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Dubey case and revisiting Supreme Court guidelines on encounter killings

The Supreme Court laid down 16-point guidelines as the standard procedure to be followed for thorough, effective and independent investigation in the cases of death during police encounters.

Adv. Manjunath Kakkalameli

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The encounter of the history sheeter Vikas Dubey by UP police welcomed by most of political leaders, public figures and the masses. However at the same time, questions have also been raised over the legality and appropriateness of the police action leading to the debate that ‘whether a democratic country should follow the constitutional norms and adhere to the due process of law or shall it adopt the measures of retributive justice to bring instant and speedy justice to the victims’.

After the encounter Vikas Dubey systematically eloped from Kanpur, went to MP then in open & public place at Mahakal Mandir,Ujjain, he surrendered himself to save himself from ‘being encountered’ from police but the incident took dramatic mode, before he could reach to Kanpur in the morning & killed in an encounter.

The ‘encounter’ took place after Dubey tried to escape after one of the vehicles in the police convoy, which brought him to Kanpur, allegedly overturned on the road. According to the police, he tried to snatch a constable’s pistol and escape from the scene but was gunned down in the ensuing encounter.

Going through the entire story, the entire act of police encountering the Vikas Dubey creates a doubt at face of incident itself. It has given birth to many doubts in mind of a common man. Since Vikas Dubey was the history sheeter, was alleged of committed many crimes. In such back drop one thing is crystal clear, his surrender in public, that too in other state, clears that Dubey had good knowledge of Law & procedure. In such a case how come a man who surrendered himself to police, can attack on police when he is in the police custody only.

 The incident paves the way to doubt on entire story of encounter & made to rethink the guidelines of Hon’ble Supreme Court on encounter killings.

Encounter killings, Supreme Court:

 In 2014, the Supreme Court of India, in its judgment in PUCL vs State of Maharashtra, laid down 16 guidelines to be followed when it came to investigating encounter killings by the police. questioning the genuineness of 99 encounter killings by the Mumbai Police in which 135 alleged criminals were shot dead between 1995 and 1997.

 The Supreme Court then laid down the following 16-point guidelines as the standard procedure to be followed for thorough, effective, and independent investigation in the cases of death during police encounters:

Record Tip-off: Whenever the police receive any intelligence or tip-off regarding criminal activities pertaining to the commission of a grave criminal offence, it must be recorded either in writing or electronic form. Such recording need not reveal details of the suspect or the location to which the party is headed.

Register FIR: If in pursuance to a tip-off, the police uses firearms and this results in the death of a person, then an FIR initiating proper criminal investigation must be registered and be forwarded to the Court without any delay.

 Independent Probe: Investigation into such death must be done by an independent CID team or a police team of another police station under the supervision of a senior officer. It has to fulfil eight minimum investigation requirements like, identify the victim, recover and preserve evidentiary material, identify scene witnesses, etc.

Magisterial Probe: Mandatory magisterial inquiry into all cases of encounter deaths must be held and a report thereof must be sent to the Judicial Magistrate.

Inform NHRC: The NHRC or State Human Rights Commission (as the case may be) must be immediately informed of the encounter death.

Medical Aid: It must be provided to the injured victim/criminal  and a Magistrate or Medical Officer must record his statement along with the Certificate of Fitness.

No Delay: Ensure forwarding  FIR, panchnamas, sketch, and police diary entries  to  the concerned Court without any delay.

Send Report to Court: After full investigation into the incident, a report must be sent to the competent Court ensuring expeditious trial.

Inform Kin: In the case of death of accused criminal, their next of kin must be informed at the earliest.

Submit Report: Bi-annual statements of all encounter killings must be sent to the NHRC by the DGPs by a set date in set format.

Prompt Action: Amounting to an offence under the IPC, disciplinary action must be initiated against the police officer found guilty of wrongful encounter and for the time being that officer must be suspended.

Compensation: The compensation scheme as described under Section 357-A of the CrPC must be applied for granting compensation to the dependants of the victim.

Surrendering Weapons: The concerned police officer(s) must surrender their weapons for forensic and ballistic analysis, subject to the rights mentioned under Article 20 of the Constitution.

Legal Aid to Officer: An intimation about the incident must be sent to the accused police officer’s family, offering services of lawyer/counsellor.

Promotion: No out-of-turn promotion or instant gallantry awards shall be bestowed on the officers involved in encounter killings soon after the occurrence of such events.

