Latest news with #VivekNarayanSharma
Time of India
31-05-2025
- Business
- Time of India
Waqf Act amendments: Progress for the community or just optics?
Vivek Narayan Sharma is an Advocate (AOR) at Supreme Court of India with 25 years of core experience in litigation, arbitration, mediation. Known for resolving high-stakes disputes in a quick-time frame & representing industries, business leaders, celebrities, politicos; he also serves as pro bono Lawyer to enhance societal hues & spectrum. LESS ... MORE The recent Union Cabinet decision to amend the Waqf Act, 1995 and repeal the outdated Waqf Act, 1923 has generated both interest and some manufactured outrage. While a few fringe voices attempt to build a narrative of fear and disenfranchisement, a closer look reveals a clear and much-needed reform: one that strengthens the management, transparency, and future security of waqf properties for the benefit of India's Muslim community. The recent reforms also mark a progressive step toward gender justice within the Waqf ecosystem. Firstly, the clarification that Waqf-alal-aulad (waqf created for the benefit of one's own family) cannot be used as a tool to deny inheritance rights to female heirs is a significant legal and moral correction. This addresses a long-standing abuse of the waqf structure, where patriarchal interpretations were often used to sideline women from their rightful share. Secondly, the mandatory inclusion of at least two Muslim women members in both the Central Waqf Council and State Waqf Boards is a critical institutional reform. It ensures not just representation but also voices from within the community that can advocate for education, health, housing, and livelihood rights of Muslim women. These measures together signal a shift from tokenism to tangible empowerment—ensuring that waqf institutions serve all, not just a privileged few. What is Waqf 'Waqf' refers to a permanent dedication of movable or immovable property by a Muslim for religious, pious, or charitable purposes as recognized by Islamic law. Over time, waqf properties have come to constitute one of the largest repositories of Muslim community assets in India. However, with size comes complexity and the governance structures originally designed to administer these assets have struggled with opacity, inefficiency, and sometimes, exploitation. As on today, lakhs of waqf properties are registered across India, including mosques, graveyards, dargahs, educational institutions, and revenue-generating real estate. The estimated value of these properties is in lakhs of crores, yet their actual contribution to the welfare of the Muslim community remains underwhelming due to widespread mismanagement. Why reforms were long overdue The Waqf Act, 1995 was a consolidated legal framework aimed at ensuring uniformity in the administration of waqf properties by establishing State Waqf Boards and the Central Waqf Council. However, in practice, the implementation has been riddled with inefficiencies. Some of the core issues include: Encroachment and illegal occupation of waqf properties due to lack of documentation and vigilance. Inadequate digitization of waqf property records, making them vulnerable to manipulation and misuse. Opaque appointment procedures for Waqf Board members, often dominated by political or familial interests rather than merit. Lack of accountability and audit , leading to financial leakages and corruption. Disputes over waqf status of properties leading to prolonged litigation and social unrest. Addressing the false narrative Certain interest groups and individuals, either out of ignorance or intent, have attempted to stir communal sentiment by suggesting that the amendments would hurt Muslim interests. This is not only legally unfounded but socially dangerous. On the contrary, the proposed amendments are designed to enhance the credibility and utility of waqf institutions, protect waqf properties from exploitation, and allow the Muslim community to benefit from its rightful assets through better educational, economic, and social programs. To illustrate this, one may ask: What is more empowering to the community – a system that hides in the shadows of outdated laws and corrupt practices, or one that embraces modern governance, transparency, and efficiency? The answer is self-evident. Key Features and Merits of the Proposed Amendments Repeal of Waqf Act, 1923 : This archaic pre-Independence law is no longer relevant. Its existence only created confusion in interpretation and duplication with the 1995 Act. Repealing it clears the legislative cobwebs and affirms the primacy of the modern law. Digital Record-Keeping and GIS Mapping : The proposed law aims to mandate end-to-end digitization of waqf properties. This will prevent illegal sales, encroachments, and fraud. A digital