Tag: #SupremeCourtofIndia

CRYPTOCURRENCY AND ISSUES RELATED TO IT

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WHAT IS CRYPTOCURRENCY?

Cryptocurrencies are a kind of virtual system which enables their holders to use that for digital payments. One major advantage of cryptocurrency is that distance is not a barrier and it allows individuals to send money from any part of the world to any other. An individual is not required to present there in person and the entire transaction can take place online. The term “cryptocurrency” stems from the fact that transactions are verified through encryption. Since cryptocurrency works on a high level of coding then storing it is a task and also a high level of coding is required but all this is worth it as all this encryption and high level of coding ensures the safety and security of the cryptocurrency and protects it from potential attacks.

In 2009 first cryptocurrency was made although its developer is still unknown and there are various theories regarding the origin of Bitcoin, the first cryptocurrency The temptation to trade for profit is at the root of much of the excitement with cryptocurrencies, with speculators driving prices up at times.

HOW DOES CRYPTOCURRENCY WORKS?

They can be termed as blockchain technology, a blockchain that stores all the data in a virtual format “Mining, which requires using computer processing power to solve complex mathematical problems” in order to earn coins, is how cryptocurrency units are created. If you are interested in buying cryptocurrencies then there are a lot of ways to proceed for the same one is going through a broker or using various kinds of apps available these days.

If you own cryptocurrency, you don’t own anything tangible. You have a key that allows you to move a record or a unit of measurement from one person to another without the use of a trusted third party.

IS CRYPTOCURRENCY SAFE?

Blockchain technology is commonly used to create cryptocurrencies. This method followed to create cryptocurrencies is a long and complex process but it also ensures full safety and a secure environment is created for the same.

STATUS OF CRYPTOCURRENCY IN INDIA

Currently, there is no rule in place in the country regarding the usage of cryptocurrencies and the citizens of India are free to trade in cryptocurrency. The Supreme Court of India also passed a judgment and overturned the Reserve Bank of India’s (RBI) rule prohibiting banks from enabling crypto transactions in March 2020. The Cryptocurrency and Regulation of Official Digital Currency Bill, 2021, is set to be introduced in Parliament during the Winter The session, and it aims to outlaw all “private cryptocurrencies”. But still, there are some speculations about that bill and how will the global market react to that bill.

CHALLENGES OF CRYPTOCURRENCY

Security risks: If hackers and bad individuals get access to virtual currency, they can create as cryptocurrency as much as they wish as once the system gets hacked, they know how to make virtual cryptocurrencies hence they can manufacture false virtual currency or steal virtual currency. There are many games that allow the sale and purchase of items in cryptocurrency therefore, a lot of users visit that site to buy those virtual currencies.1 They require certain components. Many WoW gold-selling websites are untrustworthy and susceptible to hacking. Many users have expressed their dissatisfaction with paying real money for nothing or for phony virtual currency.

Concerns about cryptocurrency systems collapsing: Because virtual currency is not issued based on demand and supply, it will cause economic problems in a number of virtual communities. Cryptocurrencies also face some threats from Inflation and economic problems that can cause them to collapse.

Impact on real-world monetary systems: Because some virtual currency systems are linked to real-world monetary systems, they may have an impact on real-world money demand and supply. Allowing consumers to buy virtual and real products and services using virtual currency on some platforms, for example, may lower the demand for actual money. Users will no longer use real money to purchase items; instead, they will use virtual money. Since there will be sites that will allow users to buy things in cryptocurrencies therefore the use of real money will be severely affected and will also cause fluctuations in its prices.

Money laundering is a concern that is very likely to increase as a result of the use of VC, particularly with platforms that allow users to swap virtual currency for real money. Ill effects of cryptocurrency are already seen in Korea where around 38 million dollars were illegally acquired by the gang of 14 people.

Unknown identity risks: Because most virtual currency platforms, such as social games and social networks, do not require authentication, financial transactions are difficult to track. There is no way to identify the source of the virtual currency that is created or cashed out.” This makes it impossible to track transactions if money laundering is suspected. Furthermore, offenders will be able to receive rewards in virtual currency for their crimes if they have an anonymous identity.

CONCLUSION

It can be easily concluded that though Cryptocurrencies provide an efficient payment option it also has some drawbacks and governments of counties all over the world need to work on them to bridge those gaps. It also offers an alternative payment mechanism, in addition to real money, that allows users to conduct financial transactions like buying, selling, transferring, and exchanging with ease.2 Cryptocurrency platforms, despite opening several channels for digital financial transactions and providing a new form of currency with many procedures and methods, are not properly monitored and regulated. There have been various studies on the fields of cryptocurrency and those studies have highlighted a lot of issues being faced by the industry. Lack of legislation regarding it being the major issue.

References

This article is written by Dalima Pushkarna student at Dr. Ram Manohar Lohiya National Law University, Lucknow.

SARFAESI Act and Relevant Provisions for Home Loan

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BACKGROUND

Recovery of Debts Due to Banks and Financial Institutions Act, 1993 was the former legislation exercised for the recovery of default” loans. According to the Narasimhan Committee’s suggestions, this act was passed and introduced to the public authority. This statute established “Debt Recovery Tribunals and Debt Recovery Appellate Tribunals for the rapid adjudication of disputes” over truly rising non-recovered dues.

