Insolvency and Bankruptcy Code 2016 : Short overview and procedure


This article is written by Akshita Sodhi,

Fourth year law student

lloyd law college.


The code of Insolvency and bankruptcy was passed in the year 2016. This code was enacted with the purpose to provide fast relief to creditors in case their debtors become insolvent. This code provides a time bound process to provide the relief to the debtors.


It must be noted that recently in the wake of COVID- 19, a new section(section 10 A)  in IBC 2016 a new section is inserted for the suspension of initiation of insolvency proceedings against the corporate debtor. But this provision shall be applicable for any default arising after 25th march 2020 up to the period of six months.


What is Insolvency?

Insolvency is a state of financial and economic distress where the debtor becomes insolvent, i.e., he becomes unable to pay his debts to the creditor. Under IBC Code, 2016, Corporate Insolvency and bankruptcy proceedings can be initiated by the creditor. against a debtor on the minimum amount of default of Rs 1 lakh.


What is bankruptcy?

Bankruptcy is the order given by the court for the debtor where the court initiates legal proceedings for the debtor to repay his debts.


What is liquidation?

The liquidation is the process of selling goods and assets of the bankrupt person or entity to let the debtor to repay his debt.


Applicability of the act.

This act is applicable to all the companies incorporated under Companies Act, 2013, or the company incorporated under any act applicable during the due course of time, limited liability partnerships incorporated under  limited liability partnership act, 2013, partnerships firms and individuals or any such other body incorporated under any act or law for the time being in force.


Who can file an application under the act?

Corporate insolvency resolution proceedings can be initiated by a financial creditor, operational creditor or by the corporate debtor itself.[1]


Corporate person

Co-operate person includes company registered under the companies act 2013, Limited Liability Partnership (llp), a partnership firm, or any other person incorporated with limited liability under any law at the time being in force except financial service providers.[2]


Adjudicating authority under the Code

NCLT(National Company Law Tribunal), DRT(Debt recovery tribunal). NCLT is the adjudicating authority for corporate debtors and personal guarantees. DRT is the adjudicating authority for individuals and partnership firms.


Appellate Court

If someone is satisfied by the order of NCLT, an application can also be filled in NCLAT within 30 days of receipt of such order. If the debtor is not satisfied by the order of  NCLAT, he can file an application in the supreme court within 45 days of such order. 



Creditor is the one who credits money/goods to the debtor. In other words, Creditor is the one to whom any person/ entity/ company owes money.



Debtor is the person who owes the debt. In short, the debtor is the one to whom the creditor gives money.



Debt is the obligation to pay or repay the money to the one who lends you the same.


Financial creditor

In order to understand financial creditors, it is crucial to first know what is ‘financial debt’.

Financial creditor is the one to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred.[3]. The relation between the financial creditor and debtor is purely of cash.  Example- loan given by bank, the person who give loan on interest etc.


Operational creditor

In order to understand the concept of operational debtor, it is important to know the meaning of operational debt, ‘operational debt’ means a claim in respect of the provisions of goods or services including employment or a debt in respect of the repayment of the dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority.[4].

In short, an operational creditor is the one who has any amount due towards the debtor and the amount is due because of  supply of goods, services including government dues, taxes etc.  Examples of operational creditors are employers of the company, service providers of a company etc.

In a recent judgement, the Supreme Court has cleared that, operational debt is only confined to goods, services, government and employees dues and home buyers don’t fall in the ambit of this definition.



insolvency resolution professional appointed by the court for resolving the co-operate insolvency resolution process initiated against the debtor.


Time Period for completing insolvency proceedings

180 days( 90 days-extended period can also be given on the discretion of the court. )




              Sending of demand notice to the defaulter giving him a 10 day notice period to clear his dues.



Initiation of corporate insolvency resolution process, i.e. filing of application against the debtor if he doesn’t clear dues within 10 days of receipt of the demand notice or brings it notice to the creditor about the existence of any previous suit or arbitration proceedings filed or pending  before the sending of notice.


 Within 14 days of the receipt of the application, the court can either accept it if it is complete or reject it if it is incomplete.


Appointment of Insolvency resolution professional by the court as proposed by the creditor.


After the appointment of interim resolution professionals by the court, all the rights of the directors, partners etc shall be vested in the hand of appointed interim resolution professionals.

Moreover all the affairs of the debtor shall be managed by the interim resolution professionals. Appointed managers or auditors or any other financial institutions shall report to the appointed  interim resolution professionals and provide all the details if so needed by him or he asks them for the same.


All the acts/deeds of the debtor shall be executed in the name of  the appointed interim resolution professional. Moreover he should also have control over the financial information including balance sheet, ledger or any other document specified.


All the information relating to assets, property of the bankrupt debtor is being collected by the interim resolution professional. He shall also receive and pursuant claims made by the other creditors as well pending against the bankrupt debtor.


          Formation of committee of creditors by the interim resolution professional.