registry will also empower the community with access to transparent information. Improved Composition and Functioning of Waqf Boards : Changes are expected in the way members are appointed and decisions are made. Merit and professionalism will be prioritized over influence and legacy networks. This will create a more accountable system. Stronger Mechanisms for Dispute Resolution : The reforms may introduce faster, community-friendly alternatives to long-drawn court battles, ensuring timely justice and fewer inter-generational disputes over property titles. Strengthening of the Central Waqf Council (CWC) : By providing the CWC with enhanced oversight and audit powers, the Centre aims to create a checks-and-balances system that reduces misuse and ensures inter-state coordination. Harnessing Waqf Assets for Developmental Goals : Reforms could unlock the economic potential of these properties by allowing them to be used, leased, or redeveloped for community-beneficial projects—like schools, hospitals, and skill centers—within the bounds of Islamic law. The bigger picture: Reform is respect These steps are not about erasing identity, they are about protecting and honoring the true spirit of waqf: charity, education, and social upliftment. In doing so, the government is recognizing that communities must be empowered through reform, not manipulated through status quo. Lord Krishna in the Bhagavad Gita says, 'Change is the law of the universe. One who resists change is resisting life itself.' This sentiment, echoed in all great religious philosophies, holds especially true for institutions like waqf, which cannot afford to remain frozen in time. To claim that modernization equals marginalization is a dangerous inversion of logic. It is akin to saying a leaking roof must not be repaired because the house is old. What good is heritage if it cannot serve the present and secure the future? A call to the community: Rise above fear, embrace reform The real danger to Muslim waqf institutions is not the government, but those who trade fear for influence. These reform-blockers often have vested interests in the opacity of the system. They are not protecting the community, they are protecting their control over its assets. True leadership lies in empowering the community with clean, audited, and high-functioning institutions. That is precisely what this amendment seeks to do. The future is faith with accountability India is home to one of the largest Muslim populations in the world. Its strength lies in the coexistence of faith and law, tradition and innovation. Reforms to the Waqf Act are not an attack, they are an opportunity. An opportunity to protect legacy, ensure justice, and unlock the potential of community wealth for generations to come. Let us not allow motivated voices to derail a reform that holds the promise of dignity, transparency, and progress for the Indian Muslim community. Let facts, not fear, lead the way. The recent legislative changes offer a promising framework. It is time to rise above politically motivated noise, embrace reform, and ensure that the legacy of waqf becomes one of hope, progress, and dignity – not just for Muslims, but for the Indian nation as a whole. Facebook Twitter Linkedin Email Disclaimer Views expressed above are the author's own.
Time of India
10-05-2025
- Business
- Time of India
Supreme Court's Bhushan Steel verdict exposes systemic rot but leaves the IBC's future hanging
Vivek Narayan Sharma is an Advocate (AOR) at Supreme Court of India with 25 years of core experience in litigation, arbitration, mediation. Known for resolving high-stakes disputes in a quick-time frame & representing industries, business leaders, celebrities, politicos; he also serves as pro bono Lawyer to enhance societal hues & spectrum. LESS ... MORE 'When the insolvency process becomes a comedy of errors, it takes a Supreme Court Bench to remind everyone that the Code is not a joke.' Shaking Investor's confidence and triggering Legal and Economic aftershocks, in a watershed judgment, the Supreme Court of India struck down the Resolution Plan of JSW Steel for Bhushan Power and Steel Ltd. (BPSL), declaring it illegal and fundamentally flawed under the Insolvency and Bankruptcy Code, 2016. The Court not only ordered the initiation of liquidation proceedings under Section 33 but also invoked its extraordinary powers under Article 142 of the Constitution. This decision, though legally well-reasoned, casts a long shadow over the credibility of India's insolvency regime. Illegalities at every stage The Court's findings are an unflinching mirror to the systemic failures within the Corporate Insolvency Resolution Process (CIRP). The Resolution Professional (RP) failed in discharging even the basic statutory duties, from not verifying JSW's eligibility under