before the High Court.

COURT’S DECISION

It was held by the hon’ble court that

i. There is no bar to the civil court’s jurisdiction
ii. The SEBI Circular is applicable if debenture holders wish to implement a Resolution Plan to which the lenders are a party
iii. Dissenting ISIN level debenture holders are bound by the ICA /Resolution Plan
iv. The SEBI Circular has retroactive application

For dissenting debenture holders in the present case the court observed:

“The dissenting debenture holders would have been bound by the Resolution Plan if it had been approved in accordance with the Insolvency and Bankruptcy Code, 2016 or under an ICA as acceded to under the SEBI Circular. We accordingly deem it appropriate that dissenting debenture holders should be provided an option to accept the terms of the Resolution Plan. Alternatively, the dissenting debenture holders have a right to stand outside the proposed Resolution Plan framed under the lender‘s ICA and pursue other legal means to recover their entitled dues.”

The appeal was allowed in part, subject to the directions issued in the judgment under Article 142 of the Constitution.

-Report by Anjana C

The Hon’ble Supreme Court of India has held in the case of Parvez Parwaz & Anr. v. State of Uttar Pradesh & Ors. that Issue of Sanctions to be considered in an appropriate case.

FACTS

This is a special leave petition against the High Court of Allahabad’s judgment dated 22.02.2018 filed by the unsuccessful petitioners, henceforth referred to as the appellant. The first appellant, in this case, was alleged to have made hate speech leading to the “2007 Gorakhpur Riots” and other offenses leading the same to be registered against Sh. Yogi Adityanath, a then Member of Parliament, and others. The investigation was conducted by the CID (Criminal Investigation Department) of the UP Police. Grievances against this investigation, the appellant filed a petition under Article 226 of the Indian Constitution. In the writ petition, a prayer was made for the following reliefs:

a. A writ of mandamus directing the respondents to investigate fairly and impartially by an independent investigating agency. 
b. To include all appropriate sections of IPC and Prevention of Damages to Public Property Act, 1984, along with the Religious Institution (Prevention of Misuse) Act, 1988. It also asked for the investigation of an issue of conspiracy. 
c. To take disciplinary actions against officers who failed to act following the law and did not take any action to initiate criminal liability against the culprits. 
d. To command the respondents to provide the appellants with sufficient security. 

The Division Bench framed three significant issues that needed to be addressed: 
a. Whether to facilitate a fair and impartial investigation, the High Court is vested with the power to transfer the investigation to another body.
b. Whether when the High Court fails to conduct a fair and impartial investigation, the High Court is required to transfer the investigation to an independent authority. 
c. Whether the State has the power to pass an order under Section 196 of Cr.P.C. on someone in a criminal case who gets elected as a Chief Minister in the meantime and it the Executive Head of the State as per Article 163 of the Indian Constitution. 

After assessing both sides of the argument, the Court dismissed the petition because there was no procedural error in the manner of the conduction of the investigation that was noted or any other illegality requiring interference by the Court about its extraordinary power under Article 226 of the Indian Constitution. Following this dismissal, the present appeal was filed. The counsel for the appellants stated that he would only want to readdress the issue of denial of sanction for the prosecution of the accused under Section 196 of the Code of Criminal Procedure.

Appellant’s Contentions: 

In a situation such as this, where the accused is of high status, the Governor has the power to consider the question of grant of sanction, which in this case, the High Court has failed to consider appropriately.

Respondent’s Contention: 

The Counsel states that nothing survives in this matter except academic exercise due to a closed report filed by the appointed investigating agency. The Counsel, addressing the issue of sanctions, states that the first CD containing the
recording was broken, the second was tampered with, and the third simply had a voice sample. These have all been thoroughly examined before the dismissal of the issuance of sanctions.