Within 7 days of the formation of the committee of creditors, the first meeting shall be held and the members of the committee of creditors will decide whether they want the appointed interim resolution professional to be resolutional professional for further proceedings or whether they want to appoint new resolutional professional for further proceedings by 75% majority. The decision of the committee shall be informed to the adjudicating authority and the interim resolution professional as well.


Formation of resolution plan by the resolutional applicant and submission of the same to the resolutional professional.




The resolutional professional will check the resolution plan and the same is also being submitted to the committee of creditors and should also be approved by the committee of creditors by more than 75% voting.



The resolution plan is then submitted to the court.



If the court approves the resolution plan, the order by the court shall be binding on corporate debtors and all its employees as well.


The corporate debtor can also make an appeal to the appellate court if he is not satisfied by the decision of the court.



The court can even order for the liquidation process for the co-operate as it deems fit or if the same is being requested by the resolutional professional( in discussion and voting with committee of creditors) before the submission of resolution plan.



The liquidation process is initiated by the court in the same easy, the resolution process is initiated.



[1]-Section 6 of IBC code 2016.

[2]- Section 3(7) of IBC code 2016

[3]-Section 5(7) of IBC code 2016. 

[4]-Section 5(21) of IBC code 2016.

Checklist of Licenses for starting a food business in India

Akshita Sodhi

Food business is one of the fastest growing businesses in India. With increase in urbanisation and Industrialisation, there is a change in the lifestyle of people. Today half of the population of the country, prefers to buy market food or to eat food outside. In the fast moving life of today’s world, where no one has time to make food at home, people prefer it more to eat outside or to eat the fast food.

There are various kinds of formalities which you need to follow for starting a food business in India. Apart from getting licenses there are various other legal formalities as well which you need to follow up to avoid any kind of further hindrance in your business.

Before starting a food business in India, its very crucial for you to decide carefully what kind of food business you want to start,whether manufacturing food business, storage, transport, e commerce, retail, food service or imports and what are its pros and cons.

Moreover, it’s also very important for you to decide carefully what kind of company you want to start for your food business. Limited liability Company, Limited Liability Partnership, and Sole proprietorship are some of the most common kinds of associations for starting a business in India.

In this article, I shall be going to brief you about what kind of licenses are required to start a food business in India:-

FSSAI license: Food Safety and Standards Authority of India is that autonomous body which is responsible for promoting public health and tomainian the standard of food and to regulate food safety, its main duty is to supervise food safety. Depending on your eligibility, location or need you can get either central license or state license from FSSAI. For applying for the FSSAI license, you can surf the official of FSSAI. If your food business is operational is more than one state, it’s crucial for you to get central license.

There are various kinds of licenses which are provided by FSSAI, some of them are:-

State license, Central license, Registration and Railway license.

The licenses issued by FSSAI can be applied for a maximum period of 5 years.


The fee charged by FSSAI for Central license is Rs 7500, for Registration its Rs 100 , for starting a food business at railway its Rs 2000

The list of documents required for registration:-

Photo of Food Business Operator
Document for Identity Proof like Ration Card, Voter ID Card, PAN Card, Driving License, Passport, Aadhar Card, Senior Citizen Card, Department Issued ID
Supporting Documents (if any):- NOC by Municipality/Panchayat, Health NOC.
You can also get the  list of Documents Required for central licensing and state licensing by clicking on the link


Liquor license: You can apply for a liquor license to the excise department of your state for the sale of liquor. But it must be noted that liquor is prohibited in states of Bihar, Gujarat and Nagaland as well as the union territory of Lakshadweep. Moreover, every state has its own procedure and rules and regulations for providing liquor license, for this you need to apply to the excise department of your state.

Health/trade license: For the purpose of starting a food business in health trade, or any business which may affect the public health directly, every entity is required to get health trade license for the same. If you get a health Trade license, you have authority to trade in any food items and services which may have direct impact on public health. It is provided by Municipal Corporation. For example in delhi, for applying for the health trade license, you need the following documents:an application form, a copy of site plan and key plan, an indemnity bond of Rs 100 on non judicial stamp paper and proof of legal occupancy.

Eating House license: Eating house is a place where different kinds of food and drinks are served to the general public for consumption. For applying to eating house license, you need to make an application to the police commissioner of your state. For getting the eating house license, you need to go to the official website of the state police in your state, and then you need to fill the application form and upload the requisite documents.

Fire security license: You need to get a NOC from chief fire officer to get the same. You can also apply online for the same, your premises might be inspected by the officer before issuing you an Noc for the same. For getting fire security license, you need to apply toDivisional Fire Officer, located in the Head Quarters of every district for the same. Some states requires fire security alarm as a requisite for issuance of license for the same.

Environment Clearance: You need to apply to the state or city Pollution Board to get the Environment Clearance Certificate. It’s a Certificate given by the government that your business is environmentally benign and is not causing any pollution to the environment. It’s also being issued by the state of your city. You can surf the official website of Ministry of Environment Forest and climate change.

