It is a matter of great solace and satisfaction for the judicial officers of lower courts that the Apex Court which is the top court of India in a learned, latest, laudable and landmark judgment titled KG Shanti vs United India Insurance Co Ltd & Ors in Civil Appeal Nos 929-930/2021 [@SLP (Civil) Nos 4663-4664/2021] [@ Diary No(s) 4210/2021] delivered just recently on March 16, 2021 has strongly deprecated in no uncertain terms the practice of making adverse remarks by High Courts against judicial officers. A judicial officer who presided Motor Accidents Claims Tribunal had approached the Apex Court against certain observations made personally against her by the High Court of Karnataka. The top court minced no words to make it absolutely clear that any criticism or observations must be judicial in nature and should not formally depart from sobriety, moderation and reserve.

To start with, the ball is set rolling first and foremost by a two Judge Bench of the Supreme Court comprising of Justice Sanjay Kishan Kaul and Justice R Subhash Reddy in the opening para wherein it is put forth that, “The Special Leave Petitions have been preferred by the judicial officer manning the Motor Accidents Claims Tribunal in respect of certain observations made personally against her in the impugned order dated 24.02.2020 by the High Court of Karnataka at Bengaluru. Insofar as the merits of the case are concerned, the endeavour of the claimants to assail the judgment has been rejected in SLP [C] Nos.8267-8268/2020 on 29.07.2020. We are thus, only called upon to look into the grievance made by the officer qua the observations made against her.” We thus see that the purpose for which the Special Leave Petition has been preferred is spelt out in the opening para.

To say the least, the Bench then points out in the subsequent para that, “Leave granted. We have heard learned counsel for the appellant on the limited aforesaid issue.”

To put things in perspective, it is then also pointed out in the next para by the Bench that, “Learned counsel has drawn our attention to the observations in paras 13 and 16 as under:

“13………this Court is unable to understand the level of integrity of the Presiding Officer in deliberately not observing these mistakes and proceeding to believe the bundle of lies which are stated in the complaint, which are contrary to the documents which are already on record. This conduct of the Tribunal is really baffling. Be that as it may.

xxx xxx xxx

16……If this is the standard of the Tribunals and if this is the manner in which the Tribunal could be hoodwinked by a ground of tricksters, then there is no purpose in having Tribunals at all and it would be convenient to allow the vagabonds to file false and frivolous claims and get the same allowed at their whims and fancies. The manner in which the claim petition is decided clearly shows that there is no sense of order in conducting the claim petitions. This is shameless state of affairs. Be that as it may.”

Furthermore, it is then envisaged in the next para that, “He further submits that on the one hand, such a strong observation has been made while on the other hand, the Bench while coming to the conclusion has observed in para 23 as under:

“23………it is not surprising that when there is concerted effort by the interested witnesses and devious claimants, it is difficult for the Court to get to the bottom of the truth….”

Going ahead, the Bench then goes on to observe elegantly, eloquently and effectively in the very next para that, “The submission of learned counsel for the appellant is that the appellant has been condemned unheard and the observations have serious consequences so far as her judicial career is concerned.”

While validating the legal dictum “audi alteram partem” which postulates that no “one shall be condemned unheard”, the Bench then minces absolutely no words to state in simple, straight and suave language that, “We are in agreement with learned counsel for the appellant that the appellant cannot be condemned unheard. We must notice at the threshold that the language used is extremely strong and the Court should be circumspect in using such language while penning down its order qua judicial officers. We really cannot appreciate the use of this language, whatever may have been the conduct of the appellant.”

Needless to state, it is then mentioned in the next para by the Bench that, “It was in any case open to the Division Bench, if it found that the impugned judgment of the Tribunal had grave errors which casts some doubt on the performance of the officer, to direct the matter to be taken on the administrative side in which case notice would have been issued to the appellant to explain her conduct and she would have got an opportunity to put forth her point of view and then it would have been open on the administrative side, if so advised to whether to take some action or not.”

Be it noted, the Bench then observes significantly in the next para that, “We may note that the aspect of remarks against subordinate judicial officers and the process for expunging such adverse remarks have formed part of more than one opinion of this Court stating that the power to expunge remarks exists for redressal of a kind of grievance for which law does not provide any other remedy in express terms though it is an extraordinary power. (‘K’ A Judicial Officer, In re (2001) 3 SCC 54).”

Most significantly, most convincingly and also most remarkably, what is most encouraging for the judicial officers of the lower courts is that the Apex Court Bench then goes on to hold very rightly as we see what is the cornerstone of this brief, blunt, brilliant and bold judgment that quite remarkably without mincing any words whatsoever that, “We may also note that what we have said aforesaid on the language to be deployed has also been opined upon as the overall test of any criticism or observations must be judicial in nature and should not formally depart from sobriety, moderation and reserve. (State of U.P. v. Mohd. Naim – (1964) 2 SCR 363). It has been categorically laid down that there cannot be an adverse remark made against a judicial officer without first giving an opportunity to the judicial officer to explain his conduct. (Awani Kumar Upadhyay v. The Hon’ble High Court of Judicature at Allahabad & Ors. – (2013) 12 SCC 392). In that context, in fact it has been observed that while our legal system acknowledges the fallibility of the Judges and thus, provides for appeals and revisions, the lower judicial officers mostly work under charged atmosphere and are under psychological pressure and do not have the facilities which are available in the High Court.” This is exactly what the High Court Judges must always bear in mind also! This is the crying need of the hour also! Who can ever deny or dispute this also?

Equally significant is what is then stated in the next para by the Apex Court Bench that, “This, in the given facts of the case, are more so when in the impugned judgment itself it has been found that it is not surprising that when there are concerted efforts by the interested witnesses and devious claimants, it may become difficult for the Court to get to the bottom of the truth.”

As a corollary, it is then stated aptly by the Apex Court Bench that, “The result of the aforesaid is that the observations impugned in paras 13 and 16 extracted aforesaid are set aside but giving liberty to the High Court that if it really thinks that there are serious aspects arising in respect of the manner of passing of the judgment by the Tribunal, it will not preclude the High Court on the administrative side from issuing a notice to the judicial officer and taking appropriate decision after giving her an opportunity to put forth her stand.”

Finally, the Apex Court Bench comprising of Justice Sanjay Kishan Kaul and Justice R Subhash Reddy concludes by holding in the last and final para that, “The appeals accordingly stand disposed of.”