Judgment: 

The Court observed that the issue of the third CD regarding the tampering and editing of evidence and declared to be undisputed. An affidavit filed on behalf of the second respondent also stated that the investigation was closed. It has been noted that the Counsel for the appellants has filed a protest petition that is pending in the Trial Court. The Court found it unnecessary to engage with the contentions put forth by both parties. However, it was said that the legal questions about the issue of sanctions must be left open and considered in a more appropriate case. For the above reasons, this appeal and any other pending applications stand disposed of.

INTRODUCTION

The Energy Conservation (Amendment) Bill, 2022 was passed on the 3^rd of August’22. The passage of the Energy Conservation (Amendment) Bill, 2022 by the Lok Sabha is a significant step toward reaching India’s climate targets. The bill is projected to contribute significantly to India’s NDCs, which are the country’s pledges to support environmental measures as per the Paris Agreement. The bill aims to mandate the use of non-fossil sources of energy and feedstock, such as green hydrogen, green ammonia, biomass, and ethanol; create Carbon Markets; bring large residential buildings under the Energy Conservation regime; expand the range of the Energy Conservation Building Code; modify penalty provisions; increase members on the Bureau of Energy Efficiency’s governing council, and empower State Electricity Regulatory Commissions. In its proposal, the Union government stated that a legal system for an energy market was required to accomplish the goal of incentivizing emission reduction activities, resulting in higher private sector investments in renewable energy. The objectives of the bill include:

1. Lower India’s reliance on fossil fuels in order to reduce the country’s carbon footprint.
2. To expand India’s carbon market and promote the use of clean technology.
3. To satisfy its Nationally Determined Contribution (NDCs), as outlined in the Paris Climate Agreement, by 2030.

The reasons for passing the bill are as follows:

1. In fulfillment of its NDCs as per the Paris Climate Agreement, India has pledged to decrease its economy’s carbon intensity by 33-35% by 2030 compared to 2005 levels.
2. India has also pledged to generate more than 40% of its power from non-fossil fuel sources by 2030.
3. India has promised to develop an additional carbon drain for 3 billion tons of Carbon dioxide by expanding its plant and forest cover in order to lower its Carbon footprints to 550 metric tons by 2030.
4. To meet the COP26 summit’s put in commitments in 2021.
5. To boost non-fossil generating capacity to 500 GW by 2030.
6. Using renewable energy sources to meet 50% of India’s power requirement.
7. To reduce the Indian economy’s carbon intensity by 45%.
8. From 2021 to 2030, India’s total anticipated carbon emissions should be reduced by one billion tonnes.
9. To reach a net zero (carbon emissions) target by 2070.

AMENDMENTS TO THE BILL

The amendments brought about the aim to increase the amount of renewable energy while also penalizing industrial offenders for carbon emissions. The bill’s provisions will aid in increasing renewable energy usage and will have an economic impact. Using the legislation to set strong industrial targets and standards in the future could help India achieve its developmental, energy, and climatic goals. Following is the list of amendments that the law brought about:

1. To oblige by the use of non-fossil fuel sources of energy: The Act gives the central government the authority to set energy usage requirements. The Bill also stipulates that the government can mandate designated users to fulfil a certain percentage of their energy usage from non-fossil sources. Such users in particular include industries (chemical, mining, petrochemicals, coal, etc.), commercial buildings, and the transport sector. Any violation of the order so passed shall attract a penalty up to rupees ten lakhs.
2. Carbon Trading:  The bill gives the federal government the authority to design a carbon credit trading program. A program that denotes a tradable permit to emit a certain amount of carbon dioxide. Carbon credit certificates may be issued by the central government or even any authorized agency to entities that have registered for and are following the scheme. The entities will be able to buy and sell the certificate.
3. Energy conservation for buildings: The code specifies energy usage norms in terms of surface. The Bill amends this to include an ‘energy conservation and environmentally friendly building code.’ This new code will establish standards for energy savings and conservation, the use of renewable power, and some other criteria for green buildings.
4. Composition of the governing council of BEE: The Bureau is governed by a governing council of 20 to 26 members. These include secretaries from six departments, representatives from regulatory bodies such as the Central Electricity Authority and the Bureau of Indian Standards, and a maximum of four members representing industry and consumers. Instead, the Bill specifies that the number of lawmakers will range from 31 to 37. It raises the total number of secretaries to twelve. It also allows for up to seven representatives from industries and consumers.
5. SERC’s powers are regulated: The Act authorizes State Electricity Regulatory Commissions (SERCs) to adjudicate fines under the Act. The Bill also states that SERCs may issue regulations to carry out their duties.
6. Vehicle and vessel energy consumption standards: The Act allows for the specification of energy consumption standards for equipment and appliances that consume, create, transfer, or supply energy. Vehicle makers that violate fuel consumption standards may face a fine equivalent to Rs. 50,000 for every unit sold.
7. Applicability to residential structures: According to the Amendment, the energy saving code pertains to commercial buildings that are erected after the code’s notice, and have a basic connected load of 100 kilowatts (kW) or contractual load of 120-kilovolt amperes (kVA).