Grievance: If the family of the victim finds that the above procedure has not been followed, then it may make a complaint to the Sessions Judge having territorial jurisdiction over the place of incident. The concerned Sessions Judge must look into the merits of the complaint and address the grievances raised therein.

The Court directed that these requirements/norms must be strictly observed in all cases of death and grievous injury in police encounters by treating them as law declared under Article 141 of the Indian Constitution.

The SC guidelines observed that the involvement of NHRC is not mandatory unless there is serious doubt that the investigation was not impartial.

Provisions on fake encounter

In India, there is no such law directly allows to encounter a criminal, however, there are certain enabling provisions which may be interpreted differently to vest police officers with certain powers to deal with criminals. The settled defence in all encounter is of selfdefence. Section 96 of IPC speaks about anything done in exercise of private defence is not an offence, this section gives inherent right to an individual to defend for his life but what extent is defined under Section 99 of IPC. Section 99 of IPC says that right of private defence is not available for inflicting more harm than is necessary for the defence. It means one can harm someone the extend it is necessary & not beyond that.

Similarly, Section-100 of IPC, exception 3 of Section 300 of IPC, Section-46 of the Code of Criminal Procedure (CrPC), etc. lay down similar provisions with regard to investigations in extra-judicial killings and cases of culpable homicide.

Supreme Court on Fake encounter –

In Prakash Kadam vs Ramprasad Vishwanath Gupta, the Supreme Court observed that fake ‘encounters’ by the police are nothing but coldblooded murders, and those committing them must be given death sentences, placing them in the category of ‘rarest of rare cases’. In paragraph 26 of the judgment, it was observed: “Trigger happy policemen who think they can kill people in the name of ‘encounter’ and get away with it should know that the gallows await them”.

Now, the question remains, will we follow the guidelines.? or it would just remain as guidelines.

Adv. Manjunath Kakkalameli is a practising advocate at Bombay High Court.

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UNDERSTANDING THE NOTION OF SPECIAL KNOWLEDGE UNDER INDIAN EVIDENCE ACT UNDER SECTION 106: A SITUATIONAL AND PHILOSOPHICAL ANALYSIS

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1. PRINCIPLE OF THE SECTION

The section 106 of the Indian Evidence Act, 1872 is read as,

“When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”

This section is an exception to the general rule contained in section 101 of the act, namely, that the burden is on the person who asserts a fact. The basic principle pivoting this section is that it is an exception to the general rule governing burden of proof applies only to such matters of defence which are supposed to be especially within the knowledge of the defendant. It cannot apply when the fact is such as to be capable of being known also by a person other than the defendant. In Gurbakish Singh v Gurdial Singh, it was held that it is the bounden duty of a party, personally knowing the whole circumstances of the case, to give evidence on his own behalf and to submit to cross-examination. His non-appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case.

This section comes into picture only when the prosecution has proved its case beyond reasonable doubt that the accused has to prove the fact within his special knowledge to establish that he is not guilty . The burden of accused is discharged if the accused person establishes his case by a preponderance of probability and it is not necessary that he should establish his case by the test of proof beyond a reasonable doubt . It is well settled that only when the prosecution led evidence, if believed, which would sustain a conviction, then the burden of proving anything would lie on the accused under section 106 of the act . This section applies only to the parties to a suit. The primary objective of the Court is to meet the epitome of Justice which can be unleashed only on account of the corroboration made by the person knowing the full truth facts and circumstances associated with the matter.

1.1. JUDICIAL TRENDS

a. In Senevirantne v R, the court held that Section 106 does not cast any burden on the accused to prove that he had not committed the offence by proving facts lying specially within the knowledge, that if anything is unexplained which the jury think the accused could explain then they, not only may, but must, find him guilty .

b. In Sawal Das v State of Bihar , the SC held that section 106 is applicable only where a fact relating to the actual commission of the offence is within the special knowledge of the accused, such as the circumstances in which or the intention with which an accused did the particular act. The observation of the SC was antonymous to the narrow construction of the section.

c. In Gurubachan Singh v State of Punjab, the court held that Section 106 only puts the evidential burden on the accused and it is not the legal burden which shifts from the prosecution. Section 106 is just a mere tool to assist the prosecution rather than a loophole in the law for prosecution to shrink their responsibility of proving a criminal case beyond a reasonable doubt.

