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FIG Paper - Navigating SEBI’s Definition of UPSI

Introduction:

The objective of the PIT Regulations is to prohibit insiders with access to Unpublished Price Sensitive Information (“UPSI”) from making illicit gains and to ensure timely, adequate and even disclosure of UPSI to the public. Hence, the determination of what constitutes as UPSI becomes necessary. In this regard, the Securities and Exchange Board of India (“SEBI”) has signalled a shift from a principle-based regime to a more prescriptive regime, which is likely to result in increased compliance obligations for the listed companies.

Continue Reading FIG Paper (No. 26 – Series. 3): Navigating SEBI’s Definition of UPSI

Evidentiary value of Parliamentary Committee Reports 

In Kalpana Mehta v Union of India (‘Kalpana Mehta judgment’)[1], a Constitution Bench of the Supreme Court (‘SC’) pronounced a detailed judgment on whether Courts can place reliance on the Report of a Parliamentary Standing Committee (‘PSC’). The SC also examined whether the factual observations made in a PSC Report can be contested or challenged by the parties, during a judicial proceeding.

This decision arose from a referral order issued by a two-judge bench of the SC. The two-judge bench took the view that this was a ‘substantial question of law’ – that should be adjudicated by a Constitution Bench in accordance with Article 145(3) of the Constitution. While the Constitution Bench took a unanimous view, three separate concurring opinions were issued by Justice Dipak Misra, Justice Dr. D Y Chandrachud and Justice Ashok Bhushan. Continue Reading Evidentiary value of Parliamentary Committee Reports

Surveillance in the Post-Puttaswamy Era - Right to Privacy

In 1997, the Supreme Court of India (Supreme Court) pronounced its judgment in the case of People’s Union for Civil Liberties (PUCL) v. Union of India (SC, 1997) (PUCL Case), which laid the groundwork for the right to privacy in the context of telephonic surveillance (i.e. wiretaps) and constitutional freedoms.

This article analyses the Supreme Court’s stance on the right to privacy in the PUCL Case, which was upheld in the 2017 landmark judgment by the nine-judge bench in KS Puttaswamy v. Union of India (SC, 2017) (Puttaswamy Case) that declared privacy a fundamental right. The applicability of the right to privacy has recently received further validation in the context of wiretaps in the October 2019 judgment in Vinit Kumar v. Central Bureau of Investigations and Ors (Bom HC, 2019) (Vinit Kumar Case), wherein the Bombay High Court outlined the ambit of the State’s power to surveil its subjects particularly on matters that do not fall within the category of ‘public emergency’ or ‘in the interest of public safety’. Continue Reading Surveillance in the Post-Puttaswamy Era

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This is the sixth blog piece in our series entitled “Those Were the Days”, which is published monthly. We hope you enjoy reading this as much as we have enjoyed putting this together.

The need for “rule of law” to prevail is repeatedly espoused by today’s social and political commentators. In light of this, it is important to revisit the origin of the doctrine of “rule of law”, and understand how it originated, so as to fully appreciate its significance and meaning.

In 1676, Sir Mathew Hale, the then Chief Justice of King’s Bench (1671-76), set out 18 tenets for dispensing of justice. The sixth tenet read as follows,

“That I suffer not myself to be possessed with any judgment at all till the whole business of both parties be heard.”

This very sound principle has two fundamental requirements.

The first is that the judge ought not to be predisposed to either one of the adversarial parties, and should not form a view on the merits of the matter before him until all the parties are heard. This of course is very difficult to do given that all persons including judges are bound to have their own views, opinions and preferences. However, through the ages the hallmark of an eminent member of the judiciary is the manner in which he/she overcomes inherent prejudices so as to ensure that the judicial adjudication is based only on the law, the facts based only on evidence on record before the court, and the interplay of the facts in relation to the law.

Continue Reading The Principles of Natural Justice – Origin and Relevance

Look Out Notices A Questionable Exercise in Power

The Supreme Court of India has termed the right to travel beyond the territory of India as a fundamental right guaranteed under Article 21[1] of the Constitution of India. This was most famously stated in the case of Menaka Gandhi v Union of India (Supreme Court, 1978), which had confirmed its earlier judgment in Satwant Singh Sawhney v D. Ramarathnam (1967). As a signatory to the Universal Declaration of Human Rights (1948), Indian legislation in this regard is also bound by Article 13, which guarantees people: (1) the right to freedom of movement and residence within the borders of each state; and (2) the right to leave any country, including their own, and to return to their country.

