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Calcutta HC orders minimum 20% reduction in private school fees

The two-judge Bench of Calcutta High Court observed clearly, categorically and convincingly, ‘From the month beginning April 2020 till the month following the one in which the schools reopen in the physical mode, all 145 schools will offer a minimum of 20 percent reduction of fees across the board.’

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It is most heartening, most refreshing, most rejuvenating and most remarkable to learn that the Calcutta High Court while exercising its constitutional writ jurisdiction on appellate side in a recent, remarkable and righteous judgment titled Vineet Ruia v. Principal Secretary, Department of School Education, Government of West Bengal and Others in WPA 5890 of 2020 with others delivered on October 13, 2020 after hearing was concluded on October 6, 2020 has slashed the fees charged by private schools in the State by 20%. The two-judge Bench of Calcutta High Court comprising of Justice Sanjib Banerjee and Justice Moushumi Bhattacharya observed clearly, categorically and convincingly that, “From the month beginning April 2020 till the month following the one in which the schools reopen in the physical mode, all 145 schools will offer a minimum of 20 percent reduction of fees across the board.” Rightly so!

To start with, the ball is set rolling in para 1 of this latest, landmark and extremely laudable judgment authored by Justice Sanjib Banerjee for himself and Moushumi Bhattacharya penned her own concurrent judgment agreeing with what Justice Sanjib Banerjee held wherein it is put forth that, “An invisible virus, that has threatened the dominant species on the planet and has spawned an array of bewildering reactions across diverse spheres of life, has also made sure that it leaves its impact in the judicial arena. From bringing to life the act-of-God clause that was mostly regarded as a redundant appendage in contracts to redefining the rules of human engagement, the pandemic has almost been all pervasive. The present lis is born in its wake: upon a unique situation arising where students have been kept away from academic institutions for months together, prompting their parents or guardians to question why regular fees ought to be paid in such a scenario. These five petitions canvass a point of public interest that private unaided schools across the State should allow substantial concession in fees as the physical conduct of classes has not been possible for more than six months and normal functioning may not resume in a full-fledged manner for several months more.”

While elaborating further, the Bench then holds in para 2 that, “The lead petition is WPA 5890 of 2020. In due course the other petitions, though filed earlier, have been heard together. In the principal matter, parents or guardians of students of about 145 schools, mostly in and around the city, have joined together to suggest that these private institutions cannot be allowed to make merry and charge the usual fees despite no classes being conducted for a considerable period and, thereafter, classes being resumed on the online mode in some cases with very limited resources being used by the schools. The parents or guardians complain of profiteering by the schools by unjustly enriching themselves even as several of the schools have terminated the services of several of the usual employees or have not paid the teachers in full and not incurred the normal expenses needed to physically operate such schools.”

For the sake of brevity and paucity of space, it would be in the fitness of things to discuss the most significant para 61 of this commendable judgment wherein it is pointed out that, “In the light of the foregoing discussion and purely as a one-time measure necessitated by the present unprecedented situations, the following directions are issued:

i. There will be no increase in fees during financial year 2020-2021.

ii. From the month beginning April, 2020 till the month following the one in which the schools reopen in the physical mode, all 145 schools will offer a minimum of 20 per cent reduction of fees across the board. Non-essential charges for use of facilities not availed of will not be permissible. For instance, additional charges for laboratory, craft, sporting facilities or extracurricular activities or the like will not be permissible during the months that the schools have not functioned in the physical mode. Session fees traditionally charged periodically will be permissible, but again, subject to a maximum of 80 percent of the quantum charged for the corresponding period in the financial year 2019-20.

iii. The minimum figure of 20 percent reduction in the monthly tuition fees will be on the basis of the tuition fees charged for the corresponding month in the previous financial year.

iv. For the financial year 2020-21, a maximum of five per cent excess of revenue over expenditure will be permissible; the balance excess (without any mathematical precision) should be passed on by way of general concession or special concession in individual cases of extreme distress. If any school makes a loss as a consequence of following these directions, such loss can be made up in course of the next two financial years, 2021-22 and 2022-23, if normal physical functioning resumes by March 31, 2021.

v. No amount towards the arrears on account of revision of pay to teachers or other employees can be passed on in the fees for financial year 2020-21. The amount on account of arrears may be recovered in 2021-22 and 2022-23, if normal physical functioning resumes by March 31, 2021.

vi. There will be no increase in salaries of teachers or of other employees during financial year 2020-21. If any individual school has given effect to a higher pay-scale, the difference must not be realised out of the school fees during the financial year 2020-21.

vii. Parents and guardians of students are requested not to avail of the reduction in schools fees, if their financial situation does not merit the reduction. However, if any set of guardians or parents obtains the benefit, no questions in such regard can be asked.

viii. In addition to the across-the-board reduction, every school will entertain applications from parents or guardians for further reduction or waiver or exemption or delayed or installment payments, as the case may be. Every application in such regard must be supported by the financial statements of the parents or guardians so as to justify the request. The financial statement should be certified by any qualified auditor and accompanied by a declaration by the applicant parent or guardian verifying the particulars to be true and correct.

ix. Each application will be considered on merit. Such applications have to be filed before the respective schools by November 15, 2020 and every application should be dealt with on an individual basis and a decision communicated to the applicant by December 31, 2020. Till the decision on the individual application is communicated and for a further period of two months thereafter, no coercive action should be taken against the relevant student. In other words, the student must be allowed every facility that a similarly placed other student would enjoy, including the name of such student being put forward for the board examinations, subject, however, to the fees payable to the board being tendered within time on behalf of the relevant student.

x. When an application for further reduction or waiver or exemption or delayed payment of fees has been disposed of by the relevant school but the parents or guardians are aggrieved by the decision, an application may be filed, upon deposit of Rs 1000/-, to a committee for further adjudication of the request and to assess the decision communicated by the relevant school. Such application has to be filed within 10 days of the rejection, in full or part, of the request being communicated to the relevant parents or guardians.

xi. The committee referred to in the immediate preceding clause will be headed by Mr Tilok Bose, Senior Advocate as its chairperson and will be assisted by the Headmistress or Principal (the occupant of the higher of the two offices, if they are two) of Heritage School and Ms Priyanka Agarwal, Advocate for the parents in WPA 5890 of 2020. The committee will be empowered to engage an auditor or a firm of chartered accountants to assist the committee. The committee and the auditor appointed by the committee will look into the extent of reduction or exemption or the like sought and the feasibility thereof on the basis of the accounts of the relevant school for the financial year 2019-20 and the financial figures for the first six months of the financial year 2020-21 as certified by the auditors of the relevant school. The two other members of the committee will assist the chairperson of the committee to arrive at an appropriate decision, but the chairperson will have the final say therein.

xii. The deposit obtained by the committee will be retained by the committee and Rs. 800/- therefrom disbursed to the auditor or firm of chartered accountants for the first time the accounts of a particular school need to be assessed by the auditor or firm of chartered accountants. For every repeat exercise, meaning studying the accounts of the same school from the second time onwards, Rs. 500/- per case will be paid to the auditors. The balance amount in the hands of the committee will be used for the purpose of secretarial and managerial services the committee may be required to obtain. Any ultimate surplus has to be made over to court for the same to be dealt with in accordance with law. No remuneration is provided for any of the members of the committee and the court hopes that the members nominated graciously accept this onerous task in the larger public interest.

xiii. By November 30, 2020, the committee should indicate a dedicated e-mail account whereat the appeals against the decisions of the schools may be filed. The e-mail ID should be communicated to Advocate-on-record for the petitioner in the lead matter for it to be disseminated to all parents and guardians. The money required to be deposited will be tendered in cash to a secretary or manager as may be indicated by the committee. The application will be deemed complete only upon the grievance in writing being forwarded to the relevant e-mail account and the deposit being made. No application will be entertained without the deposit being tendered. Full accounts of the monies received and expenses incurred must be maintained and presented in court, when sought.