It is a no-brainer and goes without saying that all the Judges of the High Court must always abide fully, firmly and finally what the Apex Court Bench comprising of Justice Sanjay Kishan Kaul and Justice R Subhash Reddy has stated so unequivocally, unanimously and unambiguously in this noteworthy case. It has thus stated clearly, convincingly and cogently that the language to be deployed must be judicial in nature and should not formally depart from sobriety, moderation and reserve. This must always be adhered to also by all the Judges of the High Courts.

To conclude, this is what the “highest standards” also demands of the High Courts which all the Judges who occupy the “high offices” of the High Courts must always also keep in mind. This will definitely raise their respect also among not just the litigants but also among the Judges of the lower judiciary who after working hard relentlessly and yet receive brickbats in the form of “strong, stern and sweeping” remarks feel “most anguished, appalled and angry also” that they are always at the receiving end only!

This will also definitely ensure that there is a better rapport among the Judges of the lower courts and so also the High Courts which is indispensable also for the smooth functioning of the judiciary as the lower courts as also the High Courts are the basic pillars of judiciary which if not kept right will ensure that the whole judiciary stands crumbled, crushed and finally comes crashing down which we cannot afford under any circumstances also!

To put it mildly: Who is saying that don’t point out what the lower Court Judges do wrong or where they go wrong? No one is saying this nor is anyone advocating this nor should it ever be done under any circumstances.

Of course, the lower court Judges must definitely be always told of whatever wrong they do and whenever they err in delivering judgment or in any other aspect also but there certainly has to be a polite yet powerful, prudent and also simultaneously practical approach in conveying it correctly which is found quite lacking as we see quite clearly in this case also which ultimately has compelled none other than the Apex Court to take real serious note of it and hold strongly what we have already discussed above quite in detail while very strongly deprecating the unhealthy, uncalled for and unbecoming practice of passing strong adverse remarks used against judicial officers of the lower courts!

All in all, there is certainly no real, robust and rational reason to differ in any way with what the Apex Court has held so briefly, bluntly, brilliantly and boldly in this clear, cogent and convincing case! It is the bounden duty of all the High Court Judges to always abide by what the Supreme Court has held so logically, laudably, lucidly and learnedly in this latest, leading and landmark case which makes the whole picture clear with no doubt left anyhow or somehow! There can certainly be no ever denying or disputing it nor is there any harm in doing so!

Sanjeev Sirohi, Advocate,

“In recognising the humanity of our fellow beings, we pay ourselves the highest tribute.”

— Thurgood Marshall

The progress of any nation is calibrated on the basis of socio-economic status of the people residing on its soil. The Indian justice delivery system is the key stakeholder in fortifying the socio-economic rights of its citizens. Over the years, our courts are experiencing mounting pressure due to surge in number of filing of the cases and their prolonged pendency. The billion-population economy inhibited by its informed people about their respective rights has opened the flood for the litigation in India. Since we follow the adversarial model of criminal justice system, where judges act as neutral empire, it becomes an arduous task to do away with the lengthy procedural mandates prescribed by concerned laws. As a resolute judge, he/she has to act diligently while separating wheat from chaff, in order to deliver comprehensive judgment. Ostensibly, those procedural requirement act as an impediment before the efficient delivery of justice as far as speedy trial is concerned. According to National Judicial Data Grid, around 3.7 million cases are pending in High Courts, District and Taluka Courts. With this alarming number of cases, apparently ensuing from delayed pronouncements, the people may lose out their faith in legal system and can prefer unconventional out of court settlement mechanism, which may or may not come to their rescue. More so it might trigger dissatisfaction and can stifle the sense of securing justice in equitable time. The aforementioned state of affairs is suggesting the indoctrination of pendency as a preconceived notion amongst masses. There has been a famous proverb that ‘justice delayed is justice denied’ which perhaps become the reality of the current scenario. Sometimes, it took numerous years to settle scores of the parties, who are expecting solace from the temple of justice in reasonable time. The Supreme Court of India in landmark judgement of Hussainara Khatoon v State of Bihar AIR 1979 SC has ruled that right to have a speedy trial is a fundamental right under the Indian Constitution. Also held that “Speedy trial is an essential ingredient of ‘reasonable, fair and just’ procedure guaranteed by Article 21 and it is the constitutional obligation of the State to device such a procedure as would ensure speedy trial to the accused.” Recently, the Supreme Court in Union of India v. K.A. Najeeb has pitched for the speedy trial in cases of no likelihood of trial completion in reasonable time by observing that “the presence of statutory restrictions like Section 43­D (5) of UAPA per ­se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution.” In Vinay Kumar Mishra v. The State of Uttar Pradesh the Supreme Court has granted bail to the person languishing behind bar for 9 years, in absence of possibility of completion of trial. Such decisions led us to draw an inference that the right of people to get their issues settled within the reasonable time is indefeasible. Protracted settlement will result into the miscarriage of justice and culminates into irreparable loss to the party concerned. Also, it will be against the spirit of Article 21 of the Indian Constitution.

The power ensuing from Article 136 of the Constitution enables filing of the Special Leave Petition before the Supreme Court, which has contributed in the plethora of cases being directly approaching the Apex court. It has been reported that the Supreme Court of India entertains 25% of the Special Leave Petition filed before it, unlike United States of America and Canada who admits 3% and 9% respectively. Also, it has been pointed that 85 % of the existing pending cases are Special Leave Petition. Recently, Supreme Court while entertaining a special leave petition has commented that accepting undertakings resulting from contempt petitions is increasing its burden. Unequivocally, the burden from the Apex Court has to be reduced in order to cater the needs of Constitutional matters falling under Article 131 and disposal of the other matters before the District and High Courts has to be encouraged. The Chief Justice of India has once expressed displeasure over the use of Article 32 habeas corpus petition in almost every matter, without approaching the High Court first.

On many occasions, various personalities and committees had suggested methods to reduce the backlog. Former Chief Justice of India, K.G. Balakrishnan had suggested that the use of plea bargaining in criminal matters has to be promoted and monitored through the nationwide computerized tracking system. Also, high number of pendency of the cases and the elongated trails has resulted in burdening the common man’s pocket occasioned by exorbitant litigation expenses, Justice Balakrishnan said. The Malimath Committee has put forth recommendation of ‘Arrears Eradication Scheme’, where the cases which are pending for more than two years will be decided through Lok Adalat on daily basis hearing, in absence of any adjournments. In the report of the Thirteenth Finance Commission, it has been proposed that to overcome the pendency, we need to appoint court managers who will assist incumbent judges and thereby ease the burden of lower judiciary, who are facing the brunt of shortage of staff. Undisputedly, the present establishment of fast-track courts and special courts is serving the purpose of speedy justice resulting from subject matter jurisdiction for particular category of cases. Earlier, 213th Report on Fast Track Court for Dishonoured Cheque had pressed for the need to create fast track court in order to achieve the resolution of speedy justice.

