Mentoassociates.com – Legal Articles

Introduction:
The Limited Liability Partnership (LLP) model has become a preferred structure for many businesses in India due to its flexibility and limited liability features. However, as LLP jurisprudence continues to evolve, several key judgments have shaped the legal understanding around partner liabilities, taxation, fraud, and procedural compliance.

Here’s a quick summary of the 5 most important LLP judgments every lawyer, entrepreneur, or compliance professional should be aware of:

1) Deloitte Haskins & Sells LLP & Ors. v. Union of India & Ors. (2021, Delhi High Court)

Core Issue: Can partners of an LLP be held personally criminally liable for fraudulent activities?

Key Takeaway: The Delhi High Court clarified that while LLPs offer limited liability, partners may lose this protection where fraud, misrepresentation, or criminal intent is involved. Limited liability does not shield individuals from personal responsibility for fraudulent acts.

Why It Matters: This judgment strikes at the heart of the limited liability doctrine and serves as a warning that LLPs cannot be used as a cover for wrongful conduct.

2) DCIT v. M/s. Dhanya Agroindustrial LLP (2019, ITAT Bengaluru)

Core Issue: Whether conversion of a partnership firm into an LLP triggers capital gains tax.

Key Takeaway: The Income Tax Appellate Tribunal held that, provided conditions under Section 47(xiiib) of the Income Tax Act are met, such conversions may not attract capital gains tax.

Why It Matters: This ruling offers clarity on tax neutrality during conversion, a critical factor for businesses considering moving from partnership to LLP format.

3) In Re: Desi Urban LLP (2020, NCLT Mumbai)

Core Issue: Compounding of offences under the LLP Act for delayed filings.

Key Takeaway: The NCLT allowed compounding for non-filing of statutory returns, highlighting that technical lapses can be rectified through the compounding mechanism without attracting harsh penalties.

Why It Matters: Important post-2021 amendment, as many procedural offences have been decriminalized and shifted to in-house adjudication.

4) Jet Airways (India) Ltd. Insolvency Proceedings (NCLT / NCLAT)

Core Issue: Whether LLPs are subject to insolvency proceedings under IBC.

Key Takeaway: While primarily applicable to companies, the insolvency framework has gradually included LLPs as “corporate persons” who can be subjected to insolvency proceedings under the Insolvency and Bankruptcy Code (IBC), 2016.

Why It Matters: Reinforces that LLPs, like companies, are not immune to insolvency actions.

5) Sahara Q Shop Unique Products Range LLP v. State of Maharashtra (2017, Bombay High Court)

Core Issue: Application of state legislation and regulatory controls over LLP activities.

Key Takeaway: The court upheld that certain regulatory controls, including state laws, may apply to LLPs depending on the nature of their business.

Why It Matters: Clarifies that LLPs are not exempt from state-level regulatory compliance, despite being governed by a central statute.

Conclusion:

Though the LLP Act, 2008 is relatively young, its interpretation by Indian courts is rapidly shaping the legal landscape. Understanding these key judgments is crucial for risk management, drafting robust LLP agreements, and advising clients with confidence.

As LLP jurisprudence grows, every legal practitioner should stay updated not just with the Act, but with how the courts are applying it.

The Limited Liability Partnership (LLP) model has gained popularity in India due to its hybrid nature—offering the benefits of both a company and a partnership firm. However, disputes are inevitable in any business structure. The LLP Act, 2008 lays down a structured yet flexible mechanism to address conflicts that may arise among partners or between the LLP and third parties.

Key Provisions for Dispute Resolution

1. LLP Agreement as the Primary Tool
Section 23 of the LLP Act emphasizes the importance of the LLP Agreement. It governs mutual rights and duties between the partners and between the partners and the LLP. In case of a dispute, the LLP Agreement is the first port of call. A well-drafted agreement usually contains clauses for mediation, arbitration, or other dispute resolution mechanisms.

2. Default Provisions in Absence of an LLP Agreement
Where there is no agreement or if the agreement is silent on a matter, the First Schedule to the LLP Act applies. This schedule contains default provisions that may not always be suitable in complex commercial arrangements, hence the emphasis on customizing the LLP Agreement.

3. Arbitration and Conciliation
LLPs are permitted to incorporate arbitration clauses under the Arbitration and Conciliation Act, 1996. This is a preferred route as it is quicker, more confidential, and less adversarial than court litigation. Institutional or ad hoc arbitration clauses can be used.

4. Judicial Remedies
In serious disputes involving fraud, oppression, or mismanagement, partners may approach the National Company Law Tribunal (NCLT) or civil courts, depending on the nature of the grievance. However, recourse to the courts is generally considered a last resort.