However, reasonable travel restrictions are constitutionally valid, and are enforced through the provisions of the Passports Act, 1967.[2] Recently, Governmental agencies, police authorities and courts have begun issuing these restrictions through ‘Look out Notices’ or ‘Look out Circulars’ (LOC). These communications are being issued to restrict the departure of persons from India if they are subject to an investigation by the issuing agency for a cognisable offence, or where the accused is evading arrest or the trial, or where the person is a proclaimed offender. Until the Maneka Gandhi case there were no regulatory guidelines for enforcing any travel restrictions, or for issuing LOCs.

The Regulatory History of LOCs

Even though LOCs were first officially recognised in 1979, they have recently been used, frequently, to telling effect. In 1979, the Ministry of Home Affairs (MHA) for the first time issued guidelines for issuing LOCs, followed by two more such communications:

  • A letter dated September 5, 1979 (25022/13/78-F.I) (1979 MHA Letter);
  • An office memorandum dated December 27, 2000 (25022/20/98/F.IV) (2000 Memorandum)
  • An office memorandum dated October 27, 2010 (25016/31/2010-Imm) (OM)

Continue Reading Look Out Notices: A Questionable Exercise in Power?

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This is the fifth blog piece in our series entitled “Those Were the Days”, which is published monthly. We hope you enjoy reading this as much as we have enjoyed putting this together.

India’s judiciary has been known for judicial activism with the Supreme Court often deciding to intervene, not just to strike down laws that are held to be unconstitutional, but also in governance, which many believe ought to be the exclusive domain of the executive. While opinion is divided about the desirability of judicial activism, most would agree that it is the judiciary and its fearless will to intervene and deliver justice, even at the risk of stepping into the domain of the legislature or the executive, which has preserved democratic process over the years.

Unfortunately, rampant judicial activism has given rise to an inevitable debate about the balance of powers between the “three pillars of democracy” and then, as a corollary, the question of the manner in which Judges are appointed in the first place. The prevalent “Collegium System” has been severely criticised, as being non-transparent and prone to nepotism, with several jurists and respected members of the bar themselves pointing out that in no other large democracy does an institution so powerful, choose its own members. The time is therefore right to look closely at the history of how the “Collegium System” evolved, through what is known as the Three Judges Cases.

Continue Reading Should the Judges Cases be Revisited?

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This is the fourth blog piece in our series entitled “Those Were the Days”, which is published monthly. We hope you enjoy reading this as much as we have enjoyed putting this together.

The world is becoming corporatised, and the time of the business owner living over his little shop are well-nigh over. The world is also becoming smaller and, as it does, a business’s reach spreads across multiple jurisdictions and through multiple subsidiary or group companies.

In this age of corporatisation, most jurisdictions recognise the concept of a company as a separate juristic person, with an identity distinct and independent of its shareholders, members or directors. This corporate existence separates a company’s identity from that of its promoters or shareholders. It enables the company to contract in its own name, with its shareholders and third parties, to acquire and hold property in its own name, and to sue and be sued in its own name. A company has perpetual succession; its life is not co-dependent with that of its shareholders and it remains in existence irrespective of any change in its members, until it is dissolved by liquidation. The shareholders of a company are not identified with the company and cannot be held personally liable for acts undertaken by, or liabilities of, the company.

This independence or distinction is not a new concept. In the late 19th Century, the judgment in the classic case of Salomon v. Salomon[1] was passed, ruling that a company is a separate legal entity distinct from its members and so insulating Mr. Salomon, the founder of A. Salomon and Company, Ltd., from personal liability to the creditors of the company he founded.

Continue Reading LIC v. Escorts and Beyond – Lifting the Corporate Veil

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Published here is Part II of the blog piece on the Indra Sawhney Case, which examines in-depth, the case of Indra Sawhney, the use of ‘caste’ as a factor in determining backwardness for the purpose of reservation, and the delicate balance between the needs of the society and the constitutional vision.  