2. INTENTION & MENS REA

In Srinivas Mall v Emperor, it was held that the court should bear in mind that unless the statute rules out mens rea as a constituent part of the crime an accused should not be found guilty an offence against the criminal law unless he has got a guilty mind. Analysing from the front of Section 106, it is well settled that Intention or guilty knowledge of the accused has to be proved by the prosecution and it is not the accused . This was also elaborated and iterated by the Court in the case of Gurubachan Singh.

It is not for prosecution to anticipate and eliminate all possible defence of circumstances which may exonerate an accused. If the accused had a different intention, that is fact especially within his knowledge he must prove .

3. SITUATIONAL ANALYSIS

3.1. IN THE CASE OF ALIBI.

It is well settled in the case of Gurucharan Singh v State of Punjab, that burden to proof of alibi lies on the accused as it is specially within his knowledge but failure to prove does not help the prosecution, which has to prove the guilt beyond a reasonable doubt. This clearly holds and affirms the pivotal concept of the section as elucidated earlier.

3.2. PREVENTION OF CORRUPTION

The Supreme Court held that the offence under Section 5(1)(c) of the Prevention of Corruption Act is constituted when the property has been received by the accused for or in the name, or on account of the master or employer and it is complete when the servant fraudulently misappropriates that property. Therefore, in this regard the accused has to prove his innocence by virtue of the action of Section 106 of the Act .

3.3. N.D & P.S ACT

In Jagdish Budhroji Purohit v State of Maharashtra, it was held that when the factory from where the psychotropic substances were seized belonged to the accused, then burden was on him to prove how the offending articles came to be found in his factory. This again establishes the concept of special knowledge and jurisprudence of Section 106 of the Act.

3.4. NON-DELIVERY OR SHORT DELIVERY OF GOODS- RAILWAY

There is a duty on the part of the railway to disclose the manner of dealing with the consignments, as it includes those facts which are specially within the knowledge of the Railway administration and it must prove them . There is nothing in section 74-D of the Railways Act to indicate any legislative intent to override the dynamic provisions of Section 106 or Section 114 of the Evidence Act .

Under Section 80 of the Railways Act, there is a burden on the plaintiff to prove that the goods sent through railway was lost or damaged and he cannot take advantage of section 106. In the case of claim for compensation from railways, if the plaintiff does not call for any disclosure from railways, it was held that no duty lies on the railway to disclose anything or how the consignment was dealt with during the transit and no presumption can be drawn against the railway. However, the railway gets the immunity under section 74-A of the Railways Act, that short or defective delivery was due to the defective packing .

3.5. NEGLIGENCE

From the general perspective in the case of negligence, the burden of proof of negligence is on the part of the defendant lies on the plaintiff, but in the situations of res ipsa loquiotor, the burden lies on the defendant to show that he was not negligent . Therefore, the principle of section 106 is based on the ideology of res ipsa loquitor.

In the above cited case, where due to rash and negligent driving the bus turned turtle and by virtue of res ipsa loquiotor the negligence on the part of driver was presumed. It is to be noted that the best defence against negligence would be of the driver himself under section 106 of the Evidence Act (as it will amount to. Special knowledge of the fact, as of how bus met with an accident).

3.6. MASTER- SERVANT & HUSBAND-WIFE

In the case of a servant charged with misappropriation of goods of his master, if the failure to account is due to an accidental loss, the facts being within the servant’s knowledge, it is for him to explain the reason of the loss, by the action of Section 106 of the Act . This is analogous to the principle of the section 106, as the person having the special knowledge of the facts needs to assert and prove his case. In an application for maintenance by a wife, the onus is on the husband to disclose his income, by virtue of Section 106 . (As it is only within the knowledge of the husband).

3.7. FACTS WITHIN THE KNOWLEDGE OF THE PARTY

a. In case a dead body of a rape victim is found inside the house of the accused, the burden is on him to explain how the dead body happened to be there .

b. Where a housewife died of drowning in the well in the house of the in-laws, and at the time of the incident only accused were present in the house, burden was on them to prove what events happened that caused the death.

In these scenarios two things are pivotal which bring the role of section 106 into action,

i. Burden of Proof

ii. Special Knowledge of the accused.

This is because, what happened in one’s house or at a specific place and time can only be explained by the person witnessing it.