ANALYSIS

The first amendment protections would have the greatest impact on India’s industrial sector. The government’s decision to finally implement non-fossil energy targets in sector is a good one. However, it is not a new phenomenon, as several major industries have previously made significant investments in converting to renewable energy. Some of the biggest issues include the periodicity of renewables (particularly solar and wind), which means that the peak time of generation may not coincide with the peak time of demand in industries. This leads to a second issue of not possessing enough affordable storage technology to balance demand and supply for all sorts of industries, particularly those that operate continuously. The changes call for the use of renewable fuels such as green hydrogen and green ammonia. So, the targets for the use of these gases in various areas may be established. However, before setting targets for such fuels in businesses, the government must allow certain profitable study and development and experiments on the ground. This will provide an accurate view of the technical and financial viability. The legislation aims to accelerate the green transformation by allowing the government jurisdiction over energy consumption. Article 6 of the Paris Deal, a legally enforceable global climate change agreement, also establishes a solid foundation for the implementation of international carbon markets to decrease global greenhouse gas emissions whilst guaranteeing transparency and accountability. The Bill expands the range of energy conservation standards for buildings while narrowing the scope of energy efficiency standards for devices and appliances. It creates a framework inside which energy savings can be transferred between enterprises that are fuel efficient versus those whose energy usage exceeds the government’s maximum.

CONCLUSION

Union Power Minister K Singh introduced the bill in the lower chamber of Parliament. While seeking House support, Power Minister referred to the Energy Conservation Amendment Bill as “the legislation for the future.” The bill’s suggested revisions are said to increase India’s commitment to climate change. The primary goal of the Energy Conservation (Amendment) Bill 2022 is to lessen the country’s reliance on fossil fuel generation. The secondary goal is to build India’s carbon market in order to facilitate trading and encourage the use of sustainable technology and energy efficiency improvements. To escape an environmental disaster, governments around the world are increasing their commitments to climate action.

This article is written by Shraddha Vemula, a second-year B.B.A. LLB student at Symbiosis Law School, Hyderabad.

The resolution plan is created for the firm based on the advice and recommendations of the committee of creditors members to maximize the effectiveness of the corporate insolvency resolution process. According to this Code, any financial or operational creditor may initiate the corporate insolvency process against the corporate debtor on behalf of a company registered under the Companies Act of 1956, such as Limited Liability Partnerships, Partnership firms, and Individuals, or under the Insolvency and Bankruptcy Code. This may only be started if the corporate debtor has fallen behind on debt repayment.

The committee of creditors plays a vital role in the insolvency process. This committee of creditors is regarded as a higher-level decision-making body and oversees the Corporate Insolvency Resolution Process. A committee of creditors is established under regulation 21 of the Code to carry out the duties of the interim resolution professional and solicit claims from all creditors^. The committee of creditors should be created no later than 14 days after the public notification and after the claim has been confirmed.