14. All schools should have the accounts for the financial year 2019-20 ready and also the accounts for the period of April to September, 2020 ready to be furnished within two days of the demand therefor by the committee.

xv. Every application made before the committee must clearly indicate the name and other particulars of the student involved and furnish the e-mail ID of the school and its Principal or the like for the committee to communicate with the school.

xvi. The committee must endeavour to dispose of every application within 45 days of the receipt thereof and the decision of the committee will be binding, subject to the relevant schools having a right to apply to this court in the present proceedings for the reconsideration thereof on cogent grounds. Till a dispute between the parents or guardians of a particular student and the relevant school is finally decided, no coercive action against the student may be taken by the school, whether to disallow the student from attending class in any form or taking any examination or for the candidature of such student being forwarded for any board examination (subject to the board’s fees being tendered).

xvii. The quantum of fees to be charged for every month will be indicated by the individual schools on any website and the notice-boards of the schools and informed to Advocate for the petitioner in WPA 5890 of 2020 for the same to be put upon a website that such petitioner must set up for this purpose. The fees payable for every month and the other periodic charges, like session fees, for the entire financial year 2020-21 should be indicated by the individual schools and put up on the website to be set up by the petitioner in WPA 5890 of 2020 by October 31, 2020.

xviii. By November 30, 2020, the fees payable in terms of this order for the period up to November 30, 2020 should be tendered on behalf of all students of the 145 schools. To the extent the parents or guardians of the students apply for further reduction or waiver or exemption, they can pay the amount as possible by November 30, 2020 and copies of the applications for further reduction or the like should be deposited by such date.

xix. With effect from December 8, 2020 all schools will be entitled to disallow students whose fees have not been paid in full in terms of this order and those who have not applied for reduction or waiver or the like. However, schools should ensure that this extreme step is taken only after exercising due care and caution.

xx. No student will be entitled to apply for a transfer certificate without the full quantum of fees in terms of this order being first discharged.

xxi. For the purpose of clarity, it is reiterated that fees payable by students to boards for examinations or otherwise shall have to be paid in addition to the monthly fees and other charges in terms of this order and no waiver or reduction of the fees or charges payable to the boards may be sought or granted.

xxii. There will be no refund of the fees already paid. However, to the extent fees have already been paid which are in excess of the directions contained herein, suitable adjustments will be made over the remaining months of the financial year, unless the parents agree in writing otherwise.

xxiii. The expenses incurred for developing the infrastructure of the schools should not be passed on to the students during the current financial year, though it will be open to recover the same from the students from financial year 2021-22 onwards, if the physical functioning resumes by March 31, 2021.

xxiv. The cap of five per cent of the revenue over expenditure for the year 2020-21 will be subject to the exception that it may exceed the five per cent only if the general reduction afforded to the parents is not availed of by any of the parents and no student in financial distress has been denied additional concession despite being worthy.

xxv. No unusual expense should be incurred during financial year 2020-21 and no development or infrastructure expense should be incurred unless absolutely unavoidable.

xxvi. These directions will continue till such time that physical functioning of the schools resumes in the normal course.

xxvii. The above directions for any form of concession will not apply to any of the 145 schools where the average monthly fee (calculated on an annual basis over the year from April, 2020 to March, 2021) is less than Rs. 800/-. However, such schools may voluntarily take such measures as deemed fit. The exception carved out is perceived to be reasonable since the quantum of concession in such cases will be nominal and the elaborate exercise may be unnecessary as the extent of possible profit is unlikely to be significant. But the monthly fees payable in such cases must be put up on the notice-boards and websites as in the other cases and without any exception.

xxviii. The other private unaided schools in the State should also abide by the directions mutatis mutandis, particularly since the matter has been heard extensively and as public interest litigation. However, only the disputes pertaining to the 145 schools included in WPD 5890 of 2020 may be referred to the committee constituted herein; and not the disputes pertaining to other private unaided schools in the State.”

While clarifying that this order is only a one-time measure under the present extraordinary circumstances, it is then made clear in para 62 that, “It is made clear that this order may not be used as a precedent for the regulation of fees in the schools in future. The present measure may be seen as an extraordinary step in an unforeseen situation to somewhat relieve the parents and guardians of students of their financial burden in the economic distress brought about by the pandemic.”

Furthermore, it is then made clear in para 63 that, “The writ petitions will remain pending till the physical classes are resumed in the schools and the directions contained herein are worked out completely. The petitions will appear next on December 7, 2020 to monitor the progress in the implementation of the directions contained herein.”

What’s more, it is then directed in para 64 that, “The accounts submitted by the schools in sealed covers should be retained in their present condition by the Registrar-General. The accounts will not be looked into by any person or the sealed covers opened without the express previous leave obtained from the court.”

Not stopping here, it is then also directed in para 65 that, “Out of the deposit made by the petitioners pursuant to the previous directions, a sum of Rs. 20,000/- will be paid on account of secretarial services obtained by the two-member committee appointed earlier. The Registrar-General should ascertain from Prof. Suranjan Das the mode and manner of disbursement of such amount and act accordingly. The court expresses its appreciation for the work done by such committee and its report. The accounts submitted before the committee should be retained in strict confidence by the office of Prof. Suranjan Das and destroyed after three months unless contrary directions are issued by this court.”

Justice Moushumi Bhattachraya who wrote her separate concurring judgment too agrees with her senior colleague – Justice Sanjib Banerjee when she says that, “I entirely support his reasons leading to the conclusions.” She also said that, “Writ courts not only have the power to issue the five writs but also to issue orders and directions having the force and effect of the five writs, separately or together, for enforcing the rights guaranteed under part III of the Constitution.” She further referred to the Supreme Court’s judgment in the case of TMA Pai and recounted that despite recognizing the right of minority institutions to administer their affairs, the Court reprimanded them against profiteering and commercializing of education. In this backdrop, she also said that, “In the case at hand, our aim is not to intermeddle in the internal affairs of these institutions or supplant the present governing bodies of these institutions with a court appointed agency, but to figure out a best-fit in a disparate set of schools and guardians and that also for a limited period of time, with the paramount interest of the students in mind.”

It must also be borne in mind that as for privacy, Justice Moushumi clarified that, “The right to privacy, taken at its most obvious connotation, is the right of a person to draw his or her boundaries in terms of sharing of information. It is a pro-individual right where the person can choose the company he keeps and the time and the agency to disclose what he wishes to. It is a right aimed at preserving the spatial and intellectual integrity of an individual in matters of choice and acts as a springboard for the connected freedoms which are guaranteed under the Constitution.”

