Constitutionality of Insolvency and Bankruptcy Code 2016

The Insolvency and Bankruptcy Code 2016 (the ‘Code’) gives the lenders with an entire declare healing of dues from defaulters. While many questions arose to the constitutional validity of the Code had been raised through numerous stakeholders from time and again. This Article talks approximately the way it’s been alleged that the Code violates Article 14 of the Constitution of India and is discriminatory, and also the Judgement of the Supreme Court at the constitutionality of the code.


The Insolvency and Bankruptcy Code 2016[i] (the ‘Code’) gives the lenders with a whole account healing of dues from wilful defaulters. While this regulation has been handling teething problems and inconsistencies from its inception, the proactive technique of the authorities during amending this liquidation regulation once in a while has caused its vast implementation.

like all sparkling regulation, problems relating to the constitutional validity of the Code had been raised through numerous stakeholders from time and again. It’s been alleged that the Code violates Article 14[ii] of the Constitution of India and is discriminatory. in an exceedingly plethora of programs made to numerous National Company Law Tribunals (‘NCLT(s)’) and High Courts, the operational lenders have claimed that the category of lenders as operational lenders and money lenders is glaringly arbitrary and there could also be no intelligible differentia implemented through the legislators in making this type of demarcation.

Furthermore, withinside the aftermath of the 2017 Amendment of the Code which became within the end amended through the 2018 Amendment of the Code, every other provision that caused huge hue and cry became the bar placed on promoters from bidding for his or her organization beneath Section 29A.

The Code compelled the sale of the corporate to new bidders and have become argued to be a con to the essential proper of the promoters. Additionally, every other declare relating to the inequitable nature of Section 29A became raised and it became argued that the exclusion of the relative of an ineligible person, who’s in the other case certified to be the choice applicant is very capricious.

Responding to a sequence of petitions that had challenged the constitutional validity of various provisions of the Code, the Supreme Court (‘Court’) withinside the case of “Swiss Ribbons Private Limited and Anr v. Union of India and Ors[iii] (Bench comprises of F Nariman and Hon’ble Mr. Justice Navin Sinha) upheld the validity of the Code in its entirety laying relaxation to numerous problems which arose due to the departure of the Code from preceding insolvency laws. The Court, taking the notion from the choice in Bhavesh D. Parry v. Union of India[iv] became of the view that – ‘topics of coverage are excellent left to the knowledge of the legislature, and in coverage topics, the regular precept is that the courts must now not interfere’.

The judgment handled vast problems relating to the admission technique, loss of participation of operational lenders withinside the Committee of Creditors (‘CoC’) and therefore the bar placed on the defaulting promoters and their spouse and youngsters from collaborating withinside the choice plan, all of which considerably modified the style the insolvency regulation operated in our country. The Court made numerous observations in reaction to the arguments positioned forth through the petitioners[v].

Analysis drawn through the Court pertinent to their ruling is as follows

Classification of Creditors

The petitioners had contended that money lenders and operational lenders furnished cash to the debtor both in phrases of monetary help or items respectively. The category among them makes no actual distinction in phrases of the item to be finished through the Code that’s, both an insolvency decision plan or liquidation as a quit result. The petitioners had argued that although the Court believes that they exist a logical difference among the two varieties of creditors, the operational creditors are discriminated against and are forbidden hostilely.

The Court discovered that there could also be a current intelligible differentia among the two creditors which directly pertains to the item sought to be attained beneath the Code.

The key observations made through the Court are –

(i) monetary lenders have secured lenders and operational creditors are unsecured creditors as a charge for items to the operational creditors isn’t secured through loan documents;

(ii) the quantum of money due to the operational lenders is appreciably much but the debts to the monetary creditors;

(iii) compensation of debt to a monetary creditor is ready beneath numerous schedules and default responsible draws the penalty and a comparable state of affairs does now not exist for operational creditors; and

(iv) the monetary creditor is required to point out lifestyles of default through the debtor while the operational creditor claims his proper of charge.

The Court additionally analyzed the function performed through the two sets of creditors in furtherance of the Code. Basis its observation, the Court stated that the absence of operational creditors withinside the CoC includes a legitimate foundation and is not violative in their rights. The viability and feasibility of the commercial enterprise of the corporate debtor are substantially assessed through the monetary creditors whilst supplying the debt and they are in a very higher role to assess the choice plan compared to the operational lenders explaining their presence withinside the CoC.

