Fundamental Rights Current Affairs - 2019
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In a recent judgement the Delhi High court (HC) ruled that United Nations Organization (UNO) is not ‘State’ in terms of Article 12 of the Indian Constitution and thus it is not amenable to its jurisdiction under Article 226.
About The Case
- Case: The Delhi HC judgment adjudicated the petition filed concerning immunity enjoyed by UNO under United Nations (Privileges and Immunities) Act, 1947.
- Petitioner: The plea in case is filed by a former UNO employee who was found guilty of misconduct following the findings of Procurement Task Force. He was then convicted by a US Federal Court and sentenced to 8 years of imprisonment and 2 years of mandatory probation, was later released and deported to India in May 2014. The petition filed by him claims that due process was not followed in his case.
- Course Followed:
- In November 2018, the petitioner sought permission of Union Ministry of External Affairs (MEA) to initiate a legal action against UNO under section 86 of Civil Procedure Code, 1908. This section 86 of CPC provides that a foreign State may be sued in any Court once the consent of Central government is obtained.
- The MEA then stated that consent of Union Government was not required to initiate legal suit against UNO as it was not foreign State rather only an International Organization.
- MEA although stated that UNO and its officials enjoyed immunity under United Nations (Privileges and Immunities) Act, 1947. It also added that as per Section 2 of Article II of the Schedule of Act, 1947, UNO enjoys immunity from every kind of legal process except insofar as in any particular case it has clearly waived its immunity. The same became subject matter of petition filed before the Delhi High Court.
Article 12 of Constitution of India
As per it the ‘States’ in relation to Part III (Fundamental Rights) of Constitution includes Government and Parliament of India (Lok Sabha and Rajya Sabha), Government and Legislature of each of State (Vidhan Sabha and Vidhan Parishad), all local (or other) authorities within territory of India or under control of Union of India.
Article 226 of Constitution of India
It empowers the high courts of India to issue orders, directions or writs, which includes writs in nature of habeas corpus, prohibition, mandamus, certiorari, and quo warranto (or any of them) to any concerned person or authority, including the government (in appropriate cases).
Tags: Article 12 • Article 226 • certiorari • Civil Procedure Code 1908 • Constitution of India
The Supreme Court has upheld the constitutional validity of the Insolvency & Bankruptcy Code. The petitioners had questioned the Insolvency & Bankruptcy Code based on the following grounds:
- The constitutional validity of IBC was questioned as a violation of Article 14 of the Constitution.
- The petitioners argued that IBC doesn’t make an intelligible differentiation in the classification of a financial creditor and operational creditor, and hence violates Article 14.
- Petitioners claimed that Operational creditors provide services to companies and have the right to initiate insolvency proceedings if their payments are defaulted upon. But the code bars them for participating in the resolution process through the committee of creditors.
- As per IBC, the committee can only consist of financial creditors who assess and vote on resolution plans submitted by interested bidders.
- Petitioners also argued against barring promoters from bidding for their own companies forces them to undertake the sale of the company to new bidders. This violates the fundamental rights of promoters of a company.
The Supreme Court dismissed both the arguments of petitioners while upholding the bar on promoters to come in as resolution applicants Supreme Court noted that the Section 12A route is open for them.
Section 12A of IBC allows for a withdrawal of an insolvency application if 90 per cent of the creditors’ committee by voting share approves it.