Penal Provisions under the LLP Act

While the LLP model encourages ease of doing business, it also includes specific penal provisions to ensure compliance:

1. General Penalty – Section 74
Failure to comply with provisions where no specific penalty is prescribed may attract:

• Fine up to ?5 lakh, and
• Additional fine up to ?50 per day for a continuing default.

2. False Statements – Section 35
Making false statements in required documents, with intent to deceive:

• Imprisonment up to 2 years, and
• Fine between ?1 lakh and ?5 lakh

3. Fraud – Section 30
Acts intended to defraud involve:

• Imprisonment up to 5 years, and
• Fine between ?50,000 and ?5 lakh
  (Cognizable offence)

4. Non-Filing of Statements – Sections 34 & 35
Delay or failure to file Form 8 (Statement of Account and Solvency) and Form 11 (Annual Return):

• ?100 per day for each delay
• Additional penalties may apply to designated partners

5. Business with Less than Two Partners – Section 7(6)
If an LLP continues business for more than 6 months with only one partner:

• The sole remaining partner becomes personally liable for obligations incurred during that period.

6. Compounding of Offences – Section 39
Most offences under the LLP Act are compoundable, except serious offences involving fraud or imprisonment.

2021 Amendment Note:
The LLP (Amendment) Act, 2021 introduced decriminalization of minor offences, a new class of “Small LLPs,” and an In-House Adjudication Mechanism (IAM) for technical lapses.

Conclusion

Dispute resolution under the LLP Act relies heavily on proactive legal drafting and mutual cooperation. The inclusion of arbitration and the ability to tailor conflict resolution methods within the LLP Agreement offer flexibility and efficiency. However, the Act also includes a firm framework of penalties to ensure discipline and compliance.

For entrepreneurs, investors, and legal professionals, understanding these provisions is essential not just for resolving disputes—but for avoiding them altogether.

In 2015, the Supreme Court of India delivered a watershed judgment that forever altered the trajectory of Indian internet law. The case, Shreya Singhal v. Union of India, struck down Section 66A of the Information Technology Act, 2000, and fortified the right to freedom of expression in the digital age.

This ruling is more than a milestone—it’s a constitutional compass guiding the future of online speech, content regulation, and intermediary responsibilities in India.

Background: Section 66A of the IT Act

Section 66A criminalized sending messages via electronic means that were:

• “Grossly offensive” or “menacing”,
• “False” with the intent to cause annoyance or inconvenience,
• Likely to cause “enmity, hatred or ill will”.

The law was vague and overbroad. It allowed arrests for harmless social media posts and memes. Citizens, students, and activists were detained for expressing opinions that displeased public authorities or influential individuals.

The Supreme Court’s Verdict

In a resounding affirmation of constitutional rights, the Supreme Court ruled that:

Section 66A is unconstitutional as it violates Article 19(1)(a) of the Constitution—the right to freedom of speech and expression.

The Court held:

• The terms used in Section 66A were undefined and subjective, leading to arbitrary arrests.
• The section had a chilling effect on legitimate expression.
• Restrictions on free speech must fall within the reasonable restrictions under Article 19(2)—which Section 66A failed to satisfy.

Clarification on Intermediary Liability (Section 79)

One of the key takeaways from the judgment was its interpretation of Section 79 of the IT Act:

Intermediaries (such as social media platforms) are not required to act on user complaints alone. They are only obligated to remove content after a court order or a government directive.

This clarification protects intermediaries from being forced into private censorship while ensuring that unlawful content can still be taken down through proper legal channels.

Constitutional Principles Reaffirmed

1. Vagueness invalidates law: Laws that use vague terms like “grossly offensive” cannot be enforced fairly.
2. Freedom of expression includes online speech: Digital speech enjoys the same constitutional protections as offline speech.
3. No prior restraint without legal backing: Takedown of content requires clear legal procedures.

Lasting Impact

• Section 66A was declared null and void, ending its misuse.
• Strengthened protections for digital dissent, satire, parody, and criticism.
• Provided legal clarity on intermediary obligations under Rule 3 of the IT Rules and Section 79.
• Cited frequently in cases involving online defamation, free speech, and content moderation.

A Word of Caution: The Ghost of 66A

Despite the ruling, multiple reports show that Section 66A continues to be invoked in FIRs and chargesheets. In response, the Supreme Court in 2022 reiterated that police and trial courts must not apply the repealed section.

The battle for digital rights, therefore, is not just legal—it is institutional, procedural, and ongoing.

