The Arbitration and Conciliation (Amendment) Ordinance, 2020, (“Ordinance”) promulgated recently is best described as bitter-sweet. On one hand, it has substituted section 43J of the Arbitration and Conciliation Act, 1996 (“Act”) by noting that the “qualifications, experience and norms for accreditation of arbitrators shall be such as may be specified by regulations.” Consequently, the Eighth Schedule of the Act has been omitted. While stipulations in the Schedule, as regards minimum qualifications and eligibility requirements for arbitrators, were perhaps necessary, this Schedule was subject to rigorous academic debate inter-alia for taking-away party autonomy in relation to appointment of foreign arbitrators in India-seated arbitrations. Notably, section 43J and the Eight Schedule had been introduced only in 2019 with a view to make India a hub of domestic and international arbitration and for the faster resolution of commercial disputes. The stipulations perhaps didn’t help.
On the other hand, the Ordinance has reversed the effect of the 2015 amendments to the Act which had done away with the automatic stay on enforcement of arbitral awards upon a challenge being made under section 34 of the Act. Most certainly, a regressive step, the Ordinance has inserted a further proviso to section 36(3) of the Act, by which an award shall be “unconditionally” stayed pending disposal of the challenge under section 34, “where the Court is satisfied that a prima facie case is made out, (a) that the arbitration agreement or contract which is the basis of the award, or (b) the making of the award, was induced or effected by fraud or corruption.” To avoid the flurry of litigation, that had followed the 2015 amendment, the Ordinance clarifies that the proviso shall be retrospective in nature and shall be applicable to “all court cases arising out of or in relation to arbitral proceedings, irrespective of whether the arbitral or court proceedings were commenced prior to or after the commencement of the Arbitration and Conciliation (Amendment) Act, 2015.”
The insertion of this proviso raises many legal questions foremost being that could not the relief which the proviso seeks to provide be achieved without the Ordinance?
Let us begin by examining fraud which is defined under section 17 of the Indian Contract Act, 1872 (“Contract Act”) and section 447 of the Companies Act, 2013. Both these sections provide an inclusive definition which encompasses acts of deception, concealment of facts, and inducement with the intent of wrongful gain or causing wrongful loss. Additionally, per section 19 of the Contract Act, any party whose consent to an agreement was caused by such fraud may, at such party’s option, deem such agreement to be void and thus, such party would not be obligated to perform its obligations under the said agreement. Similar protection is also afforded under section 18 of the Specific Relief Act which provides for exceptions to performance in cases of fraud, mistake of fact or misrepresentation.
In such case, if a dispute were to arise between the parties, and if such agreement were to include an arbitration clause, the parties would, likely, proceed to have the same resolved through arbitration. During the arbitral proceedings the party raising the issue of fraud simpliciter or corruption in inducement of the contract or the arbitration agreement could plead the same before the tribunal, which can adjudicate on the same.
At the same time, one shouldn’t lose sight that the Supreme Court in A. Ayyasamy v. A Paramasivam & Ors. held that a reference to arbitration may be refused by the Court if (i) the Court finds serious allegations of fraud which virtually make a case of a criminal offence, (ii) where the allegations of fraud are so complicated that it becomes essential that such complex issues can be decided only by civil court on appreciation of voluminous evidence, (iii) where serious allegations of forgery/fabrication of documents in support of the plea of fraud.
If, however, the tribunal determines the arbitration agreement or contract was not induced or effected by fraud or corruption, then the tribunal would adjudicate the dispute and eventually pass an award. In such instance, it is still open to the aggrieved party to challenge the award under section 34(2)(a)(ii) of the Act, and also under section 34(2)(b)(ii) as it would be open to such party to contend that the award is in conflict with the public policy of India. Thus, again, to this extent, the existing provisions covered such situations.
But where the plea of fraud or corruption has been refused by the arbitral tribunal after evaluating the material produced before it, then will not the Court hearing challenge to the award be reappreciating the evidence contrary to the law as enumerated by the Supreme Court in the celebrated decision of Associate Builders v. DDA which has stipulated that the Court cannot sit in appeal over the award by reassessing or reappreciating evidence? This principle now forms the bedrock of multiple subsequent decisions of the Supreme Court such as Ssangyong Engg & Construction Co. Ltd. v. NHAI and Parsa Kente Collieries Ltd. v. Rajasthan Rajya Vidyut Utpadan Nigam Ltd. In fact, post the 2015 amendment to the Act, section 34 has been amended to preclude a review on merits or reappreciation of evidence. It, therefore, begs the question- how is the Court to establish, even prima facie, that there was any fraud? Will this not, therefore create an anomalous situation for Courts who cannot look beyond the arbitral record or review the case on the merits of the dispute, including on the ground of an erroneous application of the law?
Even prior to the Ordinance, in every situation it would be open to a party to seek a stay, subject to such conditions as the Court may deem fit, under section 36(3) of the Act, subject to satisfying the Court that a prima facie case is made out. Therefore, would not the extent provisions, prior to the Ordinance, have adequately protected the party seeking a stay on an award’s enforcement? Interestingly enough, the Court whilst determining whether to grant such stay would of course need to take a prima facie decision.
The above analysis now takes us to the point reiterated by the Supreme Court that fraud itself is not always possible to establish by positive and tangible proof, as by its very nature it is secretive, and in most cases circumstantial evidence is the only way to establish the existence of fraud. In the Alva Aluminium Limited, Bangkok v. Gabriel India Limited, judgment the Supreme Court has held that a heavy duty lies upon a party who wishes to rescind a contract on the ground of fraud, and not just does the fraud need to be specifically pleaded, but the fraud shall also have to be established on the entire bundle of facts. In the context of arbitrations, the Supreme Court recently held in Avitel Post Studioz Limited v. HSBC PI Holdings (Mauritius) Limited, that serious allegations of fraud only arise if the following two test are satisfied: “The first test is satisfied only when it can be said that the arbitration clause or agreement itself cannot be said to exist in a clear case in which the court finds that the party against whom breach is alleged cannot be said to have entered into the agreement relating to arbitration at all. The second test can be said to have been met in cases in which allegations are made against the State or its instrumentalities of arbitrary, fraudulent, or malafide conduct, thus necessitating the hearing of the case by a writ court in which questions are raised which are not predominantly questions arising from the contract itself or breach thereof, but questions arising in the public law domain.”
More recently, in Deccan Paper Mills Co. Ltd. v. Regency Mahavir Properties & Ors., the Supreme Court clarified the question of arbitrability of disputes involving allegations of fraud and reiterated its previous view that if the dispute between parties fell within section 17 of the Contract Act, or involved fraud in the performance of the contract amounting to deceit, such would be a civil wrong and would be arbitrable. Furthermore, simply because a particular transaction may have certain criminal elements, it would not ipso-facto mean that the subject-matter thereof is non-arbitrable.
Regrettably, the Ordinance does not provide any checks and balances against unscrupulous litigants from repeatedly raising the plea of fraud or corruption with a view to escape their obligations. Of course, the burden of proof would always be on the party alleging fraud or corruption, and in the case of multi-member tribunals this burden would be more onerous. However where the tribunal consists of a sole arbitrator, false pleas of corruption are likely to be taken thereby tarnishing the very basis that arbitration rests upon- a voluntary, binding, speedy and cost effective dispute redressal mechanism. One way to ensure that such a situation is avoided is to devise a system of deterrence- primarily through a regimen of imposing heavy costs against those who take mischievous pleas. Section 31A of the Act empowers the arbitrators in this regard.
As detailed above, sufficient provisions existed for an award debtor to approach the Court under the pre-Ordinance regime for seeking stay of the arbitral award if it could be demonstrated that there existed a case of fraud or corruption. The Ordinance and the re-introduction of a provision of automatic stay, has once again taken the law of arbitration back to the pre-2015 Amendment scenario, where upon an automatic stay being granted, the award holder would continue to have to await the disposal of the challenge to the award before being able to enjoy the fruits of the award. Also, will not the stay of an award “unconditionally” create its own challenges especially in situations where the Court while disposing off a section 34 challenge holds that no fraud, as alleged, is made out?