SARFAESI ACT, 2002

The SARFAESI Act (Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002) is an Indian statute. It empowers banks and other financial institutions to auction off defaulters’ homes or businesses to recoup loans. Under this act, India’s first asset reconstruction Corporation (ARC), ARCIL, was established.

The SARFAESI Act, 2002 was established by the government in the year 2002 to give financial institutions a safeguard in the event of defaults. The statute, among other things, allows banks to seize and sell the security against a loan if the borrower defaults.

The SARFAESI Act of 2002 is an act to govern the securitization and reconstruction of financial assets, as well as the enforcement of security interests, and to provide for a central database of security interests created on property rights, and for matters associated with or incidental thereto.

Secured creditors (banks or financial institutions) have a number of rights, under section 13 of the SARFAESI Act, 2002, for the enforcement of security interests. If a borrower of financial assistance defaults on a loan or installment and his account is classed as a nonperforming asset by a secured creditor, the secured creditor may require written notice before the term of limitation expires.

CASE LAWS RELATED TO SARFAESI ACT

The Supreme Court of India announced the Sarfaesi Act constitutionally legal in the case of Mardia Chemicals Ltd. v. ICICI Bank1 on April 8, 2004. 1 The Court held that a borrower may file a debt recovery tribunal complaint against the lender without having to deposit 75% of the outstanding amount. The lender may sell the assets if the tribunal does not stay the ruling.

OBJECTIVES OF THE ACT

The Financial Assets Securitization and Reconstruction Act (SARFAESI Act) governs the securitization and reconstruction of financial assets. The Act establishes a single database of security interests based on property rights or factors related to or incidental to property rights.2

FEATURES OF SARFAESI ACT

Security interest enforcement: It allows secured creditors to enforce their security interests without the need for court intervention. In the event of a borrower’s default, the statute allows a bank or financial institution to issue a demand notice to the borrower, requiring him or her to settle the debt within sixty days of receiving the notification. Reconstruction of financial assets: The act empowers bankers and financial institutions to conduct appropriate management, sale, settlement, or possession procedures as needed under SBI standards. Securitization of financial assets and issuance of security receipts: The “major goal of the securitization act is to make security interest enforcement possible, i.e., to take control of the assets pledged as collateral” for the loan.

WHAT IS A HOME LOAN

A housing/home loan, normally called a mortgage, is a sum of money borrowed by an individual from a bank or other lending institution. The borrower must repay the loan the amount plus interest in Easy Monthly Instalments, or EMIs, over a period of time that can range from 10 to 30 years, depending on the loan type.

TYPES OF HOME LOANS

There are various types of house loan choices available to fit each individual situation. Home loans can be used to purchase either commercial or residential properties.

Here are some of the several types of house loans available.

  • Property Purchase Loan – You can purchase any house or home within your budget with this loan.
  • Construction Home Loan – This loan can be used to cover the costs of constructing a home.
  • Land Purchase Loan – This loan can be used to purchase a piece of land.
  • Home Improvement Loan – This loan can be used to improve and renovate your home.
  • House Repair Loan – Use this loan to cover the costs of home repairs and restoration.
  • Home Extension Loan — With this loan, you can increase the amount of built-up area in your home.

SARFAESI ACT PROCEDURE IN CASE OF HOME LOANS

Before a bank may repossess a property and claim it to recoup its debts, it must follow specific procedures. The SARFAESI Act procedure is the framework in which they operate. Under the SARFAESI Act, if a borrower is unable to repay his loan (including home loans) for six months, the bank has the legal right to issue him a letter requesting that he settle his debts within 60 days. If the borrower fails to pay this obligation, the financial institution has the authority to sell the property in a distress sale to recoup the debt. Within 30 days from the day order is passed, a person, in evading, who is aggrieved by the bank’s order may appeal to the appellate authority established by law.3

The bank has the choice to lease or sell the property once it has taken possession of it. It can also provide another entity the right to use the property. The revenues from the sale are used to pay down the bank’s outstanding debts first. If there is any money left over, it is paid to the defaulting borrower.

CONCLUSION

Despite the fact that the SARFAESI Act was enacted to help banks prepare blocked funds in non-performing assets, the various provisions of the act have caused genuine buyers great grief. The many rules aimed at balancing the needs of borrowers and banks have changed the balance of power in favor of the banks. The majority of the time, these powers are employed by banks to fit their own interests above the interests of the buyers. In this context, it is acceptable for the common courts to take on more social responsibility for the borrowers’ greater interests on the one hand, and to share the banks’ obligations for assembling funds from the numerous non-performing assets on the other.4

REFERENCES

  1. Home Loan, https://www.adityabirlacapital.com/abc-of-money/what-is-a-home-loan
  2. SARFAESI ACT APPLICABILITY, https://cleartax.in/s/sarfaesi-act-2002
  3. All you want to know about Sarfaesi Act, 2002,
    https://www.thehindubusinessline.com/opinion/columns/slate/all-you-wanted-to-know-about/article31559808.ece
  4. Sarfaesi act, https://en.wikipedia.org/wiki/Securitisation_and_Reconstruction_of_Financial_Assets_and_Enforcement_of_Security_Interest_Act,_2002

This article is written by Dalima Pushkarna student at Dr. Ram Manohar Lohiya National Law University, Lucknow.