1. UNDERSTANDING & CONCLUSION

a. The burden of proof has two distinct meanings, the first being the burden of proof on pleadings which and the second being the burden of adducing evidence. While the first kind of burden remains on one side throughout the case, the second one may shift as per the need. Hence it is not the burden of proof that shifts, but the onus of proof that shifts. Thus, there is also a distinction between the terms ‘burden’ and ‘onus’. The first kind of burden is the legal burden while the second can be referred to as ‘evidential’ burden. The legal burden rests on the party which asserts the affirmative of an issue in the beginning of the trial.

b. Evidential burden, on the other hand, is an obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue with due regard being had to the standard of proof demanded by a party under such obligation. The object of placing the evidential burden on the defendant can be seen as a latent force to make the accused to go into the witness box and give evidence.

c. The burden of proof which has been envisaged in Section 101 of The Evidence Act is the legal burden which never shifts from the prosecution. Section 106 is not a proviso to the rule that burden of proving the guilt of the accused is upon the prosecution but on the contrary, the section is subject to the rule. Thus Section 106 is an exception to Section 101 of The Indian Evidence Act. The two judge bench of Gujarat High Court in State v Dhulaji Bavaji held that Section 106 could not be used to undermine that burden never shifts from the prosecution.

d. In Shanbhu Nath Mehra v State of Ajmer it was observed that Section 106 lays down the general rule that in a criminal case, the burden of proof is on the prosecution and Section 10 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible or at any rate disproportionately difficult, for the prosecution to establish facts which are especially within the knowledge of the accused and which he could prove without difficulty or inconvenience.

e. The word “especially” stresses that it means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder.

f. The Section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.

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THE CONUNDRUM OF EMERGENCY ARBITRATION: CONFIDENTIALITY IN THE COURT OF LAW

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COURT

Confidentiality is taken into account collectively of the key reasons why parties opt to opt for arbitration for settlement of their disputes as they are doing not need their disputes to be a subject of give-and-take. Considering the careful documents and the knowledge that parties exchange in Associate in Nursing arbitration, the thought is to shield the sensitive data, trade secrets, holding might which can be the subject matter of Associate in Nursing arbitration as its revelation may lead to irreparable loss. For the preceding reason, arbitration proceedings area unit unbroken confidential. However, is confidentiality much possible? what’s the legal basis of confidentiality? what’s its scope and what area unit the implications if it’s broken by a party? One of the major expectations of arbitration, namely, confidentiality, inflicts on arbitrators and the parties, the obligation to respect the confidentiality of arbitration. Section 42-A errs to deal with this interest as it lags the commitment of third parties to keep the arbitral record confidential.

UNICTRAL Model Law (Model Law) in 2006 entrusted arbitral tribunals to grant interim recourse to parties, a digit of arbitration institutions such as the International Centre for Dispute Resolution (ICDR), Stockholm Chamber of Commerce (SCC), International Chamber of Commerce (ICC), Singapore International Arbitration Centre (SIAC) and Hong Kong International Arbitration Centre (HKIAC) have altered their rules to provide parties with the antidote of emergency arbitration. The substantial upgrade in the position of international trade in the economic development of nations over the last few decades has been accompanied by a considerable increase in the number of commercial disputes as well. In India too, the abrupt economic globalization & the transpiring accumulation in competition has headed to an expansion in commercial disputes. Identically, however, the proportion of industrial growth, modernization, and restoration of socio-economic circumstances has, in many instances, outpaced the rate of transition of dispute resolution mechanisms. In many parts of India, brisk development has intensified caseloads for already overburdened courts, further leading to notoriously listless adjudication of commercial disputes. As a consequence, alternative dispute resolution mechanisms, enclosing arbitration, have become more indispensable for businesses operating in India as well as those doing businesses with Indian firms. There has been only a modicum of cases in India which review the enforceability of the award ratified by an emergency arbitrator. The Bench of the Ld. Single Judge of the Delhi High Court, in its acting order dated 21 December 2020, examined & attributed how the award passed by the emergency arbitrator is enforceable in India.

BACKGROUND

Section 75 of the Arbitration and Conciliation Act, 1996 lets out that the parties shall keep confidential all issues about the conciliation. However, the provision does not apply to arbitration proceedings and applies only to conciliation proceedings. Even though there was no statutory referendum in the 1996 Act, there was an implied duty of confidentiality for various reasons including protection of sensitive evidence or intellectual property, etc., the reputation of parties in public, protection from potential declarations in similar matters, no intervention of independent parties, etc. Apart from the parties to the arbitration proceedings, some outsiders are strangers to the agreement but still sit in the arbitration proceedings They are not ruled by the arbitration agreement & have backing to confidential information delivered in the arbitration. Section 42-A wanes to honor this skepticism as it lasts to be voiceless on the obligation of these third parties to conserve the arbitral document confidentiality. The language of the section only imposes confidentiality on the parties, arbitrator and the arbitral establishment. The terminology of the domain only exacts hideaway on the parties, arbitrator and the arbitral institution in compliance with Section 14,15 & 37.