As observed, “the dispute resolution process has a huge impact on the Indian economy and global perception on “doing business” in India.” The current government is keen to push our nation to achieve the goal of becoming a hub for international commercial arbitration. To achieve this, we need to move towards an approach of minimal judicial interference with arbitral awards and speedy resolution of challenges in Court to such awards. Of course this requires a strong pool of arbitrators and it would also be wise to move towards institutional arbitrations as opposed to the largely ad-hoc arbitrations which we currently follow. Hopefully, the soon to be established Arbitration Council of India will work towards accomplishing all of the above. Till then, legislation, in the form of the present Ordinance, need to be avoided as the cure cannot be worse than the problem itself.
Even prior to the Ordinance, in every situation it would be open to a party to seek a stay, subject to such conditions as the court may deem fit, under Section 36(3) of the Act, subject to satisfying the court that a prima facie case is made out. Therefore, would not the extent provisions, prior to the Ordinance, have adequately protected the party seeking a stay on an award’s enforcement? Interestingly enough, the court whilst determining whether to grant such stay would of course need to take a prima facie decision.
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MINOR INCONSISTENCY IN WIFE’S STATEMENT DURING CROSS EXAMINATION BEFORE FAMILY COURT DOES NOT MAKE HER AN UNRELIABLE WITNESS: DELHI HC
While glossing over minor inconsistencies, the Delhi High Court in an extremely learned, laudable, landmark and latest judgment titled Rahul Kesarwani vs Sunita Bhuyan in MAT.APP.(F.C.) 75/2020 that was reserved on August 5, 2021 and then finally delivered on December 1, 2021 has clearly, cogently, categorically and convincingly observed that minor inconsistency in a statement made by a wife during cross-examination by husband before Family Court in divorce proceedings does not make her an unreliable witness. It must be mentioned that the Bench of Justice Vipin Sanghi and Justice Jasmeet Singh of Delhi High Court upheld the judgment and decree passed by a Family Court whereby a petition was filed by the wife for dissolution of marriage under the Section 13(1)(ia) and (iii) of the Hindu Marriage Act, 1955 was allowed, and the marriage between the parties was dissolved. The Court very rightly said that, “We do note there was indeed a minor inconsistency in the statement of the Respondent-wife during her cross examination pertaining to the payment of Household expenses. However, the same is a minor aberration and does not make the Respondent-wife an unreliable witness.”
To start with, the ball is set rolling in para 1 of this brief, brilliant, bold and balanced judgment authored by Justice Jasmeet Singh for himself and Justice Vipin Sanghi sets the ball rolling by first and foremost pointing out that, “The present appeal has been filed by the Appellant (Husband) under Section 19 of the Family Courts Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955 challenging the judgment and decree dated 30.11.2019, whereby the petition filed by the Respondent for dissolution of Marriage under Section 13(1)(ia) and (iii) of the Hindu Marriage Act, 1955 has been allowed, and the marriage between the parties has been dissolved.”
For clarity’s sake, the Bench then puts forth in para 2 that, “At the very outset, it must be noted that we on 15.07.2021, had interacted with the parties to explore the possibility of a mediated settlement. However, it was of no avail.”
To put things in perspective, the Bench then envisages in para 3 that, “The necessary facts, giving rise to the present appeal are that the Appellant-husband and the Respondent-wife got married on 06.05.2011 at Delhi according to Hindu rites and ceremonies. The parties resided together at J1/226, DDA Flats, Kalkaji, New Delhi till 10.07.2011, after which the respondent left the matrimonial home.”
As it turned out, the Bench then enunciates in para 4 that, “On 01.09.2012, the Respondent filed a petition under Section 13(1)(ia) and 13(iii) of the Hindu Marriage Act, 1955. In the petition, the Respondent claimed that the parties did not consummate their marriage; that there were dowry demands by the appellant and his family members; that the appellant fought with her constantly; that the appellant used to torture her; that he did not spend any amount towards household expenses and; lastly that he was suffering from a Bi-Polar disorder which he concealed from her before marriage.”
Be it noted, the Bench then enunciates in para 5 that, “The Family Court found that:
i. the respondent/wife has brought sufficient material on record and given specific incidents of cruelty on the part of the appellant/husband
ii. The respondent proved that the appellant was abusive, and was in the habit of picking up quarrels frequently.
iii. The appellant abused the respondent making the allegations that she was having sexual relationship with her brother and father.
iv. The appellant was a patient of “PSYCHOMOTOR ACTIVITY, BIPOLAR DISORDER AND PERSONALITY DISORDER MULTIPLETRAIT”.
v. The appellant did not show any interest, whatsoever, in establishing conjugal relationship with the respondent.
vi. The appellant used to insult the respondent before relatives/domestic helps.
vii. The appellant had assaulted, beaten, and tortured the respondent continuously, accusing her of bad character suspecting of her having affairs.
viii. The appellant did not have physical intimacy with the respondent for long.
ix. On 10.07.2011, when the respondent told the appellant that house rent and other bills for two months have not been paid, the appellant asked the respondent to bring Rs. 1.0 lac from her mother and when she refused, the appellant threw utensils and glasses on the floor.
x. The appellant threatened the respondent to butcher her with a knife. The respondent was scared of him. After 10.07.2011, the parties did not have any conjugal relationship.
xi. The conduct of the appellant by no stretch of imagination, could be termed as ordinary wear and tear of matrimonial life. The appellant subjected the respondent with continuous ill-treatment. The contemporaneous evidences, in the form of complaints filed by the respondent with the police against the behaviour of the appellant were relied upon.
xii. The above series of acts/incidents would constitute the mental cruelty, which is a ground for divorce under Section 13(1)(ia)of Hindu Marriage Act.”
Most notably, the Bench after hearing the learned counsel for the appellant and having gone through the impugned judgment and the documents placed on record before us as stated by the Bench in para 7, the Bench then envisages in para 8 that, “The Appellant has stated that the Respondent was not a reliable witness and the Family Court erred in relying upon her statements. However, we do not agree with this submission of the Appellant, as not only had the Respondent substantiated and supported her claims by way of her Evidence Affidavit and Written Submissions, besides being cross examined before the Family Court. The Family Court has considered the said aspect in the impugned judgment as follows:
“40. I agree with the contention of Ld. Counsel for the respondent that in the evidence affidavit, the petitioner has narrated some facts/incidents that the respondent burnt her with cigarette, once fractured her hand by beating her with chimta, her parents-in-law refused to interfere even when she told them that the respondent was getting anti-social people at home, which facts she has not stated in her petition or the replication and that in view of the law laid down in the case Prakash Ratan lal (supra), the evidence beyond pleadings must be rejected but besides above, there is enough direct and circumstantial evidence, which substantiate the allegations of the petitioner that she was subjected to mental & physical cruelty as discussed in the preceding paras. In the instant case, she has given the specific instances, how she was subjected to mental & physical cruelty.”
No specific reason has been pointed out by the appellant to claim that the Respondent was not a reliable witness. Her cross examination by the appellant does not show that she faltered or could not withstand the same. No specific contradictions have been brought forth by the appellant, in the testimony of the Respondent, to support his submissions that the Respondent has not a truthful and reliable witness. It is a well settled proposition that pleadings and evidence have to be read as a whole and no single instance can be picked and read in isolation. The impugned judgment in above paragraph, has noted that there are factual instances found in the evidence, which are not pleaded in pleadings. However, those incidents are not the fulcrum of the findings of the Family Court that the Respondent has been subject to mental and physical cruelty by the Appellant.
One incident, not having been pleaded or having certain inconsistencies, cannot make an individual an unreliable witness. The test of unreliable witness has been laid down in Kuria v State of Rajasthan (2012) 12 SCC 433 which states:
“30. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis for doubting the case of the prosecution. The courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies.
34. Where the witness is wholly unreliable, the court may discard the statement of such witness, but where the witness is wholly reliable or neither wholly reliable nor wholly unreliable (if his statement is fully corroborated and supported by other ocular and documentary evidence), the court may base its judgment on the statement of such witness. Of course, in the latter category of witnesses, the court has to be more cautious and see if the statement of the witness is corroborated.”