Anuradha Bhasin v. Union of India

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Case number

Writ Petition (C) No. 1031 of 2019.

Equivalent citation

AIR 2020 SC 1308.

Bench

Hon’ble Chief Justice of India N. V. Ramana, Hon’ble Justice R. Subhash Reddy, Hon’ble Justice B. R. Gavai.

Date of Judgement

January 10, 2020.

Relevant Act(s)

“Constitution of India”, “The Code of Criminal Procedure (Amendment) Act, 2005”, “The Indian Telegraph Act, 1885”

Facts of the case

The issue came in 2019 when the Government of Jammu and Kashmir issued a “Security Advisory” and directed the tourists (including numerous “Amarnath yatris”) to return in order to ensure safety. Adding to this, orders were issued to shut down educational institutions. Finally, on 4th August, internet connection, phone networks, and landline connections were cut off too. On August 5th, the President decided to impose “Constitutional Order 272”. As per this order, the provisions of the Indian Constitution would be applied to Jammu and Kashmir. Simultaneously, Section 144 of the CrPC was imposed in order to maintain peace in the valley. Due to such restrictions that were imposed, movements of various journalists were hampered a lot as well. As an outcome of this, the “Kashmir Times Srinagar Edition” could not get distributed on 5th August. The petitioner is the executive editor of the “Kashmir Times” newspaper. The petitioner has also claimed that she had not been able to publish the newspaper since the next day, i.e., 6th August 2019. Under Article 32 of the Indian Constitution, the petitioner had approached the Hon’ble Supreme Court, for issuance of a writ for setting aside the orders imposed by the respondents. She claimed that the Internet is an important factor in today’s world. She also claimed for lesser restrictions in the movement of journalists.

Issues

  • Whether the Government can claim exemption from producing all orders passed under CrPC Sec 144 and others under suspension rules.
  • Whether “freedom of speech and expression” and “freedom to practice any profession, or to carry out any trade” over cyberspace can be considered a fragment of the fundamental rights under “Part III of the Constitution”.
  • Was it valid on the Government’s part to restrict internet facilities and to impose restrictions under “Section 144 of the CrPC”?
  • Was the petitioner’s “freedom of the press” violated due to the restrictions?

Arguments

Arguments made by the petitioner:
The first argument put forward was that the petitioner could not do her job and get the newspaper published due to the imposed restrictions (on press) from 5th August 2019. Since internet facilities were stopped, the print media got hampered badly. Hence, people’s livelihood got affected due to the restrictions (violation of Article 19(1)(g) of the Indian Constitution). The right to speech was violated, due to the cutting down of internet facilities. It was argued that the restrictions made were not at all reasonable or proportional in any sense. The counsel contended that all the restrictions were levied on the premise of the apprehension of some danger to the regulations and law. Also, there is a difference between “public order” and “law and order”. The restrictions imposed and the measures taken were in order to protect “law and order”. Also, these restrictions did not even seem to be temporary, because it had already been a long time since they were functioning. It was argued that the state should have undertaken a less strict alternative in the beginning. Also, the restricting movement was applied over the entire state, and not in specific regions. The petitioners contended that such a restriction all over the state was unnecessary.

Arguments made by the respondent:
The primary argument made by the respondent was that these restrictions were absolutely necessary in order to fight terrorism in the state. They also claimed that general freedom of expression and speech cannot be applied to the Internet, because there are a lot of dangers on this platform. It was argued that it is not possible to shut down specific websites, hence, a total shutdown was the only alternative. They also claimed that the situation was getting exaggerated.

Judgement

The Court held that the “freedom of speech and expression” and “freedom to practise any profession or to carry out any trade” on cyberspace are protected under Articles 19(1)(a) and 19(1)(g) respectively. It was held that any restrictions on the abovementioned rights, would have to be reasonable and in compliance with Articles 19(2) and 19(6) of the Constitution. Hence a “proportionality test” was ordered by the Apex Court. If the restriction to internet access is not found to be proportional then it would cease to exist. It was held that: “the government cannot contend any exception for providing any order before the court which is passed under Section 144 of the CrPC.” No order was issued by the court to provide remedies to those who were already affected, but a lot of principles were laid down for future suspensions. Apart from these, the court dismissed the plea where the petitioner claimed that freedom of the press was violated due to the restrictions, due to lack of evidence.

Conclusion

Internet is an important part of our daily life in today’s world. We are very much dependent on the internet for a lot of things including trade and business. It can be concluded that Internet has become so important that it is being included in Part III of the Indian Constitution. This judgement is very significant because the primary aim of the case was to judge the legality of the restriction of internet facilities. The Apex Court had also introduced a number of principles that would prevent undue misuse of the powers provided to the Government, especially in such cases.

This article is written by Aaratrika Bal student at National Law University Odisha.

Jayamma & Anr. v. The State of Karnataka

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Case number

Criminal Appeal No. 573 of 2016.

Equivalent citation

(2021) 6 SCC 213.

Bench

CJI N. V. Ramana, Hon’ble Justice Surya Kant and Hon’ble Justice Aniruddha Bose.

Date of Judgement

May 7, 2021.

Relevant Act(s)

The “Evidence Act, 1872”; the “Indian Penal Code, 1860” and the “Code of Criminal Procedure, 1973”.