It is a no-brainer that the bedrock of this judgment are the directions that Justice Sanjib Banerjee has listed so exhaustively. So it merits no reiteration that these directions must be implemented in letter and spirit at the earliest. It is rightly concluded that, “It is obvious that schools have incurred less expenditure over a prolonged period of time.” No doubt, schools must comply with this judgment in totality!

In the principal matter, parents or guardians of students of about 145 schools, mostly in and around the city, have joined together to suggest that these private institutions cannot be allowed to make merry and charge the usual fees despite no classes being conducted for a considerable period and, thereafter, classes being resumed on the online mode in some cases with very limited resources being used by the schools.

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Legally Speaking

Why Kulbhusan Jadhav refuses to file review petition

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Kulbhushan Jadhav

Formal conferences on the benefits of the case were held from 18 to 21 February 2019. In its Judgement of 17 July 2019, the court originally illustrated the foundation of the question, prior to presuming that it had locale to engage India’s cases dependent on supposed infringement of the Vienna Convention.

The Kulbhushan Jadhav case is one of the questionable case having India and Pakistan as gatherings in the International Court of Justice (ICJ). The Indian side kept up that Jadhav was captured from Iran where he had business interests in the wake of resigning from Navy. India tested Pakistan’s choice in the International Court of Justice.

THE CASE

On 8 May 2017, India documented an Application founding continuing against Pakistan in regard of a question concerning affirmed infringement of the Vienna Convention on Consular Relations of 24 April 1963 “in the matter of the detainment and preliminary of an Indian public, Mr. Kulbhushan Sudhir Jadhav”, who had been condemned to death by a military court in Pakistan in April 2017. India guaranteed that Pakistan had neglected to advise it, immediately, of the capture and confinement of its public. It further battled that Mr. Jadhav had not been educated regarding his privileges under Article 36 of the Vienna Convention on Consular Relations, and that India’s consular officials had been denied admittance to Mr. Jadhav while he was in guardianship, detainment and jail, and had been not able to banter and compare with him, or mastermind his legitimate portrayal. As reason for the Court’s ward, India alluded in its Application to Article 36, section 1, of the Statute of the Court and Article I of the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes.

Around the same time, India additionally recorded a Request for the sign of temporary measures, mentioning the Court to guide Pakistan to “take all estimates important to guarantee that Mr. Kulbhushan Sudhir Jadhav isn’t executed” and to “guarantee that no move is made that may bias the privileges of the Republic of India or Mr. Kulbhushan Sudhir Jadhav regarding any choice the Court may deliver on the benefits of the case”.

By an Order dated 18 May 2017, the Court guided Pakistan to “take all measures available to its” to guarantee that Mr. Jadhav would not be executed forthcoming a ultimate choice for the situation, and to illuminate the Court regarding all the measures taken in usage of that Order. It additionally concluded that, until the Court had given its ultimate choice, it would remain seised of the issues which framed the topic of the Order.

Formal conferences on the benefits of the case were held from 18 to 21 February 2019. In its Judgment of 17 July 2019, the Court originally illustrated the foundation of the question, prior to presuming that it had locale to engage India’s cases dependent on supposed infringement of the Vienna Convention. The Court next tended to the three issues with acceptability raised by Pakistan, which depended on India’s supposed maltreatment of cycle, maltreatment of rights and unlawful lead. The Court reasoned that India’s Application was acceptable.

Going to the benefits of the case, the Court inspected thusly every one of Pakistan’s three disputes concerning the pertinence of the Vienna Convention. Having discovered that none of the contentions raised by Pakistan could be maintained, the Court reasoned that the Vienna Convention was appropriate for the situation, “paying little heed to the claims that Mr. Jadhav was occupied with reconnaissance exercises”.

Next, the Court analysed India’s case that Pakistan had acted disregarding its commitments under Article 36 of the Vienna Convention, by neglecting to illuminate India, immediately, of Mr. Jadhav’s detainment. The Court saw that Pakistan didn’t challenge India’s statement that Mr. Jadhav had not been educated regarding his privileges under Article 36, passage 1 (b), of the Convention, and subsequently inferred that Pakistan had penetrated its commitment under that arrangement.

As respects Pakistan’s supposed break of its commitment to educate India, immediately, of the capture and confinement of Mr. Jadhav, as accommodated in Article 36, section 1 (b), of the Vienna Convention, the Court found that since Pakistan had neglected to illuminate Mr. Jadhav of his privileges, it was under a commitment to advise India’s consular post of his capture and detainment, that commitment likewise being inferred by the privileges of consular officials, under Article 36, passage 1 (c) of the Convention, to visit the public, “to chat and relate with him and to mastermind his legitimate portrayal”. The Court at that point brought up that Pakistan had told India of Mr. Jadhav’s capture and confinement on 25 March 2016, somewhere in the range of three weeks after his capture; assessing the specific conditions of the case, the Court thought about that Pakistan had in this way penetrated its commitment to educate the consular post “immediately”, as needed by Article 36, passage 1 (b), of the Vienna Convention.

The Court at that point went to India’s third case concerning Pakistan’s supposed inability to permit Indian consular officials to speak with Mr. Jadhav, reviewing in such manner that “Article 36, passage 1, makes singular rights, which, by ideals of Article I of the Optional Protocol, might be conjured in this Court by the public State of the confined individual”. It being undisputed that Pakistan had not allowed any Indian consular official admittance to Mr. Jadhav, the Court was of the view that India’s supposed inability to co work in the examination cycle in Pakistan didn’t assuage Pakistan of its commitment to concede consular access, and didn’t legitimize Pakistan’s disavowal of admittance to Mr. Jadhav by consular officials of India. Further, Mr. Jadhav’s decision to be spoken to by a protecting official qualified for legitimate portrayal didn’t get rid of the consular officials’ entitlement to orchestrate his lawful portrayal. The Court thusly reasoned that Pakistan had penetrated the commitments occupant on it under Article 36, passage 1 (a) and (c), of the Vienna Convention, by denying India’s consular officials admittance to Mr. Jadhav, as opposed to their entitlement to visit him, chat and relate with him, and mastermind his lawful portrayal.

As to India’s dispute that it was qualified for restitutio in integrum, its solicitation for the Court to cancel the choice of the military court and limit Pakistan from offering impact to the sentence or conviction, and its further solicitation for the Court to guide Pakistan to find a way to dissolve the choice of the military court, discharge Mr. Jadhav and encourage his protected entry to India, the Court found that the entries made by India couldn’t be maintained. The Court additionally found, nonetheless, that Pakistan was under a commitment to give, by methods for its own picking, compelling survey and reexamination of the conviction and sentence of Mr. Jadhav, in order to guarantee that full weight was given with the impact of the infringement of the rights set out in Article 36 of the Vienna Convention.

MOST RECENT REPORTS

According to Pakistan media reports, Pakistan government has offered second consular admittance to Jadhav, who was condemned to death by a Pakistani military court on charges of “reconnaissance and psychological oppression” in April 2017.

Jadhav, nonetheless, will keep on after up on his benevolence request forthcoming with the President. His choice to defer the rights for a survey request places India in a predicament.