Signage License: For the purpose of advertising and promoting your business through the use of words, signs and pictures you need a permit for the same called the Signage license.You need to apply to the local municipal body to get the license for the same.

Trademark Registration: You need to register the trademark of your shop or entity to avoid copyright infringement. Moreover Registration of your entity is necessary so that some other company or entity should not misuse you name and good will in the market for profit. For the registration of trade mark, you can surf the official website of IP India.

Music license: To avoid Copyright infringement of any kind of music,lyrics and albums, you need a license for the same from Indian Performing Right Societies(IPRS) to play music or videos in your restaurants, clubs, pubs or cafes.

Registration under Shop and Establishment Act: Every entity or business is required to register itself under the Act within 30 days of commencement of business. At some places establishing shops in residential area is not allowed, this act was enacted to regulate the same as well. This act also ensures that the workers in the entity should get proper wages, flexible working hours, leaves and better working conditions as per provided by the act. Each state has its own Shops and Establishment act.

Socio – Economic  Factors Conditioning Indian Democracy – Problems and challenges

Article written by Jagriti thakur and Keshav raj

INTRODUCTION– Democracy is the most popular form of government of the day and major portion of the world is under its spell. The countries who do not have democracy are struggling to achieve it. But it had various forms and in each country its form is different . Besides this, in some of the countries it is working quite successfully whereas in other countries it is facing quite few threats . For example it is working successfully in India whereas it has to face many difficulties in the country like Pakistan, Bangladesh , Nepal etc. In fact, democratic system does not work in a vacuum rather total social, economic and political set up of a country  influences its working and since the social and economic and political condition of each country differ from one another, therefore , the working of democracy is also different from country to country. In this poverty is the root of all evils, and the poor person can remains concerned with the basic need of life and about 21.9% people are still living below the poverty line.

Democratic provisions of the Indian constitution

Sovereign power is vested with people in democracy the sovereign power is vested with the people and in India the people are the source of sovereign power. In India, the makers of the constitution and the adopter of it are the people themselves . The words in the beginning of the preamble of the constitution and the words in the last , “ We the people of  India”. These words mean that the constitution was not imposed on us by any foreign power as before 1947 it was done , rather, this constitution has been made by the people of India for themselves .

Responsible government both in centre and the state the constitution of India gave the responsible government in center and in state and then main aim and to achieve this purposes parliamentary form of the government has been adopted. In the centre, the president is the head of the whole administration and and the council of minister include with Prime minister as its leader to aid and advise the president run the administration this is the provision. It is responsible before the house of the people , the council of minister make use of all the powers of president.

Independent judiciary in this the provision is made of free, independent and impartial judiciary for the protection of the rights as well as the liberties of the people of India. The constitution of India has made all the arrangements necessary to maintain the independence of the judiciary such as impartial method has been adopted to make appointments of judges.

Rule of law this is in keeping mind democratic principles , the rule of india is made a provision in India and for this, we are indebted the constitution of India of great Britain There are meaning of the rule of law like- First is on law for all which means whether somebody is poor or rich, high and low etc. all are answerable before law. Second is individual is punished only on the violation of law has been proved. And third is law protects the rights and the liberties of the people and in case the rights and liberties of any  individual gets violated, the victim and the victim can even approach the courts which protects the rights and liberties according of the law.

Respect the opposition In democracy , the opposition is not suppressed after rather it is given due respect because the opposition criticizes the government and make it responsible. The opposition also presents the weakness of the government before the people and creates awareness among people. The opposition also provides an alternative team to form the government. The leader of the opposition is recognition both , in parliament and state legislature and they get all the facilities to which a cabinet minister is entitled. The opposition holds the protest rallies , demonstration etc from time to time.

Secular state freedom to abstain and manage religious institution. No religious institution or education can be imparted to students in the government and educational institution nor any tax can be imposed in the name of religion. There should be not any discrimination is made while the government offices , rather all the appointments are made on the basis of qualification which are equal for all in this secular state  muslim and sikh who belong to minority community are holding the highest offices in India and it is the miracle situation of secularism in India.


An important saying that he who controls the purse, controls the administration or in other words , we can say that with the use of money power for the promotion of their own interests . the poor people just become a part of the machine and they used by rich just as commodity. This way economic inequality and democracy cannot go side by side. Even after a long years of independence a large number the population lives below the poverty line. The thinking of such people always revolve around food cloth and shelter. A poor man can neither become a good citizen nor he can take in political activities. He loses  his self esteem and he becomes either fatalist or revolutionary. He starts feeling that the political rights are mere an eye wash and the rupees and all this has its bad effects on the working of the democracy.

And there are also some impacts of the economic inequalities on democracy and they are every citizen has right to vote , yet the poor man fails to make proper use of right to vote and second is increase in corruption. On July 22, 2008 during the debate on the confidence motion the prime minister of India Dr. Manmohan singh, the  waving of the wads of the currency notes , claimed to be bribe money for influencing MPs had put every Indian to hang his head in shame.