The facts of the present case do not meet the said test. We do note there was indeed a minor inconsistency in the statement of the Respondent-wife during her cross examination relating to the payment of Household expenses. However, the same is a minor aberration and does not make the Respondent-wife an unreliable witness. Minor aberrations are normal to occur, and cannot be a reason to discard the entire testimony of a witness.”
Equally notable is what is then stated in para 19 that, “The Appellant has argued that for setting aside the judgment:-
a) There must be non-appreciation of evidence to a such material degree which changes outcome of the verdict; or
b) Some evidence must have been misread, mis- appreciated, or misconstrued in such a way, which if read in proper perspective changes the entire verdict; or
c) Some material evidence has totally been omitted to have been read.
It is argued that the Appellant has been able to meet the above tests. If the contradictions and mis-appreciations are of a minor nature, or do not change the essence of the case of the concerned party, the minor aberrations are to be ignored by Appellate Court. To justify interference, there must be such substantial inconsistencies and contradictions of material facts that, if seen in the proper perspective, they would change the entire essence of the judgement. Inconsistencies of such a minor nature neither change the thread, nor the essence of the judgment. The contradictions pointed out by the Appellant are not so serious as to change the finding, persuading us to set aside the impugned judgment, nor are they so grave that they violate the principles of natural justice.”
Quite candidly, the Bench concedes in para 33 that, “The continuation of the marriage between the parties would cause undue harm to not only the Respondent/wife, but also the Appellant/husband. There has been a complete breakdown of marriage.”
Needless to say, the Bench then postulates in para 34 that, “It is clear from a bare perusal of the matter at hand that the marriage is beyond repair. The continuity of this marriage is fruitless, and is rather causing grief and harm to both the parties.”
As a corollary, the Bench then observes in para 35 that, “In this view of the matter, we do not find ourselves inclined to grant the Appellant’s prayer against the dissolution of marriage and find no infirmity in the impugned order dated 30.11.2019.”
Finally, the Bench then observes in para 36 that, “Accordingly, the present appeal is dismissed being devoid of merits.”
To round it up, the Bench of Justice Vipin Sanghi and Justice Jasmeet Singh of Delhi High Court thus made it absolutely clear in this notable judgment that minor inconsistency in wife’s statement during cross examination before family court does not make her an unreliable witness. While noting that the matrimonial disputes between a husband and a wife are incapable of following the strict parameters of evidence, the Court said that in cases where there are allegations of cruelty, there can be no parameters that the court can follow. The Delhi High Court too thus upheld what the Family Court had held and was also of the view that numerous complaints and specific incident of cruelty, both mental and physical, showed the true conduct of the husband, which could not be expected in any healthy matrimonial relationship. It also further aptly observed that the marriage was beyond repair and continuity of the same was fruitless. As a consequence, we thus see that the Delhi High Court finally upheld the impugned order and dismissed the appeal filed by the husband!
CENTRE MUST APPROVE HC BENCH IN MEERUT PROMPTLY
It is a matter of some solace that none other than the MP from Meerut – Shri Rajendra Agarwal has himself yet again most recently on December 7, 2021 like in the past has most politely yet most powerfully raised vocally the legitimate demand for a High Court Bench in West UP which is the crying need of the hour also. Apart from him, we have seen how time and again the most compelling demand for a High Court Bench in West UP has been raised time and again not just by MPs from Opposition parties but also by MPs from ruling party that is BJP as for instance Sanjeev Baliyan, Satya Pal Singh and others but Centre till now has not taken any action in this regard. It is high time and Centre must see the clear writing on the wall and promptly approve a High Court Bench in West UP so that the more than 9 crore people of more than 20 districts of West UP are not compelled to travel whole night and half a day all the way to Allahabad to attend court hearings which makes just no sense at all!
On the date of writing this piece that is on December 8, 2021, the lawyers of all the districts of West UP are again on strike demanding the creation of a Bench in West UP at Meerut which is an age old demand that is since independence. The decision was taken at the meeting of the High Court Bench Central Sangharsh Committee held at Gautam Buddha Nagar unanimously. Even in the past the lawyers of West UP have been on strike several times but Centre is yet to take a call on this!
Needless to say, Centre must now realize that the lawyers of West UP don’t want ever to strike as it is the lawyers livelihood that gets worst affected because of the strike. It is Centre’s persistent groundless denial of a High Court Bench to West UP since independence that lawyers are compelled to go on strike. Who can know better than the lawyers of West UP that how much the litigants have to suffer immensely and endlessly due to no High Court Bench being created here? It is the “poorest of the poor” who have to suffer the most as they have to spend extra money to travel all the way to Allahabad and then spend money for staying there in some lodge and then spend again on hiring lawyers which they find unable to but they have just no other option as there is no High Court Bench in any of the districts of West UP!
As we saw, Shri Rajendra Agarwal while raising most vocally the legitimate demand for a High Court Bench at Meerut for more than 20 districts of West UP very rightly underscored that justice which is dispensed after a huge delay is useless. He pointed out that of the cases pending in High Court, the maximum cases were from West UP which further necessitates the demand for a High Court Bench here! He also emphasized that if justice is not imparted speedily then it abets crime which no civilized society can ever tolerate or accept. He also pointed out that in UP jails more than 5 lakh prisoners are there and more than 2 lakhs are in jail for a term more than the maximum term for which the offence for which they are accused entails. This is most dejecting to see!
Furthermore, the MP Shri Rajendra Agarwal also pointed out that there is paucity of High Court Benches in UP. It is the biggest state of India with maximum population of more than 24 crore and still has just one High Court Bench at Lucknow for just 12 districts and which is just about 200 km away from Allahabad where High Court itself is located! The rest of UP is left high and dry! The whole state is depended on Allahabad alone for justice.
It is worth noting that he pointed out that even West UP is attached with Allahabad which is far away even from Lucknow! He also pointed out that on basis of population and distance also the people are unable to get speedy and easy justice. It is due to this that in West UP the agricultural land and also the shop and the house have to be sold.
In addition, he also lamented that it was in 1955 that the then UP CM Sampoornanand had recommended High Court Bench for West UP at Meerut still there is no High Court Bench more than 66 years later! He also pointed out that Justice Jaswant Singh Commission headed by Justice Jaswant Singh who was a retired Supreme Court Judge had recommended multiple High Court Benches for UP but not one was created even though Benches were created for other States like in Maharashtra in Aurangabad which already had 2 Benches at Nagpur and Panaji and so also at Madurai in Tamil Nadu and Jalpaiguri in West Bengal! He demanded High Court Benches for UP at Meerut, Agra and Gorakhpur.
It must also be mentioned here that our seniors used to tell us that in 1978 the lawyers went on hunger strike for a month yet Centre never bothered to create a High Court Bench in West UP! Even in 2001 when I too was a young lawyer we saw how for 6 months from July to December 2001, the lawyers of West UP went on strike but Centre has never cared in seriously pondering on the creation of a High Court Bench here which is the crying need of the hour and which no legal luminary can ever deny! From May 1981 till now the lawyers of West UP have been on strike for a High Court Bench and even after more than forty years we see Centre not taking any action in this regard! Even in 2014-15, we all had seen how for about 4 months, the lawyers of West UP were on strike demanding the creation of a High Court Bench in West UP yet Centre did nothing except giving empty assurances!
I really just can’t help wondering when alone and free that why Centre can’t create a High Court Bench in West UP! We all saw how in 2008 Centre approved 2 High Court Benches for Dharwad and Gulbarga for just 4 and 8 districts respectively first as circuit benches in 2008 and then later as full Benches in 2012 even though the population of whole of Karnataka is just about 6 crore and that of West UP is more than 9 crore and still there is not even a High Court Bench! Nothing on earth can be ever more unfortunate than this!
