Advocate-on-Record in the Supreme Court: Legal Profession, Commercialisation and 'Lending of Name'

A few days back, a division bench of the Supreme Court of India (“Supreme Court”) has warned  Rameshwar Prasad Goyal, an Advocate-on-Record (“AoR”), for merely lending his name in several cases [In Re: Rameshwar Prasad Goyal, Advocate].[1] The court, while quoting the phrase “Law is no trade, briefs no merchandise”, vehemently criticised the commercialisation of legal profession which leads to such malpractices. In the present case, a show cause notice was issued to Mr. Goyal when he refused to appear before the Court for clarifying a factual controversy. Later, it appeared that Mr. Goyal had merely lent his name in the impugned matter. In the light of this instance and other prior instances, the purpose which AoR was instituted for has come into question.

Under Section 52 of the Advocates Act, 1961 (“Advocates Act”), a saving provision, Supreme Court has the power to make rules for determining the persons who shall be entitled to act or plead before the court. Though Section 30 of the Advocates Act confers on an enrolled advocate a right to practice before any court, the same has been interpreted by the Supreme Court as being subject to Section 52 of the Advocates Act. While framing such rules under Section 52, Supreme Court exercises the power conferred on it under Article 145 of the Constitution of India, 1950 (“Constitution”).

The system of AoR, created under Supreme Court Rules, 1966 (“Rules”),[2]  is important primarily because they exercise a legalised monopoly in pleading the matters before the Supreme Court. That is, no advocate other than an AoR can file an appearance and act for a party before the Supreme Court.[3] In addition to this, a senior advocate cannot appear before the Supreme Court without an AoR. Last year, the institution of AoR was unsuccessfully challenged before the Delhi High Court (Balraj Singh Malik v. Supreme Court of India through Its Registrar General).[4] Before the High Court, it was contended by the petitioner that AoR merely lends name without being responsible for the conduct of the case. It was further contended that Supreme Court, under Article 145 of the Constitution, has no power to continue the system of AoR. The High Court, while dismissing the petition, was of the opinion that the Supreme Court is competent to create such an institution of AoR. High Court held that:

The Real Estate (Regulation and Development) Bill, 2013

[Note: Author and Contributor of this blog post is Risabh A. Gupta, 3rd Year Student, B.B.A. LL.B. (Hons.), National Law University, Odisha. He can be contacted at rishabh.a.09@gmail.com] 

The Real Estate Regulation and Development Bill, 2013 has been approved by the Union Cabinet on June 4, 2013 after much delay and deliberation. The bill has yet to be approved by the Parliament i.e, Lok Sabha and the Rajya Sabha. After this, the bill would become statute once it receives the presidential assent. Separate Real Estate Bills have been formulated by Maharashtra and Haryana State Governments. Therefore, when enacted, the Central Act would prevail over any State legislation and any provisions repugnant to the Central Act would be void. 

The Bill is aimed at regulating the largely unregulated real estate housing sector. It envisages the creation of a Real Estate Regulatory Authority [hereinafter “Authority”] and an Appellate Tribunal which would act as a watchdog for the housing sector, predominantly towards safeguarding and protecting consumer interests. Also, creation of the tribunals would act as an effective redress mechanism for any disputes. 

The Real Estate Bill envisages providing effective and efficient regulatory framework and environment in the real estate sector which is laced with illegal and black money, corruption, land mafias and red tapism. 

Right to Privacy and Online Social Networking Space: What Indian Law can do?

With a tremendous increase in the usage of social networking website, an equally proportionate concern has also arisen regarding the issue of privacy. Though there are a number of judicial precedents dealing with issue of privacy in relation to telephone interception, surveillance etc, hardly are there any precedents which can sufficiently enlighten one to realise the scope of right to privacy in social networking space. Is there a crucial difference between the privacy in physical and online space? I argue that though there provisions, such as Section 72A of the Information Technology Act, 2000 (“IT Act”), make one criminally liable for negligently sharing personal data information, they are not sufficient for the purpose of online social networking.

In this issue of online space, the primary hurdle arises when seeks to identify the data which requires protection. Not every data can be given protection, for example, data which is already available in public domain. Also since the nature of online space is different, the measure of protection should be different. For instance, it is not as easy to locate a particular data in physical space as one can locate it online using ‘google.com’; hence, data is more vulnerable in online space than in physical space. This problem ultimately directs one to identify the nature of “privacy right” which one enjoys.

If one looks at the dictionary meaning of privacy, there is a possibility of getting an unclear and uncertain definition: ‘a state in which one is not observed or disturbed by other people’.[1]And, if one sees definition of right to privacy provided by the Supreme Court, then there is a possibility of getting a very broad definition. 

Clause 3 of the Draft National Privacy Bill, 2011 confers on every individual a right to privacy. Though a specific definition is not given, the clause contains a list of information which will be covered under the privacy right of an individual. Though there are a number of shortcomings in the (an exhaustive discussion on data protection and Privacy Bill will be done in one of the next posts). I herein discuss the existing legislations and legal principles which deal with the issue of data protection in online networking space.

The new Companies Bill, 2012: An Overview

[Note: Author and Contributor of this blog post is Risabh A. Gupta, 3rd Year Student, B.B.A. LL.B. (Hons.), National Law University, Odisha. He can be contacted at rishabh.a.09@gmail.com]

The much awaited Companies Bill, 2012 has been finally approved by Rajya Sabha on 8^th August, 2013. The bill was passed in Lok Sabha in December 2012 after detailed deliberations and discussions. It is now on the verge of becoming an act post presidential assent and notification in the Gazette of India.