Doubts were expressed about the success of the democracy by western countries when India was declared a democratic country after the attainment of the independence, in 1947 and when universal adult franchise was granted in 1950. They were of the opinion that to give the right to vote to the illiterate and incompetent was just like giving the loaded gun in the hands of monkey. But Indian has removed the doubts expressed by the western countries in the wake of independence and the implementation of the constitution of India. It goes to credit of the Indian voters that whether in the past they came to realize that any government was turning responsible and indifferent to their interests, they changed the same by constitutional , methods , showing their firm faith in democracy. Inspite, of the challenges , the Indian democracy is faced with the following factors which are indicative of its right future of India

Long history of democratic institutions the history of democratic institutions in India very old. They were in existence in India before the arrival of the Britishers. The britishers too gave the limited right to vote to Indians and they also set the pattern of the legislatures at the central and state level in India  , on which the present organization of the parliament and the state legislature has been taken place . In a way the present democratic organizations both at the central and the state levels owe much to Britishers.

CONCLUSION– At last after through above mention the facts we arrive at the conclusion that there are some problems like socio and economic inequalities , poverty and illiteracy and unemployment and communalism etc. To this time India , has bravely faced these challenges and its fervently hoped that in future too it will equally well with stand these challenges successfully , keeping the banner of the democratic system flying high.

How to maintain a balance between studies and extra co curricular activities in a law school

By : Akshita Sodhi of Lloyd law college

Greater Noida.

Education is the one of the most crucial national activity. It is the backbone of a country’s development. However, games and sports are also crucial. We need more Saina Nehwal,  Sania Mirza, MS Dhoni, as well as we need more Kalpana Chawla, Salman Rushdie: Indian author known for his contribution in English literature, Amartya Sen:- known for his contributions in economics and sociology.

Maintaining a perfect balance between studies and extra co-curricular activities in a law school is a very difficult task. The more we give time to academics,  the more difficult it is for us to give time to extra co-curricular activities. What are parents want us to be? Obviously not the machines of wealth. The real purpose of our college life must be to maintain some personality traits in ourselves which can’t be done through studies only.  We can gain a good personality if we keep a perfect and striking balance between studies and co-curricular activities

The following co-curricular activities are great places to begin:-

Debate Team

Taking part in debates is important as it will help us to gain confidence and to acquire leadership quality.


Mooting helps us to improve our research as well as speaking skills. It will be helping out those who want to go for litigation in the future.

Library activities

You can study several magazines and resource books in your leisure time in college.

Various clubs

There are various clubs in a law school such as research club, environment centers,  legal aid cells and there are our own different benefits in taking part in different clubs and cells.

Common myth

There is a common myth in the minds of most of the students that to obtain good grades in academics,  one needs to quit extra co-curricular activities. According to a study undertaken by the US Department of Education, students pursuing extra co-curricular activities get higher grades than those who don’t have interest in extra co-curricular activities. The same study also proves that a student could get good marks in academics  when he participates in various co-curricular activities irrespective of the background they have come from.

Don’t put all your eggs in one basket

Some students come to university primarily to study,  go to graduate school or pursue their dream job. Others come primarily to play soccer or the trumpet. The most successful ones take their classes seriously,  yet find time to discover and participate in other activities. By taking part in a variety of activities and opportunities, you not only grow as an individual.  but it also helps you out to build your resume. What do you want your resume to look like

‘’A student who has passed his /her five years in law school from CCS university with 66% or any xyz university with no debates and moot court,  or any active participation’’ or ‘’A student who has passed her/his five years in law school with 66% and is active participant in many debates, moot court society.  part of an NGO, a good social worker, and speaker. ’’, the choice is yours what you want your resume to look like.

Common Tricks

Now you guys shall be wondering it out how is it possible to maintain a striking balance between studies and co curricular activities. See there are simple tricks to do studies and extra co curricular hand in hand.

Be peculiar and picky

Don’t join every club or center which exists in your college.  Always be picky and peculiar about which extra co curricular activities you want to join. If you join that club in which you don’t have any sort of knowledge or interest, it will drain your personality and confidence. Choose wisely among them and then focus on them.

Take rest or breaks

We human beings have a tendency to get bored very soon when we do the same work over and again. So, it is very important for you to take a break during your studies.  don’t study the same subject continuously. Take at least half an hour break from your studies after every one hour and give that half hour to that extra co curricular activity from which you can get leisure whether it be dancing,  singing or drawing.


Focusing on your goals is very crucial to make your dreams come true.  Giving the right path and direction to your goals is the best way to achieve success. Don’t let your mind wander here and there. Keep your mind constant on things you want to do.  Don’t leave one thing in between for other things. Suppose if you are playing basketball, so don’t let this game in between for badminton. Try to focus on things you really want to do.

Develop a plan

Developing a schedule is very much important not only for your college life but also to get success in every field. You need to work by maintaining a proper plan and schedule. You will miss out some work if you are not working by maintaining a schedule.  Moreover, to avoid hectic situations, planning work is very much important. You must maintain a plan about on which time you have to study, for how many hours and on which time you have to play, for how many hours. Try to complete your work according to timings you have maintained in your plan.