We hope you enjoy reading this as much as we have enjoyed putting this together.

II.  The Mandal Commission and the case of Indra Sawhney

A. The Mandal Commission and its Recommendations

In the year 1979, the Second Backward Classes Commission (Mandal Commission) was set up which was tasked with, inter alia, determining the criteria for defining the socially and educationally backward classes. After an exhaustive survey, the Mandal Commission identified 52% of the Indian population as “Socially and Economically Backward Classes” (SEBCs). Subsequently, it recommended a 27% reservation for SEBCs in addition to the previously existing 22.5% reservation for SC/STs.

In the year 1990, Prime Minister V.P. Singh announced that his government would implement reservations on the basis of the recommendations of the Mandal Commission.[1] Two office memoranda, O.M. No. 36012/13/90-Estt (SCT) dated August 13, 1990 as amended by O.M. No. 36012/13/90-Estt(SCT) dated September 25, 1990 sought to enforce these recommendations. The decision sparked widespread controversy and led to thousands of students coming out onto the streets to protest against the decision. There was a complete breakdown of law and order and some students even immolated themselves.[2]

Continue Reading Casteism Much? – An Analysis of Indra Sawhney: Part II

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This is the third blog piece in our series entitled “Those Were the Days”, which is published monthly. 

This is a two-part piece which analyses the Indra Sawhney Case – a case that is famous for both settling several issues and unsettling several others in the great Indian backward-class-reservation jurisprudence. Published here is Part I of the piece, which examines the legal history of affirmative action in India.   

We hope you enjoy reading this as much as we have enjoyed putting this together.

The “Mandal Commission Report” and the controversy that followed it, is etched in the memory of every Indian. By upholding the implementation of the Mandal Commission Report, the Apex Court judgment in the case of Indra Sawhney v. Union of India, established a central role for itself in every debate on the sensitive issue of reservations in India.

One of the avowed objectives of the Indian Constitution is the creation of an egalitarian society, including, and especially, by way of the eradication of caste and the caste system. In support of this objective, several successive governments have devised various affirmative action policies to eradicate caste and support the social mobility of backward classes. These measures typically include reserving seats in representative and educational institutions or public employment for members of certain classes that have been traditionally and historically marginalised. However, over time, these measures have become a tool for populism and to appease certain communities. Therefore, every time such a measure is introduced, it has resulted in dividing public opinion and caused widespread controversy. On some occasions, this divide has escalated into public demonstrations and even riots, for or against reservation.[1]

When these hotly contested measures have come up for adjudication, the judiciary’s role has not been easy; it has to account for social realities, while simultaneously grounding its decision within the sacred framework of the Constitution. One recurrent controversy that has arisen on multiple occasions before the Apex Court is the criteria for determining backwardness in order to qualify for reservation. There have been several cases that directly deal with this question. Of these, the most significant is the 1992 decision of by the Supreme Court in Indra Sawhney v. Union of India, (1992) Supp. (3) SCC 217 [2] (Indra Sawhney).

Continue Reading Casteism Much? – An Analysis of Indra Sawhney: Part I

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This is the second piece in our series entitled “Those Were the Days”, which is published monthly. We hope you enjoy reading this as much as we have enjoyed putting this together.

This post deals with Securities Exchange Board of India’s (SEBI) interpretation of the term “Unpublished Price Sensitive Information” (UPSI) arising from the alleged insider trading by Hindustan Lever Limited (now Hindustan Unilever Limited) (HLL) in its purchase of shares of Brooke Bond Lipton India Limited (BBLIL).

While the subject SEBI order employed provisions of the SEBI (Prohibition of Insider Trading) Regulations, 1992 (1992 Regulations), this post also analyses the relevant provisions of the subsequently notified SEBI (Prohibition of Insider Trading) Regulations, 2015 (2015 Regulations) in relation the subject case.

Case Analysis: Hindustan Lever Limited v. SEBI[1]

The facts of the case concerned the purchase by HLL of 8 lakh shares of BBLIL from the Unit Trust of India (UTI) on March 25, 1996. This purchase was made barely two weeks prior to a public announcement for a proposed merger of HLL with BBLIL.

Continue Reading Insider Trading: Hindustan Lever Limited v. SEBI