The one great leap forward on judicial reforms so far has been the presidential assent to the 121st Constitution Amendment Bill on New Year's Eve, enabling the setting up of a judicial appointments commission. It scraps the present collegium of judges.In view of the persistent conflict between the judiciary and the executive over primacy in this field, it is most likely to be challenged in the Supreme Court.In August, the court had asked the Bar to hold back till the presidential assent before challenging the law on the ground of violation of the basic structure of the Constitution.In the light of the persistent conflict between the judiciary and the executive over primacy in this field, it is most likely that its Constitutionality will be tested in Supreme Court.While that might provoke another confrontation between the judiciary and the executive, the core problems of the judicial system have not yet been touched by the new government.The top spot in judiciary's wish list would be a

Legal reforms: One step forward, but a long road ahead

Business Standard

Largesse of natural resources stoppedThe most resounding judgment which the Supreme Court delivered this year was the one cancelling about 200 coal mining licences on August 25, after setting up a special court a month earlier to try the guilty. The ruling in the public interest petition, Common Cause vs Union of India, is the most important decision since the judgment two years earlier cancelling 2G spectrum licences.Go-ahead for corruption probesRelated to the corruption issue were two other judgments: one which held that the Central Bureau of Investigation did not need sanction from higher authorities to investigate top bureaucrats (Subramanian Swamy vs Union of India) and the other which ruled that private companies that share revenue from natural resources like spectrum with the government would be subjected to CAG audit. It said so while dismissing the appeal of the Association of Unified Telecom Services Providers.Tribulations of tribunalsThe recent trend of setting up tribunals

10 landmark judgments of 2014

An arbitration agreement, even though in writing, need not be signed by the parties if the record of agreement is provided by exchange of letters, telex or other modern means of telecommunication, the Supreme Court stated last week. "In the present day of e-commerce, in cases of internet purchases, tele purchases, ticket booking and in standard form of contract, terms and conditions are agreed upon," explained the judgment in the arbitration case, Govind Rubber Ltd vs Louids Dreyfus Commodities Asia Ltd."In such agreements, if the identity of the parties is established, and there is a record of agreement, it becomes an arbitration agreement if there is an arbitration clause showing ad idem between the parties. Therefore, signature is not a formal requirement  under section 7 of the Arbitration and Conciliation Act," the court said.This was an appeal against the Bombay High Court judgment in a dispute between a Mumbai importer of rubber and a Singapore company. The arbitrator in Singapo

Arbitration agreement needs no signature

Settlement of disputes can be challenged in court if a dominant corporation uses coercion, duress or undue influence of various types against a weak party. But the duress must be proved by showing evidence and documents that show undue influence around the time when the settlement was thrust upon the other party. The protest must be made without loss of time, not after undue delay. A bald allegation of duress would not be sufficient, the Supreme Court has stated in the appeal case, New India Assurance Co vs Genus Power Infrastructure Ltd. In this case, the firm purchased a "standard fire and special perils policy" from the insurance company. There was a fire explosion in the nearby Indian Oil Corporation (IOC) terminal causing extensive damage to the firm's unit. Though it claimed Rs 29 crore as its loss, the insurer's surveyor assessed it at Rs 6 crore. However, the firm signed a letter of subrogation in favour of the insurers for Rs 6 crore in full and final settlement. It assigned a

Settlement must be free from duress

Power commission must toe state policy

Arbitration awards are dragged into regular courts slowing down the legal process

M J Antony: Untouched by reforms

Counsel Kapil Sibal has tough time proving in court the BCCI chief had no role in the scam

IPL scam: SC asks Srinivasan to prove there was no conflict of interest

In Sita Ram vs state of Haryana, the award was passed in October 2003 and even after five years, compensation was not paid