Let me put this on record: It is high time and Centre must at least now pay heed to what its own MPs like Rajendra Agarwal among others keep raising in Parliament and not just keep giving evasive replies on it. Make no mistake: Centre is fully prepared to create a High Court Bench in UP without any recommendation from either the Chief Justice or the Chief Minister or anyone else. So it must stop dishing out lame excuses and act promptly to create a High Court Bench in West UP!
Let me be very candid in telling this: If Centre does so, it will do a yeoman’s job in helping the poor to get justice without travelling so far whole night and half a day all the way to Allahabad! Moreover, its own prestige will increase among the farmers also which presently is at its all time low and so BJP should stop being on the denial mode and listen to what its own MPs are telling so openly right in Parliament itself. This vexed issue directly affecting the litigants of West UP as also the people from other needy regions in UP must be addressed at the earliest!
Let’s fervently hope so that Centre will act accordingly and fulfill the age old aspirations of more than 9 crore people living in West UP! It merits no reiteration that UP must certainly have the maximum High Court Benches in India and not minimum High Court Benches which we see most unfortunately right now! The aspirations of the people have to be fulfilled for which Centre led by PM Narendra Modi has got such a decisive mandate!
There can be no gainsaying indubitably that creating more international airports will definitely benefit the “richest of rich” but the “poorest of poor” will gain most only and only by the creation of more High Court Benches as they will then not be compelled foolishly to travel whole night and nearly half the day in travelling right up to Allahabad with whom maximum districts of UP are attached as we are seeing since independence! Centre must never be oblivious of indisputable fact that none other than the father of the nation – Mahatma Gandhi had himself underscored that while taking decisions, the interest of the “poorest of the poor” must be given the top priority and not the lowest priority! Of course, Centre must pay heed to it and if it creates more High Court Benches in UP especially in West UP where it is needed most then this will be the best respect for Gandhiji!‑
Judicial officers cannot apply for direct appointment to the post of District Judge: Allahabad HC
In a very significant development pertaining to the qualifications for the post of district judge, the Allahabad High Court in a learned, laudable, landmark and latest judgment titled Shashank Singh and 4 others vs Honourable High Court of Judicature at Allahabad and another in Writ – A No. – 27120 of 2018 that was reserved on November 12 and then finally delivered on December 3, 2021 has held clearly, cogently and convincingly that under Article 233 of the Constitution of India, a Judicial Officer regardless of his or her previous experience, as an Advocate, cannot apply and compete for appointment to any vacancy in the post of District Judge. This will bar judicial officers from now applying to any vacancy in the post of District Judge unless the Apex Court reverses this. Of course, all judicial officers must be definitely aware of this as well as all those who aspire to be judicial officers as it directly concerns them.
To start with, this brief, brilliant, bold and balanced judgment authored by Justice Ashutosh Srivastava for a Bench of Allahabad High Court comprising of himself and Justice Pritinker Diwaker sets the ball rolling by first and foremost observing that, “Heard Sri Ashutosh Mishra, learned counsel for the petitioners and Sri Ashish Mishra, learned counsel, who represents the High Court, Respondent No.1. The learned Standing Counsel has accepted notice of the writ petition on behalf of the Respondent No.2. Sri Ashish Mishra, learned counsel for the respondent High Court has filed counter affidavit. Learned counsel for the petitioners does not want to file rejoinder affidavit. We, therefore, proceed to decide the writ petition on merits.”
To put things in perspective, the Bench then puts forth that, “The subject matter of the writ petition relates to the process of Direct Recruitment to the U.P. Higher Judicial Services-2018 (Part II). The Allahabad High Court issued a Notification dated 12.11.2018 inviting applications for direct recruitment to the Uttar Pradesh High Judicial Service-2018 (Part-II) against 59 vacancies (SC-08, ST-01, OBC-16 and Unreserved-34) in the pay scale of Rs.51550-1230-58930-1380-63070 from Advocates having not less than 7 years standing as on the last date fixed for the submission of application forms, who must have attained the age of 35 years and must not have attained the age of 45 years as on 01.01.2019. The age limit was relaxed by 3 years in case of SC/ST/OBC category candidates, but such candidates must not have attained the age of 48 years as on 01.01.2019. 20% horizontal reservation for women candidates belonging to the State of U.P. only was provided. The applications were required to be filed online. A preliminary examination (objective type) was to be held at Prayagraj (Allahabad) on 03.02.2019. Both Advocates practicing within the State of U.P. and outside the State of U.P. were eligible to apply, but after obtaining requisite forwarding from the District and Sessions Judge/Registrar General/Registrar of the High Court/Secretary General of the Supreme Court as applicable.”
Be it noted, the Bench then discloses in the next para that, “All the petitioners, who are five in number, although enrolled with the Bar Council of U.P. are members of the M.P. Judicial Services and working as Judicial Officers in the State of M.P. under the supervision of the M.P. High Court at Jabalpur. The petitioners are aggrieved by Rule 5 of the U.P. Higher Judicial Service Rules, 1975 insofar as it bars the Judicial Officers from participating in the recruitment process for filing up the vacancies by direct recruitment.”
As it turned out, the Bench then envisages that, “It is contended on behalf of the petitioners that the Rule 5 of the 1975 Rules is violative of the fundamental rights of the petitioners and the source of direct recruitment cannot be restricted to practicing Advocates only. The petitioners were once practicing Advocates and later on got selected as Judicial Officers and otherwise satisfy the eligibility criteria laid down in the notification dated 12.11.2018 issued for filing up the vacancies. The 1975 Rules are liable to be declared unconstitutional to the extent it excludes the persons possessing requisite experience in the field of law of more than 7 years cumulatively as an Advocate and as a Judicial Officer for being considered eligible to appear in the U.P.H.J.S. Exams.”
As we see, the Bench then brings out that, “For appreciating the arguments raised on behalf of the writ petitioners, it would be appropriate to refer to Rule 5 of the U.P. Higher Judicial Service Rules 1975, which is reproduced as under:-
5. Sources of recruitment.- The recruitment to the Service shall be made
a) by promotion from amongst the Civil Judges (Senior Division) on the basis of Principle of merit-cum-seniority and passing a suitability test.
b) by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than five years qualifying service;
c) by direct recruitment from amongst the Advocates of not less than seven years standing as on the last date fixed for the submission of application forms.”
Needless to say, it is then pointed out by the Bench that, “A perusal of the Rule 5 of the 1975 Rules reveals that the source of recruitment to the U.P.H.J.S. is by promotion as also by direct recruitment. The source of recruitment by promotion is confined to Judicial Officers [Civil Judge (Senior Division)] while the source of direct recruitment is confined to Advocates with not less than 7 years standing. The U.P. Higher Judicial Service Rules, 1975 have been framed in exercise of the power conferred by the Proviso to Article 309 read with Article 233 of the Constitution of India.”
As a corollary, the Bench then adds that, “Article 309 of the Constitution of India deals with the recruitment and conditions of service of persons serving the Union or a State. The Article 309 provides the competence for the Governor of a State or such person as he may direct to make the rules regulating the recruitment and the conditions of service of persons appointed to services and posts in connection with the affairs of the State. Article 233 of the Constitution of India deals with the appointment of District Judges. The Article 233 of the Constitution of India is reproduced here-under:-
“Article 233 of Constitution of India “Appointment of District Judges”
(1) Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.
(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.””
It is worth noting that the Bench then enunciates that, “The Article 233 of the Constitution of India has been recently interpreted by the Hon’ble Apex Court in the Civil Appeal No.1698 of 2020 (Dheeraj Mor Vs. Hon’ble High Court of Delhi) arising out of SLP (C) No. 14156 of 2015 and other connected matters vide decision dated February 19th, 2020 reported in 2020 SCC online SC 213. The Hon’ble Apex Court after considering all aspects of the matter observed as under:-
“59. In view of the aforesaid interpretation of Article 233, we find that rules debarring judicial officers from staking their claim as against the posts reserved for direct recruitment from bar are not ultra vires as rules are subservient to the provisions of the Constitution.
60. We answer the reference as under:-
(i) The members in the judicial service of the State can be appointed as District Judges by way of promotion or limited competitive examination.
