Sec 377 LGBT Employment in India

The Supreme Court of India has held Section 377 of the Indian Penal Code, 1860 (IPC) to be unconstitutional, in so far as it penalises any consensual sexual relationship between two adults, be it homosexuals, heterosexuals or lesbians (Navtej Singh Johar v. Union of India and Ors. (2018) (Johar Judgment). By way of this landmark judgment, the Supreme Court has overruled its earlier decision in Suresh Kumar Koushal v. Naz Foundation (2013), whereby, the validity of Section 377 of the IPC had been upheld. Continue Reading What Does the Section 377 Judgment Mean for a Modern Day Employer?

Seat Venue Place Order - Supreme Court of India

Last week, the Supreme Court issued its decision in the case of Union of India v. Hardy Exploration and Production (India) Inc[1]. The much-anticipated decision attempts to provide clarity on the venue-seat conundrum in arbitration cases — cases where an arbitration agreement fails to specify the ‘seat’ of an arbitration but does specify a ‘venue’. Continue Reading The Seat–Venue–Place Conundrum: Supreme Court Weighs In

Transfer of Proceedings from Courts to NCLT: The Calcutta High Court’s View

A question that has often come up since the Companies Act, 2013 (the 2013 Act) came into force is how will proceedings ongoing before the High Courts be transferred to the National Companies Law Tribunal (NCLT)? Section 434(1)(c) of the 2013 Act deals with transfer of “all proceedings” under the Companies Act, 1956[1] to the NCLT. For winding up proceedings, this provision states that only such proceedings relating to winding up, which are at a certain stage as prescribed by central Government, are to be transferred to the NCLT. Another part of this provision, meanwhile, deals with cases other than winding up proceedings, which may not be transferred to the NCLT.[2] A reading of all the various provisions leads to the conclusion that not all proceedings under the 1956 Act pending before the District Courts and High Courts are to be transferred to the NCLT. Continue Reading Transfer of Proceedings from Courts to NCLT: The Calcutta High Court’s View

Online Pharmacy Regulations in India

The Indian Pharmaceutical industry is in its prime phase of growth today at 11-12% per year. While exports occupy a huge chunk, the country meets nearly 95% of its own domestic demands through indigenous production and the domestic retail market is growing by leaps and bounds.

Sale of drugs in India is currently governed by the Drugs and Cosmetics Act, 1940 (D&C Act) and the Drugs and Cosmetics Rules, 1945 (D&C Rules). At present, the law permits sale of drugs through brick-and-mortar pharmacies only. The law as it currently stands is somewhat out of tune with the times in that it is still to catch up with the concept of online sales of drugs. Continue Reading Medicines in Your Mail: The India Regulatory Story

Section 42 of the Companies Act, 2013 read with Rule 14 of the Companies (Prospectus and Allotment of Securities) Rules, 2014 are substantive provisions for regulating private placements by Indian companies. These provisions are, of course, in addition to applicable regulations prescribed by the Securities and Exchange Board of India (“SEBI”) for listed companies. Recently, both Section 42 and Rule 14 have undergone amendments by way of the Companies (Amendment) Act, 2017 and the Companies (Prospectus and Allotment of Securities) Second Amendment Rules, 2018, respectively (the “Recent Amendments”). Continue Reading Recent Amendments to the Private Placement Guidelines – Revamp or Cosmetic?

Share transfer restrictions come in various shapes and sizes and in so far as they relate to shares of public companies, their validity has been a topic of hot debate. In several cases, Indian courts have considered and opined on the legality of contractual restrictions on the transfer of shares of public companies. The position in this regard now appears to be much clearer than before with changes also being introduced in the Companies Act, 2013 (CA 2013). However, one aspect of this debate that has hitherto gained lesser traction is the ability of a public company to refuse registration of share transfers pursuant to section 58(4) of the CA 2013.

Section 58(2) of CA 2013 states that the securities of any member in a public company are freely transferable, while under section 58(4) of CA 2013, it is open to the public company to refuse registration of the transfer of securities for a ‘sufficient cause’. To that extent, section 58(4) of CA 2013 can be read as a limited restriction on the free transfer permitted under section 58(2) of CA 2013. However, the statute does not provide any guidance on what would constitute ‘sufficient cause’ and leaves it open to the company itself to ascertain the same. Continue Reading Share Transfers: Can the Company Say No?

The Specific Relief (Amendment) Act, 2018 (Amendment Act) was recently passed by both Houses of Parliament and subsequently received Presidential assent on 1 August 2018. Notification of the coming into force of the different provisions introduced by the Amendment Act is presently awaited.

The Specific Relief Act, 1963 (Act) codifies the law in relation to grant of the relief of specific performance[1] including injunctions. Continue Reading Specific Relief (Amendment) Act, 2018: Prospective or Retrospective?

On August 10, 2018, the Securities and Exchange Board of India (SEBI) published a report (Report) of the High Level Committee under the Chairmanship of Justice A. R. Dave (Retd.) (Committee). The Report has made recommendations to revamp the SEBI (Settlement of Administrative and Civil Proceedings) Regulations, 2014 (Regulations).

As and when amended, this will mark the fourth avatar of the consent process, first introduced by SEBI through a circular way back in 2007 (remodelled substantially in 2012) and then reincarnated as delegated legislation in 2014. The Report has taken into account SEBI’s experience with this mechanism in the past few years as well as evolving market trends.

Continue Reading Settling for a Price – The SEBI Consent Mechanism, Version 4.0

The Government of India and the Reserve Bank of India (RBI) have brought about several measures to resolve non-performing assets (NPAs). Several NPAs may have arisen from credit facilities that were sanctioned by banks as a commercial decision taken in good faith and in the ordinary course of conducting banking business. Equally there could be cases where NPAs arise as a result of siphoning of funds by the borrower or promoters or other connected entities.

Several serving and retired bankers have recently been charged and/or arrested on suspicion of criminal misconduct over alleged loan fraud under the Prevention of Corruption Act, 1988 (Principal Act). There have been instances of arrest of bank officials without any proof of quid pro quo or wrongdoings.

Continue Reading The Prevention of Corruption (Amendment) Act, 2013: Impact on Decision Making in Banks

By utilising its powers under Article 142 of the Indian Constitution, the Supreme Court of India has delivered an unprecedented decision on August 09, 2018 in Chitra Sharma & Ors. v. Union of India and Ors[1]., and other connected matters (the Jaypee / homebuyers Case)[2]. In this era of evolving jurisprudence on the Insolvency and Bankruptcy Code, 2016 (IBC), the Supreme Court, by this landmark decision, has settled some highly debated issues with respect to its implementation and has provided much required certainty. This has been achieved by the Supreme Court paving the way to reset the clock by re-commencing the Corporate Insolvency Resolution Process (CIRP).

Continue Reading Resetting the Clock: Supreme Court Sends Jaypee Infratech Limited Back to NCLT for CIRP