A robust mechanism is inevitable to combat pendency of cases by adopting policies which will foster timely disposal and reduces pendency. The maxim- ‘procedure is the hand made of justice and not its mistress’ categorically suggests that procedural requirement in any dispute settlement can be negated for doing complete justice within the appropriate time frame. Powers emanating from procedural laws has to be exercised judiciously to quell improper filings. In K. Akbar Ali v. K. Umar & Ors. the Supreme Court has ruled that the courts have inherent powers under Order VII Rule11 to not allow frivolous or vexatious litigations to consume its time. It is for the concerned state government to expedite the appointment procedure for lower judiciary, after getting the better of budgetary constraints. Also, the Central government and the Supreme Court must act in consonance with each other in the time bound manner and must act with spontaneity upon the recommendations to appoint and increase the strength of judges. Our legal system is bearing the brunt of many lacunas, amongst which delayed completion of trial is the key contributor in the pendency of cases due to cumbersome technical requirements, transfer of judges at crucial stage of settlement of cases, delaying tactics sponsored by parties for their ulterior motives satisfaction etc. Such instances have to be curtailed down in the interest of general public at large. Furthermore, we need to upgrade our infrastructure in order to ensure prompt functioning of court in parity with western fronts, with the aid of tech tools even in remotest corner of India. Also, we need to overcome technology divide to enable access to justice. Extension of time to complete an investigation, adjournment etc. should be granted sparingly by courts to prevent delay in the trial completion. We can also take the recourse of the functioning of Crown Court Management Services of the United Kingdom, who are assigned for administrative duties only. If the need arises, the government can setup courts for the people in far flung areas in the name of Gram Nyayalayas to enhance the prospect of justice delivery at their door step. Lastly, the cordial relations have to be established between legislative will and judicial wisdom for minimising case load, after working out administrative problems, for ensuring sky-scraping economic growth of our Nation.

(Views expressed personal)

As per the media reports, the Union Law Minister Mr. Ravi Shankar Prasad has written to Chief Justice of India Mr. S. A. Bobde a few days back seeking his view about the name of his successor. Mr. Bobde is set to retire on 23 April this year. As per the Memorandum of Procedure governing the appointments of judges of the Supreme Court and High Courts, an appointment to the office of the Chief Justice of India should be of the senior-most judge of the Supreme Court considered fit to hold the office. Justice N. V. Ramana, the senior-most puisne judge of the Supreme Court, is next in line to become the Chief Justice of India as per the criterion of seniority convention. However, the Constitution of India does not prescribe any specific criterion for appointment to the office of the Chief Justice of the Supreme Court or popularly known as the Chief Justice of India (CJI). Over the years a convention is well developed in the country under which the President of India appoints the senior-most judge of the Supreme Court the Chief Justice of India as per the provisions of Article 124(2) of the Constitution. If the President of India finds some doubts about the fitness of the senior-most judge, he may also consult with other judges of the Supreme Court and High Courts, as he may deem fit. The principal object behind the seniority convention seems to be based on the view that the collective interests of the judicial branch are better served by eliminating the exercise of the government’s discretionary power than by the search for the best man by the government which is the biggest litigant in the courts of law and the government should not be allowed to pick and choose the Chief Justice as per its own choice. This paper throws light on the various facets of the appointment process of the Chief Justice of India.

Under the existing constitutional practice, the incumbent Chief Justice of India recommends the name of his successor well in advance to the Union Law Minister who accordingly takes up the matter to the Prime Minister who advises the President of India to issue the formal warrant of appointment as per the constitutional provisions. The President of India is the appointing authority of the Supreme Court judges including the Chief Justice of India. Sometimes even the Union Law Minister can ask the outgoing Chief Justice of India to recommend the name of his successor. But this is not a mandatory condition prescribed in the Constitution and this is purely an empty formality or just a courtesy developed over the years where the central government takes the view of the Chief Justice of India about his successor. (M. Hidayatullah, My Own Boswell, 1981, at 217). The Union Cabinet and the Supreme Court collegium do not come into the picture in the appointment process of the Chief Justice of the Supreme Court of India. The Supreme Court collegium deals with appointments of judges of the Supreme Court and the High Courts including the Chief Justices of the High Courts and it has nothing to do with the appointment of the Chief Justice of India. This matter is solely handled by the Union Law Minister under the supervision and guidance of the Prime Minister and the President who acts on the advice of the Prime Minister in these matters and has no personal say in these kinds of executive issues that do not fall within his discretionary powers.

It is pertinent to mention that the central government has consistently followed the seniority convention in the appointment of the Chief Justice of India ever since the commencement of the Constitution. However, it is also heard that the first Prime Minister Pandit Nehru tried to supersede some senior judges during the initial years, but he could not be successful in his plans as all the judges of the Supreme Court had opposed such a move strongly. Once upon a time, he had also thought to appoint then Attorney-General M. C. Setalvad to the office of the Chief Justice of India, but the latter was found over-age. The First Law Commission led by then Attorney-General M. C. Setalvad, in its 14th report, had also indicated some deviations from the seniority convention but the central government did not accept such recommendation and it continued to appoint the senior-most judge the Chief Justice of India.

Unfortunately, Pandit Nehru’s daughter then Prime Minister Mrs. Indira Gandhi did not hesitate to breach this seniority convention two times. In 1973, after the famous Kesavananda Bharati judgment, she superseded three senior judges namely Justices Shelat, Hegde, and Grover, and appointed their junior colleague A. N. Ray as the Chief Justice of India. All three senior judges resigned in protest. This was referred to as the ‘first judicial supersession’ in the country. The fault of these judges was only that they had decided some important cases including the Kesavananda Bharti case against the government of Mrs. Indira Gandhi while Justice A. N. Ray was considered a pro-government judge who decided cases mostly in favor of the government. The judgments of the 13-judges Constitution Bench in the Fundamental Rights case were delivered on 24 April 1973. The majority judgments of 7 judges held that Parliament had no power to alter or destroy “the basic structure of the Constitution” while amending the Constitution under Article 368 of the Constitution. On the other hand, six other judges including Justice A. N. Ray held that there were no restrictions on Parliament’s power to amend the Constitution. Then Chief Justice of India Mr. S. M. Sikri, who led the majority judgment, was to retire the next day. Coming to know of the judgment in this case, the Indira Gandhi government disregarded the seniority of three judges who had been part of the majority-Justices J. M. Shelat, K. S. Hegde and A.N.Grover-and appointed Justice A. N. Ray, who was fourth in the seniority order, the Chief Justice of India. This supersession was intended to send a clear signal to the judges that an important judgment against the central government would imperil their prospects.