(ii) The Governor of a State is the authority for the purpose of appointment, promotion, posting and transfer, the eligibility is governed by the Rules framed under Articles 234 and 235.
(iii) Under Article 232(2), an Advocate or a pleader with 7 years of practice can be appointed as District Judge by way of direct recruitment in case he is not already in the judicial service of the Union or a State.
(iv) For the purpose of Article 233(2), an Advocate has to be continuing in practice for not less than 7 years as on the cut-off date and at the time of appointment as District Judge. Members of judicial service having 7 years’ experience of practice before they have joined the service or having combined experience of 7 years as lawyer and member of judiciary, are not eligible to apply for direct recruitment as a District Judge.
(v) The rules framed by the High Court prohibiting judicial service officers from staking claim to the post of District Judge against the posts reserved for Advocates by way of direct recruitment, cannot be said to be ultra vires and are in conformity with Articles 14, 16 and 233 of the Constitution of India.
(vi) The decision in Vijay Kumar Mishra (supra) providing eligibility, of judicial officer to compete as against the post of District Judge by way of direct recruitment, cannot be said to be laying down the law correctly. The same is hereby overruled.
61. In the case of Dheeraj Mor and others cases, time to time interim orders have been passed by this Court, and incumbents in judicial service were permitted to appear in the examination. Though later on, this Court vacated the said interim orders, by that time certain appointments had been made in some of the States and in some of the States results have been withheld by the High Court owing to complication which has arisen due to participation of the ineligible in-service candidates as against the post reserved for the practising advocates. In the cases where such in-service incumbents have been appointed by way of direct recruitment from bar as we find no merit in the petitions and due to dismissal of the writ petitions filed by the judicial officers, as sequel no fruits can be ripened on the basis of selection without eligibility, they cannot continue as District Judges. They have to be reverted to their original post. In case their right in channel for promotion had already been ripened, and their juniors have been promoted, the High Court has to consider their promotion in accordance with prevailing rules. However, they cannot claim any right on the basis of such an appointment obtained under interim order, which was subject to the outcome of the writ petition and they have to be reverted.””
There can be no gainsaying that the Bench then also added that, “It would be apt to also quote the additional reasoning given by Justice S. Ravindra Bhat, in respect of the issue decided by the Hon’ble Apex Court.
“90. A close reading of Article 233, other provisions of the Constitution, and the judgments discussed would show discloses the following:
(a) That the Governor of a State has the authority to make “appointments of persons to be, and the posting and promotion of, district judges in any State (Article 233 );
(b) While so appointing the Governor is bound to consult the High Court (Article 233 :Chandra Mohan (supra) and Chandramouleshwar Prasad v Patna High Court 1970 (2) SCR 6662);
(c) Article 233 (1) cannot be construed as a source of appointment; it merely delineates as to who is the appointing authority;
(d) In matters relating to initial posting, initial appointment, and promotion of District Judges, the Governor has the authority to issue the order; thereafter it is up to the High Court, by virtue of Article 235, to exercise control and superintendence over the conditions of service of such District Judges. (See State of Assam v Ranga Mahammad 1967 (1) SCR 4543);
(e) Article 233 (2) is concerned only with eligibility of those who can be considered for appointment as District Judge. The Constitution clearly states that one who has been for not less than seven years, “an advocate or pleader” and one who is “not already in the service of the Union or of the State” (in the sense that such person is not a holder of a civil or executive post, under the Union or of a State) can be considered for appointment, as a District judge. Significantly, the eligibility- for both categories, is couched in negative terms. Clearly, all that the Constitution envisioned was that an advocate with not less than seven years’ practise could be appointed as a District Judge, under Article 233 (2).
(f) Significantly, Article 233 (2) ex facie does not exclude judicial officers from consideration for appointment to the post of District Judge. It, however, equally does not spell out any criteria for such category of candidates. This does not mean however, that if they or any of them, had seven years’ practise in the past, can be considered eligible, because no one amongst them can be said to answer the description of a candidate who “has been for not less than seven years” “an advocate or a pleader” (per Deepak Agarwal, i.e. that the applicant/candidate should be an advocate fulfilling the condition of practise on the date of the eligibility condition, or applying for the post). The sequitur clearly is that a judicial officer is not one who has been for not less than seven years, an advocate or pleader.
91. The net result of the decision in Chandra Mohan (supra), and subsequent decisions which followed it, is that Article 233 (2) renders ineligible all those who hold civil posts under a State or the Union, just as it renders all advocates with less than seven years’ practice ineligible, on the date fixed for reckoning eligibility. Equally, those in judicial service [i.e. holders of posts other than District Judge, per Article 236 (2)] are not entitled to consideration because the provision (Article 233 ) does not this part of the case it is sufficient to say that there was consultation.” prescribe any eligibility condition. Does this mean that any judicial officer, with any length of service as a member of the judicial service, is entitled to consideration under Article 233 (2)? The answer is clearly in the negative. This is because the negative phraseology through which eligibility of holders of civil posts, or those in civil service (of the State or the Union) and advocates with seven years’ service is couched. However, the eligibility conditions are not spelt out in respect of those who are in the judicial service.
92. The omission, – in regard to spelling out the eligibility conditions vis-à-vis judicial officers, to the post of District Judge, in the opinion of this court, is clearly by design. This subject matter is covered by three provisions: Article 233 (1)– which refers to promotions to the post of District Judge; Article 234, which, like Article 233 (1) constitutes the Governor as the appointing authority in respect of judicial posts or services, (other than District Judges), and like Article 233 (1), subject to recommendation of the High Court concerned. This position is most definitely brought home by the fact that Article 235 vests in the High Courts the power of supervision and control of the judicial service, “including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge.” The corollary to this is that the Governor is appointing authority for the post of District Judge, and other judicial posts; both are to be filled after prior consultation with the High Court, and crucially, the promotion of judicial officers, to the post of District Judge, is regulated by conditions (read rules) framed by the High Court.”
96. In the opinion of this court, there is an inherent flaw in the argument of the petitioners. The classification or distinction made- between advocates and judicial officers, per se is a constitutionally sanctioned one. This is clear from a plain reading of Article 233 itself. Firstly, Article 233 (1) talks of both appointments and promotions. Secondly, the classification is evident from the description of the two categories in Article 233 (2): one “not already in the service of the Union or of the State” and the other “if he has been for not less than seven years as an advocate or a pleader”. Both categories are to be “recommended by the High Court for appointment.” The intent here was that in both cases, there were clear exclusions, i.e. advocates with less than seven years’ practice (which meant, conversely that those with more than seven years’ practice were eligible) and those holding civil posts under the State or the Union. The omission of judicial officers only meant that such of them, who were recommended for promotion, could be so appointed by the Governor. The conditions for their promotion were left exclusively to be framed by the High Courts.
101. The Constitution makers, in the opinion of this court, consciously wished that members of the Bar, should be considered for appointment at all three levels, i.e. as District judges, High Courts and this court. This was because counsel practising in the law courts have a direct link with the people who need their services; their views about the functioning of the courts, is a constant dynamic. Similarly, their views, based on the experience gained at the Bar, injects the judicial branch with fresh perspectives; uniquely positioned as a professional, an advocate has a tripartite relationship: one with the public, the second with the court, and the third, with her or his client. A counsel, learned in the law, has an obligation, as an officer of the court, to advance the cause of his client, in a fair manner, and assist the court. Being members of the legal profession, advocates are also considered thought leaders. Therefore, the Constitution makers envisaged that at every rung of the judicial system, a component of direct appointment from members of the Bar should be resorted to. For all these reasons, it is held that members of the judicial service of any State cannot claim to be appointed for vacancies in the cadre of District Judge, in the quota earmarked for appointment from amongst eligible Advocates, under Article 233.”