Speeding up land acquisition payments

Trade union rivalries still alive and well

BIFR alone to decide if unit has revived

The Supreme Court last week unveiled a "sad, sad and shocking" story of auction sale of a liquidated company in Gujarat, in which the official liquidator and bidders played unsavory roles. The price fixed at Rs 6.25 crore for 291 plots of the company fetched Rs 70 crore for 113 freehold plots alone; the others were not free for sale. The drastic change was due to the intervention of the court.The judgment in the case, Manoj Naik & Associates vs Official Liquidator, noted the unconditional apology rendered by the liquidator of Vitta Mazda Ltd for issuing misleading statements. It also stated that a judge of the high court breached "judicial discipline" by passing orders at the request of the liquidator. The Supreme Court, narrating the sordid story of auctions, pointed out that when the Gujarat Industrial and Technical Consultancy Organisation Ltd estimated the price of the113 plots at Rs 66.15 lakh, the bids went up and the winner offered Rs 70 crore.The court remarked: "There can

SC unveils dark side of auction sales

The existing laws are struggling to cope with e-commerce

M J Antony: Haggling in the virtual bazaar

Creditors of sick companies have lost another battle to recover their money when the Supreme Court last week ruled that the Sick Industrial Companies Act (SICA) shall prevail over the Recovery of Debts due to Banks and Financial Institutions (RDDB) Act. There were differences among judges over this issue of precedence. Since two judges took different views, the question was referred to a larger bench. Last week, the new bench delivered a unanimous judgment in the case, KSL & Industries Ltd vs Arihant Threads Ltd, settling the law on this point.  According to Section 22 of the Sick Industries Act, once a company is declared sick, all legal proceedings, including suits for recovery of money, are suspended till an attempt is made to revive the unit. The judgment pointed out that it was in the backdrop of the existing multitude of remedies which creditors may avail of against an indebted company and its properties bringing them to attachments, auction sale etc., making it difficult for

Protection for sick units from creditors

Govt fails to sign banking secrecy treaty due to no clarity on confidentiality clause

Black money: Govt submits full list to Supreme Court

Directors in the dock when cheque bounces

While disposing of a batch of cheque bounce appeals with a 14-year history, the Supreme Court last week set forth six more guidelines to speed up trials in such cases. In the past few months, the court had issued some twenty other rules to be followed by the trial courts and high courts, since thousands of criminal cases under the Negotiable Instruments Act are clogging the judicial system. The new batch of cases was led by an appeal from Gujarat, titled Giriraj Proteins Ltd vs D M Finance. In one case, the trial court took about six years to acquit the person accused of issuing a cheque without adequate balance in the bank account. The appeal took more than that period in the high court, which only remitted the matter to the trial court due to technical faults. The third appeal reached the Supreme Court two years ago. Litigation took more than a decade because the high court ordered fresh trial after several years on procedural technicalities. The Supreme Court remarked: To replay the

More SC rules on bouncing cheques

Despite repeated calls by the Supreme Court to public authorities to sort out their differences among themselves and not to resort to prolonged litigation using tax-payers' money, this fratricidal syndrome has not faded a bit. A committee to sort out such disputes was disbanded some time ago. Public-sector undertakings continue to fight, benefiting their favourite lawyers. This was evident in two recent judgments of high courts. The central government and Steel Authority of India (SAIL) have been fighting a legal battle for years before the railway claims tribunal, the single judge of the Orissa High Court and the division bench on appeal. The tribunal had awarded Rs 1,32,87,74 towards the claim made by SAIL. The dispute was over the route to be taken on South Eastern Railway for carrying imported coal from Visakhapatnam port to SAIL's plant. The shortest route was 667 km. However, the central government exercised its power under the Railway Act and insisted on a "rationalised route" w

PSUs in fratricidal legal battles

Reward for persistent litigation

When arbitrators delay the proceedings intentionally and behave in a "cavalier manner", the court can override the terms of the contract and appoint a sole arbitrator, the Supreme Court has stated in the judgment, Union of India vs UP Bridge Corporation. The corporation had undertaken to construct substructure for rail bridges. There was a clause in the general conditions of contract that in case of disputes, they will be referred to three members of the railway. Differences did arise and they were to be decided by the rail authorities. Though it was done in 2007, for four years the proceedings were not completed. The corporation moved the Allahabad High Court, which gave three months to complete the process. Still it was not concluded. When the corporation moved the high court again, it observed that the delay was intentional and set aside the mandate of the tribunal and appointed a sole arbitrator. The railways appealed to the Supreme Court, which upheld the high court order observin

SC rebuke for government arbitrators

Despite Supreme Court's repeated calls, law of torts has remained static

M J Antony