Hardly had the controversy of the first supersession died away, then Prime Minister Mrs. Indira Gandhi superseded Justice H. R. Khanna and appointed his junior colleague Justice M. H. Beg to the office of the Chief Justice of India in January 1977. Predictably, Justice Khanna resigned in protest. This was referred to as ‘the second judicial supersession’. These two back-to-back supersessions shook the Indian judiciary badly and demoralized the honest judges. Like Justice Ray, Justice Beg was also considered a committed judge who never displeased the government and always fell in line with the ideology and requirement of the ruling dispensation. It was perceived that Justice H. R. Khanna was superseded for delivering a courageous dissenting judgment in the infamous ADM, Jabalpur case. This time Chief Justice A. N. Ray had himself recommended the name of Justice M. H. Beg to the government. This is deeply condemnable that a Chief Justice himself helped the government to violate the independence of the judiciary and breached the seniority convention. Many prominent jurists such as Nani Palkhivala, Justice Chagla, and others had criticized these two judicial supersessions loudly. The appointment of Chief Justice Ray was also challenged by P. L. Lakhanpal in the High Court of Delhi but the High Court had dismissed the petition. Eminent jurist H. M. Seervai states that “the supersession of three judges in 1973, and Justice Khanna in 1977, was not only meant to punish them for their judgments, but was intended to get rid of them by wounding their self-respect, and forcing them to resign-and the attempt succeeded.”(H. M. Seervai, Constitutional Law of India, Vol. 3, 4th Edn. 1996, at p. 2816)

In 1977, Justice Y. V. Chandrachud had also faced some difficulties in his elevation to the office of the Chief Justice of India in 1978 when many Janata Party leaders, lawyers, and social activists had raised concerns and objections against his appointment. But then Union Law Minister Shanti Bhushan wisely handled the situation and saved his chief justiceship. The Janata Party leaders were unhappy with Justice Chandrachud’s judgment in the infamous ADM Jabalpur case. In that case, the majority had denied relief to the people who were detained under the Maintenance of Internal Security Act, 1971, and lakhs of people had languished in jail for several months as the President of India had suspended the enforcement of the fundamental rights of the people under Article 359 of the Constitution. Thousands of Janata Party supporters had also spent almost nineteen months in jail because of the impact of this judgment. Not only ordinary Janata Party leaders but even Jaiprakash Narain, a stalwart of the Janata Party, had also written to the government to supersede Justice Chandrachud at that time. Then Prime Minister Morarji Desai rejected all such demands and cleared Justice Chandrachud’s appointment to the office of the Chief Justice of India by following the seniority principle. Mr. Shanti Bhushan, then Union Law Minister, narrates that interesting story in his memoirs titled Courting Destiny at (page 188): “I sent a note to Prime Minister Morarji Desai recommending the elevation of Justice Chandrachud by drawing his attention to the almost total judicial consensus in the country that the principle of seniority should be followed. The Prime Minister unhesitatingly accepted my advice and Justice Chandrachud was appointed as Chief Justice of India. Since by this time the views of Jayaprakash Narayan were known to the press, no dissenting voices were raised in Parliament.”

In 1977, the Law Commission, in its 80th report, also recommended to the central government for following the seniority principle in the appointment of the Chief Justice of India. The Commission recommended that there should be no departure from the seniority convention while appointing the Chief Justice of India. The report of the Law Commission was well appreciated by the legal fraternity in the country.

Justice P. N. Bhagwati became the Chief Justice of India after Chief Justice Chandrachud’s retirement in 1985 based on the seniority norm. Despite having some differences with Justice Bhagwati, Chief Justice Y V Chandrachud had recommended his name to the central government. Justice Bhagwati was also part of four judges in the ADM Jabalpur case. Many people were unhappy with him also. It was widely perceived that he had surrendered before the government in the Habeas Corpus case to save his future chief justiceship. He regretted this judgment after thirty-five years in an interview with the media. But it was a much-delayed apology. The damage was already done. However, as a judge, he delivered many landmark judgments that gave him a great name and fame also. The legal community admires him a lot for his contribution to the Public Interest Litigation movement.

After many years the ghost of judicial supersession again appeared in 2018 when many people speculated about the supersession of Justice Ranjan Gogoi who had participated in the unprecedented press conference against the then Chief Justice Dipak Misra in January 2018 along with three of his colleagues Justices Chelameswar, Lokur, and Joseph who had serious differences with Chief Justice Misra on several issues including his powers as the master of roster and allocation of important cases to junior judges. But Justice Misra followed the seniority convention and passed the baton of the apex court to Justice Gogoi his successor and the central government appointed Justice Gogoi as the Chief Justice of India.

In 1993, the Supreme Court of India also approved the seniority convention in the Second Judges case. (Supreme Court Bar Association v. Union of India, (1993) 4 SCC 441). This matter did not come directly before the Supreme Court till 1993. It was only in 1993 that a nine-judge Constitution Bench of the Supreme Court accepted this seniority convention and held that as a matter of rule, the senior-most judge of the Supreme Court shall always be appointed as the Chief Justice of India if he is otherwise fit to be so appointed. This ruling has set all controversies relating to the appointment norms for the office of the Chief Justice of India at rest. Now, this convention of appointing the senior-most judge as the Chief Justice of India is well-settled and it will be very difficult, if not impossible, for the central government to depart from this seniority rule while appointing the Chief Justice of India.

It is submitted that the appointment of the Chief Justice of India by the seniority principle is quite safe and it needs to be continued without any departure in future appointments also. There is no need to disturb this reasonable practice. It eliminates the interference of the executive in the appointment of the Chief Justice of India who is the head of the judicial branch in the country, and it protects the judiciary from executive assaults also. It also enhances the confidence of honest judges who decide cases without any fear or favor. The executive should not be allowed to influence the appointment process of the Chief Justice of India given the collective interests of the judiciary. But along with the seniority convention, fitness of the judge is also a criterion that should be considered while making an appointment to the highest judicial office in the country. Undoubtedly, the senior-most judge should be physically and mentally fit to discharge the functions of his high office that needs a high caliber and legal acumen. As the government is the biggest litigant in the courts of law, it would be very dangerous if any discretion is given to the government in the appointment of the Chief Justice of India. It should not be allowed to breach the seniority convention and the seniority norm should be strictly followed in the appointment of the Chief Justice of India. There does not seem to be a better alternative of the seniority convention for appointing the Chief Justice of India.