In addition, the Bench then added that, “Apart from the above observations, the Hon’ble Supreme Court while interpreting Article 236(2) of the Constitution of India, in the Case of Deepak Aggarwal Vs. Keshav Kaushik and others, reported in 2013 (5) SCC 277, was pleased to observed as under:-
“88. As regards construction of the expression, if he has been for not less than seven years an advocate in Article 233(2) of the Constitution, we think Mr. Prashant Bhushan was right in his submission that this expression means seven years as an advocate immediately preceding the application and not seven years any time in the past. This is clear by use of has been. The present perfect continuous tense is used for a position which began at some time in the past and is still continuing. Therefore, one of the essential requirements articulated by the above expression in Article 233(2) is that such person must with requisite period be continuing as advocate on the date of application. ””
Finally, the Bench then concludes by holding that, “In the light of the above, it is clear that under Article 233 of the Constitution of India, a Judicial Officer regardless of his or her previous experience, as an Advocate with 7 years practice, cannot apply and compete for appointment to any vacancy in the post of District Judge; his or her chance to occupy the post would be through promotion in accordance with the Rules framed under Article 233 and Proviso to Article 309 of the Constitution of India. No relief can be given to the petitioners. The writ petition fails and is, accordingly, dismissed. The interim order dated 20.12.2018 stands discharged.”
In a nutshell, this notable judgment by Allahabad High Court makes it manifestly clear that judicial officers cannot apply for appointment to post of district judges but they will be eligible through promotion as already stated aforesaid. All the judicial officers and so also the aspirants must read this judgment in totality so that they are aware of its implications for them. No denying it!
Emergence and influence of intellectual property in the sports industry
Starting from hunting in the olden times to justice and football moment, sports have been there in some form or the other since the inauguration of mortal life. Still, we know little of the issues engulfing sports in our country. Occasionally the players are facing problems like bullying and sexual importunity.
The Indian sports request is fleetly growing and is a truly global miracle. Sports have become a significant part of any society. Sports go beyond religion, estate, and creed. Sport in India has noway really been taken seriously. It has always been seen as a source of recreation. Encyclopedically, the sports assiduity is a massive sector, bringing together entertainment, games, culture, and financial business together. It’s only in recent times that the marketable viability of sport in India has begun to be explored and exploited.
The extent of Intellectual Property Rights is mountainous in the sporting sphere. IP Rights are vested in nearly every element of the sports assiduity. Starting from Patents which stimulate technological progress that affect in better sporting outfit, trademarks and designs contribute to the distinct identity of events, brigades, and their gear. Brand- related rights induce the earnings demanded for broadcasters to invest in the expensive undertaking of broadcasting of sports events to suckers each over the world.
Also, Intellectual property( IP) rights stimulate the growth and creativity in all aspects of mortal conduct. They give the platform to transfigure good ideas into profitable gambles. This exploration paper tries to dissect how IP rights enable the world of sports in their development and identify the immense compass of IP in this arena. By nature, sports involve multiple layers of profitableactivity.However, laptops, or smart phones, If we formulate starting from remonstrating the ball on a muddy field to a colosseum filled with thousands of observers and millions more sticking on their boxes. Technologically developed and modified sports gears, seductive sportswear designs, and the girding makes sports a largely pleasurable and wanted exertion. But unlike numerous other similar events, every type of sport and the sports diligence need the protection in the form of IP rights, and a terrain that helps to enforces those rights. And therefore, this composition examines how the different orders of IP rights are useful in the sports sector to cover the means and induce value and stimulate growth.
Sports is big business and mega bucks are spent on organizing and commercializing major sporting events, similar as the FIFA, Cricket World Cup and the Summer and Winter Olympics. In this composition, we will consider in what ways the law is suitable to cover the substantial investments made in these sporting events by organizers and sports guarantors and merchandisers likewise, particularly in relation to the 2012 London Olympic Games and the rise of the miracle of so- called ‘Ambush Marketing’. Eventually, some general conclusions will be drawn. This blog explores how property rights in sporting specs-both real and intellectual-could give rise to information monopolies. As event organizers and promoters see the marketable advantage of the Internet, they’re producing their own news spots and contending for readership of the traditional news sources similar as journals, TV and radio. While the Internet is being heralded as the vehicle of lesser information diversity, the co-revision of sporting specs means that event organizers can decide an information monopoly in relation to their events. Intellectual property rights are seen by assiduity as a major pillar in sports entertainment as they cover the exclusivity of guarantors and the fiscal capacity of organizers. Trademarks are used to cover those IP rights but strategies like “ ambush marketing”, in which non-sponsor challengers take advantage of a sports event patronized by others, challenges those rights and therefore it’s needed to control it in any possible ways.
Starting from hunting in the olden times to justice and football moment, sports have was in some form or the other since the inauguration of mortallife. Still, we know veritably little of the issues gulfing the sphere of sports in our country. Occasionally the players are facing problems like bullying and sexual importunity. On the other hand, occasionally the players, themselves are giving rise to legal issues by unethical practices like doping. Any which way, the significance of law in sports is not denied. With the adding competitiveness and aggression amongst the players coupled with the adding financial benefits, players, trainers, and companies, etc. are getting further and further involved in malpractices. Match-fixing was first reported in 1965 when three players of a platoon had put against their own platoon. Unfortunately, moment we’ve contended cases of match- fixing in all the major sports events including FIFA, tennis crowns and justice crowns.
Moment, both for huntsmen as well as sports associations, sports isn’t just a career or passion, but is looked at as a huge business occasion. On conformation of a sports platoon, the brigades are generally honoured by a platoon name. For the purposes of identification, ensigns and fancy taglines are created. Off the field, on the marketable position, huntsmen get into signatures and announcements whereas sports associations get into branding, retailing, licensing, backing and other analogous conditioning.
Once all these creative rudiments are put into commercialization, their protection becomes essential. For case, moment impalpable means similar as the platoon names like Royal Contenders, Manchester United, events similar as Olympics, US Open etc., along with their various ensigns, totems, taglines, hold high marketable value and are significant factors of imprinting and selling conditioning and hence their legal protection is needed to help third party contraventions. On the other hand, broadcasting rights, licensing, auspices, and other important profit aqueducts also involve many legal conditions to guard the rights.
There’s no single law that protects all similar personal material and resolve all the issues that arise out of them. A set of multiple laws are resorted to in order to guard the business interests involved in sports. IP laws form major part of similar laws and are frequently pressed into service in diving colourful legal issues. IP is an marquee term used to describe parcels created by mortal intellect and includes patents, trademarks, trade secrets, imprints, designs and so on.
Trademark is a distinctive sign or an index representing a trade or business. Trademarks typically are in the form of totem’s, captions, label lines etc. They’re the pointers of the source of origin of a particular product or service. Trademark is one of the most generally created IP associated with sports. It’s the one of the factors that aids brand structure of sports business. The names and titles of a ballot, label lines and other names associated with a sports platoon are able of being registered as trademarks and further help brand structure. The public conditions that measure fashion ability of sports are also grounded on trademarks. Therefore, trademarks have an immense value associated to sporting events or sports brigades. These trademarks piecemeal from being a symbol of identification, also add to ingrain value when used in colourful forms similar as merchandises, auspices etc. Announcement earnings and backing earnings are typically associated with trademarks to ascertain a ballot’s brand equity.
Brand law protects the expression of ideas and not ideas in itself. Brand subsists in erudite workshop, musical workshop, cultural workshop, dramatic workshop, photos, sound recordings, and cinematographic flicks. Brand is defended from the moment the work is created. This right allows the proprietor of the brand to reproduce, make clones of the work, vend, make secondary workshop, acclimatize the work, licence, and assign the work. In the process of sporting events and its elevations, the maximum quantum of IP that’s created is brand. The artwork in the ensigns, the literature in the promotional material, the wares, software of computer and online games and so on are all subject matter of brand. There’s no obligatory rule to register imprints; still, looking into the judicial trends in India4, it appears that courts have emphasized on enrolment in order to claim remedies under the Copyright Act.
A trade secret is a practice, process, pattern, or compendium of information which isn’t generally known or fluently acquired by which a business obtains a profitable advantage over its challengers. In sports associations or brigades, it’s possible that there’s some information which is non-public in nature and confidentiality has to be maintained. There have been multitudinous cases, where there has been a leakage of non-public information by the platoon members. For case, in 2008, expert quarterback Brett Favre, who quit Green Bay Packers and inked with the NewYork Spurts, called the Detroit Lions, and gave them some of the schemes that the Packers would be using on offense. By doing so, he violated trade secret law.