Conclusion

The Shreya Singhal decision remains a constitutional bulwark against overreach in digital regulation. It empowered citizens, restrained the executive, and clarified the obligations of intermediaries in an age of rapid digital communication.

It reminds us that free speech is not a luxury of democracy—it is its foundation.

Written by Mento Isac, Advocate & Founder – Mento Associates
Advising on tech law, online defamation, and digital compliance across jurisdictions.
Bengaluru, India
mentoissac@mentoassociates.com | www.mentoassociates.com

In an era where billions of posts, tweets, and videos are uploaded daily, the question of who is accountable for online content becomes critically important. Section 79 of the Information Technology Act, 2000, provides a legal backbone for internet platforms operating in India—balancing freedom of expression, technological innovation, and accountability.

But how far does this “safe harbor” go? Let’s break it down.

What is Section 79?

Section 79 of the IT Act, 2000, grants conditional immunity to online platforms—called intermediaries—from liability for user-generated content.

Key Provision:

“An intermediary shall not be liable for any third-party information, data, or communication link made available or hosted by him…”

Provided that:

• The intermediary does not initiate, select the receiver of, or modify the transmission.
• It observes due diligence and complies with the Intermediary Guidelines, 2021.
• It acts promptly upon receiving actual knowledge of illegal content, by court order or government direction.

Who Qualifies as an Intermediary?

Under the IT Act:

• Social media platforms (e.g., Facebook, Twitter/X, Instagram)
• Messaging services (e.g., WhatsApp, Telegram)
• E-commerce platforms (e.g., Amazon, Flipkart)
• ISPs, cloud providers, blogging platforms are all treated as intermediaries.

Rule 3 of the IT Rules, 2021: Due Diligence Framework

Rule 3 is the backbone of intermediary due diligence under Indian cyber law. It mandates that intermediary:

1. Publish Terms of Use clearly prohibiting content that is defamatory, obscene, infringing, hateful, or a threat to public order or national security.
2. Remove unlawful content within 36 hours of receiving:
   • A court order, or
   • An official government notification.
3. Preserve removed content and related data for 180 days.
4. Appoint a Grievance Officer in India, who must:
   • Acknowledge complaints within 24 hours.
   • Resolve them within 15 days.
5. Assist law enforcement by providing required information within 72 hours when lawfully requested.
6. Ensure secure user authentication practices.

Significant Social Media Intermediaries (SSMIs)—with over 5 million users—must also:

• Appoint a Chief Compliance Officer and other key officers based in India.
• Enable user verification features.
• Publish monthly transparency reports.
• Enable tracing the originator of unlawful messages (Rule 4).

Failure to comply with Rule 3 revokes the immunity under Section 79.

Landmark Judicial Interpretations

Shreya Singhal v. Union of India (2015) – Supreme Court

• Struck down Section 66A of the IT Act.
• Clarified that “actual knowledge” under Section 79 arises only upon a court order or official notice—not mere user complaints.

MySpace Inc. v. Super Cassettes Industries Ltd. (2017) – Delhi High Court

• Intermediaries must act expeditiously once they have knowledge of infringing content.
• No obligation to proactively monitor all uploads.

Google India Pvt. Ltd. v. Visaka Industries Ltd. (2020) – Supreme Court

• Platforms cannot claim Section 79 protection if they knowingly fail to act or participate in unlawful dissemination.

Practical Implications

For Platforms:

• Maintain robust takedown mechanisms, legal SOPs, and audit trails.
• Avoid editorial control over user content.
• Respond promptly to official takedown orders.

For Victims of Online Harm:

• File a complaint under Rule 3(2) to the intermediary’s Grievance Officer.
• If unresolved, seek a court order or government notice to enforce content takedown under Rule 3(1)(d).
• Combine with civil or criminal remedies depending on the nature of the harm.

Conclusion

Section 79, read with Rule 3, offers a balanced liability framework in India’s evolving digital landscape. Intermediaries are protected—but only if they are diligent. For affected individuals, Rule 3 creates a formal avenue for redress and makes platforms more responsive and accountable.

As Indian courts continue to develop this jurisprudence, staying legally compliant—and digitally vigilant—is key.

Written by Mento Isac, Advocate & Founder – Mento Associates
Specializing in tech law, online defamation, and corporate litigation.

? mentoissac@mentoassociates.com | ? www.mentoassociates.com

In today’s hyperconnected world, reputations are built—and sometimes destroyed—online. A single tweet, Facebook post, or LinkedIn comment can go viral within hours, leading to serious reputational and financial damage. But what does Indian law say about defamation in the digital space?

What Is Cyber/Online Defamation?