“To Deny People Their Human Rights is to Challenge Their Very Humanity.”

-Nelson Mandela

Human Rights ensure the very virtue of any individual’s survival and a violation of these rights can be intimidating for citizens of a Country. The United Nations defines Human Rights as the “Right to freedom of opinion & expression, including the freedom to hold opinions without an inference and to seek, receive and impart information & philosophies via any media of their choice.” These rights are inherent to all human beings and aims to preserve their dignity, irrespective of their age, caste, religion, location, ethnicity or any status whatsoever. Human dignity implies that every human being is uniquely valuable and therefore shall be given highest respect and care . But the question arises, when these inalienable rights are overlooked to enact anti-terrorism laws. Terrorism has penetrated deep into our lives and can be traced back to the 26/11 attacks of 2008 or Series of bombing in 1993, which killed as many as 257 people. The reason behind such activities has varied from religious beliefs and difference of opinions to poverty and unemployment.

It is important that while enacting the anti-terrorism laws the enactment should not be done at the cost of human rights. There should be a balance between individual liberty and sovereignty of the country. In India, the following Anti-terrorism laws are in force:

1. UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967: The aim of this statute is to deal with the challenges possessed by terrorist activities on the territorial integrity of the country. According to the recent amendment , now the government can also label individuals as terrorists, without judicial scrutiny, if they have a reasonable reason to believe so. Earlier, it was only limited to organisations and groups only.

2. SECTION 121-127, INDIAN PENAL CODE : These provisions deals with the definitions and punishments of waging war against the government of India.

The only law which exclusively regulates the Anti-terrorism machinery in India is the UAPA, 1967, which has been amended several times since its enactment. In India, the National Security Guard is the counter-terrorism authority responsible for combating terrorist activities & protection of state against any Internal Disturbances. This Unit was set up by the Ministry of Home Affairs (MHA) is 1986 through the National Security Guard Act, 1986. However, this body had certain shortcomings. According to the Observer Research foundation , as many as 26 warnings were passed to the Mumbai Police between 2006-2008 about a possible attack. However, the lack of coordination between the agencies led to the 4-day long attack of 26/11. At this point, a need for a more efficient body, National Centre Terrorism Centre for India was felt to coordinate the anti-terrorism efforts of the Union and the State . It was proposed that this agency will function under the IB and would analyse the intelligence related to terrorism and associated criminality, maintain necessary databases; develop appropriate responses & also undertake threat assessments from the governments at both levels: Union and the State . However, this agency has not been constituted yet and is being ruled out by the centre.

The National Investigation Agency was Constituted by the MHA, Government of India in 2009 through the National Investment Agency Act of 2008. This unit has been successful in arresting several Individual Terrorists and arrested over 20 persons involved in terrorist activities under the Jamaat-ul-Mujahideen (a terrorist organisation from Bangladesh). It has also been active against the terror in J&K and filed a charge sheet against 12 people who were allegedly working with the Lashkar-e-Taiba terror group.

Prima facie, it appears that Terrorism and Human Rights cross each other directly, but on an in-depth analysis, it is found that terrorism is a combined outcome of social, economic and political injustice coupled with deprivation of civil rights. The very aim of terrorist activities is the destruction of Human Rights (enshrined in Article 21 of the Indian Constitution ). It results in a direct interference with the enjoyment of rights, including right to life (Article 21), Right to freedom of liberty and Physical Integrity. Apart from this, it also disturbs the public peace, government functionality and possesses great threat to the economic and social development of the society.

HOW ARE THE COUNTER-TERRORISM LAWS VIOLATING THE HUMAN RIGHTS?

The TADA Act and POTA Act have now been repealed after being challenged and were replaced by the strengthen Unlawful Activities (prevention) Act, 1967 via various amendments. However, there are various provisions which are still believed to be violative of Human Rights.

The concerns relating to the Indian counter-terrorism laws are:

1. Vague and broad definition of terrorist: The Indian National Security Guard Act under Section 2(y) defines the term ’terrorist’, which can also include a political protest by minority population or a non-violent political activity.

2. Detention without charge of up to 180 days (including up to 30 days in police custody)

3. Creation of presumption of guilt of a terrorist activity merely on grounds of inculpatory evidence without the presence of criminal intent.

4. Using of secret witnesses and in-camera holdings in special courts established through the counter-terrorism laws.

5. The latest amendment to the Unlawful Activities Prevention Act in 2019 has broadened the ambit of the term terrorist and mere expression of thoughts can now also be construed as a terrorist activity.

6. The Unlawful Activities (Prevention) Amendment Act, 2019 allows an individual to be tagged as a terrorist without any judicial scrutiny. Two petitions have been filed, namely, Sajal Awasthi v. Union of India & Association for Protection of Civil Rights v. Union of India in the court. These petitions challenged the amendment act on the ground of it being violative of the Right to Equality (Article 14), Freedom of Speech and Expression (Article 19) and Right to Life (Article 21) enshrined by the Indian Constitution.

7. Several Individuals have been arrested from the crowd of CAA Protests (March, 2020) on ground of participating in a “terrorist activity” and have been detained in police custody ever since. Due to the Pandemic, the proceedings against them have not been initiated and they are not allowed to furnish bail. This is clear violation of Article 21 .

THE WAY FORWARD

India has continued to face serious terrorist attacks. The present methods have failed and are not as effective as they need to be. It is high-time that the Indian Government works towards protection of human rights and long-term security. The Union of India has not yet filed a reply in furtherance of the challenge against the 2019 amendment.

The following recommendations are proposed to the Central Authority to balance the counter-terrorism laws with the Human Rights:

1. Revision of definition of “terrorism” and make it in consistent with the UN Special rapporteur on the promotion and Protection of Basic Human Rights while countering Terrorism.

2. Specify a review process after which an organisation or gang can be listed as a terrorist organisation

3. Amend the NIA Act to eliminate the blanket powers of Special Courts with regard to closed proceeding.

4. We also know that the “presumption of innocence until proven guilty ” is a fundamental human right (subject to exceptions). On the other hand, the concept of ‘presumed guilt’ allows to list an individual as a terrorist as without the presence of intention but purely on the basis on material evidence. This automatically shifts the burden of proof on the accused to prove that there was no such intent. Thus, there is a need to amend the act in order to prevent wrongful detentions and conviction.