Study in group

Studying in a group is a yearlong practice which was followed by our parents and grandparents and still followed today.  It is a very affluent and effective way to get good marks in studies. Studying in groups not only distribute your study load but you can find out easy and different methods to a particular question or problem. You can also enhance your social skills by group studying.

Resist temptation

The real trick is to use unstructured time in a better way. If you spend that time chatting or hanging out,  for all of your long periods of time, you will be needed to study. Fitting some of your homework into short blocks and forcing yourself to stay focused can free up larger portions of your weekends and holidays for fun.

Adopt the right attitude

At last but not at least, I want to end up this article by suggesting you that we must always develop a right attitude towards our work. As it was a well saying, ”two things define your success, the way you behave when you have everything and the way you manage when you have nothing “So developing a right attitude towards your work is important to give a right direction to your dreams. It was a Chinese proverb that ‘keep a green tree in your heart,  birds will automatically come there’. So for maintaining a striking a balance between studies and co-curricular activities, it is crucial to act positive and think positive.

Decriminationalization Of Homo Sexuality

(Article written by Jagriti Thakur

Lloyd law college)

Introduction – India is democratic country, but country like India the opinion of public regarding homo sexuality is highly debatable issue. As we have conservative society so traditionally, We ease from homosexuality which even decline hetro sexuality outside of marriage. The Indian penal code, 1860 which was formulated by Lord Macaulay – The act rater attitude of homo sexuality is to be tire  in of unnatural offences. Section 3771 of the Indian penal code given by the constitution of India t- whoever voluntarily has carnal intercourse against the order of the nature  with any man, women, animal, shall be punished with imprisonment od either description for term which may extent ten years and also liable to fine.

The report published by government of the India  in its bulletin 2 that one could not find reference regarding the offence of homo sexuality in spite of the homo sexuality is very little prosecuted  in our country. If we go back in the history of INDIA there should be the reference of homo sexuality in the records. In the Indian society the attitude rather of well arranged group of eunuch (hijra) is always a traceable in our history and even in present day it is continued .

Western behaviour and attitude  regarding homo sexuality

On the other hand in western Countries Homo sexuality is not a very big issue , they treat them like normal human beings but in india this is against of the Indian culture. This is to be noted that most of the developed countries in Europe the act and behavior of homo sexuality is legalized. South Africa is the first country in the world where homo sexuality is legalized in the year of the 1994. There after the countrie like hollland, New Zealand , Spain , canda and France etc. have legalized it. In  USA the supreme court dered that the state is not empowerwed to legislate on the grounds of the homo sexuality behavior. There should be the protection of the lesbian and gay’s right. So the attitude towards the homo sexuality is very different from the western attitude.

The view to control  HIV/AIDS a number of monogovermental aoganizations working in the field demarked determinitaionaliztion of homosexuality on te ground of tolerance and equity . The gay’s activitist contented that two consenting adults in private engaged in th homo sexual law can not be allowed to interfere in the acts played in the bedrooms , although it is said to be diminishing the concept of morality

Some sections of the people are in the strong belief that it will  disrupt the married life and it is a direct threat to institution of marriage . It will also give a wrong signal to the society at large .


The hot issue of discriminialzation of homo sexuality is under the consideration before the supreme court against the judgment of the division of the bench of Delhi high court’s observation that section 377of Indian Penal Code , 1860 handal with an offence of homosexuality should be replead from the penal code.

Before this divison of the bench of Delhi high court about homo sexuality iN the  NAZ foundation Vs government of NCT Delhi3 the various points relating  to the offence of homo sexuality to raised are –

Public morality on the basis of the restriction of fundamental rights.
Homosexuality would be courrpt public morals and whether the concept of decrminialization of consensual enhance delinquent behavior.
This section viotaltes the constitutional  gurantee of equality , privacy and dignty.
In the field of sex education public health prevention of HIV/AIDS , the aforesaid case the petitioner is delhi based no governmental prganixation working. Article 14, 15, 19 and  21 which are fundamental rights of the Indian constitution envisaged that the constitutional validity of section 377 of the Indian penal code, 1860 was challenged on the ground that having homo sexual acts betwwn consenting adults in private can not be said that it is a offence invites penal action.


In the year 2001, the nax foundation4 writ a petition in the Delhi high court, challending the section377 of Indian penal code, 1860 of the Indian constitution on the basis of the covering the sexual acts  consenting adults in privete, claiming that imposed law. Was in violation of article 14, 15, 19 and 21 (fundamental rights) of th eindian constitution. The apex court set aside the impugned order delhi court.


Section 377 of Indian penal code of Indian constitution traditional anglo – christen ethical standards. In this ethical standards which cocieve of sex purely functional terms i.e. for the purpose of procreation only. Any non procreative sexual activity is thus viewed as being.the legislation of criminalization submission consensual oral and anal sex is out dated  and has no place in modern society . In fact in this studies of this section of Indian penal code jurisprudence reveal lately it has been generally employed in the cases of child sexual assault and abuse by private criminilazation.