Online defamation, also known as cyber defamation, occurs when defamatory content is published on the internet with the intent to harm someone’s reputation. This includes:

• Social media posts
• Blog articles or comments
• WhatsApp forwards
• YouTube videos or comments
• Online reviews

The impact is swift, far-reaching, and often permanent.

Legal Framework in India

1. Bharatiya Nyaya Sanhita (BNS), 2023

• The BNS replaces the Indian Penal Code from 1 July 2024.
• Section 356 of BNS corresponds to the old Section 499 IPC and defines criminal defamation, including imputation through words, signs, or visible representations.
• Section 357 replaces IPC Section 500 and prescribes punishment up to 2 years imprisonment, fine, or both for criminal defamation.

2. Information Technology Act, 2000

• Although Section 66A was struck down in Shreya Singhal v. Union of India (2015), platforms and intermediaries are still regulated under Section 79, which provides safe harbor if they act promptly on valid takedown requests.

3. Civil Remedies

• Victims may also file civil defamation suits seeking monetary damages and injunctions to restrain or remove defamatory content.

Criminal Prosecution for Online Defamation

Criminal defamation under BNS Sections 356 and 357 remains a powerful remedy for reputational harm—even when it occurs online.

Section 356 BNS – Definition of Defamation

Defamation includes any imputation made by words, signs, or visible representations intended (or likely) to harm a person’s reputation. The ten exceptions from the IPC continue under BNS—truth, public good, fair comment, etc.

Section 357 BNS – Punishment

“Whoever defames another shall be punished with simple imprisonment up to two years, or with fine, or both.”

How to File a Criminal Complaint

1. File a complaint before a Magistrate.
2. Court examines the complainant’s statement and supporting evidence.
3. If a prima facie case is made out, summons are issued.
4. Trial follows under criminal procedure, with burden of proof on the complainant.

Key Case Law

• Subramanian Swamy v. Union of India (2016): Upheld the constitutionality of criminal defamation, affirming the right to reputation as part of Article 21.
• M. J. Akbar v. Priya Ramani (2021): Recognized truth and public good as valid defenses in sensitive, reputationally charged contexts.

Civil Prosecution for Online Defamation

Civil defamation suits focus on damages and content takedown, offering a vital remedy for both individuals and businesses.

Legal Basis

Civil defamation is a tort—a wrongful act leading to reputational harm. The plaintiff must prove:

• A defamatory statement,
• Publication to third parties,
• Actual or presumed harm to their reputation.

Intent is not essential in civil law; even negligent publication may suffice.

Remedies

1. Injunctions (temporary or permanent) to restrain further publication or remove content.
2. Monetary damages for harm and emotional distress.
3. Mandatory injunctions to compel platforms to take down defamatory content.

Case Law on Mandatory Injunction and Takedown Orders

One of the most impactful decisions in this domain is:

Siddharth Vashisht v. Google India Pvt Ltd & Ors., Delhi High Court, 2022

In this case, the court found that once content is judicially declared defamatory, platforms must:

• Remove not only the specific URLs but also mirror and identical content,
• Proactively prevent re-uploads,
• Act under the “actual knowledge” doctrine, making them liable upon court direction or legal notice.

Filing a Civil Suit

• Civil defamation suits must be filed in the District Civil Court having territorial and pecuniary jurisdiction.
• Karnataka High Court does not have original civil jurisdiction, unlike High Courts in Delhi, Bombay, Calcutta, and Madras.
• Plaintiffs in Karnataka must first approach the City Civil Court or District Court, based on where the defendant resides or where the defamatory act occurred.
• A legal notice is often—but not legally—required before filing.
• Courts may grant interim injunctions if urgency and reputational harm are convincingly shown.

Other Important Judgments

• Tata Sons Ltd. v. Greenpeace (2011) – Even satire may be restrained if it damages corporate reputation unfairly.
• Indian Express v. Jagmohan (1985) – Balanced freedom of the press with the right to reputation.

Practical Advice

• Preserve evidence: Screenshots, URLs, and metadata are crucial.
• Act swiftly: Delay can reduce the likelihood of getting interim relief.
• Engage legal help early: Often, a strategic legal notice or mediation can prevent long litigation.

Final Thoughts

Online defamation is no longer a grey area. With clear statutory backing under the Bharatiya Nyaya Sanhita, the IT Act, and strong judicial precedent, victims today have a well-developed legal toolkit. Whether you’re a professional, business owner, or public figure, knowing your remedies can make all the difference in protecting your digital dignity.

Written by Mento Isac, Advocate & Founder – Mento Associates
Advising on digital law, dispute resolution, and corporate litigation across India.