5. Improve the available mechanism to enable the citizens to seek redressal against government under officials for violation human rights.

CONCLUSION

After a detailed study of the history anti-terrorism law and how they have impacted the human rights, it can be said that while it is important to counter terrorists and terrorist activities, we must not forget the importance of Human Rights. They are basic yet fundamental to the survival of human beings. These rights are not to be taken away even during emergencies, and therefore, must also be protected from such violation at all costs. The Apex Court in the case of Arup Bhuyan vs State of Assam, it was observed that merely being a member of a banned organisation does not make a person criminally liable unless they resort to violence or incites people to violence or disturbs public order by way of violence or incitement to violence. The same has be reiterated by the Court in Sri Indra Das vs State of Assam, whereby it was observed that the literal interpretation of Section 10 , UAPA and Section 3(5) of TADA, A person who is a part of a banned organisation is a criminal. This is not in accordance of the Human Rights. The way forward is to evolve and have a legislation which combats the terrorists without infringing the rights of a human being.

INTRODUCTION T he controversy surrounding Sections 18 and 18A of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the “SC/ ST Act” for brevity) can be traced back to the decision of the Supreme Court of India in the matter of Dr. Subhash Kashinath Mahajan v. The State of Maharashtra & Anr., (2018) 6 SCC 454, wherein the Court diluted the effectiveness of Section 18 of the SC/ST Act by holding that, inter alia, there would be no absolute bar against the grant of anticipatory bail, in relation to cases where offences have been registered under the SC/ST Act, in case if no prima facie case has been made out or the complainant is found to be prima facie mala fide upon judicial scrutiny.

The Kashinath Mahajan judgment also introduced, inter alia, certain ‘procedural safeguards’ in order to prevent the misuse of the SC/ST Act, in response to the allegedly rising number of false charges being filed under the SC/ST Act, which are provided below:

1. That arrest of a public servant can only be effectuated after approval of the appointing authority.

2. The arrest of a non-public servant can only be effectuated after approval by the Senior Superintendent of Police (SSP).

3. The arrest may be effectuated in an appropriate case, if considered necessary, and the reasons for the arrest will be recorded.

 4. The reasons for arrest must be scrutinised by the Magistrate for permitting further detention.

 5. Preliminary enquiry to be conducted by the Dy. S.P. level officers to find out whether the allegations make out a case under the SC/ST Act and that the allegations are not frivolous or motivated.

6. Any violation of the directions mentioned above will be actionable by way of disciplinary action as well as contempt.

However, immediately subsequent to the pronouncement of the judgment, the Parliament passed the 2018 Amendment Act, even before the Apex Court could hear the review petitions, which introduced Section 18A to the SC/ST Act, whereby the safeguards introduced vide the Kashinath Mahajan judgment were overturned in light of the mass violent protests that occurred nationwide in response to the Kashinath Mahajan judgment. On October 01, 2019, the Supreme Court of India recalled the directions it laid down in Kashinath Mahajan vide Union of India v. State of Maharashtra (2019), whereby the Court nullified the directions provided in the Kashinath Mahajan judgment as invalid. On February 10, 2020, the Supreme Court of India upheld the constitutionality of the 2018 Amendment, in the matter of Prathvi Raj Chauhan v. Union of India & Ors. (2020), while holding that the provision of anticipatory bail would not be completely barred by virtue of Sections 18 and 18A of the SC/ST Act if the complainant was unable to make out a prima facie case requiring the applicability of the provisions of the SC/ST Act. At the outset, the author would like to clarify that the author will not venture into the propriety or correctness of any of the judicial pronouncements and the instant article will focus only on the scope of applicability of Sections 18 and 18A of the SC/ST Act in the present status quo.