Facts of the case

Both parties were very much related to each other. There had been clashes going on for a long time between the family of Jayamma (appellant), who is the wife of Reddinaika and the family of Jayamma (respondent), who was the deceased wife of Sanna Ramanaika. An argument took place between the two families in 1998 on September 10. During this argument, Reddinaika was assaulted by Ramanika’s son, i.e., Thippeswamynaika. After this incident happened, the appellants arrived at the respondent’s place on 21 st September to confront them about the actions of Ramanaika’s son. A sum of Rs. 4000 was also demanded by the appellants in order to cover the medical treatment costs. A heated altercation happened, as a result of which the appellant party poured kerosene on Jayamma (who is now deceased) and set her on fire. The appellants were explicitly blamed for the death of Jayamma (respondent). Jayamma’s family members heard her screams and tried to set off the fire. In the meantime, the appellants ran away from the scene. Jayamma was then admitted to a “public health entre”. Jayamma was given pain killers and basic treatment by Dr A. Thippeswamy. A medico-legal case was then sent to the Thalak police station. Jayamma gave her statement and she had implicated the whole appellant party under “sections 307, 504, 114” read along with “section 34” of the IPC. Finally, on September 23, Jayamma passed away. The post-mortem report said that she died due to shock which came as a result of her injuries. The appellants got arrested, but with the help of anticipatory bail, they had to be released. When the matter was presented in the trial court, a number of witnesses turned hostile. The issue then was whether Jayamma’s death was suicidal in nature or if it was homicidal. It was noted by the court that all of this was based on the dying declaration of Jayamma. The accused were not convicted due to a lack of genuineness and evidence (except for the dying declaration). Therefore, the court acquitted the appellants. During the High Court hearing, it was decided that the judgement of the trial court would be reversed. The HC of Karnataka decided that a dying declaration was enough to convict an accused. The Hon’ble court convicted the accused under “section 302” read with “section 34” of IPC.

Issues

  1. Was it right on the High Court’s part to reverse the decision taken by the trial court?
  2. Was it successfully established that Jayamma’s death was not suicidal, and instead was homicidal in nature?

Arguments

  • Argument made by the appellants:
    The appellant’s side claimed that the decision taken by the trial court was well structured, unlike that of the High Court which was vague and confusing. It was also contended that the High Court failed to examine the conclusions of the trial court. Thus under “section 378” of the CrPC “, it failed to discharge its obligation”. They claimed that a decision should not be taken just on the basis of a dying declaration and that the motive of the appellants could not be established. Hence, the acquittal is incorrect.
  • Argument made by the respondent:
    The learned counsel contended that in cases of death from 100% burn injuries, the dying declaration can be considered enough for a conviction.

Judgement

After a thorough investigation, the Supreme Court found that some modifications had been done in the dying declaration and that the HC of Karnataka had unnecessarily depended a lot on just the dying declaration. The Court also concluded that since Jayamma was in a lot of pain she might have not been in a state to give a proper statement before dying. Hence, the Apex Court decided to acquit the appellants in the present case. The Court also mentioned that high accuracy had been maintained in the dying declaration which was unlikely for an individual who was in such physical condition and also Jayamma was not that literate to describe the whole situation with such details. Jayamma was alive for almost 30 hours, but the authorities did not contact the Executive Magistrate to record the statement of the patient. Hence, the apex court was not convinced enough to accept the dying declaration as the sole piece of evidence to convict the appellants. The Court also pointed out the fact that it was not a family member who had complained to the police, instead it was the doctor. Thus, this also questions the homicidal nature of death. Apart from these, it was also held that it was unfair on the High Court’s part to exercise “section 378” of the CrPC, that too when the trial court gave a right decision.

Conclusion

This is an important judgement that primarily talks about the usage of dying declaration as the sole piece of evidence in any case. A point that should be noted here is that it took so many years to serve justice to Jayamma and her family. During this course of time, the family had to go through a lot. There are so many cases in India that are pending, and the party that suffers the most in these cases are one of the parties. Also, it is not fair to assume that the investigation done by lower courts is inadequate or incorrect. The Supreme Court had given a very detailed and reasonable judgement in this case. This judgement is one of the most significant judgements of 2021.

This article is written by Aaratrika Bal student at National Law University Odisha.

Hindustan Construction Company Limited & Anr. vs. Union of India & Ors.

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Case Number:

Writ Petition (Civil) No. 1074 of 2019

Bench:

Rohinton Fali Nariman

Aniruddha Bose

V. Ramasubramanian

Date of Judgment:

27/11/2019

Relevant Acts:

Arbitration and Conciliation Act, 1996

Constitution of India

Insolvency and Bankruptcy Code, 2016

Facts of the Case:

The petitioners were construction firms that had worked as contractors for government agencies on large-scale infrastructure projects such as roads, bridges, hydropower, and nuclear reactors, tunnels and rail facilities, etc. The petitioners were aggrieved by the fact that if a cost surge occurred, the government bodies contested it, resulting in a delay in the recovery of their rightful dues, which could only be retrieved either through an arbitration process or civil proceedings. They were unable to recover their debts from government bodies through insolvency proceedings as government bodies were not covered by the Insolvency and Bankruptcy Code, 2016.