When right to privacy, human dignity of an individual and the human need from imminent personal sphere require that privacy and dignity claim concerning private, consensual, sexual relations are also afforded protection within ambit of said fundamental right to life and liberty given under article 21 of the constitution  of India, 1950. It is averred that no aspect of one’s life may be said to be more private or intimate than that of sexual relations or sexual preferences , figure prominently with an individual personality and is easily with the crore of the private space; they are an alienable component of the right of life. Based on this line of reasoning case has been made to the effect that the probation of certain acts provided by section 377 of I.P.C. unreasonably abridges the right privacy and dignity with in the ambit of right to life and liberty under article 21 of the constitution of India , 1950 it was argued that the fundamental right  which is right to privacy under article 21 of the Indian constitution can be abriged only for a compelling state interest which in its submission is amiss here. Further, section 371 of Indian penal code of the Indian constitution has a domino effect upon lives of homo sexual in as much as it not only perpetuates social stigma and police or public abuse but also drives homosexual activity underground here by jeopardizing HIV/AIDS prevention efforts and thus, rendering gay men and MSM increasingly vulnerable to contracting. It has been submitted that there is a consensual sexual intercourse of the kind mentioned above i.e. homosexual between two willing adults in privacy to be saved and accepted from the penal provision contained in section 3777 to ipc


The national aids control organization has submitted its response in the shape of affidavit affirmed by the secretary of ministery of health and family and family welfare , which thus also represents the view of the said ministry of the government of India. The submisiion of NACO only confirms the case set out by the petitioner that homosexual community is particularly susceptible to attracting HIV/AIDS in which a view of number of initiatives have been taken by national aids control organization to ensure that HIV prevention and intervention made efforts are available to said section of the society by amongst other , protecting and promoting their rights . In reply affidavits, NACO states that groups identified to be at great risk of acquiring and transmitting HIV infection due to high level of risky behavior and insufficient capacity or power of decision making to protect themselves from injection and generally described as high risks groups broadly include none who have sex with men and female sex workers and injecting drug users.

CONCLUSION–   At last we conclude that it is to be noted that the SLP against the said landmark judgment of the Delhi high court is under consideration before the supreme court and notices have been directed to be issued to necessary parties and opinion of the union of  India in this regard.


Prisoner’s right to vote

By Jagriti  thakur and Vanshika yadav)

Introduction – The constitution of India and representation of the people’s act provide fundamental system for election in our country. India is a democratic country and federalism is a important substance . Under constitutional provisions the chief election commissioner has an important role to play .   A prisoner can contest election from the jail while is under detention. It is however , ridiculous to state that prisoner cannot cast the vote. There are number of occasions where the people have contested election from the jail or some of them also succeeded and won elections

We know that the prisoner’s right to vote is  very valuable right of every prisoners. This system have till now no provision of compensation. To be paid and denying prisoners to cast the vote whee a prisoner to be found innocuous by the court at the end of the trial. Without a reasonable cause a prisoner has deprived his liberty provided money of as a compensation ,  according to the supreme court and the lowers . these facilities are only for the prisoners who needs has been deprived his or her liberty which are under of the trials.

In the modern democratic age sovereignty( where people are internally and externally free according to their decisions) is vested with people. Under of in this type of direct election there is low possibility of  election of every representatives but there is a very big possibility of competent or able representatives being elected under the method of this indirect election. The main of this is because the voters who elect the candidates are generally better than the common voters. They make use of their votes ,  The whole country is divided into equal territorial areas out of which the people elect their representatives too. This is simply that majority system is more prominent majority system is most popular of democratic states . Under the indirect method of election system a candidate who gets more votes than other candidate is declared elected.


Now this question is whether a person convicted  by a court or who remains in jail as a prisoner whether under trial or in police custody and is deprived of his rights of casting his vote could amount to violation of his fundamental rights given to him under article 14 , 9 and 21 of the constitution? Whether  such provisions should be declared ultra vires and void to the constitution? There is yet another question as provided under section 62(5) of the representation of the people’s act which states that the prisoners are supposed to surrender their right to vote under the said act but the persons who are detained under national security act entitled to cast their votes . Thus that is discriminatory provision.


The contention that a person , who is confined in the prison , whether under a sentence of imprisonment or transportation or otherwise or is in the a lawful custody of the police is not entitled to vote by virtue of section 62(5) of the representation of the people act 1951 and accordingly is not an “elector” and is therefore, not qualified to contest election to the house of people or the legislative assembly of a state because o fifth provision in section 4 and section 5 of the said act.


A right to vote is a statutory right. Persons convicted of the crime are kept away from election to the legislature , whether to state legislature or parliament and all other public elections. The law temporarily takes away the power of such persons to go any were neither election scene . To vote is a statutory  right. It is a privilege to vote but this privilege may be taken away . In the case CHIEF ELECTION  COMMISSIONER V JAN CHAUKIDAR  in the patna high court, the elector would not be qualified even if his name is on the electoral rolls . The name is not struck off, but qualification to be an elector and the privilege to vote when in the law custody of the police is taken away.