 ‘PRIMA FACIE CASE’ FOR THE APPLICATION OF THE SC/ST ACT

The application of the provisions of the SC/ST Act needs to satisfy the requirement of establishing a ‘prima facie case’ in order to invoke the application of the provisions of the SC/ST Act. This had been initially held in the Kashinath Mahajan judgment as well as the subsequent judicial pronouncements thereafter. The judicial pronouncements have laid down the need for the complainant to make out a prima facie case for the application of the SC/ST Act in order to ensure that abuse of the process of law does not occur by invoking the provisions of the SC/ST Act in a mechanical and arbitrary manner with the motivated intent to harass the accused unnecessarily. In the 51-page review judgment in the matter of Union of India v. State of Maharashtra (2019), the Court observed that Section 18 of the SC/ST Act has been enacted to provide an inherent deterrence and to further instil a sense of protection amongst the members of the Scheduled Castes and Scheduled Tribes. The Court, while nullifying the directions that had been laid down in Kashinath Mahajan which were supposed to prevent possible misuse of the provisions of the SC/ST Act, emphasised that the requirement of establishment of the prima facie need for applicability of the provisions of the SC/ST Act had existed prior to the Kashinath Mahajan judgment and that the directions enunciated in the Kashinath Mahajan judgment were only impractical, repugnant in law and contrary to the legislative intent. In Prathvi Raj Chauhan v. Union of India & Ors., (2020) 4 SCC 727, a three judge Bench of the Supreme Court of India upheld the constitutionality of the SC/ ST Act and further held that the application of the provisions of the SC/ST Act shall only apply after the prima facie satisfaction that an offence under the SC/ST Act has occurred, and consequently the absolute bar imposed on grant of anticipatory bail by virtue of Sections 18 and 18A would not apply in case the complainant fails to make a prima facie case for applicability of the provisions of the SC/ST Act. In support of this, the Court also placed reliance on an earlier decision of the Apex Court in the matter of State of M.P. & Anr. v. Ram Kishna Balothia & Anr., (1995) 3 SCC 221, wherein a purposive interpretation was provided to Section 18 of the SC/ST Act and the Court observed that adequate safeguards had been provided in respect of Section 18 in view of the aforesaid decision. The Court further observed that it had been the consistent view of the Apex Court that if prima facie case has not been made out attracting the provisions of the SC/ ST Act, then the bar on the anticipatory bail provided under Section 18 would not be attracted, and any possible misuse of the provision is intended to be taken care of by the aforesaid decision. In State of M.P. & Anr. v. Ram Kishna Balothia & Anr., the Court held that the offences enumerated under the SC/ST Act fall into a special and separate class of offences. Article 17 of the Constitution of India expressly deals with the abolition of ‘untouchability’ and forbids its practice in any form. It also provides that the enforcement of any disability arising out of ‘untouchability’ shall be an offence punishable in accordance with law. Therefore, the offences enumerated under Section 3(1) arise out of the practice of ‘untouchability’. It is in this context that certain special provisions have been made in the SC/ST Act including Section 18 of the Act. The intent behind the exclusion of the applicability of Section 438 of the Code of Criminal Procedure (hereinafter referred to as “CrPC” for brevity) in respect of the offences under the SC/ST Act is to be viewed in the context of the prevailing social conditions, which gives rise to such offences, and the apprehension that the perpetrators of such crimes would likely threaten and intimidate their victims and prevent or obstruct them in the prosecution of these offenders in case if the offenders are allowed to avail the benefit of anticipatory bail. The Statement of Objects and Reasons accompanying the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Bill, 1989, when it was introduced in the Parliament, explained the circumstances surrounding the enactment of the SC/ST Act and points to the evils in society which the statute aims to remedy. It graphically describes the social conditions which motivated the enactment of the SC/ST Act and it is further pointed out in the Statement of Objects and Reasons that when the members of the Scheduled Castes and Scheduled Tribes assert their rights and demand statutory protection, the vested interests would attempt to cow them down and terrorise them. It is under these unfortunate circumstances that the bar has been placed on Section 438 of the CrPC. The denial of anticipatory bail to offenders under the SC/ST Act cannot be considered as unreasonable or violative of Article 14 of the Constitution, as these offences form a distinct class by themselves and they cannot be compared with other general offences. The Court further observed that the justification in respect of the apprehension towards granting the benefit of anticipatory bail to those persons who are accused of committing an offence under the SC/ST Act, keeping in mind the historical background in relation to the practice of ‘untouchability’ and the social attitudes that leads to the commission of such offences, would likely result in the misuse of their liberty while enlarged on anticipatory bail to terrorise their victims and obstruct proper investigation. This view of the Court in relation to Section 18 of the SC/ST Act also finds support from a full bench decision of the Rajasthan High Court in the matter of Jai Singh v. Union of India (AIR 1993 Raj 177). In Vilas Pandurang Pawar and Anr. v. State of Maharashtra and Ors., (2012) 8 SCC 795, the Court held that the scope of Section 18 of the SC/ST Act read with Section 438 of the CrPC is such that it creates a specific bar in respect of grant of anticipatory bail. When an offence is registered against a person under the provisions of the SC/ ST Act, then no court shall entertain an application for anticipatory bail, unless the court prima facie finds that such an offence is not made out. The Court further stated that at the stage of considering the application for anticipatory bail, the scope for appreciation of evidence and other material on record is limited. The Court observed that the bar on the grant of anticipatory bail has been imposed in order to protect the persons belonging to the Scheduled Castes and the Scheduled Tribes, and the provision in the Special Act cannot be easily brushed aside with the help of an elaborate discussion on the evidence. This view was reaffirmed in the matter of Shakuntla Devi v. Baljinder Singh, (2014) 15 SCC 521, wherein the Court held that, in the absence of any finding that an offence under the SC/ST has not been made out, the grant of anticipatory bail is contrary to the provisions of Section 18 of the SC/ST Act and the decision of the Apex Court in Vilas Pandurang Pawar case, and consequently set aside the impugned order of the High Court, which granted bail to the respondent in the matter therein. In Manju Devi v. Onkarjit Singh Ahluwalia & Ors., (2017) 13 SCC 439, the Supreme Court of India, while considering the applicability of Section 18 of the SC/ ST Act creating a bar for invoking Section 438 of the CrPC, observed that a plea that a complaint is false and malicious cannot be looked into at the stage of taking cognizance and issuance of process, and can only be taken into consideration at the time of the trial.

OFFENCE MUST BE IMPELLED BY THE CONSIDERATION THAT THE VICTIM IS A MEMBER OF A SC/ST

In a recent judgment by the Delhi High Court in the matter of Danish Khan @ Saahil v. State (Govt. of NCT of Delhi), Bail Application 3497/2020 (2021), the single judge Bench granted anticipatory bail to the applicant who was accused of commission of an offence under Section 3(2)(v) of the SC/ST Act. The Court held that the offence under Section 3(2)(v) of the SC/ST Act would be applicable only when the offence under the Indian Penal Code (hereinafter referred to as the “IPC” for brevity) should have been committed on a member of a Scheduled Caste or a Scheduled Tribe ‘particularly for the reason’ that such person is a member of a caste or tribe. It is not the purpose of Section 3(2)(v) of the SC/ST Act that ‘every offence’ under the IPC attracting imprisonment of 10 years or more would come within the meaning of Section 3(2)(v) merely because the offence under the IPC is committed against a person who happens to be a member of a Scheduled Caste or a Scheduled Tribe. The enhanced punishment provided under Section 3(2) (v) is attracted when the ‘reason for the commission of the offence’ under the IPC is the fact that the victim is a member of a Scheduled Caste or a Scheduled Tribe. It is a necessary element that the ‘offender’s action is impelled by the consideration that the victim is a member of a Scheduled Caste or a Scheduled Tribe’. The Court explained that this rationale conforms with the Preamble of the SC/ST Act, which provides that, “…to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes…”.

The SC/ST Act is a special legislation enacted with the aim of providing stringent provisions for punishment, inter alia, of the offences under the IPC, which ‘targets’ persons belonging to a Scheduled Caste or a Scheduled Tribe by ‘reason’ of their caste status. A similar view was taken in the matter of Dinesh @ Buddha v. State of Rajasthan, (2006) 3 SCC 771, wherein the Supreme Court held that, in connection to Section 3(2) (v) of the SC/ST Act, the offence committed against a person must be “on the ground” that such a person is a member of a Scheduled Caste or a Scheduled Tribe. This view was also held by the Supreme Court of India in the matter of Khuman Singh v. The State of Madhya Pradesh, (2019) SCC Online SC 1104, wherein the Court held that unless an offence is committed “only on the ground” that the victim was a member of a Scheduled Caste, the offence under Section 3(2)(v) would not be made out.