ROLE OF COC

• The committee of creditors must include every financial creditor as a code requirement. It also lists the financial and operational creditors separately per the Code’s rules. 
• The committee of creditors has several obligations and duties to fulfill by the Corporate Insolvency Resolution Process outlined in the law. The following are some critical duties:
• All significant decisions are made after approval from the committee of creditors’ creditors.
• The decision to adopt the resolution plan and restore the corporate debtor is up to the creditors’ committee.
• They can elect to replace the insolvency professional with the interim resolution professional or even decide to use the latter as the resolution professional.
• They have frequent meetings where the procedures for the specialists involved in the interim resolution, who finally decide the destiny of the corporate debtor, are addressed.
• The respected committee of creditors operates by the administrative choices made by the resolution specialist.

POWERS OF THE CREDITORS’ COMMITTEE

A committee of creditors serves as an authoritative body and is heavily involved in decision-making. It also controls the processes, activities, and roles of the creditors. According to the rules of the Code, they are granted the following authority:

• The committee of creditors has the authority to decide whether the corporate debtor will operate normally and can make crucial decisions in the company’s favor.
• When there is a suspicion of wrongdoing, they can go to the adjudicating body, the national business law tribunal.
• They can apply to the adjudicating body to switch the interim resolution professional if necessary.
• They may decide to move forward with liquidating the corporate debtor even without any approval on any resolution plan. 

NCLT AND ITS JURISDICTION

The National Company Law Tribunal (NCLT) was established as a quasi-judicial body to settle conflicts in Indian corporations. It is the Company Law Board’s replacement. It is controlled by the laws that the central government has established. Cases about civil court have been transferred to the NCLT, a special court.

The Board for Industrial and Financial Reconstruction (BIFR), The Appellate Authority for Industrial and Financial Reconstruction (AAIFR), and the powers relating to winding up or restructuring and other provisions vested in High Courts are consolidated under the National Company Law Tribunal (NCLT). As a result, all governing authority over Indian-registered corporations would be consolidated under the National Company Law Tribunal. The Company Law Board established by the Companies Act of 1956 has since been abolished with the creation of the NCLT and NCLAT.

The main issue that emerges from all of this confusion is whether Tribunals are permitted to interfere with the CoC’s operations and reverse its judgments about resolution plans. If the voluntary arrangement unduly prejudices the interests of creditors or there has been a severe irregularity in connection with the applicable qualifying decision procedure, remedies are provided by the UK Insolvency Act, 1986. The Adjudicating Authority has, in several instances, expanded the scope of its power under Section 31 in examining resolution plans and, in a sense, provided remedies for creditors whose interests have been harmed, despite the Insolvency and Bankruptcy Code, 2016, lacking any specific provisions, where this issue can be dealt with, the case laws, the cases. 

Shrawan Kumar Agrawal Consortium Vs. Rituraj Steel Private Limited in Company Appeal

• Facts and issues:

The CoC approved the resolution applicant in Company Appeal (AT) (Ins.) No. 1490 of 2019 is the AppAppellantnd the Committee of Creditors has adopted the Resolution Plan with 84.70% of the voting shares. The AppAppellantaims that following the CoC’s acceptance of the resolution plan, the RP submitted the plan to the Adjudicating Authority for approval by Section 31 of the Code. The other two bids (the failed bidders) contested said application before the adjudicating authority. The Resolution Plan is challenged before the NCLT.

• Judgment: 

It is held that the Adjudicating Authority cannot interfere with the commercial judgment of CoC in light of the facts mentioned above. The instruction to rebid to maximize the corporate debtor’s value also amounts to legal interference with the CoC’s business choice. The NCLAT further ruled that the prospective resolution applicant has a right to full disclosure of the corporate debtor but that the Appellants were not given this opportunity. As a result, the entire process was biased in favor of the bidder, which is also not a basis for the adjudicating authority to conduct a judicial review on this basis. 

Additionally, the NCLAT ruled that the judicial review of the Resolution Plan is based on an equitable perception and that the AA is not permitted to contest the CoC’s commercial judgment or engage in quantitative analysis. Additionally, the NCLAT ruled that the Resolution Plan’s Evaluation Matrix also fits under the CoC’s definition of commercial wisdom, which is non-justiciable.

