17 October, 2017
Fundamental Right to Privacy
A nine-judge SC bench, on August 24, 2017, held that an inalienable fundamental right to privacy resides in Article 21 of the Constitution of India and other fundamental freedoms contained in Part III of the Constitution.11 It however observed that the fundamental right to privacy must yield in given circumstances to legitimate State interests and will be subject to reasonable restrictions. Consequently, any encroachment to privacy will have to subscribe to the touchstone of permissible restrictions and invasion of privacy would have to be justified against the standard of a fair, just and reasonable procedure.
However, the SC did not categorically comment on the Aadhar scheme, which was the original subject matter in the context of which the nine-judge bench had been constituted. The bench observed that it had not been constituted to look into the constitutional validity of the Aadhar scheme, and the same is currently pending before another bench of the SC.
Arbitral Tribunal has the Power to make Representation to the Court for Contempt of its Orders
On July 6, 2017, the SC held that an arbitral tribunal is empowered under Section 27 of the Arbitration and Conciliation Act, 1996 (‘Arbitration Act ’) to make a representation before the Court for contempt of any order passed during the arbitral proceeding.12
While the Bombay High Court had taken a restricted interpretation of Section 27 stating that the power of the arbitral tribunal to make a representation before the Court for contempt of orders is limited to the failure of the parties to follow the process of taking evidence, the SC took a broader view and held that if the parties fail to comply with any orders, including interim orders of an arbitral tribunal, they may be liable for contempt, on representation by the arbitral tribunal. Such orders would be deemed to be orders of the Court for all purposes and would be enforced under the Civil Procedure Code, 1908 in the same manner as if they were orders of the Court.
Proceedings under Section 37 of the Arbitration Act would not constitute ‘Dispute’ for IBC
Under Section 9 of the IBC , the existence of a dispute could bar an application by a financial or operational creditor. Section 8(2) of the IBC provides that, while pendency of “arbitration proceedings ” has been included as “existence of dispute ”, pendency of an application under Section 37 of the Arbitration Act has not been included as “existence of dispute ”.
By an order dated August 29, 2017,13 the NCLAT considered the relationship between the IBC and the Arbitration Act. It held that an arbitral award reaches finality upon: (i) expiry of the time within which an application under Section 34 of the Arbitration Act to set aside the arbitral award can be made, or (ii) an application made under Section 34 being rejected. Accordingly, the pendency of an appeal under Section 37 of the Arbitration Act would not constitute an “existence of a dispute ” within the meaning of the IBC.
11 Justice K.S. Puttaswamy v. Union of India and Ors., WP (Civil) No. 494 of 2012.
12 Alka Chandewar v. Shamshul Ishrar Khan, Civil Appeal No. 8720 of 2017.
13 M/s Annapurna Infrastructure P. Ltd. v. Soril Infra Resources Ltd., Company Appeal (AT) (Insolvency) No. 32 of
2017.
For further information, please contact:
Zia Mody, Partner, AZB & Partners
zia.mody@azbpartners.com
