Tag: sc

The NLU Consortium, along with the petitioners, Tamanna Chandan Chachlani and Rishabh Soni have approached the Supreme Court of India to challenge the controversial decision of the Bar Council of India to scrap the one- year L.L.M. program and derecognizing the foreign L.L.M. degrees. This appeal was heard before the bench of Hon’ble CJI SA Bobde and Justice AS Bopanna.
In a recent notification to the BCI Legal Education (Post Graduate, Doctoral, Executive, Vocational, Clinical and other Continuing Education) Rules, 2020 (Rules), by the Bar Council of India had scrapped the one- year LLM degree and had mandated that the Master’s degree be of two years spanning over a total of 4 semesters. These rules at the same time had partly derecognized the foreign LLM stating that they shall be equivalent to the LL.M obtained in India only after an LL.B degree from either a foreign university or an Indian university equivalent to a recognized degree of LL.B in India.
The counsel appearing for the NLU consortium submitted that the foundations of these rules is fallacious and reflected a gross misunderstanding of the Advocates Act or any other statutory provision for that matter. These rules further, seek to usurp the jurisdiction which is vested in other statutory provisions. Further, none of the NLUs were consulted before taking this decision by the BCI
A major contention put forth by the petitioner was that the LL.M is not a practitioner’s degree and further, BCI deals only with the enrollment requirements. Moreover, Advocates Act, under which the BCI has assumed its jurisdiction cannot be used to regulate any academic or vocational program which is not a pre requisite for the enrollment of advocates. On asking whether or not the BCI has the power to regulate the one- year LL.M degree by the CJI, the counsel for the petitioner replied that the BCI does not have the power to regulate higher education courses as they are regulated by the UGC and were brought by the knowledge commission under the HRD ministry.
When the bench expressed its inclination to issue notice, the petitioner prayed for interim relief and put forth the fact that applications for enrollment have already been started and over 5,000 applicants have applied for their enrollment at the time when BCI came up with the rules for further notification. Thus, the petitioner prayed to the Hon’ble bench to allow the status quo to continue. The bench asked the petitioner to file on the affidavit the argument that 5,000 applicants have applied for the one- year LL.M course and the fees has also been collected for the court to consider interim relief.
The BCI also stated in its notification that the entrance for the LL.M program shall be through Post Graduate Common Entrance Test in Law conducted by the BCI itself. And after its introduction, it shall be mandatory for the universities to admit students through the merit list of this entrance test.
It was further argued that this decision of the BCI was violative of the article 14 and 19(1)(g) of the Indian Constitution as they were issued without any statutory powers and are arbitrary and unreasonable. Moreover, it was contended that the notification released by the BCI is ultra vires as the power to regulate higher education courses in law lie with the UGC and not with the BCI.

Reported By – Tanuj Sharma

The Supreme Court has stayed the implementation of the three controversial Farm laws due to the serious disagreements between farmers and the government. Supreme court on the same issue ordered to set up a 4 member committee that will be assigned to hold talks with farmers and propose a report within two months.

A three-judge bench headed by Chief Justice SA Bobde while hearing petitions challenging the law said that “Tell us whether you will put the laws on hold or else we will do it. What’s the prestige issue here?” They further said that “Negotiations between the farmers’ bodies and the government have not yet yielded any results so far.”

The statement came from the Supreme Court for the Central government stats that it was “extremely disappointed” with the negotiation process.

The committee included Bhupinder Singh Mann, National President of Bhartiya Kisan Union; Dr Parmod Kumar Joshi, Director for South Asia, International Food Policy Research Institute; Ashok Gulati, Agricultural Economist and Former Chairman of the Commission for Agricultural Costs and Prices; and Anil Ghanwat, President of Shetkari Sanghatana.

Out of which Bhupinder Mann ex-MP has recused himself from the four-member committee constituted by the Honorable Supreme Court. The reason he states is that he feels “it is better if he does not meddle in this matter because of the present situation and since the committee has been formed, he feels targeted”.

The court shows concern on urgently solving the matter and has also stayed the implementation of farm laws over which thousands of farmers are holding an agitation on the borders of Delhi since November 26. 

“These are matters of life and death. We are concerned with laws. We are concerned with the lives and property of people affected by the agitation. We are trying to solve the problem in the best way. One of the powers we have is to suspend the legislation,” Chief Justice SA Bobde said.

Reported by – Aishwarya Daftari

The Central Bank had in March 2020 declared a moratorium on the repayment of loan installments, to provide borrowers relief during the COVID-19 pandemic.

A couple of petitions have been filed in the Apex Court of the country to initiate contempt of court proceedings against Reserve Bank of India’s Governor – Shaktikanta Das and others over alleged violation of court orders in the case of loan moratorium.