In the case of Maharashtra Seamless Limited (Supra), the Honorable Supreme Court restricted the NCLTs and NCLAT’s ability to intervene. While Section 31 of the Code, when read with Section 30(2), limits the NCLT’s latitude. Similarly, Section 61(3) of the Code limits NCLAT discretion. Notably, the issues or grounds—whether under Section 30(2) or Section 61(3) of the I&B Code—are about determining whether the CoC’s “approved” resolution plan is still valid, not about accepting the resolution plan that the CoC has disapproved or determined to have rejected. It follows that the limited judicial review that is permitted must fall within the parameters of Sections 30(2) and 61(3) of the Code, respectively, and cannot under any circumstances infringe upon a business decision made by the majority of the Committee of Creditors. 

In other words, when the approved resolution plan passes muster under Section 31 read with Section 30(2) of the Code, and there is no violation of any provision of law currently in effect, the court would rely on the collective wisdom of the CoC to determine whether or not the plan makes economic sense. If the NCLT substituted its opinion about the resolution plan’s economic soundness, that would not be correct. Therefore, it would not be appropriate for NCLT and NCLAT to influence CoC’s business judgment. Additionally, the NCLT and NCLAT’s investigation of the authorized resolution plan must stay within Sections 31 and 61 and if it is not in its preview then the NCLT can take decisions regarding the issue. Where if the Resolution plan has not stayed within the section, then the NCLT has the authority to look into the problem within its jurisdiction.

K Sashidhar v. Indian Overseas Bank and others

The Hon’ble Supreme Court ruled that the National Company Law Tribunal lacks the authority and jurisdiction to assess the Committee of Creditors (CoC) decision regarding the legitimacy of the dissenting financial creditors’ rejection of the resolution plan. The Adjudicating Authority applies a judicial mind at this point to the resolution plan that has been provided, and after being satisfied that it satisfies (or does not satisfy) the standards outlined in Section 30, it has the option of either approving or rejecting the plan. An appeal from a decision approving such a plan may only be made on the few grounds specified in Section 61 (3). The Adjudicating Authority is required by Section 33(1) of the I&B Code to begin the liquidation procedure after receiving a settlement plan that has been “rejected.” The legislature has not granted the Adjudicating Ability the “ authority or jurisdiction to review or assess” the CoC’s commercial decision, much less to consider whether the dissenting financial creditors’ rejection of the resolution plan was justified.

Rajputana Properties Pvt. Ltd. v. UltraTech Cement Ltd.

The Tribunal observed that Rajputana Properties Private Limited had not balanced the interests of stakeholders, such as operational creditors, and had made distinctions between certain financial creditors who are in an equal position. Clearly, the CoC did not use its best judgment in approving the proposal and acted in a discriminatory manner. The NCLAT ruled that Rajputana Properties Private Limited’s proposal was discriminatory and violated the Code’s design. It also ruled that the resolution plan might violate the Code’s requirements if it is proven biased against any financial or operational creditors.

The Adjudicating Authority ruled that just because a discriminatory plan was presented to the CoC and received their approval, it does not automatically follow that the Adjudicating Authority should also approve it because doing so would go against the fundamental goals of maximizing the corporate debtor’s assets on the one hand and balancing the interests of all stakeholders on the other.

The Tribunal’s two main concerns were: 

• Did CoC treat qualified resolution applicants differently while evaluating Rajputana Properties Private Limited’s resolution plan? 
• Is Rajputana Properties Private Limited’s proposed resolution plan discriminatory?

The Tribunal looked at the financial details of the plans to prove that the CoC had unfairly treated the resolution applicants. This was proven by the fact that the improved proposal made by Ultratech Cement Limited and its request for negotiation were not even remotely taken into account and the Resolution plan has been sent for review. The Tribunal also emphasized that both the RP and the CoC have a responsibility to maximize value within the time frame required by the Code and noted that the CoC’s goal in identify a resolution applicant who can offer the highest amount in order to protect the interests of all parties involved with the corporate debtor is lacking.