Section 29A to ignoring procedural mandates such as timely application under Section 31 or investigating avoidance transactions. The RP also failed to seek extensions under Section 12, nor did he alert the Committee of Creditors (CoC) about the expiration of the 180-day timeline. JSW's Resolution Plan, as eventually submitted and approved by the CoC, flouted several binding norms under the IBC and CIRP Regulations. Most glaring was the Plan's structure, use of Optionally Convertible Debentures (OCDs), which effectively diluted creditor rights and failed to treat operational creditors equitably under Section 30(2). Worse, JSW concealed its connection to the erstwhile promoters of BPSL, breaching Section 29A. Yet, the CoC exercised what it termed 'commercial wisdom' to approve a non-compliant Plan riddled with violations. The Supreme Court rightly noted that this approval was devoid of scrutiny and rendered the entire process vitiated. Adding to the concern, JSW delayed the upfront payment of Rs19,350 crore by nearly two years, while conveniently benefiting from a favourable steel price cycle. A deep rot in the system This is not merely a case of a defective resolution plan. It is a case study in institutional compromise. The Resolution Professional acted more as a passive bystander than a statutory officer. The CoC, far from being a sentinel of creditor interests, capitulated to a flawed plan and later defended it in Court with shifting arguments. The NCLT and NCLAT, expected to be guardians of due process, failed to check even the most basic procedural violations, including eligibility criteria, payment timelines, and the resolution applicant's bona fides. This judgment is, at its core, a searing indictment of the rot in the insolvency ecosystem. It underscores the urgent need for accountability mechanisms. Serious penal action under Section 74(3) of the IBC must be initiated against erring professionals and CoC members whose conduct has undermined the sanctity of the insolvency regime. The use and limits of Article 142 The Court invoked Article 142 to direct BPSL's liquidation. While this may be legally tenable, one is compelled to ask: could this power have been better used to restore legality without derailing an otherwise successful business revival? Substantively, JSW has already paid substantial sums to creditors, restarted operations, and brought BPSL back into the industrial fold. Was it not possible to preserve this progress by correcting procedural anomalies, imposing penalties, or directing compliance retrospectively? Couldn't the Court have modified the Plan to align with the IBC instead of nullifying it entirely? This verdict may inadvertently send a chilling message to global investors that in India, even resolution plans implemented over 7- 8 years may be overturned due to procedural infirmities, regardless of real-world success. With the world watching India's insolvency ecosystem as a key plank in its 'ease of doing business' pitch, the implications are serious. The devil's advocate – A ray of hope for creditors? To be fair, one must also present the contrarian view, especially from the standpoint of creditors. If the liquidation proceeds successfully, they may actually stand to gain more. Market analysts estimate BPSL's asset base at around ₹40,000 – ₹50,000 crore. If this valuation is realised, creditors could receive 200% to 250% of what they were to get under JSW's Resolution Plan. That said, liquidation is a gamble. The very purpose of the IBC is to preserve going concerns, not dismantle them. Whether the market's optimism about BPSL's liquidation value is justified remains to be seen. A hard lesson in governance The Supreme Court's judgment is undoubtedly a landmark, it lays bare the decay within the processes of CIRP, from regulatory evasion to judicial oversight failure. It is a clarion call to reinforce discipline, transparency, and accountability. Yet, the Court's choice to liquidate rather than rectify may prove to be a double-edged sword. In a globalized economy, where legal certainty is paramount, the message this sends could be one of unpredictability. Investors and lenders might justifiably worry about finality in Indian insolvency resolutions. The BPSL case will now be remembered not only for exposing systemic lapses but also for reopening the debate on whether the cure i.e. liquidation, might sometimes be worse than the disease. Going forward, regulators, courts, and insolvency professionals must introspect deeply. The system can ill afford another such collapse from within. Should you have any queries or require further clarification on the implications of this judgment or the insolvency framework in general, you may write to me at narayan@ Facebook Twitter Linkedin Email Disclaimer Views expressed above are the author's own.