Therefore, upkeep of the corporate debtor as a going problem whilst ensuring most healing for all creditors being the underlying aim of the Code there exists sizeable distinction among monetary creditors and operational creditors, and also the operational creditors aren’t discriminated con to beneath the Code.

The Validity of Section 29A[vi]

Furthermore, a four-fold competition con to the validity of Section 29A became heard through the Court. In its findings, the courtroom docket stated the following.

(i) Vested rights of promoters to require part withinside the healing technique of a corporate debtor had been impaired through the retrospective utility of Section 29A;

(ii) Further, an erstwhile promoter who might also outbid all different candidates and may be capable of formulating the most complete decision plan is saved out of the technique;

(iii) Also, men and girls account are often labeled as a non-appearing asset (NPA) despite him now not being a wilful defaulter;

(iv) Lastly, the spouse and youngsters of the promoters who’re withinside the eligibility standards are barred from collaborating withinside the choice technique.

The Court discovered that it’s miles settled regulation that a statute isn’t retrospective just because it’s a control on current rights or because of the fact a part of the necessities for its movement is drawn from a time antecedent. There exist no vested rights of participation in any decision applicant and also the equal is also connoted to the many rejections of such decision programs thanks to the loss of feasibility. With appreciation to the participation of the relative of an ineligible person, the Court pointed that if it is not proven that such ‘associated person’ is attached with the commercial enterprise of the pastime of the chosen applicant, he can’t be excluded beneath Section 29A(j). Therefore, Section 29A is constitutionally legitimate and has relevance in its entirety[vii].

Section 12-A[viii] upheld the applicable competition con to Section 12A became that approval of 90 percent of the CoC is required to allow withdrawal of a petition made beneath Section 7 or 9 of the Code. The Court discovered that this threshold has been substantiated withinside the Insolvency Law Committee Report as withdrawal could be a prime selection and incorporate vast deliberation. Also, the Code assigns the NCLT with the function to finalize such withdrawal. this implies that the CoC does now not have the ultimate say and thus, this provision passes the constitutionality test to require a glance at.

Case Laws

Basant Kumar Sarkar v. Eagle Rolling Mills[ix]

The concept of putting provisions a bit like Section 1(3) of the IBC is to allow the legislature to formulate an exhaustive and an entire scheme of regulation in an exceedingly specific issue count after which leaving it to the applicable authorities to see while, how and in what way must the scheme be added. This view became supported through the choice of the Supreme Court during this situation and on this, the constitutionality of code became additionally questioned.

Anand Kumar Bindal v. Employees’ State Insurance Corporation[x]

In this situation, the Petitioner had challenged a notification that disbursed the provisions of Chapter VA of the ESI Act for the district of Saharanpur. It became the Petitioner’s competition that Section 1(3) of the ESI Act became arbitrary because it gave the govt. unfettered powers to use exceptional provisions of the ESI Act in a very discriminative fashion. The principal complaint of the Petitioner became that Chapter VA of the ESI Act became notified for the Saharanpur district while Chapters IV and V are notified for various districts however now not for Saharanpur.

Biswambhar Singh v. the State of Orissa[xi]

Th SC during this situation additionally during which a comparable mission became delivered in the context of Section 1(3) of Orissa Estates Abolition Act, 1892. Even during this situation, the Supreme Court whilst rejecting a mission-based totally out of Article 14 of the Indian Constitution, had held this type of provision can’t be taken into consideration discriminatory farewell because the legislative discretion is exercised withinside the contours of the item of the statute.


Conclusively, Justice Nariman whilst penning the choice said that, ‘the test contained withinside the Code passes the constitutional muster’. The judgment reiterates the contribution of the Code in growing the float of monetary useful resource to the economic region in India thanks to compensation of monetary money owed. It additionally promotes moral practices and is taken into consideration as a landmark step closer to a better national economy improving the fee of healing of cash owed withinside the country.


  • 1. Is there an entire bar at the initiation of insolvency complaints?
  • 2. What can be the length of the suspension and from what date does the suspension get force?
  • 3. Can insolvency complaints be initiated after the fruits of the suspension duration in appreciate of defaults that befell within the course of the suspension duration?
  • 4. What could be the destiny of the programs which may be pending before the NCLT?
  • 5. Can an innovative utility be filed sooner than the NCLT for defaults which have befallen previous 25.03.2020?
  • 6. Does the modification defend money owed which are incurred within the course of the suspension duration?

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