Scope and Extent of Power Vested on the Adjudicating Authority

In Bhaskara Agro Agencies v. Super Agri Seeds, the NCLAT held that the Adjudicating Authority could not revisit the decision of the CoC to determine the viability and feasibility of a resolution plan because the Adjudicating Authority cannot approve a plan unless approved by the necessary majority of the CoC. Likewise, in Darshak Enterprise Pvt. Ltd. v. Chhaparia Industries Pvt. Ltd., the NCLAT held that in the absence of any It neglected to mention, however, that “satisfaction” is one of the prerequisites for the Adjudicating Authority’s acceptance of a plan. This suggests that for the Adjudicating Authority to accept a resolution plan, it must be “satisfied” that the CoC’s authorized resolution plan complies with Section 30. (2). 

In Arcelor Mittal India Private Limited v. Satish Kumar Gupta, the Hon. Supreme Court utilized this concept by examining specific passages from the resolution plan to determine the applicant’s eligibility. Following its deliberations on the scope of the Adjudicating Authority’s jurisdiction under Section 31’s provisions, the Apex Court issued the following observations:

After the CoC has approved a plan, it must be submitted to the Adjudicating Authority, which applies a judicial mind after determining whether the plan complies with (or does not comply with) the requirements listed in Section 30. At that point, the Adjudicating Authority may either approve or reject the plan. 

After hearing arguments from both the resolution applicant and the CoC, the adjudicating authority, acting quasi-judicially, might decide if the resolution plan breaches any legal restrictions, including Section 29A of the Code.

The NCLT, Mumbai Bench interpreted the phrase “if the adjudicating authority is satisfied….” under Section 31 in Pratik Ramesh Chirana v. Trinity Auto Components Ltd., noting that “satisfaction” must be objective, subjective, or both and that in order to form an opinion, careful examination of a resolution plan is necessary. Objective Satisfaction: The Preamble’s declaration of the Code’s purpose for being enacted serves as the focal point of objective satisfaction. Subjective satisfaction is based on a logical analysis of the provided financial facts, and a systematic examination of the financial statement is anticipated before agreeing to the CoC’s approval. 

Again, it was noted in the case of J.R. Agro Industries P Limited v. Swadisht Oils Pvt Ltd. that the resolution plan’s benefits and drawbacks should be considered, and if the Tribunal approves the plan, it should express its pleasure in writing in the judgment.

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Citations:

1. Company Appeal (AT) (Insolvency) No. 1490 of 2019
2. Civil Appeal no. 4242 of 2019
3. Civil Appeal No. 10971 of 2018
4. (2018) ibclaw.in 100 SC
5. 2018 SCC OnLine NCLAT 340
6. Company Appeal (AT) (Insolvency.) No. 327 of 2017
7. Civil Appeal Nos. 9402 – 9405 /2018
8. CP No. 1032, MB, NCLT
9. (2018) ibclaw.in 142 NCLAT

This article is written by Inian R, a 4th Year BA LLB (Hons.) student, School of Law, Christ (Deemed to be) University, Bangalore.

About the Organization

Legal issues and actions are dealt with by M.K. Documentation Center. We also draught contracts and legal documents, including GPA, rent agreements, and several others.

About the Responsibilities  

Interns needed

As an intern you are required to: –

• Creating legal papers such as rent agreements and affidavits
• dealing with customers in the office
• maintaining the Excel work

Openings

5

Eligibility

• are able to begin the internship between September 3 and October 8, 22, are available for a duration of three months, and possess the necessary qualifications and interests.
• Women who want to launch or renew their careers are welcome to apply.

Perks

• Certificate
• Letter of recommendation
• Informal dress code
• Free snacks & beverages

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Interested candidates may apply from here: –  https://www.linkedin.com/jobs/view/3252121719

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