? mentoissac@mentoassociates.com | ? www.mentoassociates.com

The Real Estate (Regulation and Development) Act, 2016 (RERA) was introduced with the objective of protecting homebuyers and promoting transparency, accountability, and efficiency in the real estate sector. One of its most impactful contributions has been the framework it introduced for dispute resolution.

Why Was RERA’s Dispute Mechanism Needed?

Before RERA, real estate buyers often had no choice but to engage in prolonged and expensive litigation in civil courts or consumer forums. Delays in possession, non-compliance with promises, and unclear grievance mechanisms left many buyers vulnerable.

RERA filled this gap by setting up a dedicated redressal mechanism for quick, sector-specific justice.

The Three-Tier Dispute Resolution Mechanism under RERA

1. Real Estate Regulatory Authority (RERA)

• Acts as the first point of grievance redressal.
• Buyers, promoters, or agents can file complaints for delays in possession, non-adherence to project specifications, false advertisements, etc.
• Proceedings are summary in nature with an aim to deliver justice swiftly.

2. Adjudicating Officer (AO)

• Appointed under Section 71 of the Act.
• Specifically empowered to adjudicate compensation claims relating to delay, interest, or loss due to false information or non-performance.

3. Real Estate Appellate Tribunal (REAT)

• Any party aggrieved by an order of the Authority or AO can appeal here.
• The appeal must be filed within 60 days.
• Further appeals lie with the High Court, but only on substantial questions of law.

  Key Benefits of RERA’s Dispute Resolution Framework

• Speedy Resolution: Unlike traditional courts, RERA is designed to handle cases swiftly.
• Specialized Forum: Sector-specific knowledge ensures nuanced and practical decisions.
• Transparency: All decisions are published on the RERA website, enhancing accountability.
• Buyer-Centric Approach: Empowers homebuyers, often the weaker party in the transaction.

Practical Observations

• Many state RERAs have adopted a digital filing system, making the complaint process easier and more accessible.
• However, implementation varies by state — some RERAs are better staffed and more efficient than others.
• Certain grey areas still exist, especially regarding overlapping jurisdiction with consumer forums and civil courts.

 Final Thoughts

RERA has gone a long way in rebalancing the scales of justice in real estate. Its dispute resolution mechanism is far from perfect, but it’s a step toward restoring the trust of the common man in the homebuying process.

As lawyers, developers, or buyers, understanding the nuances of this system is essential not just for compliance but for upholding ethical standards in the industry.

Let’s hope that with time, resources, and consistent policy support, the RERA dispute redressal framework becomes a model of justice delivery in other sectors too.

The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) marked a transformative shift in India’s legal framework for the recovery of non-performing assets (NPAs). It empowers secured creditors, particularly banks and financial institutions, to enforce security interests without the need for court intervention. However, with great power comes necessary checks and balances. This article provides a comprehensive overview of the dispute resolution mechanisms, litigation process, execution proceedings, and possible challenges under the SARFAESI Act.

 The SARFAESI Framework: Key Provisions

1. Section 13(2): Initiation of recovery proceedings by issuing a demand notice to the borrower.
2. Section 13(4): Empowering the creditor to take possession of the secured asset upon default.
3. Section 17: Right of the borrower or aggrieved person to appeal to the Debt Recovery Tribunal (DRT).
4. Section 18: Right to appeal to the Debt Recovery Appellate Tribunal (DRAT).
5. Section 34: Bar on the jurisdiction of civil courts.

 The Borrower’s Right to Challenge

Upon receiving a demand notice under Section 13(2), the borrower has 60 days to repay the dues. If the creditor proceeds under Section 13(4), the borrower or any aggrieved person may file an application under Section 17 before the DRT, challenging the creditor’s action.

Procedure Before the Debt Recovery Tribunal (DRT)

1. Filing Application:
   1. Application under Section 17 to be filed within 45 days of the creditor’s action.
   2. Must be in the prescribed format with supporting documents.
2. Scrutiny and Admission:
   1. Registry checks for compliance; once admitted, the case is listed for hearing.
3. Notice and Reply:
   1. Notice is issued to the creditor to file a reply. The applicant may file a rejoinder thereafter.
4. Interim Relief:
   1. Interim protection (e.g., stay on possession or auction) may be sought. Granting of such relief is discretionary.
5. Hearing and Final Order:
   1. DRT conducts hearings and passes a reasoned order.
6. Timeline:
   1. The Act envisages disposal within 60 days, extendable to 4 months.