The petitioner argued that the unamended Act violated the UNCITRAL Model Law by prohibiting the use of two key aspects of award debtor, one during setting aside procedures under section 34 and the other during enforcement proceedings under section 36 of the Arbitration and Conciliation Act, 1996. It was also contended that Section 87 enacted was violative of Article 14, 21, and 300-A of the Constitution as it weakened the binding nature of an arbitral ruling by removing the vested power of enforcement.

The respondents stated that the 2019 amendment inserting Section 87 and revocation of Section 26 by claiming that the interpretation of Section 26 in the BCCI case was purely declaratory and there was no merit in the petitioner’s statement that the interpretation is unconstitutional. The respondents also asserted that the BCCI ruling, it was said, was just declaratory and did not invalidate any executive action. As a result, section 87 merely clarified the original legislative meaning and had no incidence on the BCCI judgment.

The issue before the High Court:

Whether Section 87 of the Arbitration and Conciliation Act, 1996 introduced by the 2019 Amendment Act is valid?

The ratio of the Case:

The SC concurred with the respondents that no direct and substantiating reference to the BCCI decision was required to negate it through legislation. The court also concluded that, when read in conjunction with the IBC, Section 87 had ludicrous effects, such as award holders being unable to recover funds from award debtors and being insolvent. Subsequently, the court ruled that the addition of Section 87 and the repeal of Section 26 were in violation of Article 14. 

The Supreme Court explained in BCCI v. Kochi Cricket Private Limited (2018) that while the 2015 Amendment Act was prospective in nature, the change in the position regarding the former automatic stay against enforcement was applicable retrospectively. The Supreme Court stated that section 87 was enacted solely to implement the Srikrishna Committee Report’s advice to remove doubt around the potential applicability of the 2015 Amendment Act when such uncertainty had already been resolved by the BCCI ruling.

The decision of the Court:

The Supreme Court concurred with the Petitioner that the addition of section 87 resurrects the problem that the 2015 Amendment Act attempted to address and is thus unconstitutional. The SC further agreed with the Petitioners that, when read in conjunction with the IBC, section 87 results in an illogical result, namely, the award holder becoming insolvent due to its inability to recover money under arbitral awards. As a result, the Supreme Court concluded that the 2015 Amendment Act’s inclusion of section 87 and deletion of section 26 violated Article 14 of the Indian Constitution.

The present article has been written by Aathira Pillai.

The present article has been edited by Shubham Yadav, a 4th- year student from Banasthali Vidyapith.

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S.V. Chandra Pandian And Ors vs S.V. Sivalinga Nadar And Ors on 11 January 1993

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Equivalent citations:

1993 SCR (1) 58, 1993 SCC (1) 589

Bench:

AHMADI, A.M. (J)

BENCH:

AHMADI, A.M. (J)

PUNCHHI, M.M.

RAMASWAMY, K.

Date Of Judgment –

11/01/1993

Acts –

Arbitration Act, Registration Act, Indian Partnership Act

Facts:

A business was run in collaboration consisting of 6 brothers namely four appellants and respondents 1 and 2.in due time, conflicts arose among the 6 brothers regarding the business run by them. By addressing the disputes to three arbitrators, they entered into a negotiable agreement that would serve their purposes. After lending an attentive ear to the parties, they entered upon the reference and circulated a draft award. After contemplating the reaction of the squabblers, a final award was drafted by the arbitrators where each one of the 6 brothers got their fair proportion of the valuables and worldly riches. Some of the disputants filed a petition pleading for a direction to the arbitrators to lodge their award in court; a petition requesting the court to pass a decree in terms of the award was also submitted to the court. 

Two other squabblers filed a petition under section 30 of the arbitration act to set aside the award. All these matters were given an ear to by a single judge. It was contended before him that having regard to the allotment of partnership properties including immovable objects under the award. Registration of the award was obligatory under section 17(1) of the registration act and since it lacked registration the court had no jurisdiction to consider it as the rule of the court and grant a decree in terms thereof. 

Ratio Of The Court:

SC. Addanki Narayanappa V. Bhaskara Krishnappa –  

The members of the two joint families, the Addanki family, and the Bhaskara family had thrown themselves into a partnership for running a business of hulling rice. Each family was given half share in that venture. The capital required for the business consisted of certain lands possessed by the two families. In the course of business, the firm attained more lands. Differences arose and a suit for dissolution was filed by the members of the two families. All the members were made parties to the suit either as plaintiffs or as defendants. The Bhaskara family grappled within the boundaries of defense that the partnership was disintegrated back in 1936 and the matter was brought to an end between the two families under a karat executed in favor of Bhaskara Gurappa Setty, the head of the Bhaskara family, by 5 members of the Addanki family representing that family. The defendants argued that the plaintiffs had no cause of action and the suit for dissolution of partnership and accounts was not maintainable.

In Commissioner of Income – Tax, West Bengal, Calcutta v. JUggilal Kamlapat–

This court pointed out that the deed by one in which one person releases his legal right to the property – the deed of relinquishment, was to serve the interest of the three brothers in the assets of the partnership firm in favor of the Trust and consequently did not require registration even though the assets of the partnership included immobile objects.

Madhya Pradesh v. Dawes Cine Corporation – 

After the dissolution, a pact was decided between the farmers that the theaters should be returned to their actual owners.

U.P. v. Bankey Lal Vaidya – 

This court pointed out that on the dissolution of the partnership, the assets of the firm are valued and the partner is paid a certain amount in lieu of the share of his assets. The transaction is not a sale, exchange, or transfer of the firm and the amount received by the partner cannot be considered as capital gains.