India had contended that Jadhav had been denied a reasonable preliminary by Pakistan. Harish Salve, India’s legitimate advice for the situation at the International Court of Justice, had brought up that the military preliminary after which Jadhav was condemned to death was a hoax.

Recently, at a talk coordinated by the Akhil Bhartiya Adhivakta Parishad, Salve had stated, “It has become an enormous self image issue for Pakistan. We were trusting they would let him (Jadhav) go. They haven’t. We have composed four-five letters. They simply continue denying.” “We have now been in a tussle with Pakistan attempting to get them to set up a hardware (for sufficient audit and reevaluation)”. (Cited as Salve has said)

The decision of the ICJ—a success for Jadhav—had held that Pakistan needed to “give, by the methods for its own picking, powerful audit and reexamination of the conviction and sentence’’ of Jadhav, in order to guarantee that full weight is given with the impact of the infringement of the rights set out in Article 36 of the Vienna Convention. The court had likewise guided Pakistan to give consular admittance to India.

Pakistan had denied India the option to approach Jadhav in confinement just as the option to mastermind his legitimate portrayal. As Pakistan didn’t furnish Jadhav with lawful portrayal, even the admission—which Pakistan had held up—was not viewed as substantial.

Pakistan had contended that the law gave plan of action to Jadhav to bid against his decision. Notwithstanding, the ICJ’s structure showed that Pakistan needed to “give successful survey and reexamination’’ of the sentence. In May 2020, Pakistan instituted the International Court of Justice Review and Reconsideration Ordinance.

The law fixed a period of 60 days for an appeal to be recorded by Jadhav, his family or the Indian high commission in Islamabad. Jadhav, who was welcomed on June 17 to record a request for survey, can’t. He was likewise offered help for legitimate portrayal, another offer Jadhav decided to can’t.

His refusal to record an audit appeal agrees with the story that Pakistan has decided to assemble. Jadhav, Pakistan had asserted in its contentions in court, had postponed outside portrayal. However, his choice to defer the survey request, successfully wasting the additions of a hard-battled triumph at the ICJ, just as Pakistan’s choice to call an uncommon public interview to declare this choice, simply days before the time passes, bring up major issues. All things being equal, as the consular admittance to Jadhav, an unmistakable mandate by the ICJ, was not smooth. India at last acknowledged the solicitation to consular access, notwithstanding reservations to how it was given, in September.

Indeed, even Sartaj Aziz, Sharif’s international strategy counselor, was on record saying the “proof” against Jadhav were “simple proclamations”. Between mid-2016 and mid-2017, the Indian government chose to be innovative and moved toward the ICJ in The Hague and discovered it had a solid lawful argument against Pakistan on consular relations under Article 36 of the Vienna Convention.

In mid-2017 as well, Pakistan had moved toward India for “help” in its test on Jadhav, saying the charges of psychological oppression against him included examinations against National Security Adviser Ajit Doval and afterward heads of Intelligence Bureau and the Research and Analysis Wing.

After Pakistan had circulated another “admission video” by Jadhav, at that point outside undertakings serve Sushma Swaraj told parliament in April 2017: “They (Pakistan) connected giving consular admittance to our acknowledgment of their position… We called attention to that consular admittance to Shri Jadhav would be a basic essential to confirm current realities and comprehend the conditions of his quality in Pakistan.”

For Pakistan, Jadhav was viewed as an incredible catch. After an assault on a military camp in Uri in September 2016 and ventured up penetration in Jammu and Kashmir, Jadhav was something Pakistan could use to pick up identicalness against India. It felt the Baluchistan saying could be focused on with conviction that India was supporting psychological oppression in Pakistan, leaving India no ethical space. Never one to avoid hazards, Pakistan added to this by articulating a capital punishment on Jadhav in April 2017.

As Swaraj stated: “To make matters considerably more ridiculous, three hours after capital punishment was reported, the Indian High Commission got an official correspondence from the Foreign Ministry of Pakistan emphasizing the Pakistani proposition for contingent consular access. That discloses to us a great deal about the ridiculous idea of the asserted proceedings…” It turned out to be clear then that paying little heed to the conditions of Jadhav’s capture, Pakistan’s sole interest was to tar India on the insurrection in Baluchistan . Pakistan was shocked at the ICJ case, since it was a reasonable takeoff from how it figured India would act.

For India, this case was exceptional from numerous points of view. Since the time at that point Prime Minister Jawaharlal Nehru took the Kashmir record to the UN Security Council in 1948, India has diligently avoided “internationalization” of reciprocal issues, especially with Pakistan. That it was India which took the Jadhav case to ICJ had a few ramifications.

India was sure it had a strong body of evidence against Pakistan. From the beginning, it has restricted its reaction to requesting consular admittance to Jadhav, which has been denied multiple times by Pakistan. For this, India used a little escape clause left over in the Vienna Convention on consular issues, one of only a handful few regions where the two India and Pakistan recognize ward by the ICJ.

Indeed, the Indian case has been a decidedly ready and determinedly contended one on a basic solicitation – of admittance to Jadhav. Second, India needed to verify that this case would not give Pakistan an opening to utilize the ICJ course on different issues like Kashmir or Indus water sharing.

This bet required solid political support. Executive Narendra Modi, who doesn’t avoid taking unusual ways, was firmly behind Swaraj and afterward unfamiliar secretary and current unfamiliar clergyman S Jaishankar. It might have conflicted with India if ICJ had acknowledged Pakistan’s contention that the 2008 reciprocal understanding would win. Indeed, the July 17 decision settled one significant point always – that the Vienna Convention bests the reciprocal agreement.

Julia Sequined, one of the ICJ judges, in her announcement, stated: “Apparently – directly from the capture of Mr. Jadhav and without hanging tight for his preliminary – Pakistan confirmed that he was a government agent who under Pakistani law was not qualified for consular access and, comparably, that India having “meddled in the interior issues of Pakistan – had likewise relinquished its entitlement to consular access, under Article 36 of the Vienna Convention”.

What happens now? Despite the turn given to the decision by Pakistan’s advertising division, it needed to declare that Indian authorities would gain admittance to Jadhav. India will need that admittance to be free, that is, without the presence of any Pakistani authorities in the room. New Delhi wants to get a clearer image of how Jadhav was gotten.

Second, the ICJ decision has made the whole “preliminary” harmful and universally inadmissible. Yet, no Pakistan Army boss can endorse Jadhav’s delivery.

India will push for a non-military personnel and open preliminary, where the story may be not the same as the current one scripted by the ISI, Pakistan’s government operative office.

Pakistan would need to keep away from that as well. Jadhav is presently a hot potato for the Imran Khan government. They can’t execute him and clutching him implies Indians will trample any procedure. Be that as it may, they will at present need to trade him for an official exchange with India or some other type of commitment. India needs Jadhav’s profit yet for various terms.

Jadhav may need to spend a lot more years in a Pakistani prison or, more terrible, be under the danger of being assaulted in – prison revolt – like the one in which Sarabjit Singh, sentenced on spying charges, was slaughtered in 2013.

In any case, Pakistan will stay under Indian tension. The ICJ decision just added to the weight.