Time of India
03-05-2025
- Business
- Time of India
‘Trimming the edges, not redrawing the canvas' – Supreme Court on award modification
Vivek Narayan Sharma is an Advocate (AOR) at Supreme Court of India with 25 years of core experience in litigation, arbitration, mediation. Known for resolving high-stakes disputes in a quick-time frame & representing industries, business leaders, celebrities, politicos; he also serves as pro bono Lawyer to enhance societal hues & spectrum. LESS ... MORE In a far-reaching Constitution Bench decision delivered on April 30, 2025, the Supreme Court has put to rest the longstanding controversy over whether Indian courts can modify arbitral awards under the Arbitration and Conciliation Act, 1996. The five-judge bench, led by Chief Justice Sanjiv Khanna, has clarified that courts have a limited and carefully circumscribed power to modify arbitral awards under Sections 34 and 37 of the Act, thus striking a balance between minimal judicial interference and complete justice in the arbitration regime. The core controversy The fulcrum of the debate revolved around the interpretative vacuum in Section 34 of the 1996 Act, which permits courts to 'set aside' an award but does not explicitly authorize its 'modification.' Over the years, conflicting judgments emerged. Some benches strictly held that courts had no power to modify (notably Project Director, NHAI v. M. Hakeem), while others endorsed partial modifications, especially regarding interest rates and quantum adjustments, to prevent unjust outcomes (Vedanta Ltd. v. Shenzen Shandong, Tata Hydro-Electric, etc.). The key questions answered The Bench framed and decisively addressed the following questions: 1. Can courts modify an arbitral award under Section 34? 2. If yes, under what conditions is this permissible? 3. Do doctrines like severability and implied powers justify such judicial actions? I. Jurisdictional empowerment to modify arbitral awards The core question before courts and commentators has been: Do Indian courts have jurisdictional power to modify arbitral awards under the Arbitration and Conciliation Act, 1996 ('1996 Act')? While the Act does not explicitly confer modification powers under Section 34, judicial interpretation has explored whether such a power may be implicitly located within the scheme of the Act, especially when required to uphold justice without usurping arbitral autonomy. II. Judicial divergence on the power to modify Over the years, judicial opinion on this subject has evolved. The prevailing view had been that Section 34 is not appellate in nature and courts are restricted to setting aside awards on specific statutory grounds. However, a nuanced approach has emerged, recognizing that courts may, in limited cases, modify an award, particularly when dealing with clerical, computational, or typographical errors. Such modifications are not to be confused with appellate review under Order XLI of the Civil Procedure Code. Rather, they are procedural corrections that do not disturb the substantive findings or reasoning of the arbitral tribunal. III. Difference between setting aside and modification The distinction between setting aside and modification is both doctrinal and functional. Setting aside an award entails nullifying it wholly or in part, effectively erasing its legal consequences. Modification, on the other hand, involves altering a portion of the award while retaining the rest making it a less intrusive and more calibrated judicial remedy. Justice K.V. Viswanathan (in his partial dissent in the Constitution Bench judgment) emphasized this distinction, noting that while modification is impermissible in substance, severance – which involves judicial pruning of the award – remains permissible. IV. Concerns of judicial overreach Permitting modification raises concerns over judicial encroachment into the merits of the dispute, undermining the legislative intent of minimal court interference under the 1996 Act. The Act's objective is to foster finality and party autonomy in arbitration, discouraging court-driven alterations based on subjective reassessment of facts or merits. V. Section 34 and the scope for limited modification Despite the absence of explicit language, a narrow window of modification may be inferred under Section 34, provided: a. The modification does not violate the textual guardrails of Section 34; b. It is not premised on a re-evaluation of factual findings or merits; c. It involves severance of parts of the award that are clearly unsustainable. This construction avoids conflating the Section 34 jurisdiction with appellate jurisdiction and adheres to the principle of non-interference with arbitral merits, while still allowing courts to avoid unjust consequences flowing from inadvertent errors. VI. Interplay with Sections 33 and 34(4) The judgment also considered the relevance of Sections 33 and 34(4) of the Act. Section 33 permits the arbitral tribunal to rectify errors, interpret specific parts of the award, or issue additional awards. Section 34(4) allows courts to adjourn proceedings and give the arbitral tribunal an opportunity to eliminate grounds for setting aside the award. The argument that Section 33 and Section 34(4) occupy the field of award correction does not entirely oust the court's inherent power under Section 34 to rectify non-merit based, manifest errors. Courts have residual authority to prevent injustice arising from obvious mistakes, especially where