Malabar fisheries co. Calicut v CIT –

No separate rights were given to the firm as such and the partners jointly own the assets of the partnership. The distribution, division, and allotment of the assets are a resulting factor of the mutual adjustments between the partners and there is no chance of the abolition of the firm’s rights in the partnership assets amounting to the transfer of assets within the meaning of s. 2(47) of the act.

Decision Of The Court: 

The Supreme Court held that the stock of property acquired by the firm in the course of business shall constitute the property of the firm unless the firm provides otherwise. It further held that since the partnership is not a legal entity and is only a succinct part,  where each partner has beneficial interest and he can never claim any earmarked portion. Therefore when he receives any property from the residue it cannot be evaluated that he had a definite limited interest in the property and there is the transfer of the remaining interest in his goodwill within the meaning of section 17 of the Registration Act.

The case analysis has been done by Shruti Bose, a student at Christ (Deemed to be University), Lavasa.

The case analysis has been edited by Shubham Yadav, a 4th-year law student at Banasthali Vidyapith,

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Supreme Court as The Ultimate Justice Execution Authority

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Introduction to the topic: –

The Supreme Court, also sometimes referred to as the apex court, is the highest Judicial body of India. The motto of the Supreme court of India is ‘where there is Dharma there will be victory’. It is the guardian of the Indian constitution and the rights conferred to the citizens by the Indian constitution. It protects and guards the constitution and keeps a check on compliance of laws with the constitution framed by the Indian parliament to be within the ambit of guidelines provided under the constitution. In Kesavananda Bharati v. the State of Kerala the supreme court laid down the basic structure of the Indian constitution which cannot be compromised or amended in any condition and any law doing so will be unconstitutional. 

Technicalities of last deciding justice authority: –

The Supreme Court is the court of last resort. It is the final pedestal of justice however the convict in criminal cases who is granted capital punishment by the supreme court can file a mercy petition to the president of India for pardon or reduce the intensity of punishment to life imprisonment subject to provisions provided under Article 72 of the Indian constitution. The president must make decisions based on the recommendations of the central government. There are many instances where after the supreme court’s decision a mercy plea is filed to the president of India on behalf of a convict, Like in the case of Md. Ajmal Amir Kasab v. the State of Maharashtra (2012) and in Mukesh and Anr State for NCT of Delhi and Ors (2017). 

Technically the admission rate of granting mercy is low and usually, the petitions are dismissed by the president so it can be said that the supreme court is the final deciding authority.

 Apart from this, many other features make the supreme court the last authority on deciding and doing justice. The Supreme Court is the last court of hearing and no other place the case can be heard thereon. Under the president, only a mercy petition is filed but no hearing of the case takes place; the president acts on the aid and advice of the cabinet. Few mercy petitions are allowed, it is further filtered and very few are granted. As far as the legality of an act goes, the supreme court is the last deciding body on legality, and a mercy petition is a mere consideration of mercy for an act committed. 

The Supreme court’s decisions are binding on all the lower courts within its jurisdiction i.e., the territory of India which hints towards its supreme judicial authority exercised by the supreme court. And for these very reasons the supreme court employs seasoned, most experienced judges and the system of the constitutional bench. One can always file for review or curative petition if there is any violation or ignorance on the part of the Supreme court.        

Why is the Supreme Court the final pedestal of Justice?

The Supreme Court exercises all applicable laws and remedies present under the law in the country to bring justice to the aggrieved party. And in absence of law or precedent on matters, it applies principles of natural justice to bring justice. 

It is committed to bringing justice with utmost fairness between the parties. Judicial decisions are to be measured by their consequences then careful attention needs to be given to the process of accessing and estimating those consequences. There are relatively fewer chances of biases in the decisions given by the judges of the supreme court as they do not decide cases on their own bias and justify it, instead, they decide about the law whether an act is right or wrong. 

The Supreme court is chosen as a last resort because a case must be settled at some point in time and should not be disturbed once settled, this is also the basis of precedents (previously decided cases) and stare decisis (stand by the given decision). In Reynolds v. the United States wherein the United States, Supreme court established the principle that while legislative fiat may not control private opinions and believes it may, nonetheless, control actions “in violation of social duties or subversive of good order” further control facilitated by the supreme court. 

The Supreme Court being the final pedestal of justice decides justice in the first place and then works on the execution of justice. Which would serve justice among the parties not opposed to public policy. The court doesn’t serve justice based just on the facts put up by parties in front of it but also looks into possible impact decisions might create or what possible impact it will have in the society to maintain the status quo.

Ability to serve justice: –

Justice is subjective, what may be just for one may be destructive for others. An equilibrium cannot be reached to attain justice and beyond that courts also have to decide the impact it will have on the society considering this justice is served and wrong is established.

 Civil justice is different from social justice. Aristotle’s commutative justice involves the enforcement of property claims recognized by law. Social justice involves transfers of property interests, through regulation or taxation, utilizing law operating posterior to the formation of property. The one can be converted into other by bending logic and constitutional authority done by Supreme courts. 

The theory of redressive justice governs the enforcement of rights by a wronged party against the party which committed the wrong. This is formed based on corrective justice theory by John Gardner which states the type of justice concerning norms of allocating back. 