Post-Order Scenario: Appeal and Execution

1. Appeal to DRAT (Section 18):

1. Aggrieved parties may appeal within 30 days.
2. Borrowers must deposit 50% of the debt due (reducible to 25% at DRAT’s discretion).

2. Execution of DRT Orders:

1. The successful party may file an execution application under Section 19(22) of the RDB Act.
2. Recovery Officer executes the order through:
   • Possession of assets
   • Auction
   • Attachment of bank accounts or properties

Challenging Execution Proceedings

Affected parties can challenge execution in the following ways:

1. Objection to Recovery Officer:
   • Grounds: Non-compliance with rules, wrong identification of property, procedural lapses.
2. Appeal to DRT (Rule 11, Second Schedule of IT Act):
   • Objections rejected by the Recovery Officer can be appealed before the DRT.
3. Appeal to DRAT:
   • Orders passed during execution proceedings by DRT can be appealed to DRAT within 30 days.
4. Writ Jurisdiction:
   • High Courts may be approached in rare cases involving jurisdictional errors or gross violations of natural justice.

 Role of Civil Courts

Section 34 of the SARFAESI Act bars civil court jurisdiction in matters where DRT/DRAT is empowered to adjudicate. This ensures a streamlined recovery process but restricts broader equitable remedies.

Emerging Trends and Legal Insights

1. Natural Justice: Courts emphasize fair hearing and procedural compliance.
2. NPA Classification Challenges: Courts usually avoid interference unless there’s clear illegality.
3. Third-Party Interests: Increasing disputes involving tenants and bona fide purchasers.

 Strategic Takeaways

1. For Creditors: Ensure due process and documentation to withstand legal scrutiny.
2. For Borrowers: Act within statutory time limits and consult legal counsel promptly.
3. For Buyers in Auction: Conduct thorough due diligence before purchase.

Conclusion

While the SARFAESI Act provides a creditor-friendly mechanism for asset recovery, it also embeds checks to protect borrower rights. Understanding the litigation lifecycle—from initial creditor action to DRT proceedings, execution, and post-order remedies—is critical for all stakeholders involved in financial and recovery litigation.

By appreciating the detailed procedure and rights at each stage, litigants and advisors can navigate SARFAESI-related disputes with greater clarity and strategic foresight.

Arbitration promises a fair, impartial, and efficient resolution of disputes. But what if one party believes that the appointed arbitrator is biased or unqualified?

The Arbitration and Conciliation Act, 1996, as amended by the 2015 and 2019 Amendments, lays down a clear procedure to challenge the appointment of an arbitrator. Here’s a practical guide for legal professionals and businesses alike.

Grounds for Challenge – Section 12(3)

An arbitrator’s appointment can be challenged only if:

• There are justifiable doubts about their independence or impartiality, or
• They lack qualifications agreed upon by the parties.

The Fifth Schedule outlines situations that may raise doubts about impartiality.

The Seventh Schedule lists grounds that render an arbitrator ineligible to be appointed—such as a close relationship with a party or prior legal/business involvement.

Mandatory Disclosure – Section 12(1)

Before appointment, an arbitrator must disclose in writing:

• Any potential conflicts of interest;
• Their ability to complete the arbitration in a timely manner.

Failure to disclose may itself be a ground for challenge.

Challenge Procedure – Section 13

Step 1: File a Written Challenge

• A party must challenge the arbitrator within 15 days of becoming aware of the issue (such as learning about a conflict or the tribunal’s constitution).
• The challenge must include a statement of reasons.

Step 2: Arbitrator’s Decision

• If the arbitrator does not withdraw and the other party disagrees, the tribunal decides on the challenge.

Step 3: If Challenge Fails

• The proceedings continue. The aggrieved party can challenge the final award under Section 34.

De Jure Ineligibility – Section 14

If the arbitrator is disqualified by law (e.g., per the Seventh Schedule), a party can:

Approach the court directly to terminate the mandate—no need to wait for the tribunal’s decision.

Substitution of Arbitrator – Section 15

Once the mandate is terminated, a new arbitrator can be appointed using the original procedure agreed upon by the parties.

Key Case Laws

• TRF Ltd. v. Energo Engg. Projects Ltd.
• Perkins Eastman Architects DPC v. HSCC (India) Ltd.

These judgments have reinforced the importance of impartiality and expanded the grounds for disqualification under the Seventh Schedule.

Conclusion

Challenging an arbitrator is a serious step. While the law protects party autonomy in selecting arbitrators, it equally upholds fairness and neutrality as foundational principles of arbitration. Knowing the procedure can safeguard your interests and ensure confidence in the arbitral process.

The Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is one of India’s most stringent laws, designed to combat drug abuse and trafficking. While the Act’s objectives are laudable, its harsh penal provisions, strict bail regime, and rigorous procedural requirements demand close scrutiny, especially from legal practitioners and rights advocates.

In this article, we highlight the core provisions dealing with arrest, bail, punishment, and the procedure of search and seizure under the NDPS Act.

Definitions: Cannabis, Narcotic Drugs & Psychotropic Substances

A clear understanding of the substances covered by the NDPS Act is foundational:

Cannabis [Section 2(iii)]

Includes:

• Charas: resin or hashish oil.
• Ganja: flowering/fruiting tops (excluding seeds and leaves).
• Any preparations with charas or ganja.

Bhang is excluded unless local state laws specify otherwise.

Narcotic Drugs [Section 2(xiv)]

Includes:

• Opium, morphine, heroin, codeine, cocaine, etc.
• Both natural and synthetic derivatives notified by the government.

Psychotropic Substances [Section 2(xxiii)]

Includes:

• Mind-altering substances like LSD, MDMA, methamphetamine, diazepam, etc.
• Listed in the Schedule notified by the Central Government.

Punishments under the NDPS Act: Quantity Matters

The Act adopts a graded punishment system, based on the type and quantity of the substance:

Quantity	Punishment
Small quantity	Up to 1 year or fine up to ?10,000 or both
More than small but less than commercial	Up to 10 years + fine up to ?1 lakh
Commercial quantity	10–20 years rigorous imprisonment + fine ?1–2 lakh

Common Penal Sections:

• Section 20: Cannabis-related offences
• Section 21: Manufactured drugs (e.g., heroin)
• Section 22: Psychotropic substances
• Section 23: Illegal import/export
• Section 25: Permitting use of premises for offence
• Section 27: Consumption
• Section 27A: Financing illicit traffic and harbouring offenders
• Section 29: Abetment and conspiracy

Section 27A and offences involving commercial quantity attract the heaviest penalties.

What Are Small and Commercial Quantities?

The government notifies specific thresholds. A few examples:

Substance	Small Quantity	Commercial Quantity
Heroin	5 grams	250 grams
Charas	100 grams	1 kg
Ganja	1 kg	20 kg
Cocaine	2 grams	100 grams
LSD	0.1 gram	0.1 gram or more

Quantities in between fall under the intermediate range and invite medium-level punishment.

Search, Seizure, and Arrest: Procedures Must Be Followed

Procedural compliance is the cornerstone of NDPS jurisprudence. The Supreme Court has repeatedly held that failure to follow procedure may vitiate the prosecution.

Section 42: Search in Private Premises

• Officers must record information and reasons in writing, especially for night searches.
• Must be forwarded to a superior officer.

Section 43: Search in Public Places

• Applies to public areas (e.g., railway stations, streets).
• Can be done without a warrant.

Section 50: Personal Search

• The accused must be informed of the right to be searched in presence of a Magistrate or Gazetted Officer.
• Mandatory compliance – non-observance is grounds for acquittal (Tofan Singh v. State of Tamil Nadu).

Section 52: Arrest

• Grounds of arrest must be disclosed.
• The accused and articles seized must be produced promptly before the Magistrate.

Section 57: Reporting

• Arrest and seizure must be reported to the superior within 48 hours.

Courts have held that procedural lapses, especially under Sections 42, 50, and 57, can invalidate the case against the accused.

Bail Under NDPS: A Steep Road

The NDPS Act’s bail provisions, particularly under Section 37, are among the strictest in Indian law, especially for offences involving commercial quantity or under Section 27A.

To grant bail, the court must be satisfied:

1. The accused is not guilty, and
2. The accused is not likely to commit another offence while on bail.

This effectively reverses the presumption of innocence.

Offence	Bailable?	Cognizable?
Small quantity possession (Sec 20, 21, 22)	Yes	? Yes
Commercial quantity or 27A offences	No	? Yes
Consumption (Sec 27)	Yes	? Yes
Abetment/conspiracy (Sec 29)	Depends on main offence	? Yes

Conclusion

The NDPS Act serves an essential function in addressing drug-related offences, but it must operate within the framework of due process and constitutional safeguards. Given the harsh punishments, the non-bailable nature of offences, and the shift in burden of proof, even a minor procedural lapse can become a decisive legal battleground.

As legal professionals, our role is to ensure that:

• Accused individuals are not unjustly deprived of liberty.
• Procedural safeguards are strictly enforced.
• The distinction between drug traffickers and addicts is not blurred.