Joined by Queen’s advice Barrister Khawar Qureshi, a 13-part Pakistani designation, driven by Attorney General Anwar Mansoor alongside the Foreign Office’s Director General South Asia Dr Mohammad Faisal and including authorities of the services of law and international concerns, was available in the court.

The ICJ said that despite the fact that it had discovered Pakistan infringing upon Article 36 the Vienna Convention on Consular Relations (VCCR), “it isn’t the conviction and sentence of Mr. Jadhav which are to be viewed as an infringement of Article 36 of the Vienna Convention.”

The most the ICJ said it could do was to arrange Pakistan to stop infringement of Article 36 and audit the case considering how that infringement may have influenced the case’s result.

“The Court takes note of that Pakistan recognises that the fitting cure in the current case would be successful audit and reevaluation of the conviction and sentence,” it noticed.

To this end, Pakistan was coordinated to quickly educate Jadhav of his privileges under Article 36, award India consular access, and afterward survey the case while considering, under the laws of Pakistan, how not doing so prior may have affected the case’s result.

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Legally Speaking

71st birthday of Indian Constitution

I feel that the Constitution is workable, it is flexible and it is strong enough to hold the country together both in
peacetime and in wartime. Indeed, if I may say so, if things go wrong under the new Constitution, the reason will
not be that we had a bad Constitution. What we will have to say is that Man was vile,’ says Dr B.R. Ambedkar.

MUNEEB RASHID MALIK

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The Ministry of Social Justice and Empowerment on 19th November, 2015, notified the decision of the Government of India to celebrate the 26th day of November every year as the Constitution Day to promote constitutional values among citizens. Before the issuance of the notification, November 26th was celebrated as the National Law Day to honour the 207 members of the Constituent Assembly. Therefore, Constitution Day is celebrated in our country on 26th November every year now to commemorate the adoption of the Constitution of India. The Constituent Assembly of India adopted the Constitution on 26th November, 1949 which came into effect from 26th January, 1950. Justice Krishna Iyer once aptly enunciated that the Indian Constitution is the cornerstone of a liberated nation which lays the grand foundation of a great people’s political edifice of governance and spells out the fundamental rights and socialistic aspirations of the vast masses long inhibited by an imperialist ethos. It creates a trinity of democratic instrumentalities with checks and balances, parliamentary in structure, quasi-federal in character. An independent judiciary, an accountable Parliament at the Centre and like legislatures at the State level, a powerful Election Commission and fearless, critical Comptroller and Auditor General provide a paramountcy of democracy, at once responsible and responsive. Judicial review of State action, public finance auditable by a constitutional authority, obligation to seek fresh mandate through general elections with the adult franchise, accountability, direct and indirect, to the people in several ways, — these are fundamental in the governance of the country. The people, though free, have fundamental duties mandated by Art. 51A of the Constitution to exercise which, as in cases of environmental and ecological preservation, compassion for living creatures, protection of the value of composite culture, the authority of judicial writ power may be moved in aid.

The Constituent Assembly took a total of two years, eleven months and seventeen days to complete the Constitution. The Constituent Assembly considered a total of 2473 amendments proposed to the Draft Constitution from 9th December, 1946 to 26th November, 1949. Dr. Rajendra Prasad, the President of the Constituent Assembly confirmed the Constitution and fifteen articles were immediately given effect to on 26th November, 1949, which were, the provisions of Citizenship, Oath and affirmation by the President, Election, Definitions, Interpretation, Powers of the President to remove difficulties and the short title of the Constitution. The rest of the provisions came into effect from 26th January, 1950 and the working of the Constituent Assembly came to a stop. The preamble, a part of the Constitution, also came into force on 26th January, 1950, which presents the intention of the framers of the Constitution and the principles of the nation. The President in his address, on 26th November, 1949, talked about the Judiciary and enunciated that we have provided in the Constitution for a judiciary which will be independent. It is difficult to suggest anything more to make the Supreme Court and the High Court’s independent of the influence of the Executive. There is an attempt made in the Constitution to make even the lower judiciary independent of any outside or extraneous influence. One of our articles makes it easy for the State Governments to introduce separation of Executive from Judicial functions and placing the magistracy which deals with criminal cases on similar footing as Civil Courts.

The Fundamental Rights enshrined in Part III of the Constitution represent the basic values enriched by the people and the object of the fundamental rights is to ensure the inviolability of certain essential rights against political vicissitudes. Fundamental rights are not distinct but are mutually exclusive, as has been held by the Supreme Court in a catena of judgments. Dr. B.R. Ambedkar while highlighting the central importance of Article 32 of the Constitution stated that I am very glad that the majority of those who spoke on this article have realised the importance and significance of this article. If I was asked to name any particular article in this Constitution as the most important – an article without which the Constitution would be a nullity – I could not refer to any other article except this one. It is the very essence of the Constitution and the very heart of it and I am glad that the House has realised its importance. Dr. B.R. Ambedkar, in his speech on November 25, 1949, stated that if we wish to maintain democracy not merely in form, but also in fact, what must we do?

“The first thing in my judgment we must do is to hold fast to constitutional methods of achieving our social and economic objectives. It means we must abandon the bloody methods of revolution. It means that we must abandon the method of civil disobedience, non-cooperation and satyagraha. When there was no way left for constitutional methods for achieving economic and social objectives, there was a great deal of justification for unconstitutional methods. But where constitutional methods are open, there can be no justification for these unconstitutional methods. These methods are nothing but the Grammar of Anarchy and the sooner they are abandoned, the better for us. The second thing we must do is to observe the caution which John Stuart Mill has given to all who are interested in the maintenance of democracy, namely, not “to lay their liberties at the feet of even a great man, or to trust him with powers which enable him to subvert their institutions”. There is nothing wrong in being grateful to great men who have rendered life-long services to the country. But there are limits to gratefulness. As has been well said by the Irish Patriot Daniel O’Connel, no man can be grateful at the cost of his honour, no woman can be grateful at the cost of her chastity and no nation can be grateful at the cost of its liberty. This caution is far more necessary in the case of India than in the case of any other country. For in India, Bhakti or what may be called the path of devotion or hero-worship, plays a part in its politics unequalled in magnitude by the part it plays in the politics of any other country in the world. Bhakti in religion may be a road to the salvation of the soul. But in politics, Bhakti or hero-worship is a sure road to degradation and to eventual dictatorship. The third thing we must do is not to be content with mere political democracy. We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it social democracy.”