Commercialization of sports is so rampant that the competition amongst sports clubs or associations is not only on the event field but also in the business for making huge profits. Most sports clubs have ventured into exploitation of their intellectual property and are into different business such as merchandising, computer games, café’s, and so on. This adventure of sports clubs of earning profits by exploiting their IP makes it essential for them to adequately protect their IP. The protection of the various species of IP would be in various forms like registrations, agreements with proper terms and conditions etc. Lately, merchandising is one of the most lucrative businesses where the sports clubs have a larger stake.
Trademark is a distinctive sign or an index representing a trade or business. Trademarks typically are in the form of totem’s, captions, label lines etc. They’re the pointers of the source of origin of a particular product or service. Trademark is one of the most generally created IP associated with sports. It’s the one of the factors that aids brand structure of sports business. The names and titles of a ballot, label lines and other names associated with a sports platoon are able of being registered as trademarks and further help brand structure. The public conditions that measure fashion ability of sports are also grounded on trademarks.
Claim of juvenility can be raised before any court, at any stage, even after final disposal of the case: SC
It is really good to see that in a learned, laudable, landmark and latest judgment titled Ashok vs The State of Madhya Pradesh in Special Leave to Appeal (Crl.) No(s). 643/2020 (Arising out of impugned final judgment and order dated 14-11-2017 in CRA No. 455/1999 passed by the High Court Of M.P. at Gwalior) that was delivered finally on November 29, 2021, the Apex Court has minced no words to make it clear that the claim of juvenility can be raised before any Court, at any stage, even after disposal of the case. So there should be no more confusion anymore pertaining to this! It must be specifically mentioned here that the Bench of Apex Court comprising of Hon’ble Ms Justice Indira Banerjee and Hon’ble Mr Justice JK Maheshwari observed that if the Court finds a person to be a juvenile on the date of commission of the offence, it is to forward the juvenile to the Board for passing appropriate orders, and the sentence, if any, passed by a Court, shall be deemed to have no effect.
To start with, the ball is set rolling in this brief, brilliant, bold and balanced judgment first and foremost by observing in the opening para that, “By a judgment and order dated dated 29.07.1999, the Additional Sessions Judge, Gohad, District Bhind, Madhya Pradesh, convicted the petitioner inter alia for offence under Section 302 of the Indian Penal Code and sentenced him inter alia to life imprisonment in Sessions Trial No. 260 of 1997. In the cause title of the said judgment and order, the petitioner has been described as Ashok, S/o Balram Jatab age 16 yrs 9 months and 19 days, R/o Village Anjani Pura, District Bhind.”
In hindsight, the Bench then brings out in the next para of this notable judgment that, “The petitioner filed an appeal being Criminal Appeal No. 455 of 1999 challenging his conviction and sentence. The said criminal appeal has been dismissed by the High Court by an order dated 14.11.2017, which is impugned in the Special Leave Petition(Crl.) No. 643 of 2020, filed by the petitioner.”
To put things in perspective, the Bench then points out in the next para that, “The incident which led to the conviction of the petitioner, took place on 26.07.1997. The petitioner claims that the petitioner was born on 05.01.1981. The petitioner was, therefore, approximately 16 years and 7 months old on the date of the incident.”
As we see, the Bench then envisages in the next para that, “In this Court, the petitioner has for the first time contended that he was a juvenile on the date of the incident. His conviction and sentence are, therefore, liable to be set-aside. The claim of juvenility was not raised in the High Court.”
Needless to say, the Bench then further mentions in the next para that, “The learned Additional Advocate General, appearing on behalf of the State argued that the claim of juvenility has been raised for the first time in this special leave petition.”
Be it noted, the Bench then while elaborating further and shedding more light observes in the next para that, “The Juvenile Justice Act, 1986, which was in force on the date of commission of the offence as also the date of the judgment and order of conviction and sentence by the Sessions Court was repealed by the Juvenile Justice (Care and Protection of Children) Act, 2000. The Act of 2000 received the assent of the President of India on 30.12.2000 and came into force on 01.04.2001. The Act of 2000 defined juvenile in conflict with the law to mean a juvenile, who was alleged to have committed an offence and had not completed 18th year of age as on the date of commission of such an offence.”
In retrospect, the Bench then mentions that, “Under the 1986 Act, the age of juvenility was upto the 16th year.”
It is worth noting that the Bench then hastens to add in the next para that, “Section 7A of the 2000 Act as inserted by Act 33 of 2006 with effect from 22.08.2006 provided as follows:-
“7A. Procedure to be followed when claim of juvenility is raised before any Court.-(1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:
Provided that a claim of juvenility may be raised before any Court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.
(2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section(1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect.””
Most significantly, the Bench then succinctly states what forms the cornerstone of this noteworthy judgment that, “The claim of juvenility can thus be raised before any Court, at any stage, even after final disposal of the case and if the Court finds a person to be a juvenile on the date of commission of the offence, it is to forward the juvenile to the Board for passing appropriate orders, and the sentence, if any, passed by a Court, shall be deemed to have no effect.”
For the sake of clarity, the Bench then also wastes no time in pointing out in the next para that, “Even though the offence in this case may have been committed before the enactment of the Act of 2000, the petitioner is entitled to the benefit of juvenility under Section 7A of the Act of 2000, if on inquiry it is found that he was less than 18 years of age on the date of the alleged offence.”
Going ahead, the Bench then states that, “It is true as pointed out by the learned Additional Advocate General appearing on behalf of the State that the certificate of Akikrit Shash, High School, School, Endouri, District Bhind, Madhya Pradesh relied upon by the petitioner is stated to have been issued on 17.07.2021. The said certificate does not specifically mention that the date of birth 01.01.1982 had been entered at the time of first admission of the petitioner at the primary school level.”
What’s more, the Bench then further mentions that, “Furthermore, there is a birth certificate issued by the Gram Panchayat, Endouri, District Bhind, Madhya Pradesh which indicates the date of birth of the petitioner as 05.01.1982 and not 01.01.1982 as recorded in the school certificate referred to above.”
Adding more to it, the Bench then remarks that, “The entry in the records of the Gram Panchayat, Endouri, District Bhind, Madhya Pradesh, also do not appear to be contemporaneous and the certificate has been issued in the year 2017.”
Furthermore, the Bench then adds in the next para that, “However, as pointed out by Mr. M.P. Parthiban, learned counsel appearing on behalf of the petitioner that the Sessions Court has recorded the age of the petitioner as 16 years, 9 months and 19 days. The petitioner has been in actual custody for over three years.”
It cannot be glossed over that the Bench then enunciates that, “The 2000 Act has been repealed and replaced by the Juvenile Justice (Care and Protection of Children) Act, 2015. Section 21 of the 2015 Act provides as follows:
“21. Order that may not be passed against a child in conflict with law. – No child in conflict with law shall be sentenced to death or for life imprisonment without the possibility of release, for any such offence, either under the provisions of this Act or under the provisions of the Indian Penal Code or any other law for the time being in force.””
Quite significantly, the Bench then holds and directs in the next para that, “Considering that the Trial Court has recorded the age of the petitioner as 16 years and odd, and has been in actual custody in excess of three years, which is the maximum for a juvenile, we deem it appropriate to grant the petitioner interim bail on such terms and conditions as may be imposed by the Sessions Court. We further direct the Sessions Court to examine the claim of the petitioner to juvenility in accordance with law, and submit a report to this Court within one month from the date of communication of this order.”
For the sake of clarity, the Bench then holds that, “The concerned Sessions Court shall be entitled to examine the authenticity and genuineness of the documents sought to be relied upon by the petitioner, considering that the documents do not appear to be contemporaneous.”
Without leaving any room for doubt, the Bench then holds that, “In the event the documents are found to be questionable/unreliable, it will be open to the Sessions Court to have the petitioner medically examined by taking an ossification test or any other modern recognized method of age determination.”