If you’re a legal practitioner, policymaker, or law student, your views and experiences on navigating NDPS cases—especially relating to bail and procedural compliance—are most welcome. Let’s keep the conversation alive and nuanced.

In recent years, the Enforcement Directorate (ED) has become a prominent enforcement body in India’s fight against economic crime. With growing public attention on money laundering cases and high-profile arrests, it’s important for legal professionals and the public alike to understand the ED’s structure, jurisdiction, and powers — as well as the safeguards that ensure accountability.

1. What is the Enforcement Directorate?

The ED is a specialised financial investigation agency under the Department of Revenue, Ministry of Finance, Government of India. It was originally formed in 1956 to deal with violations of the Foreign Exchange Regulation Act (FERA), 1947.

Today, its main functions stem from two laws:

• Foreign Exchange Management Act (FEMA), 1999 – Civil law focused on foreign exchange violations.
• Prevention of Money Laundering Act (PMLA), 2002 – Criminal law targeting money laundering and financial crimes.

2. What Triggers ED Jurisdiction?

The ED does not act suo motu. It starts investigation only when a predicate offence — known as a Scheduled Offence — is reported.

Sources of case referrals to the ED include:

• FIR or charge sheet by agencies like CBI, State Police, Income Tax Department, Narcotics Control Bureau (NCB).
• Court directives (High Court, Supreme Court) asking ED to investigate.
• Inputs from regulatory or intelligence bodies like FIU-IND, DRI, RBI, or even foreign enforcement agencies.
• Reference from the Central Government, especially the Ministry of Finance.

After assessing such material, the ED may register an ECIR (Enforcement Case Information Report) — the internal equivalent of an FIR.

3. What are Scheduled Offences under PMLA?

Scheduled offences are the underlying crimes that give rise to proceeds of crime and trigger the ED’s powers under PMLA. They are listed in the Schedule to the Act and divided into three parts:

• Part A: Includes serious offences under IPC, NDPS Act, Prevention of Corruption Act, Arms Act, etc. No monetary threshold required.
• Part B: Applies only if the total value involved is ?1 crore or more. Covers select economic offences.
• Part C: Covers transnational and cross-border crimes.

Without a scheduled offence, the ED cannot initiate a PMLA case.

4. ED’s Powers of Investigation

Under PMLA, the ED can:

• Conduct search and seizure operations
• Provisionally attach property suspected to be proceeds of crime
• Summon individuals for evidence under Section 50
• Arrest persons involved in money laundering
• File prosecution complaints before Special PMLA Courts

The ED must place its findings before the Adjudicating Authority and Special Courts established under the Act.

5. Arrest and Bail Under PMLA

Arrest:

Under Section 19 of the PMLA, the ED may arrest a person if there is material evidence and “reason to believe” the person is guilty. The grounds of arrest must be recorded in writing and the individual must be produced before a magistrate within 24 hours.

Bail:

Bail under PMLA is governed by Section 45, which imposes a stricter test:

• The Public Prosecutor must be given a chance to oppose bail.
• If opposed, the court must be satisfied that:
  • The accused is not guilty, and
  • The accused is not likely to commit any offence while on bail.

These are called the “twin conditions” for bail and make release more difficult. However, exceptions apply to minors, women, the infirm, and cases involving less than ?1 crore.

Anticipatory Bail:

While Section 45 of the PMLA applies to regular bail, anticipatory bail (under Section 438 of the CrPC) is not explicitly barred. However, courts exercise great caution in granting it in PMLA cases due to the serious nature of offences. The Supreme Court and several High Courts have held that anticipatory bail is not entirely prohibited but subject to the twin conditions under Section 45.

An anticipatory bail application must be made before a Sessions Court or High Court, and the court may impose stringent conditions such as:

• Depositing passport
• Regular attendance before ED
• Not tampering with evidence

The scope of anticipatory bail remains a contested and evolving area in PMLA jurisprudence.

6. Legal Controversies and Safeguards

Although the ED is a powerful agency, its working has drawn criticism for:

• Non-disclosure of ECIRs to the accused
• Low conviction rates under PMLA
• Allegations of political misuse

In Vijay Madanlal Choudhary v. Union of India (2022), the Supreme Court upheld the constitutional validity of ED powers, including arrest and attachment. However, courts are increasingly scrutinising ED’s actions to ensure procedural fairness.

7. Conclusion: Need for Balance

The Enforcement Directorate plays a crucial role in upholding the integrity of India’s financial system and addressing economic crimes. However, its functioning must be balanced with the principles of natural justice, due process, and judicial oversight.

For lawyers and policymakers, it is vital to ensure that India remains tough on crime — but even tougher on protecting constitutional rights.