arbitral correction has not been triggered or is no longer available. VII. The doctrine of inherent and implied powers Relying on Grindlays Bank Ltd. v. CGIT, the Court held that every court or tribunal has incidental and ancillary powers to perform its functions effectively. This includes correcting inadvertent errors, which is procedural in nature and does not amount to review on merits. This jurisprudence supports the existence of inherent judicial powers under Section 34, not to modify awards substantively, but to rectify procedural or technical oversights, and ensure justice is not sacrificed at the altar of technical finality. VIII. The doctrines of severability and implied power The judgment also reaffirmed the importance of the doctrines of severability and implied power. Severability permits courts to strike down only those parts of an award that are legally unsustainable, while preserving the rest. In practice, this results in a limited form of modification, albeit under a different label. The doctrine of implied powers, on the other hand, supports the view that courts must be allowed to ensure that legislative intent is not frustrated merely because the statute does not expressly provide for every eventuality. Both doctrines work in tandem to ensure that arbitral awards do not become instruments of injustice due to formalistic constraints. IX. Section 152 CPC as a comparative anchor Under Section 152 of the Code of Civil Procedure, courts may correct clerical or arithmetic mistakes or accidental slips. Analogously, the Section 34 court, although not an executing court, functions within a special statutory framework, and similar limited corrective powers can be inferred to preserve judicial efficacy and avoid injustice. Closing thoughts The 2025 Constitution Bench judgment may well become a turning point in Indian arbitration law. It embraces realism without sacrificing principle, offering a pragmatic route to avoid injustice without undermining arbitral autonomy. In the wake of this decision, it is now for parliament, arbitral institutions, and drafting professionals to integrate this judicial evolution into clearer statutory frameworks and better-crafted arbitration clauses. India's aspiration to become an international arbitration hub demands not just speed and autonomy, but a justice system agile enough to course-correct when fairness demands. This judgment is a confident step in that direction. While Indian courts lack a broad jurisdiction to modify arbitral awards, a limited power of correction and severance exists under Section 34. The distinction between modification of substance and rectification of form is vital. Courts must walk a fine line i.e. correcting what is manifestly wrong, while never rewriting the arbitrator's intent or revisiting the merits. This balanced interpretive approach honors both judicial responsibility and arbitral sanctity under the 1996 Act. Facebook Twitter Linkedin Email Disclaimer Views expressed above are the author's own.
Time of India
22-04-2025
- Politics
- Time of India
Separation anxiety: SC's governor ruling and the broken compass?
Vivek Narayan Sharma is an Advocate (AOR) at Supreme Court of India with 25 years of core experience in litigation, arbitration, mediation. Known for resolving high-stakes disputes in a quick-time frame & representing industries, business leaders, celebrities, politicos; he also serves as pro bono Lawyer to enhance societal hues & spectrum. LESS ... MORE A Constitutional Crossfire In a political climate where outrage is currency and discourse has become a gladiator sport, the recent Supreme Court judgment on the role of Governors in Indian states has ignited a firestorm. Some of it deserved, much of it disturbingly disrespectful. Let's be clear that the criticism of judgments is not only permissible, it's vital in a constitutional democracy. But in this age of hashtags and heat, the dignity of disagreement is fast disappearing. As a legal professional committed to both constitutional integrity and institutional balance, I find myself navigating dual discomforts, one, the content of the judgment, and, second, the conduct of its criticism. The Heart of the Matter The Supreme Court's pronouncement, while well-intentioned in its attempt to curb political misuse of gubernatorial powers, appears to slide into territory constitutionally reserved for the executive and legislature. It casts a long shadow over the doctrine of separation of powers – a principle not just etched into our constitutional conscience but vital for the functioning of our federal structure. The role of the Governor, historically rooted in discretion yet bound by constitutional morality, is not meant to be judicially micromanaged. The Court's detailed directives, bordering on the prescriptive, could be perceived as judicial overreach, an intrusion into the political thicket it usually seeks to avoid. Are we heading towards a judiciary that increasingly interprets, intervenes, and ultimately imposes? One may question, 'Whether the Supreme Court, in trying to restrain arbitrary action, ended up expanding its own discretion? Irony, after all, is not always poetic, it can also be constitutional. A dissent without Decency Yet, for all its debatable merit, the judgment deserves to be challenged with substance, not slander. What we are witnessing instead is an all-too-familiar descent into personal attacks, mocking memes, and ideological slurs. This is not