- Amendment introducing homebuyers as financial creditors is not arbitrary – The Supreme Court upheld the 2018 amendment to the Insolvency and Bankruptcy Code, which introduced homebuyers into the category of financial creditors for the purpose of the Insolvency proceedings. The amendment was challenged by more than 200 realtors. The Court explained that homebuyers can be treated as financial creditors because firstly, for operational creditors – they are the supplier of the goods, here the supplier of the goods itself is the debtor; the operational creditor has no stake in the financial health of a creditor while a financial creditor/homebuyer has, since they cannot claim a refund (with interest) from the debtor, if the project goes bust; the payment in an operational debt is given for the goods and services not to fund the manufacturing of such goods and services. The homebuyers effectively provide an advance to the builders for temporary use so long as they can be given something of equivalent value in return, which is the flat. The remedy under RERA is a parallel remedy available to the homebuyers and can be exercised with IBC. [Pioneer Urban Land and Infrastructure Ltd and Anr vs Union of India, Writ Petition (Civil) No. 43 of 2019, date of decision: 09.08.2019]
- DNA test cannot be ordered without there being a specific need for it – The Supreme Court held that DNA tests cannot be ordered without there being a specific need for them. The accused in this case had allegedly obtained a fake caste certificate. The police asked the court to allow for a DNA test, which was granted. This was challenged in the Supreme Court by the accused arguing that this was a fishing expedition by the police. The Supreme Court noted that the police did have the right to seek permission for a DNA test but the same has to be done after being satisfied on evidence that the test was required. The police had yet not completed their investigation not had it gathered enough evidence. It was yet too early to ask for a DNA test. Kathi David Raju v Andhra Pradesh, Criminal Appeal No. 1186 of 2019, date of judgment: 05.08.2019]
- International Board Schools can come under RTE or not, to be considered – The Supreme Court will soon be considering the question as to whether International Board or IB schools can be covered under the Right to Education Act. The petitioner, an 11 year old, was a student of Ajmera Global School, which is affiliated to Cambridge International Education (CIE) and following the International General Certificate of Secondary Education (IGCSE) Board. The school had held him back in the 6th grade and the student has claimed that the RTE prohibits students being held back until completion of elementary education. He was also not allowed to sit for repeat examinations. The Bombay High Court held that the school being affiliated to an international board could set its own standards and was not covered under the RTE Act. The petition in Supreme Court seeks answer to the question whether IB schools can be covered under the RTE Act and points out that he was not given a promotion certificate even though he changed schools. [Master Rajpurohit Ridham Devichand v Union of India, Special Leave Petition (Civil) No. 18037 of 2019, date of order: 08.05.2019]
- Day to day hearings of Ayodhya case begins – The day to day hearings of the appeals in the Ayodhya case began in the Supreme Court. While on the first day, each side presented their side version of the history of the cases, each culminating in establishing their claim over the land. The advocate for the Janamsthan eventually attempted to explain to the court why it should be treated as a legal entity and treated to have a stake in the proceedings. It was also argued that for a Hindu temple, it is not necessary to have an idol, like in Kedarnath, hence there is no need of a specific idol of the temple to be able to be treated as a juristic personality and thus even the birthplace of a god can also be treated as a juristic person. The court also inquired of the party whether any descendants of the Ram family still live in Ayodhya. The court gave a mid week break for the party for sunni Waqf Board to prepare its arguments. [ Siddiq v Mahant Suresh Das, Civil Appeal Nos. 10866-10867 of 2010, date of order: 09.08.2019]
- Gratuity cannot be forfeited without an official termination order – The Bombay High Court reiterated that an order directing forfeiture of gratuity cannot be passed until and unless a formal notice of termination has been given. In the case at hand, the petitioner, a conductor in Maharashtra State Road Transport Corporation, was issued a show cause notice proposing dismissal from services in 2003 on account misconduct, but the High Court stayed the order and asked maintenance of status quo. Then in 2011, 15 days before his superannuation, an order was passed directing forfeiture of his gratuity. The petitioner challenged the said order on the grounds that his services were actually never terminated since the order passed in 2003 was never taken to its logical conclusion. The State Transport argued that he was found guilty of misconduct, but only the formality of passing a termination order was left. Rejecting the argument, the court reminded the State that only when a termination order has been passed, can the gratuity be forfeited. Shankar Dadoba Naik v Maharashtra State Road Transport Corporation, Writ Petition No. 9349 of 2012, date of order: 25.07.2019]
- Petition to regulate content on Netflix and YouTube dismissed – The Karnataka High Court has rejected a petition seeking the regulation of online content streamed through services like Amazon Prime, Netflix, YouTube etc. The petition claimed that unrelated content viewing by children had a corrupting influence and he films should be regulated by the Cinematograph Act so as to regulate the content. The Court rejected the petition and asked the petitioner to take it up with the Union Government.
- Charges framed against Kuldeep Sengar – The Delhi Court charged with by the Supreme Court to hear the Unnao rape case has framed charges against the expelled BJP MLA Kuldeep Sengar. Charges were also framed against for allegedly kidnapping the victim. Charges have also been filed under Section 120B IPC (criminal conspiracy), 363 IPC (kidnapping), 366 IPC (kidnapping or inducing a woman to compel for marriage), 376 IPC (rape) and some sections of the Protection of Children from Sexual Offences Act). CBI also informed the Court earlier this week that Sengar and his accomplices had filed a false case under the Arms Act against the father of the victim.
- FTII administration’s action struck down – The Bombay high Court criticised the actions of FTII in suspending a professor, Indranil Bhattacharya, for writing an ‘anti-government’ post. The FTII also served three show-cause notices on him. The petitioner had also earlier complained to the Central Information Commissioner about the non-compliance of the institute with provisions of the RTI Act. He also complained to the Central Vigilance Commission against his suspension order. But the Bombay High Court came down upon the State reminding that the institute was autonomous and could not be compared to an institution like DoorDarshan. The Court also lamented the degradation of the quality education being offered in the institute. The petitioner wanted to apply to Jamila Milia Islamia and he was told that his application would have to be routed through the Director of the Institute. But the Court has now directed the Director to forward his application. [Indranil Bhattacharya v FTII, Writ Petition (Civil) No. 21814 of 2019, date of order: 08.08.2019]
Prepared by Amritananda Chakravorty ([email protected]) and Mihir Samson ([email protected]), Delhi based practicing Advocates.
Kerala Fails To Learn Lessons From 2018 Calamity 