The Apex Court had in September 2020 order said that until further instructions, banks cannot declare accounts as non-performing assets (NPAs) if they default after the loan moratorium ended on August 31, 2020.

The Petitioners – Gorakh Pandurang Nawade, Pritam Sengupta, Suryakant Prabhakar Pawar, and Shanti Jewellers – had filed their respective pleas through Advocate Vishal Tiwari and Advocate-on-Record (AoR) Abhigya Kushwah, before the Supreme Court in connection with loan moratorium case.

The Petitioners claim that the RBI and banks declared their accounts as NPAs, violating the SC order, according to an ANI report.

The Petitioners have now sought compensation due to the damages caused by declaring their accounts as NPAs. The Petitioners have also sought a 90-day grace period before declaring accounts as NPAs.

This act of contempt of the Respondents has shaken up the confidence of the public and broken the trust of the borrowers, as during this pandemic many of the borrowers where going through an economically rough time.

The stay order was operating as the life-saving drug to the Petitioners but the contemptuous act of the Respondent has brought a major setback to their businesses and its survival has become critical, the Petitioners claimed.

Reported by – Komal Dhore

-by TANUJ SHARMA

The petitioner representing a fraction of the population of the residents of NCT Delhi/Haryana had submitted the claim that the manner in which the protests by the farmers are being carried on is seriously preventing the supply of essential goods to the city due to the current restrictions on the free movement of the goods vehicles. And this will lead to a sharp increase in the prices of the goods which will be difficult for people specially in difficult times of pandemic.

The petitioners further submitted that no fundamental right is absolute and hence it would be necessary for the court to determine the limits of the right of free speech and expression and the extent to which this particular right can be exercised with the rights of other citizens.

The respondents have contended that the roads are blocked by the police in order to prevent the entries of protesters or farmers from entering to the city.

The bench adjudicated by hon’ble CJI SA Bobde and Justices AS Bopanna and Justice V Ramasubramanian held that there can be no obstruction to the rights of the farmers to protest as long as it is a non-violent protest not leading to damages to life and property of other citizens and is in accordance with law.

Additionally, the court advised the parties to submit suggestions about the constitution of the said committee on the next date of hearing in the matter. In the meantime, it granted the respondents to continue their protests freely without damaging any life or property.

A 3 judge bench of the Supreme Court has held that the expression “existence of arbitration agreement” which is included in Section 11 of the Arbitration Act shall also include the aspect of validity of arbitration agreement.

The Supreme Court also explained that at the stages that are included in Section 8 and 11 of the Arbitration Act the courts should undertake a prima facie examination to determine the validity of the arbitration agreement.

SECTION 8 AND SECTION 11 OF THE ARBITRATION AND CONCILIATION ACT

Section 8 of the Arbitration and Conciliation Act actually obligates any judicial authority to refer the dispute to arbitration where there was a valid arbitration agreement. A clear reading of Section 8 of the Act would give you an idea about what it says. It clears the fact that when it is compared to the UNCITRAL Model Law it differs from the Article 8 of the model law The Article 8 actually enables a court to decline to refer parties to arbitration in case the arbitration agreement is found to be void or null or in capable of being performed. In this aspect Section 8 has made a departure which indicates that it has a wider ambit and reach. Section 8 uses the expansive expression judicial authority instead of the term court.

Section 11 of the Arbitration and Conciliation Act deals with the appointment of arbitrators.

While answering a reference made to it by a division bench on the issue of whether landlord tenant disputes under the transfer of property act are arbitrable  the Apex court held that such disputes could become the subject matter of the arbitration if they are not covered by rent control laws.

The court also went on to discuss the issues relating to the stages when the question of arbitrability can be decided and the scope of examination under section 11 and section 8 of the act.

OBSERVATIONS MADE IN THE JUDGMENT-

The judgement also observed that during the reference stage the courts do not perform ministerial functions and they exercise and perform judicial functions whenever they take decisions on objections in terms of Section 8 and 11 of the Arbitration Act.

While discussing prima facie examination under Section 8 the Court was of the opinion that Section 8(1) after the 2016 amendment has enjoined the court to undertake prima facie examination when it comes to the validity of an agreement.

The Judgement went on to clarify that prima facie case in the context of Section 8 of the Arbitration Act should not be confused for the merits of the case that have been put up by the parties which has to be established before the arbitral tribunal. Its restriction lies in the subject matter of the being prima facie arbitrable when it falls under a valid arbitration agreement. Here prima facie case would mean that the  assertions on these aspects are bonafide.