critique, it's combat theatre. We forget that the judiciary, unlike the political class, cannot reply with press conferences or TV debates. It can only speak through its judgments. The robe, unlike the kurta, comes without a mic. As students of the Constitution, as officers of the court, and more importantly, as citizens, we must protect the sanctity of the dialogue. We can dissect reasoning, challenge precedent, and even demand review, but let us not vandalize the idea of justice with our vocabulary. Method in the Madness There is a method to every institution's mandate. The Governor's discretion must be exercised within constitutional bounds. But those bounds are meant to be checked through political accountability and legislative response, not judicial substitution. What the judgment perhaps missed is the nuanced dance of democracy – a Governor's act, even if controversial, must be tested by political consequence, legislative resistance, or administrative remedy. A courtroom cannot always substitute the corridors of power. This does not mean the judiciary must abdicate. It means it must calibrate. The Court has, in the past, risen to moments of great constitutional challenge with visionary clarity, be it Kesavananda Bharati or the S.R. Bommai case and other such constitution-politics overlapping cases. It must now revisit that clarity, not cloud it with activism disguised as adjudication. Let's Criticize Like Constitutionalists To critique the Court is not to demean it. To defend its dignity is not to accept its every decree. We must remember that the strength of our republic lies not just in robust institutions but in responsible citizens. This is not a call for silence. It is a call for civility. Let our pens be sharp, but not shallow. Let our arguments sting, not stab. And let our dissent be deliberate, not destructive. For the Constitution is not just a book of rules, it is a culture of respect and a way of life for every Indian. Time to Revisit the Governor Verdict: A Case for Constitutional Review In my view, the Supreme Court's recent judgment on the role of Governors warrants a thorough review and reconsideration by a Constitution Bench. The ruling raises several constitutional concerns that merit judicial introspection. Withholding of Assent and Reservation for the President: The Court held that the Governor's act of reserving re-enacted bills, without amendments, for Presidential assent was illegal. In paragraph 211, it declared such action as void ab initio, since the bills were reconsidered by the legislature and presented without change. However, this reasoning appears flawed. The Court drew a distinction between amended and unamended bills for the purpose of Presidential reservation. Such a distinction finds no support in Article 200 of the Constitution. The provision makes no such categorization, and this interpretive innovation creates grounds for a robust constitutional review. Judicial Timelines for Executive Action: The Court, in In paragraph 250, has imposed rigid timelines, mandating that Governors act on bills within one month and the President decide within three months. These timelines, enforced through Article 142, are significantly inspired by practices in Pakistan. However, drawing parallels with Pakistan—a nation widely seen as struggling with constitutional stability and the rule of law—is contextually misplaced and constitutionally unsound. India, as a mature constitutional democracy governed by the rule of law, cannot borrow precedents from jurisdictions where democratic institutions remain fragile. Moreover, using Article 142 to legislate timelines for executive action, without constitutional amendment or parliamentary debate, stretches judicial authority and disrupts the careful equilibrium between the branches of government. This overreach alone is a compelling ground for review by a Constitution Bench. While judicial efficiency is desirable, prescribing legislative or executive timelines under judicial authority treads dangerously close to rewriting constitutional architecture. This is a strong ground for seeking reconsideration. Limitation on Governor's Powers: The Court rightly clarified that a Governor cannot exercise a 'pocket veto' under Article 200. This reading aligns with the constitutional scheme and is welcome. Article 142 and Separation of Powers: The Court also invoked Article 142 to declare that ten bills had become law from the date they were originally presented. While such power exists for doing 'complete justice,' its use here arguably infringes the doctrine of separation of powers. The judiciary cannot assume legislative functions under the guise of constitutional correction. This judgment, while aiming to uphold constitutional discipline, inadvertently disturbs the federal balance by excessively narrowing the discretionary space of Governors. While it seeks to curb misuse, it may also constrain legitimate executive functions. While the Parliament need not amend Articles 200 or 201 immediately, there is a strong likelihood that this judgment will be stayed and referred to a larger bench. If not, legislative intervention may become necessary to prevent distortions in the functioning of the executive and Parliament. In sum, the judgment is well-meaning but constitutionally debatable. It's a perfect candidate for respectful legal review, not political mockery. Facebook Twitter Linkedin Email Disclaimer Views expressed above are the author's own.