Finally, the Bench then holds that, “List after the ensuing winter holidays.”
In essence, the Apex Court Bench comprising of Hon’ble Ms Justice Indira Banerjee and Hon’ble Mr Justice JK Maheshwari have thus clearly, cogently, composedly and convincingly laid down that the claim of juvenility can be raised before any Court, at any stage, even after disposal of the case. We thus see that the Apex Court has made it clear that the juvenile can claim the benefit of juvenility even after final disposal of the case and the sentence, if any, passed by a Court, shall be deemed to have no effect. This is to ensure that a juvenile does not suffer immensely inspite of being even a juvenile.
No doubt, it is definitely a right step in the right direction and the Apex Court deserves all the kudos for having reiterated the right position of law on this which directly benefits the concerned juvenile even after a sentence is passed against him/her. There is no reason of any kind to differ with what the Apex Court has laid down in this case so convincingly and so sagaciously. Of course, it ought to be implemented in letter and spirit and all the courts are certainly duty bound to always abide by what the Apex Court has laid down in this leading case so very commendably!
Addressing issues related to NRI marriages
The institution of marriage is the nucleus of the social system. It forms the very foundation on which the splendid edifice of the social system stands. This sacred matrimonial bond gives birth to a plethora of rights and obligations. With the increase in Indian Diaspora, matrimonial alliances of Indian women with overseas Indian men are rising proportionately.
As reported by National Commission for Women, typical instances of issues that arise in NRI marriages are Abandonment of the women right after marriage, leaving her women during pregnancy, after child-birth, abandonment of mother-child duo; physical and mental abuse, desertion without reasonable cause, false information/Concealment about job, immigration status, earning, property, marital status and other material particulars, to deceive into the marriage, amongst others. Moreover, legal issues related to jurisdiction of courts, service of notices/orders, enforcement of orders; simultaneous retaliatory legal proceeding by husband in the other country, taking advantage of more lenient divorce grounds, obtaining ex-parte divorce and non-submission to the legal proceedings in any ways to summons, or even warrant of arrest are also encountered by women. Through the present article, author attempts to simplify the substantive and procedural laws applicable to the NRI parties to matrimonial disputes.
To understand the interplay of laws in cases involving NRIs, it is pertinent to mention that there are two sets of laws; one is Substantive that determines the rights and liabilities of the parties, whereas the other one is procedural which doesn’t create any right or liability rather lays down the procedural framework through which the substantive rights are legally enforced. Substantive Law governing the rights and liabilities of the parties to NRI Marriages is the Law under which the marriage is solemnised. All direct and incidental rights emanating from marriage, like maintenance, divorce, guardianship, custody, inheritance, succession and adoption are also regulated by the same substantive law. For example- If two Indian Citizens (Hindu by religion), marry in India as per Hindu Rituals, their matrimonial rights would be governed by Hindu Marriage Act, 1955 even if they are residing outside India.
Divorce cannot be granted on any ground which is not provided in the governing statute even if it is a valid ground in the country of their residence. To illustrate, Irretrievable Breakdown of Marriage is not a valid ground of divorce under Hindu Marriage Act, 1955; hence an NRI Couple cannot seek divorce on this ground in foreign country. If any Foreign Court has granted divorce on this ground, such a decree will be null and void in India. In Y. Narasimha Rao v. Y. Venkata Lakshmi, Supreme Court held that a Foreign Decree is not executable in India if the ground on which the divorce is granted by the foreign court is not a ground available under Indian Laws.
Section- 3 and 4 of the Indian Penal Code, 1860 (IPC) read with Section-188 of the Criminal Procedure Code, 1973 extend application of IPC to Indian Citizens residing abroad. If any person commits Matrimonial Offence which is punishable under IPC or any other special law in India in foreign land, the perpetrator can be booked and punished under Indian Laws. Matrimonial Offences are mentioned in Chapter XX (Section- 493-498A) of Indian Penal Code, special laws and personal laws. Dowry-related offences are punishable under Section- 304B of IPC and Dowry Prohibition Act, 1961. If in-laws while sitting in India exert pressure for dowry on their daughter-in-law living abroad, they can be booked for Abetment to Dowry/Cruelty as Section 108 of IPC expressly, states, “A person abets an offense who, in India, abets the commission of any act within and beyond India which would constitute an offense as if committed in India.”
Procedural Laws are lex fori in nature and procedure is governed by the law where the suit is instituted. Civil Proceedings can be initiated either at the place where the spouse ordinarily resides, or place where the couple last resided together, or place where the petitioner is currently residing, whether overseas or India. Special power of attorney (SPA) can be used by the NRI husband/wife living abroad to file a divorce case in India. In case the errant party despite repeated summons doesn’t appear before the Indian Court, warrants may be issued and uploaded on Ministry of External Affairs Website and shared with the Indian Embassy Office in the Foreign Country for compelling his/her attendance.
Provisions related to Execution of Foreign Divorce Decree in India are contained in Section 13 and 44-A Code of Civil Procedure, 1908. For a foreign decree to be valid and enforceable in India, it must fulfil the conditions mentioned in Section 13. In Y. Narasimha Rao Case (Supra), Supreme Court ruled the following conditions of a valid foreign decree-
Both parties voluntarily and unconditionally subject themselves to the jurisdiction of the Foreign Court
Decision is given on the “merits” of the case
Ground of divorce in the decision of the Foreign Court must be a ground available under the Indian Law
Decree must be free from fraud or any misrepresentation
IMPOUNDING OF PASSPORT
Section-10 of The Passport Act lays down grounds and procedure for revocation of passport by Passport Authorities. Revocation or Impounding of a passport on account of any involvement of matrimonial offence is not per-se mentioned. However, passport may be revoked / impounded on the following grounds:
If the holder has been convicted of any offence by a court in India for an offence involving moral turpitude and sentenced to an imprisonment for not less than two years
If criminal proceedings are pending in a court in India
If a warrant or summons for appearance or an arrest warrant has been issued by a court
In Rajiv Tayal v. Union of India (2005) passport of NRI husband was impounded after continuous failure on his part to respond to summons by the Indian Courts under Section 10 of the Passport Act. The husband challenged the revocation order passed by Consulate General of India, New York by invoking writ jurisdiction which was rejected by the High Court and he was ordered to appear before the Indian Court. Fines can be imposed as per Schedule to the Act in case of non-disclosure of correct marital status/details of pending matrimonial case or minor suppressions of information regarding marital status/name of spouse etc.
NRI Cell of National Commission for Women is the nodal agency for resolving issues related to NRI marriages from across the country and abroad. Online Complaint can be filed with NRI Cell of NCW- http://ncwapps.nic.in/NRICellcms/ or sent via email- firstname.lastname@example.org
Besides, Ministry of External Affair’s Online Consular Grievances Monitoring System- MADAD helps Indians abroad, including women married to NRIs. Distressed woman or any member of her family/friend can register a complaint under this Module.
For legal aid and advice on any matter, National/State Legal Services Authority can be contacted. As per Section-12 of The Legal Services Authorities Act, 1987, every woman is entitled to free legal aid in India. If the victim wishes to file case in India, complaint can be filed through NALSA Mobile Application or NALSA on-line complaint portal.
To support Indian women in distress by providing financial and legal assistance, Ministry of External Affairs implemented Scheme, titled “Scheme for giving legal / financial assistance to Indian women deserted by their overseas Indian / foreigner husbands”. The scheme is available to Indian women who have been deserted by their overseas Indian / foreigner husbands or are facing divorce proceedings in a foreign country, subject to the conditions mentioned therein. Besides, Registration of Marriage of Non-Resident Indian Bill, 2019 which is currently referred to Parliamentary Standing Committee makes registration of NRI Marriages compulsory. Failure to register marriage within 30 days would lead to impounding of passport by the passport. Moreover, the Supreme Court is also yet to formulate guidelines for safeguarding the interest of NRI married women in the PIL filed by NGO, Pravasi Legal Cell.
(Bhawna Gandhi is a Delhi-based Lawyer and Columnist, currently working as Researcher at Delhi State Legal Services Authority)
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