While affirming  the aforesaid judgment of the patna high court , the supreme court of India ruled that person who has no right to vote by the virtue of the provisions of the section 62(5) of the act, 1951 is not an elector and is is therefore , not qualified to contest the election to the house of people or the legislative assembly of state. It is submitted that once a person is not entitled to vote by virtue of any disqualification provided under the law and he/she the elector , is not also not entitled to contest election to the house of people /legislative assembly of a state.


There is no doubt that the criminalization of politics is matter of grave concern and debated throughout the country and all measures are being take to prevent it and to ensure crime free politics . No criminal should be allowed to contest election or to cast the vote . In view of this, the election commission has recommended that any person convicted by the court and sentenced for more than six months should be disqualified  from contesting election for six years . the election commission has also suggested a number of changes in the present representation of the people’s act to remove the lacunae that have provided even history shifters to contest election . The election commission has made herculean efforts to invoke a nationwide debate on the hot issue for preventing criminalization of politics by recommending that those who have been sentenced for imprisonment up to six months be barred from contesting election irrespective of the fact that their appeals are pending in higher courts .

According to the election Commissioner 40 members of the parliament and about 700 out of the 4,072 legislators in states assemblies have criminal records . This revelation had invited a hot discussion on this problem.

It is unfortunate to note that these M.P.’s and M.L.A ‘s having criminal records are sitting members in the current parliament and in the state assemblies respectively.

According to the election commission the new rules would be applicable to coming election is matter of some consolation . however the election commission has issued a directive that any person sentenced  by competent court under section 8 of the representation of the people act would be debarred from the contesting elections.

For  the first time in Rajya sabha ‘s election nomination form were required  to be submitted along with affidavits declaring that the candidate didn’t have criminal records.

Another issue is that of checking the limits of election expenses fixing a limit of rupee 50lakhs for the parliamentary constituencies and rs. 6 lakh for the assembly constituencies . However, election commission has suggested that the power of fixing the ceilings for election expenses in the case of larger or smaller constituencies should be vested with the election commission .

Another point of the controversy is regarding the politicians seeking entry to Rajya sabha by giving false declarations of their address and them getting their names enrolled in the electoral rolls of the state . Their problem can be solved provided the relevant laws are amended to entitle anybody to contest elections from the parliamentary constituency in the country so long as she or he is a lawful voter.

Here it is pertinent to mention that the reference measure without any legislative background are useless since the general orders do not specifically decide the fate of under trial prisoner . The election commission has a vital role to play in abolishing this kind of discrimination right to adult franchise which should be exercised by all the persons articles 14, 19 and 21 of the constitution deal with fundamental rights that a person should not be discriminated and every person should be assured of exercising all his rights . Under the constitution right to adult of franchise has been guaranteed to every citizen of India . Thus, it is a very unfortunate to note that our constitution has guaranteed the right to vote to the citizen of India but other subordinate authorities have curtailed the prisoner’s right to vote.

CONCLUSION–  At last we conclude that the right to vote is not an ancient right but it is true that all civilized society and democratic  countries have recognized the right to adult of franchise as a basic fundamental right and also as a human right . Under the present legal system a prisoner cannot exercise his right to vote but a prisoner can be a member of parliament or a member of legislative assembly or even a minister . Thus legal position of a prisoner has to be changed and impartiality removed.

Class Action Suits         

Akshita Sodhi

lloyd law college, Greater Noida.



The class Suit Action was introduced in India through the amendment made in 2013 in the Company Act, 1956. It was after Satyam Scam, the government introduced class action suit. It has passed around four years but the Class Action Suit is still unknown among a large number of people.On June 2016, the government has made some provisions, some crucial among them was the provision of Section 245, which relates to class action suits in cases of mismanagement of a company by its directors.


What is Class Action suit under Companies Act, 2013

Under company Act, 2013, Class Action Suit is the Suit which can be filled by the company members, shareholders or depositors of a Company if they feel that the company affairs are prejudicial Section 245 of the Company Act, 2013 gives the provision of the Class action Suit.

Who has the Authority to file Class-action Suit?

1.In case of Company having share Capital:

(i)any 100 member/members of the company or members equal to or exceeding 10%of the members of the company.

(ii)any member or members of the company holding jointly 10% of the share issued by the company.

2.In case of the company not holding capital share:-

Members equal to or exceeding 1/5th of the total number of members in the company can file a suit.

3.In case of depositors:-

(i)Any 100 or 10% of the total depositors of the company.

(ii)Any depositor or depositors individually or jointly holding 10% of the total deposit in the company.

4.The government of the country:-

The government of the country can also file a class suit if it feels that affairs or working of the company is prejudicial to public interest.

Against whom Class Action Suit be Filed?

.Against the Company or a firm

.Against the head or director of a firm or a company

.Against the audit or audit firm

.Experned, advisor, consultant or any other concerned person of the company.