The concept of justice by the Supreme Court can be summarized as granting fair trials leading to justice under the law.      

The article is written by Aakarsh Chandranahu, from Alliance School of Law.

The article is edited by Shubham Yadav, pursuing B.com LL.B. (4th Year) from Banasthali Vidyapith.                    

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Vilas Pandurang Pawar Vs. State Of Maharashtra

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CASE NUMBER

Special Leave Petition (Crl.) No. 6432 Of 2012

EQUIVALENT CITATIONS

(2012) 8 SCC 795, AIR 2012 SC 3316.

BENCH

P. Sathasivam and Ranjan Gogoi.

DECIDED ON

September 12, 2012

RELEVANT ACT/ SECTION

  • The Salt Cess Act, 1953.
  • Section 438 in the Indian Penal Code.
  • The Indian Penal Code.
  • The Special Courts Act, 1979.
  • Article 136 of the Constitution of India.
  • The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
  • Section 438 in the Code of Criminal Procedure, 1973

BRIEF FACTS AND PROCEDURAL HISTORY

In this case, the complainant was of a lower caste. She lived with her family. On 15.06.2012 they allowed the rain water accumulated in their field to flow to the field of the petitioner. The petitioner then abused on their caste and then assaulted her whole family by using stones, sticks, etc., the reason being that the complainant allowed the rain water to flow on their field. The complainant then on the same day filed an FIR against the petitioner. The petitioner along with the other accused members filed an anticipatory bail under section 438 of CrPC before the Additional Sessions Judge, who rejected their application for anticipatory bail. Then the petitioners moved the anticipatory bail to the High Court. The Hon’ble High Court allowed the anticipatory bail to 13 accused out of 15. The two petitioners moved to the Hon’ble Supreme Court of India. And the SC also rejected the application for anticipatory bail.

ISSUE BEFORE THE COURT

The main issue was that whether an accused charged with various offences under the IPC along with the provisions of the SC/ST Act is entitled for anticipatory bail (also called as pre-arrest bail) under Section 438 of the CrPC or not.

RATIO OF THE CASE

The Hon’ble Supreme Court of India rejected the application for anticipatory bail of the petitioners because the Section 18 of the SC/ST Act creates a bar over Section 438 of CrPC that denies the anticipatory bail for the person against whom the allegations has been filed under this Act and therefore no court can entertain such applications for anticipatory bail unless, the court prima facie finds that the offence made under the SC/ST Act is not made out.

DECISION OF THE COURT

The anticipatory bail is not maintainable in the cases of the offence committed under SC/ST Act as there is a bar under section 18 of this Act. Therefore the Hon’ble SC has held that the petitioners have committed the offence under SC/ST Act, and hence they are not entitled for release on pre-arrest bail.

The case analysis has been done by Priyanka Choudhary, currently pursuing BALLB from Mody University of Science and Technology, Lakshmangarh, Rajasthan.

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Reservation Policy in India: Critical Analysis

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“It is against the fundamental principles of humanity, it is against the dictates of reason that a man should, by reason of birth, be denied or given extra privileges”

                                                                                                                  – Mahatma Gandhi

Introduction

Reservation in India refers to the process of assisting some special sections of the society in terms of education, scholarships, jobs, and promotions. These sections have faced historical injustice due to their caste identity. Reservation is a type of affirmative action based on quotas. Constitutional laws, statutory laws, and municipal norms and regulations govern the reservation. India’s long-standing caste system is to blame for the country’s reservation system’s inception. The reservation might be viewed as positive discrimination because it is based on quotas.

The Indian reservation system’s main goal is to improve the social and educational standing of poor populations and therefore their lives. The premise was that the vast majority of the poor came from a relatively small caste group and that they needed a social network to be accepted as full members of society.

It was a pittance in comparison to the millions of unfortunates who were subjected to the inequalities and humiliations of untouchability on a daily basis.

Historical Background

In 1933, British Prime Minister Ramsay Macdonald delivered the ‘Communal Award,’ which established the reservation system that persists today. Separate electorates were established for Muslims, Sikhs, Indian Christians, Anglo-Indians, Europeans, and Dalits in this award. Reservations were initially exclusively available for SCs and STs after independence. On the Mandal Commission’s recommendation, OBCs were put in the ambit of reservation in 1991.

The Supreme Court, while sustaining the 27% quota for backward classes, overturned a government notification reserving 10% of government positions for economically backward classes among the higher castes in the Indra Sawhney Case of 1992. In the same decision, the Supreme Court upheld the concept that the total number of reservation beneficiaries should not exceed 50% of India’s population. The Constitutional (103rd Amendment) Act of 2019 has established a 10% reservation for the “economically disadvantaged” in government positions and educational institutions in the unreserved category. The Act adds language to Articles 15 and 16 of the Constitution allowing the government to grant reservations based on economic disadvantage. This 10% economic reservation is in addition to the 50 percent reservation limit.

Reservation in India

India’s reservation policy, which began in 1959, is the world’s oldest of its kind. In 1992, the Supreme Court of India determined that reservations may not exceed 50%; anything higher, it said, would violate the Constitution’s provision of equal access. As a result, reservations were capped. However, there are state laws that go over the 50% limit, and these are currently being challenged in the Supreme Court. For example, caste-based reservation is 69 percent in the state of Tamil Nadu, and it affects around 87 percent of the population. For a period of five years, the Constitution set aside 15% and 7.5 percent of vacancies in government-aided educational establishments and positions in the government/public sector, respectively, as reserved quotas for SC and ST candidates, with the situation to be reviewed after that.