The code explained how prima facie examination is not full review but is actually a primary first review in order to manifestly weed out invalid arbitration agreement sand non arbitrable disputes. The review at the reference stage in terms of prima facie is done in order to cut the dead wood  and trim the branches in terms of straight forward cases where the dismissal is quite evident and where the law and facts dealing with the litigation must stop at the first stage.

Everything depends upon the certainty of the court that there is no valid arbitration agreement that exists or the subject matter of the disputes are not arbitrable and only then an application under Section 8 could be rejected.

The judgement also had in opinion about Section 11 subsection 6A that had been inserted with the coming in off the 2016 amendment and prescribe that the court at the stage of appointing an arbitrator should confine itself to examine whether there was the existence of an arbitration agreement. However this subsection was later removed in the 2019 amendment. The court however made it noted that the existence of an arbitration agreement would mean an arbitration agreement that is able to satisfy the statutory requirements of the Arbitration Act as well as the contract act and also to meet ends and be enforceable in law.

The apex court thus made it clear that section 8 and 11 are indeed complementary provisions and the court also made it clear that it can read the mandate of a valid arbitration agreement in Section 8 into the mandate of section 11 which would include the existence of an arbitration agreement.

by SALONI THAWANI

The Apex Court recently issued notice in reference to a plea made by Twitter India who was seeking the quashing of numerous FIRs registered against it for the promoting of a tweet by one Gurpatwant Singh Pannum on “Khalistan“, allegedly.

Twitter claimed that multiple FIRs have been registered against the corporation after Gurpatwant Singh Pannum had tweeted a poll on Twitter on “whether India should recognize Khalistan’2020.”

The plea put forward by Twitter stated that Vinit Goenka, National Co-Convener of the BJP IT cell and several other complainants claimed that Twitter had taken monetary consideration to promote the “Khalistan” tweet, whereas in reality, Twitter had blocked the questionable tweet and furthermore, suspended his account.

Twitter India submitted that in the past several months, Vinit Goenka and his supporters have conducted webinars demanding for Twitter to be announced as a terrorist organisation, for Twitter’s officers to be charged with sedition and moreover, to instigate mass filing of cases against Twitter and its employees.

The claims alleged by Vinit Goenka and his supporters are frivolous, unfounded and actuated by malice, Twitter added, arguing that it had no role in deciding Twitter’s Ad policy and that Twitter does not obtain revenue for the content that is promoted on their platform.

Twitter Communications stated that it has no control whatsoever over the content shared on the website and that the content is monitored by Twitter Inc, which is based in the United States. Twitter also stated that their role is limited to promoting brands, research, development, marketing and soliciting.

Twitter has therefore pleaded for the consolidation of themultiple FIRs filed against them in one place, pointing out the example of Arnab Goswami, in whose case the Supreme Court, under Article 32 of the Constitution had directed the consolidation of such FIRs when there were multiple in number.

Twitter Communications had also claimed that Vinit Goenka had called upon users to file multiple cases against the Twitter with the sole intention of harassing, threatening and intimidating the entity.

Restating that multitude of cases cannot be filed for the same act, the Indian entity stated that all the complaints, filed across eight States in India, are identical in nature and allegations.

Twitter’s plea added that the doctrine of vicarious liability can be implored only in certain exceptional cases.

Twitter Communications had also moved the Gauhati High Court to quash the lead FIR registered in Tinsukia, Assam. Thus, Twitter’s plea stated that they do not pray for quashing of the Assam FIR due to its already being pending before the Gauhati High Court, but seeks quashing of the rest of the identical FIRs.

Twitter has urged the court to combine all the FIRs into one at Tinsukia, in the alternative.

Advocate Sajjan Poovayya appeared as the legal counsel for Twitter assisted by Avocates Manu Kulkarni, Parul Shukla and Saransh Jain. The notice in this matter was issued by a Bench which was headed by the Hon’ble Chief Justice of India, SA Bobde.

In the proceedings which were conducted via video-conferencing, the bench, also comprising Justices A S Bopanna and V Ramasubramanian, issued notices on the plea to the Union Ministry of Home Affairs and Karnataka, Assam, Haryana, Andhra Pradesh, Arunachal Pradesh, Maharashtra , Odisha and the Police Commissioner of Delhi.

The bench has also requested responses from the numerous complainants who have filed the complaints against Twitter, a social media giant.

The bench has also issued the notice to Vinit Goenka, a BJP functionary who claimed that the firm had allegedly taken monetary consideration to promote the questionable tweet.  

Twitter had argued that they have no control whatsoever over the shared content on Twitter’s website and that the content is monitored by the Twitter Inc based in USA.