Any company which don’t the order follow order given by the NCT, under Section 245 the company shall be punishable to a fine of Rs 5 lakhs but which may increase to Rs 25 lakhs and if in case the officer of the company is found guilty, he /she shall also be liable to a fine of Rs 25,0000/- which may extend to Rs 1,00,000/-.

The tribunal has also given same powers, jurisdiction, and authority if its jurisdiction is contempt under Section 425 of the Companies Act as given to the high court and supreme courts under Contempt of Court Act, 1917.

Minimum 100 shareholders (in case of a shareholders company)or 10% of the holding interest, depositors can file a suit to NCLT under company Act 2013. If the Company is found guilty, NCLT can retain the company from doing certain activities, of it may also ask the company to pay compensation for the damages done.

Why is class Action suit rare in India?

There are many reasons behind why Class Action suit is not much in use in India, Some of them are:-

(i)Contingency Fees:-

In India, the practice of paying contingent fees to lawyers is not followed yet. The contingent fees is the fee paid to lawyers when the case judgment come in their favour. Indian lawyers are barred to charge such fees from their clients under Indian laws and regulations. Since unlike Us there is no contingent fee paid to lawyers in India, so lawyers show less interest while taking up such cases.

(ii)Section 20(A) provisions Company Act:-

Section 20(A) bars Indian Civil courts from giving jurisdiction on any matter which is under the regulatory preview of Securities and exchange board of India (SEBI).

(iii)Lack of push mechanism:-

The US lawyers have become a push mechanism in class action suit, since they get a share of the compensation paid by the guilty party to the court and the aggrieved party get help without paying anything upfront, but this is not the condition in India neither lawyers get the share from the court and moreover Indian lawyers charge a huge amount of money in class action suit.


Procedure for filing class action suit

Cause of action:-

*The cause of action should be such that the member or depositor or shareholder could pursue in his own right rather than an order under this Act.

*The action of the company should be prejudice or unjustifiable towards its members, depositors or shareholders.

*The cause of action should be an act or omission which is yet to occur, where the cause of action would be or would likely be authorized by the company before it occurs and it is bear out by the company after it occurs.


The application should be filled to NCT with the required number of members as discussed above.It is not necessary that the aggrieved person or persons can only file the application, the application can be filled by any person on behalf of person or person representing those who are suffered from any act or omission of the company.


A copy of the application should also be provided or placed on the website of the company, if any,registrar of the company,Regional director,website of ministry of corporate affairs, as the public notice in the newspaper, on the website of the tribunal, if any, on the website of the concerned stock exchange, and all such persons as the tribunal may direct. Notice to the Government

A notice to the central Government is given with respect to every application which comes to the tribunal, the Government can give recommendations and the tribunal is bound to follow up those recommendations before passing a final order.

Admission of Application:-

The tribunal can accept or reject the application according to their own will.


If the application is accepted, the tribunal would:-

*generate a public notice to all the members of the class by publishing the same within 7 days of acceptance of application in a vernacular newspaper in the vernacular language of that particular state in which the registered office of that company is situated and circulating the same in the English and the English newspaper circulating in the State.

Leading council:-

All the similar application in a prevalent case are compiled into a single application and the members or depositors of the company are given the choice to choose the lead applicant and in case the members or depositors of the company are unable to attend the consensus of their matter, the tribunal has the right to choose lead applicant among them.

Vexatious application:-

If an application filed before the tribunal is somehow proved to be frivolous or vexatious, it could be rejected, but the record in writing must be maintained about the reject of the application, an order to the applicant should be made to pay the opposite party such cost, not exceeding 1 lakh, as may be specified in order.

Penalty for non-compliance of the order passed by NCT:-

If a company doesn’t follow up the order passed by NCT, the company have to pay the fine of 5,00,000 INR which can be extended to 25,00,0000 INR, or imprisonment of 3 years with fine which shall not be less than 25,000/- and can be extended to 1,00,000/-.


According to Section 245 of companies Act, 2013 class action suit can be filled to:-

*to stop the company from committing an act which ultra vires the memorandum of the company.

*to stop the company from breaching any act, rule or provision written in the memorandum.

*to declare a resolution altering the memorandum or articles of the company as void if the resolution was passed by suppression of material facts or obtained by some misleading act or statement.

*to restain the company, its directors and other top management people acting on this resolution.

*to restain the company and its directors from doing an act which is unlawful according to provisions of this Act.

*to restrain the company from taking any action which is contrary to any resolution passed by its members

*to claim damages, compensation against the directors, company auditor, advisor or expert of the company if they doing guilty doing such an act which is not according to its provisions.


Before the introduction of class action suit, it was difficult for people to get judicial recourse from big scams such as Satyam scam in India, but after the introduction of class action suit, it becomes easy for people to fight against such abuse as a whole. Moreover, the time of judiciary is also saved through class action suit as instead same members of the company file different suit against the same person, it is easy that a single suit as a whole is filed against the company.