After the provision for the reservation was first introduced, it became associated with vote bank politics, and subsequent governments and the Indian Parliament frequently extended it without any free and fair amendments. Reservations were then implemented for other portions as well.

The current reservation system has the potential to undermine the country’s economic structure by lowering labor productivity. The reservation system merely serves to divide society, resulting in discrimination and disputes between various groups. It is oppressive and has nothing to do with caste. It is the polar opposite of communal living.

Constitutional Provisions for Governing Reservations in India

The reserve of SC and ST in the Central and State legislatures is addressed in Part XVI.

The Constitution’s Articles 15(4) and 16(4) allowed state and federal governments to set aside seats in government services for members of the SC and ST communities.

The Constitution (77th Amendment) Act of 1995 added a new clause (4A) to Article 16 of the Constitution, allowing the government to give reservation in promotion.

Later, the Constitution (85th Amendment) Act, 2001 amended Article (4A) to offer consequential seniority to SC and ST candidates elevated under reservation.

The 81st Amendment Act of 2000 placed Article 16 (4 B) into the Constitution, allowing the state to fill unfilled SC/ST vacancies in the next year, effectively nullifying the fifty percent reservation cap on total vacancies for that year.

Articles 330 and 332 provide for particular representation in the Parliament and State Legislative Assemblies, respectively, by reserving seats for SCs and STs.

Every Panchayat is required by Article 243D to reserve seats for SCs and STs.

Every municipality is required by Article 233T to reserve seats for SCs and STs.

According to Article 335 of the constitution, the claims of STs and STs must be taken into account in conjunction with the administration’s efficacy.

Why is it Necessary to Evaluate the System?

Reservations are the most serious threat to meritocracy. Meritocracy should not be tainted by lowering entry barriers; rather, it should be bolstered by providing financial assistance to the poorest but most worthy individuals. Because of their preservation of merit, the NTs and IIMs are now held in high regard around the world.

Reservation based on caste is a tactic used to achieve narrow political goals.

In addressing social justice problems, a comprehensive Affirmative Action plan would be more beneficial than reservations.

Quota allocation is a type of discrimination that violates the right to equality.

The entire policy must be thoroughly studied, and the benefits must be calculated over a nearly 60-year period.

Poor people from the “advanced castes” have no social or economic advantages over those from the “backward castes.”

Most of the seats intended for “backward” castes are used by only the monetarily well-off, rendering the goal a complete failure.

Due to political difficulties, there is a fear that once reservation is implemented, it will never be removed, even if there is proof of upliftment of backward classes. In Tamil Nadu, for example, forward castes were only able to acquire 3% of overall seats (and 9% in Open Competition) in professional schools at the undergraduate level, despite their population percentage of 13%. This is an obvious case of discrimination in the wrong direction.

Many people favor reservations by citing the Mandal Commission report. According to the Mandal Commission, 52 percent of Indians are classified as OBC, but only 36% are classified as such in the National Sample Survey 1999-2000. (32 percent excluding Muslim OBCs).

As a result of the reservation, there has been an increase in brain drain as undergrads and graduates have begun to pursue higher education in foreign colleges.

Is it enough to have a reservation to assure community development?

Reservations are a two-edged sword when it comes to community development, with the two sides being the various sorts of reservations available.

When used in its traditional sense, a reservation really produces more harm than good. When society and opportunities for people are split based on caste and class, it creates a divide between those classes, preventing community harmony and growth.

If the reservation policy were reversed to guarantee places to economically disadvantaged parts of society, it would foster a sense of common upbringing among those who are financially well-off.

Conclusion

It is arguable whether a person’s caste constitutes an acceptable basis for quota in government jobs and colleges in the twenty-first century. Many people from lower castes have risen through the social ranks and are now on par with the ‘general population. Many upper castes, on the other hand, continue to be impoverished and illiterate. However, it cannot be maintained that caste-based reservation is wholly irrelevant because, at the time it was established, India had many discriminatory laws and norms enacted by religious leaders at various levels. Even after 63 years since untouchability was abolished, the lower class is exploited and discriminated against, as evidenced by Rohith Vemula’s case. However, the country requires a more comprehensive reservation system that encompasses the poor and backward groups while excluding the wealthy and dominant portions of all castes.

Reservations are now merely a method for politicians to increase their vote banks. In every way, they are impeding the country’s growth, progress, and capability. On the one hand, our constitution’s preamble declares that we are a free, democratic, and sovereign nation; on the other hand, the reservation system enslaves all of these characteristics. It is causing divisions and divisions among the population.

The topic of reservation has long been a source of contention between the reserved and non-reserved sectors of society. While the unreserved portions continue to oppose the provision, the most vulnerable sections within the reserved segments have little understanding of how to profit from it, if it even exists.

Reservations are now solely a tool for politicians to boost their vote totals. They are limiting the country’s growth, progress, and potential in every manner. The preamble of our constitution proclaims that we are a free, democratic, and sovereign nation; but, the reservation system enslaves all of these features. It is producing racial and ethnic divisions among the population.

This article is written by Ayushi Vaid of Vivekananda School of Professional Studies.

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