As we celebrate the 71st birthday of the Constitution, it will be apposite to remind ourselves of the objectives of the Constitution. We must draw our attention towards the basic principles of law in our society and call to mind the purpose which the law has in view to serve in a country governed by rule of law envisaged by the Constitution. Fundamental rights and fundamental duties have to be given equal importance. Fundamental duties, though non-justiciable, are rules of law. In Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625, the Supreme Court observed that there may be rule which imposes obligation on an individual or authority and yet it may not be enforceable in a court of law and therefore not give rise to a corresponding right in another person. But it would still be a legal rule because it prescribes a norm of conduct to be followed by such individual or authority. The law may provide a mechanism for enforcement of this obligation, but the existence of the obligation does not depend upon the creation of such mechanism. The obligation exists prior to and independent of the mechanism of enforcement. A rule imposing an obligation or duty would not therefore cease to be a rule of law because there is no regular judicial or quasi-judicial machinery to enforce its command. Such a rule would exist despite of any problem relating to its enforcement. Otherwise the conventions of Constitution and even rules of international law would no longer be liable to be regarded as rules of law. It is our duty to abide by the Constitution and carry out our fundamental duties effectively for instilling a sense of obligation and discipline amongst ourselves. We have to fulfil the objectives of law to dispense social justice to the people of our country. The Judiciary has played a magnificent role in upholding the Constitution and must always travel on the same path of delivering justice constructively. Article 51-A (j) obliges us to strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavour and achievement. Therefore, on the Constitution Day, let us pledge to uphold the Constitution and also remember the words of Earl Warren, Former Chief Justice of the United States, when he said:- “Where there is injustice, we should correct it; where there is poverty, we should eliminate it; where there is corruption, we should stamp it out; where there is violence, we should punish it; where there is neglect, we should provide care; where there is war, we should restore peace; and wherever corrections are achieved, we should add them permanently to our storehouse of treasures.”

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In Re Noise Pollution and Judicial Restraint

‘The festival of Diwali is mainly associated with puja performed on the auspicious day and not
with firecrackers. In no religious textbook, it is written that Diwali has to be celebrated by bursting
crackers. Diwali is considered a festival of lights not of noises. Shelter in the name of religion cannot
be sought for, for bursting firecrackers and that too at odd hours.’

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And so without any reference to any text or calling for any evidence, in just a handful of lines, a Bench of the Supreme Court comprising the then Chief Justice of India R.C. Lahoti and Justice Ashok Bhan concluded in 2005 in the landmark judgement of In Re Noise Pollution that there was no nexus between the bursting of firecrackers and Diwali/Deepawali. The judgement is mostly known for prescribing noise-level related ceiling for firecrackers, apart from proscribing the bursting of firecrackers between 10 p.m. and 6 a.m. What isn’t known as much is the fact that the very same judgement also issued directions with respect to the use of loudspeakers. It is an indication of the times we live in that noise created by firecrackers is a constant source of discussion, while loudspeakers are discussed in palpably hushed tones; I guess noise too has an identity in this country which decides the treatment it gets even in private conversations. One could paraphrase a popular adage about the law and say “show me the source of the noise and I’ll show you the rule”.

Coming back to firecrackers, while I do understand and agree with the need for their regulation from the standpoint of safety and pollution, I certainly believe that at the very least the sense of restraint and the respect for facts and evidence that Courts are expected to observe in secular (meaning non-religious) matters, they must equally extend to religious matters given that their words carry weight. This applies all the more since Indian Courts are ostensibly secular bodies and are, therefore, as institutions not trained in matters of theology or religion. As individuals, certain members of the system may be trained or may have an interest in or aptitude for such subjects, but from an institutional perspective, Courts are secular/non-religious organs. Such being the case, to hold forth with certitude on matters of ritual or celebration or religion or to draw from limited personal experience or knowledge goes against the nature of the forum and the measured role one is expected to perform when donning the institutional hat.

In fact, from a reading of the judgement, it appears that the nexus between bursting of firecrackers and Diwali was peremptorily denied merely because the submission was made on behalf firecracker manufacturers, which was no reason to deny the nexus. After all, it ought to have been tested on merits as the outcome has resulted in the denial of the religious beliefs of millions of members of Indic communities by the unreasoned and unsustainable conclusion of the highest Court of the land on a subject which isn’t its strong suit, and which the system isn’t institutionally designed to handle with expertise.

In my view, this judgement and its treatment of religious beliefs and traditions is perhaps not a one-off because there appears to be a marked tendency to approach religious beliefs, not all but select, with a certain sense of urban and elitist reductionism, which does injustice to the rights of those who put stock in such beliefs. I am not on “hurt sentiments” lest I be mistaken for being too sensitive, I am specifically on the perceptible impact of an elitist approach on the rights available under Article 25(1). Given that observations, let alone findings, of Constitutional Courts are widely reported by the media, and the symbiotic and cordial relationship that such observations and the media have enjoyed for some time now, it would seem prudent for Constitutional Courts to observe a measure of restraint when they comment on matters of religious importance. While Courts certainly don’t need to and must not pander to populism of any kind, discretion is always the better part of advocacy, even of the judicial kind. And discretion begets respect, which is what, one suspects, the “majesty of the law” ultimately and truly rests on. Who knows, it may even obviate the need for the use of contempt powers at least in some respects.

From a reading of the judgement, it appears that the nexus between bursting of firecrackers and Diwali was peremptorily denied merely because the submission was made on behalf of firecracker manufacturers, which was no reason to deny the nexus.

J. Sai Deepak is an Advocate practising as an arguing counsel before the Supreme Court of India and the High Court of Delhi. 

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Reconstitution of NCLT benches

Tarun Nangia

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The benches of the National Company Law Tribunal (NCLT) have been reconstituted with
effect from 1 December 2020. The benches shall hear matters of respective jurisdiction as
were hearing before location (before 23 March 2020). All matters including pending before
lockdown and filed during the lockdown shall be heard regularly on all working days. The
benches shall sit as per Rule 9 of NCLT rules, 2016. The order has been issued by Shiv Ram
Bairwa, Registrar, NCLT with the approval of BSV Prakash Kumar, Acting President of NCLT.

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Constitutional validity of marital rape in India with respect to Section 375 of IPC, 1860

The rationale of marital rape is assumed on marital unity for some kind of estoppel, retracting wives
from unwanted sexual advances made by their husbands. The major implication of Section 375 of Indian Penal Code, 1860 is that it is narrowed down to rape of female not falling under the ambit of marital relationship. If loosely translated, in the institution of marriage, the entity of husband and
wife is treated as one and this marital status acts as a licence for husbands to rape their wife with full freedom, thus, reflecting the notions of patriarchy existing till date.

Jaya Jha

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‘I say nothing, not one word, from beginning to end, and neither does he. If it were lawful for a woman to hate her husband, I would hate him as a rapist”.

– Philippa Gregory, The Red Queen

INTRODUCTION

The history of rape dates back to the term when term Raptus was used to denote the theft of property and person. The act of violating the body of the women, ironically, was a harm inflicted upon the father or husband as women were wholly owned subsidiaries. Rape is a sex crime expressed in terms of stuprum by asserting violence or cum vi or per vim, outraging the women by all means.

The institution of marriage in India is related to great sanctity and the act of performing it is celebrated with great pomp and show. India assumes the role of husbands as an incarnation of God and women to showcase a submissive and docile nature to nurture the family carrying a misleading notion of belief to exercise sexual supremacy in lieu of the sacred bond of marriage between them. Marital ties in India reflect old archaic notions of sex as an obligation. The fundamental design of marital institutions is flawed due to interference of misogyny which presumes the marital status of a woman as a sine quo non to consent into the act of forced sex, leaving her into a state of emotional turmoil and reducing into a living corpse. Women are themselves taught by other women to be a good wife and that is achieved by promoting misogynist ideas and one of them happens to be non-refusal of sex to their husbands. The society appreciated these ideas of sexual violence to scare women into thinking that their male partner is stronger than them and refusing them for sex would do no good to them other than attracting their rage in form of sexual violence.