CONCLUSION

 In light of the above discussion, it is evident that the application of Sections 18 and 18A of the SC/ST Act would, therefore, require the fulfilment of the following two conditions in order to enable the bar on the application of Section 438 of the CrPC. Firstly, the complaint must make out a ‘prima facie’ case for the applicability of the SC/ST Act. Secondly, the offence must be committed ‘on the ground’ that the victim is a member of a Schedule Caste or a Scheduled Tribe. To further elaborate, the offence which is otherwise punishable under two different legislations, one of them which would be the SC/ST Act and the other a general law, the offence must be committed against the victim impelled with the consideration that such a person is a member of a Scheduled Caste or a Scheduled Tribe, and the offence cannot be brought under the domain of the SC/ST Act on the criterion that the victim merely happened to be a member of a Scheduled Caste or a Scheduled Tribe.

Despite being a relatively recent enactment, the Insolvency and Bankruptcy Code, 2016 has successfully carved an enriching jurisprudence for itself. It replaces the previous insolvency regime, which was fragmented and fraught with delays. While the Code has marked a sea change from the previous regime, it nevertheless faces regular scrutiny of application from the everflowing cases brought before it. Recently, the National Company Law Tribunal, Division Bench of Chennai on 9 December, 2020 in the case of M/s. Prithivraj Spinning Mill Private Limited v. Indian Overseas Bank, passed an order quashing the Insolvency Application made by the Corporate Applicant, while throwing light on the hitherto unexplored area within Section 10 of the Code.

FACTUAL BACKGROUND AND JUDGEMENT

M/s. Prithivraj Spinning Mill Private Limited (Corporate Applicant) applied for the initiation of Corporate Insolvency Resolution Process under Section 10 of IBC 2016. However, at the time of the proceeding, the Corporate Applicant paid off its debt to one of the Financial Creditors (State Bank of India, the 2nd Respondent). Subsequently, the Corporate Applicant changed its name to M/s. Marappar Textiles Private Limited after receiving a fresh certificate of incorporation from the Ministry of Corporate Affairs, issued by it. Later, the Board of Directors in its Board Meeting resolved to change its Registered Office of its factory premise. It is pertinent to note that all the activities mentioned above occur after the filing of the instant application and before its adjudication. Yet, the Corporate Applicant failed to disclose such facts in the general affidavit of Form – VI. The Adjudicatory Authority while stating that it could not pass an order of The Corporate Insolvency Resolution Process (CIRP) as against M/s. Prithivraj Spinning Mills Private Limited since the company’s name was not in existence as on that date, dismissed the case.

ANALYSIS

This is a textbook case wherein a lacuna within a statute is exploited, in an attempt to subvert the institutional best practices and defraud the stakeholders. Consider, for example, the Corporate Applicant’s act to change its name soon after filing for the insolvency application. Suppose the Adjudicating Authority were to allow for CIRP against it. In that case, the Interim Resolution Professional as per Section 15 of the Code has to release public announcement for inviting claims, wherein the name and address of the corporate debtor have to be publicly disseminated. This paper publication caused in relation to the Corporate Applicant would carry details in its new avatar, carrying its new name and address. The public announcement is required to provide for the last date for submission of such claims from the date of the appointment of the Interim Resolution Professional (IRP). Regulation 12(2) of the CIRP Regulations additionally provides that a creditor, who fails to submit claim with proof within the time stipulated in the public announcement, may submit the claim with proof to the IRP or the RP, as the case may be, on or before the ninetieth day of the insolvency commencement date. However, in the instant case, the publication of such altered information would defeat the purpose of public announcement as creditors would be unable to recognise the Corporate Applicant. This would resultantly affect the creditors’ rights, both financial and operational, as it would preclude them from filing their claims within the stipulated deadline, leading to huge financial losses.

The Code is silent in regards to the Corporate Applicant’s commercial conduct between the time of filing of insolvency application under Section 10 and its subsequent admission/rejection by the Adjudicating Authority. When the debt-ridden Corporate Applicant settled its dues with the second Respondent, the means adopted for making such payment were not disclosed to the Adjudicating Authority. This raises suspicion that it might have taken a loan from another creditor who might have been unaware of the relevant insolvency application filed under Section 10.

It is to fill in this structural gap that the Adjudicating Authority has made the following observation – ‘… in Section 10 of IBC, 2016, the Corporate Debtor is an Applicant and the status of the Corporate Debtor is that of a person who submits himself to the jurisdiction of this Tribunal to declare him as Insolvent, and in such a case, it should be construed that on the date of filing of the Application before this Tribunal under Section 10 of IBC, 2016, the Board of the Corporate Debtor is deemed to be virtually suspended…’

It further remarked – ‘… the Corporate Applicant, after filing of an application under Section 10 of IBC, 2016 is required to restrain itself from making any change to the constitution of the share holding pattern, list of secured/unsecured creditor stake holders, selling, encumbering properties, buying and all related activities are required to be kept in abeyance.’

Using this interpretive advance, the Tribunal has effectively asked the Corporate Applicant to maintain a status quo in relation to all the major decisions being taken during this period and to abstain from conducting business as a going concern. Such an interpretation assumes particular importance as the Code does not mention any such requirement. The author agrees with the view that is taken by the Adjudicating Authority. To rope in additional debt from creditors who are ignorant of the Insolvency Application does not serve anyone well. While such creditors may find recourse in the institutional insolvency mechanisms that are placed, the instant order would help them to avoid falling into such ditches in the first place.

CONCLUSION

The author would highlight the need to impose a heavy burden of obligation on the Corporate Applicant to correctly fill in the Form – VI application and amend it, as and when deemed necessary. Failure to do so, as seen in the instant case, keeps the stakeholders and the Adjudicating Authority in dark and amounts to concealment and suppression of material facts by the Corporate Applicant. The instant case has necessitated the need to relook the provisions of Section 10 of the Code and tighten the same.

The measures deployed by the Corporate Applicant smacks of malicious intent, could have potentially deceived the Tribunal, defrauded the creditors, lowered its losses and created a situation wherein the provisions of the Code are misused with impunity. The Adjudicating Authority while disposing of the case was wise in quickly filling the gap and averting it.

The public announcement is required to provide for the last date for submission of such claims from the date of the appointment of the Interim Resolution Professional (IRP). Regulation 12(2) of the CIRP Regulations additionally provides that a creditor, who fails to submit claim with proof within the time stipulated in the public announcement, may submit the claim with proof to the IRP or the RP, as the case may be, on or before the ninetieth day of the insolvency commencement date.

The Tribunal has effectively asked the Corporate Applicant to maintain a status quo in relation to all the major decisions being taken during this period and to abstain from conducting business. Such an interpretation assumes particular importance as the Code does not mention any such requirement. The author agrees with the view that is taken by the adjudicating authority.