The new Companies Bill, 2012, once effective, would replace the fifty-six year old legislation, the Companies Act, 1956, the primary legislation for incorporation, governance and operation of the corporate bodies in India. Further, the Bill envisages to create a simplified and effective framework for regulation and functioning of corporate bodies in India.

The new companies Bill, 2012 is a very welcome step as it has brought in numerous positive steps in streamlining the overall framework pertaining to corporate law. While the existing Companies Act, 1956 has 658 sections, the new Companies Bill, 2012 would have 470 clauses which are divided into twenty-three (23) chapters and has seven (7) schedules. Thus, in this post, an overview of the important and substantial changes as well as introduction of new provisions would be discussed like One-Person Company, new compliance regime for private companies, Corporate Social Responsibility, Mergers & Acquisitions (M&A), Corporate Governance and Class Action Suits.

1.                  MERGERS &ACQUISITIONS (M&A)

Numerous changes have been proposed in the new Companies Bill, 2012 to make the procedure for mergers and amalgamations (M&A) simpler and efficient. The approval of the National Company Law Tribunal (NCLT) for the fast-track mergers has been done away with in the new bill if it is a merger between two small companies, between a holding and subsidiary company, or between any other companies as may be prescribed.

Further, the new Companies Bill, 2012 says any contract or arrangement between two or more persons on transfer of securities shall be enforceable as a contract. Private equity (PE) investors, who until now have been unable to enforce strict conditions in their agreements with promoters, will be able to use clauses such as 'tag along' and 'drag along' mentioned in the shareholder agreement. A 'tag along' clause helps protect a minority shareholder as he can sell his stake along with the majority shareholder, while a 'drag along' clause gives right to a majority shareholder to force a minority shareholder to sell stake[1].

The new law also allows an Indian company to merge with a foreign company, making cross-border mergers and acquisitions easier. Earlier, only foreign companies were allowed to merge with Indian companies. Also, the bill will make it easier for promoters to restructure, merge or acquire companies because only those shareholders who own more than 10% stake or have more than 5% of the total debt will have the power to oppose any scheme of arrangement[2].

What’s in the number of Arbitrators? : An analysis of Section 10 of the Arbitration and Conciliation Act, 1996

In order to ensure that an arbitral proceeding is run smoothly, it is imperative to have the presence of arbitrators. In some situations, arbitral proceedings may require the presence of several arbitrators. However, there is also a possibility that, in some situations, the presence of a single arbitrator may be sufficient for the conduct of arbitral proceedings. Section 10 of the Arbitration and Conciliation Act, 1996 (“Arbitration”) provides that the number of such arbitrators shall not be in even. Section 10(1) of the Arbitration Act reads as:

“…..The parties are free to determine the number of arbitrators, provided that such number shall not be an even number.”

Given this situation, will an arbitration agreement, providing for an even number of arbitrator, become invalid? In this post, while focusing on the decisions of the Supreme Court of India (“Supreme Court”), we will explain this issue pertaining to Section 10 of the Arbitration Act.

Comparison between UNCITRAL Model Law and Arbitration Act, 1996

Section 10 of the Arbitration Act is based on Article 10 of the 1985 UNCITRAL Model Law on International Commercial Arbitration (“Model Law”).[1]Article 10(1) of the Model Law reads as:

“….The parties are free to determine the number of arbitrators”

A difference can be seen between Section 10 of the Arbitration Act and Article 10 of the Model Law. While Model Law does not require the parties to provide for an odd number of arbitrators, such requirement is present in Arbitration Act. If Parliament of India (“Parliament”) has added such words, there must have been a reason behind it. Did Parliament intend to render arbitration agreement, contrary to Section 10 of Arbitration Act, as invalid? Before arriving at any conclusion, it is important to see the take of the Supreme Court on the issue.

Interim Measures under Section 9 of the Arbitration and Conciliation Act, 1996

Section 9 of the Arbitration and Conciliation Act, 1996 (“Arbitration Act”) provides for a situation whereby a party, before the enforcement of an arbitral award, can approach a court for interim measures. For instance, interim measures can be sought against any goods which are the subject-matter of arbitration. Importance of such measures cannot be easily neglected, especially when it affects the enforceability of the contingent arbitral award. Supreme Court of India (“Supreme Court”) has, in the case of Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc.[1], held that Section 9 of the Arbitration Act, by virtue of being in Part I, is applicable where the place of arbitration is in India. Though the reasoning was ambiguous, this has, for the time being, become the legal position.

Nature of Power under Section 9 of the Arbitration Act

The court, under Section 9 of the Arbitration Act, is empowered to grant interim measures. Such measures, as the language of the section suggests, can be granted even before the commencement of arbitration proceedings. Since the measures are of "interim" character, a careful consideration is always required.

In Arvind Constructions Co. (P) Ltd. v. Kalinga Mining Corpn.,[2] it was held by the court that exercise of power under Section 9 of the Act must be based on well-recognised principles governing the grant of interim injunctions and other orders of interim protection or the appointment of a Receiver. That is, it would not be correct to say that the power under Section 9 of the Act is totally independent of the well-known principles of interim injunctions.[3]As regard the applicability of Specific Relief Act, 1963 to an application, under Section 9 of the Arbitration Act, it was held by the Supreme Court, in Adhunik Steels Ltd. v. Orissa Manganese and Minerals (P) Ltd.,[4] that:

“When the grant of relief by way of injunction is, in general, governed by the Specific Relief Act, and Section 9 of the Act provides for an approach to the court for an interim injunction, we wonder how the relevant provisions of the Specific Relief Act can be kept out of consideration.”