DMD Advocates' Newsletter - November 2018

Author:Ms Anuradha Dutt, Fereshte D. Sethna, Vijaylakshmi Menon and Rashi Dhir

It gives us immense pleasure to circulate the first edition of DMD Advocates' Newsletter.

In this edition, we have covered the recent judgements of the Supreme Court of India in relation to the following:

Validity of Aadhaar Constitutional validity of GST (Compensation To States) Act, 2017 Applicability of Limitation Act to applications filed under Sections 7 and 9 of the Insolvency and Bankruptcy Code, 2016 Obligations on plaintiff for obtaining a decree for specific performance Factors to be considered by Arbitrator while awarding interest Eligibility of resolution applicants at the time of submitting resolution plan and timeline of corporate insolvency resolution process Status of cheque bounce complaint filed by power of attorney We hope you enjoy reading this edition and find it useful in your area of work.


Supreme Court's verdict on validity of Aadhaar

Justice K.S. Puttaswamy (retd.) and another v Union of India and Others dated 26 September, 2018

The Supreme Court upheld validity of Aadhaar in a 4:1 majority verdict. A five-judge Constitution Bench headed by Chief Justice Dipak Misra and Justices A K Sikri, AM Khanwilkar, D Y Chandrachud and Ashok Bhushan passed the landmark verdict on a batch of petitions challenging the constitutional validity of Aadhaar and its enabling Act. Justice D Y Chandrachud delivered a dissenting opinion.

The key aspects of the judgement are as follows:

The requirement under Aadhaar Act to give one's demographic and biometric information and collection of data, its storage and use does not violate fundamental right of privacy and is not unconstitutional. Aadhaar Act does not create an architecture for pervasive surveillance. Aadhaar Act and Regulations provides protection and safety of the data received from individuals. Section 7 of the Aadhaar is constitutional. The provision does not deserve to be struck down on account of denial in some cases of right to claim on account of failure of authentication. Section 7 mandates that individuals should either produce Aadhaar or Aadhaar enrolment number to access social services, subsidies, benefits, etc. whose funds are drawn from the Consolidated Fund of India. The government had issued 139 notifications, all under challenge, mandating Aadhaar for getting services. The State while enlivening right to food, right to shelter etc. envisaged under Article 21 cannot encroach upon the right of privacy of beneficiaries nor former can be given precedence over the latter. Provisions of Section 29 are constitutional. Section 29 (1) places onus on the Unique Identification Authority of India (UIDAI) to ensure that no core biometric information, collected or created under the Act, be shared with anyone for any reason whatsoever; used for any purpose other than generation of Aadhaar numbers and authentication under the Aadhaar Act. The court...

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