MARITAL RAPE:UNDERSTANDING

Marital rape can be described as the unwanted intercourse committed by the husband through the act of sexual violence, traumatizing woman to the very core. Marital rape is the most common form of masochism and has existed as long as the institution of marriage. Marital rape does not take place in vacuum and family is considered as the safe heaven but in reality it is just a myth. Family itself cradles violence against women by laying foundations for a sexist society. Marital rape is well prevalent into the roots of the society and hides behind the iron curtain of marriage. Family as an institution which should protect the aggrieved rather immunizing the perpetuator of sexual violence and restraining women from seeking help from outside in the guise of protecting family integrity.

The rationale of marital rape is assumed on marital unity for some kind of estoppel, retracting wives from unwanted sexual advances made by their husbands. The major implication of section 375 of Indian Penal Code, 1860 (herein afterwards called as IPC) is that is narrowed down to rape of female not falling under the ambit of marital relationship. If loosely translated, in the institution of marriage, the entity of husband and wife is treated as one and this marital status acts as a license for husbands to rape their wife with full freedom, thus, reflecting the notions of patriarchy existing till date. The prejudice behind the idea of husbands being the protector roots for promoting these flawed notions of male dominance helping them secure a safe haven even after violating the privacy of women to her own body. Patriarchy is inbuilt in the DNA of Indians which very well explains the social and economical structure of arrangements of bestowing men with the title of breadwinner for the family and exercising major control over the family whereas for the women, they are educated to fit into the shoes of homemaker, depending on the breadwinner. This scenario is utilized at its best by the husbands knowing the fact of dependence of women on their income, thus, leaving them no window open other than to suffer at their hands and continue being in an abusive relationship.

CONSTITUTION OF INDIA TETE-A-TETE MARITAL EXEMPTION TO RAPE

Constitution of a country maps the soul of the country. The Indian Constitution is carefully designed to ensure power control, conformity with human rights, checking upon social and individual interests of conflicts and smoothing the vehicle of national progress and unity. The Constitution of India ensures that every law passed is in confirmation with the ideas and principles as enshrined and any subsequent failure to meet with the standard will be awarded with the status of ultra vires, thus rendering them unconstitutional.

1. RIGHT TO EQUALITY

Article 14 guarantees a fundamental right to its citizen, equality before laws and equal protection of laws. However, this article does not call for equal treatment of every individual and the S.C laid down essentials for a valid classification and they are as follows:-

The classification has to be found on an intelligible differentia distinguishing the grouped ones from others

The differentia must derive a rationale related to the object which is to be achieved by the legislation.

However, the test of equality is to be applied in a certain way which does not stereotype a particular gender curtailing gender biased differential treatment. Section 375 of IPC does have loop hole which prevents married women to seek justice for rape committed within the sphere of marital status. The classification and differential treatment of married women is deemed to have been consented within the institution of marriage which is prima facie a wrong assumption and does not comply with intelligible differentia. The Mrs. Status of women deprives her of her own bodily autonomy and personhood, thus, vitiating the test of Article 14 under the ambit of our Constitution

2. RIGHT TO LIFE AND PERSONAL LIBERTY

Article 21 guarantees for life and personal liberty as enshrined the Indian Constitution. The meaning of ‘life’ was first defined in the famous case of Bandhua Mukti Morcha v. Union of India whose foundation was built on one of the most celebrated judgments of Munn v. Illions according to which ‘ life was something more than mere existence’.

The jurisprudence of Article 21 is the storehouse of all forms of rights, thus, attracting a wide definition of life to protect all forms of human life and liberty. However, there is a blatant violation of Article 21 in terms of marital rape.

RIGHT TO LIVE WITH HUMAN DIGNITY

Right to life is inclusive of the right to live with human dignity which includes the bare minimum necessities of life like mingling and mixing with other fellow human beings and expressing in diverse forms. Rape, other than being a sexual offence is an act of aggression projected with humility towards the victim. The exception of marital rape is violative of the very essence of right to life enshrined under Article 21 rendering it unconstitutional.

RIGHT TO PRIVACY

Right to privacy finds its place under the wide interpretation of Article 21 as recognized by judiciary. The right to be left alone also forms a part of this right which includes the free will to sexual intercourse as well and the marital status of woman can also not retract the fundamental right to sexual privacy from her. Every woman is entitled to sexual privacy and no man can force their sexual desire on any woman according to their whims and fancies. By decriminalizing marital rape, the perpetuators get immunity from their very own heinous act, thus invading on the rights of sexual privacy of women within the institution of marriage and vitiating the very principle of Article 21 under the Constitution of India.

RIGHT TO BODILY SELF-DETERMINATION

This right owes its inception to the wide interpretation of Article 21 of the Indian Constitution. The consent and will to have sex is regarded as one of the most personal and private choice of an individual irrespective of the marital status. So, any law interfering or meddling with the right of bodily self-determination is regarded as Unconstitutional.

RIGHT TO GOOD HEALTH UNDER ARTICLE14 AND ARTICLE 21

Article 21 of the Indian Constitution ensures right to good health. The exemption to marital rape is prima facie violating the right to good health doing no good to wives and harming their psychological and physical well being. There is also a very good possibility of women losing themselves to sexually transmitted diseases (STD). The marital exemption to rape is a loophole which inbreeds the future criminals of society and is unconstitutional.

The S.C has declared that the laws which are subject to under the scrutiny of Article 14 and Article 21 must qualify the test of reasonability to operate within the framework of Constitution. Even if the doctrine of marital rape surpasses the test of ‘reasonability’ it still has to pass the muster of ‘just, fair and reasonable’ law in order to recognized as constitutional.

The Apex Court has laid down that Article 21 of the Constitution delivers the citizen, the right of not being deprived of personal life and liberty except by the procedure established by law, hence, this procedure carries the burden of being just, fair and reasonable and not arbitrary, whimsical or fanciful in nature.

CONCLUSION

Society conceived these sexist values and beliefs from the outset of civilization and projected these practices of perverseness as something very usual and normal phenomenon. In fact, the multi mosaic model of India advocates for this sexual violence against women and treats it as something obligatory on the part of women to continue being a prey of such sexual violence. Since, the inception of marital rapes, rapes were quite common in almost every part of world and every civilization is a witness of such heinous practice but the unfortunate part was women themselves were blamed for such incidents and instead of people checking on men for the perverseness, women were made a toy at the hands of religion and culture. Women were chained with different codes of conduct to comply by, dress being the most important ones. All these practices are demonstrative of the prevalence of patriarchal notions from the very beginning of societal setup, all summing up to ex parte sufferings of women alone.

Societal disobedience is the major cause of the enforcement of existing laws. The laws are made to regulate the code of conduct of people deviating from the usual social norms and to curtail from engaging into such practices again, the element of punishment was introduced but unfortunately marital rapes never saw the day of light as a matter of wrong. Hence, we see the liberal nature of laws towards the sexual predators in the sanctity of marriage, taking advantage of the intimacy of the private affair.

The fundamental design of marital institutions is flawed due to interference of misogyny which presumes the marital status of a woman as a sine quo non to consent into the act of forced sex, leaving her into a state of emotional turmoil and reducing into a living corpse. Women are themselves taught by other women to be a good wife and that is achieved by promoting misogynist ideas and one of them happens to be non-refusal of sex to their husbands.

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Long-term battle of arbitral awards with reference to the Vodafone case

The American Constitution constitutes a similar provision prohibiting ex-post-facto laws both by Central and state legislatures. It’s been more than 70 years since India became a democracy, still there is debate regarding the retrospective legislation in taxation laws.

Bahvuk Narula & Rachi Gupta

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The art of taxation consists of so plucking the goose to obtain the largest amount of feathers with the smallest amount of hissing.

—Jean Baptiste Colbert

PREFACE

In India, arbitration is always criticised due to Court interferences. However, recent judicial decisions show that Indian Courts are adopting a minimal interference model. This would help India globally to make a mark in the field of arbitration. In this never-ending process of court trials, challenging the awards in tribunals is a trend now here we can take the example of the same from the landmark case of Vodafone International Holdings B.V. v. Union of India & Anr. The enforcement of foreign awards is always being hard in India due to the regressive approach of the judiciary, which can be seen in judgments like NAFED v. Alimenta S.A. and Venture Global Eng. L.L.C. v. Tech Mahindra. These judgments are undoubtedly acting as a huge stumbling block in the enforcement of foreign awards.

VODAFONE JUDGMENT AT GLANCE

In the landmark judgment of Vodafone, where the Indian income tax authorities passed an order for payment of $2.2 billion by claiming that this is a case of transferring the Indian assets and therefore, such transfer was taxable in India. But later the Supreme Court held that this is not covered within the meaning of Section 2(14) of the Income Tax Act, 1961 and quashed the demand of INR 120 billion by way of capital gains tax and also directed a refund of INR 25 billion just after that Income Tax Act (2012 Amendment) was brought in introducing two explanations in Section 9(1)(i) of the Income Tax Act, 1961 in this way virtually amending the law to ensure that cross-border transactions such as the $11.08 billion Vodafone-Hutchison deal are taxable. This amendment was challenged in the Permanent Court of Arbitration at Hague under India – Netherlands Bilateral Investment Treaty.

This retrospective amendment was widely criticized across the globe and made India an unpopular destination for investments. The Permanent Court of Arbitration (PCA) quashed the income tax department’s demand on the ground of violation of the fair and equitable treatment standard. It is also observed that India violated the bilateral investment treaty with the Netherlands by retrospectively amending the law and directed India to reimburse legal costs of approximately INR 850 million to Vodafone. The Vodafone award stimulates critical issues for foreign investors investing in India. This award negates India’s position on investment treaties that tax disputes do not come under the ambit of investment treaties. The discrepancy arises from the Vodafone case in which the Solicitor General of India has recommended the government of India to challenge the arbitral award and declared parliamentary legislation of a competent Parliament of a sovereign nation to be non-est and unenforceable. On the contrary, the Attorney General clearly expressed his inability to be involved in the case and he is in favour of accepting all well-reasoned awards instead of challenging every award.

The Indian Government has not decided their move yet but as each coin has two sides so each direction towards challenging the award will lead to the question of law regarding the power of the arbitration tribunal to declare parliamentary legislation to be non-est and unenforceable. India has sovereign powers to amend its laws with a prospective effect and in the present case; the transaction was between two non-resident entities through a contract executed outside India which has no nexus with the underlying assets in India.

JUDICIAL & LEGAL DICTUM IN THIS REGARD

The Indian legislature has the power to make prospective laws, but Article 20 of The Indian Constitution, 1950 provides certain parameters for the same. Article 20(1) imposes a limitation on the law-making power of the legislature regarding retrospective criminal liability. There is anarchy in the imposition of retrospective civil liability too.

As article 20(1) of the Indian Constitution provides that;

“no person shall be convicted of any offense except for violation of a law in force at the time of the commission of the act charged as an offense, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offense.”

The American Constitution also constitutes a similar provision prohibiting ex-post-facto laws both by Central and State Legislatures. It’s been more than 70 years since India became a democracy still there is debate regarding the retrospective legislation in taxation laws.

India has a long term judicial approach regarding retrospective legislation and the landmark case is CIT v. Vatika Township Private Limited, in this case, the Constitutional Bench of Apex Court provided clarity on prospective versus retrospective operation of tax amendments. Moreover, a piece of legislation is presumed not to be intended to have a retrospective operation here the ratio is that the current laws should govern current activities (Principle of lex prospicit non respicit: The Law looks forward and not backward). This case also considered the principle of fairness and leads to the principle of lex non-cogit ad impossibilia – the law does not compel a man to perform what he cannot possibly perform. The ruling concluded that in determining whether a provision is applicable prospectively or retrospectively, attention would be required to be paid to the language of the amending statute, the legislature’s intent, the memorandum to the relevant Finance Act, and the hardship the amendment would cause to the taxpayer. Similarly in the case of CIT v. NGC Networks (India) Pvt. Ltd. held that in the case of retrospective amendment the payer could not have contemplated TDS. Along with that regarding enforcement of arbitral awards, in the case of Govt. of India v. Vedanta Ltd, the court held that-

“enforcement might be rejected just on the off chance that it disregards the State’s most essential thoughts of profound quality and equity, which has been deciphered to imply that, there ought to be incredibly faltering in the declining requirement, except if it is gotten through dishonour or fraud, or unjustifiable methods”

By way of this judgment, the Court reduces the decline of enforcement of foreign arbitral awards and minimizes judicial intervention. The court also observes that the government must change its approach regarding challenging every arbitral award and should adopt an approach that encourages foreign companies to invest in India. It will help India in achieving status as a global arbitration hub.

WAY FORWARD TOWARD ARBITRATION

Today tax uncertainty is a growing cause of concern for foreign investors. Now India is facing criticism owing to the Vodafone award, the question arises whether India would lead to ensuring tax certainty and a stable environment to boost investment hand in hand or not. The scope of investment treaty arbitrations is very bleak and now we have two directions firstly that the Supreme Court of India overturns the decision of the Indian courts regarding non-applicability of the Arbitration and Conciliation Act, 1996 to investment treaty arbitrations, Secondly the legislature can either amend the Arbitration and Conciliation Act, 1996 to include enforcement of Bilateral Treaty Awards within its scope or to establish an entire regime for investment protection. In today’s time, the correlation between Bilateral Investment Treaties and foreign investment is required and we can adopt any approach given upwards to achieve this goal. Bilateral Investment Treaties have a positive role in promoting foreign investment and Investor-State dispute settlement provisions are important factors too in contributing to foreign investment inflows. India is planning a new law to safeguard foreign investment. It also helps us to speed up dispute resolution and to boost stuttering domestic growth.

The scope of investment treaty arbitrations is very bleak and now we have two directions: First, that the Supreme Court of India overturns the decision of the Indian courts regarding non-applicability of the Arbitration and Conciliation Act, 1996 to investment treaty arbitrations; Second, the legislature can either amend the Arbitration and Conciliation Act, 1996 to include enforcement of Bilateral Treaty Awards within its scope or to establish an entire regime for investment protection. In today’s time, the correlation between Bilateral Investment Treaties and foreign investment is required and we can adopt any approach given upwards to achieve this goal.

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