CONCEPT OF EMERGENCY ARBITRATION

Emergency arbitration is like a mode of interim relief, it’s a very forthcoming concept in the realm of arbitration, it’s mostly applicable for the parties that expect to insulate the investments and testimony that might otherwise be lost or diversified so it’s, an emergency arbitration is a game of time. It’s a very temporary and emergency arbitration like any other ADR mechanism that derives its power from the arbitration agreement itself. So, the main role of emergency arbitration comes up when there is no arbitral tribunal in place, or, there is a situation when setting up an arbitral tribunal will take a lot of time and there is no such time. emergency arbitration is the emergency arbitral tribunal is constituted only mostly two situations one, when there is no tribunal in place, and second when the situation is such that there is no time to appoint and go through the entire appointment procedure of the tribunal.

Instead of approaching the national courts, the parties can opt for an arbitrator game to save a lot of time. So, it’s the Tribunal is constituted for a limited period, or for a very limited purpose so as soon as the purpose is served or the timeframe in which the issues had to be decided. They lapse, the arbitration ends the emergency arbitration ends there itself. Emergency Arbitration is based on the concept of “urgent pro tem or conservatory measures.” In other words, it is for the parties who cannot await the long-drawn formation and composition of an Arbitral Tribunal. The reason behind the same is their need for interim relief at the earliest time frame possible, to either protect their position or to prevent the other party from the continuation of the breach they committed until the issue is finally adjudicated. It is agreeable that the Courts are capable of granting interim reliefs as well, but the same comes at the cost of compromise in efficiency and confidentiality, which neither of the parties may appreciate. Two legitimate mottoes that form its genesis are: firstly, the reasonable possibility that the claimant would succeed on merits fumus boni suggested amendments, such as the amendment to Section 9 of the Principal Act and so on, the initial concern of EA was not addressed.

DISCERNIBLE FAILURE OF STATUTORY IMPLEMENTATION OF EA IN INDIA

Future Retail Limited (“FRL”) is a listed corporation amassing retail chains in more than 400 cities across India. In spite of having such a flourishing business, the Covid-19 pandemic has had an overwhelming concussion on it. This had ensued in a rapid attrition of FRL’s assets. Subsequently, pertaining to this circumstance, FRL had agreed with Reliance Industries. Subsidiary this pact, the latter had rented out to compile the retail, wholesale, logistic and warehousing business of FRL. Besides, Reliance had agreed to discharge the liabilities, as well as invest in the concerned company. This transaction, as foreseen by the FRL, would deflect the company from getting on into liquidation. Moreover, the agreement would also sustain Amazon that has stakes in Future Coupons Pvt. Ltd (“FCPL”). In spite of these reasons, Amazon had lifted up an objection before the SEBI. In the fuss letter, Amazon voiced that the aforementioned transaction violated its contractual liberties, that is, its shareholder agreement (“SHA”), that had been entered into with the FCPL. Henceforth, to plop a clasp on the transaction, Amazon instituted emergency arbitration proceedings, as furnished in the SHA, under the SIAC Rules. This had transpired in an interim award being rendered, which purported to injunct FRL from progressing with the transaction entered into with Reliance Industries. India does not have any provisions distressing EA. Although the Arbitration and Conciliation (Amendment) Act of 2015 suggested amendments, such as Section 9 of the Principal Act and so on, the primary concern of EA was not addressed. Before this, the Law Commission of India, in its 246th Report, lucidly suggested the need for a concept of “Emergency Arbitrator”. The Commission intended to bring this under the ambit of Section 2, which defines an Arbitral Tribunal, by broadening the definition and including the concept of EA. However, as already witnessed from the Amendment Act of 2015, the same was not incorporated.

THE ELEMENT OF THE DISPUTATION

As per the outlay of the SHA between Amazon and Future Coupons, Amazon is to acquire 49% of its share capital. The indicated agreement also retains a roster of “restricted persons”, reeling off certain commodities with whom Future Group was not allowed off to come into any agreement. Despite these underlying provisions, Future Group entered into a transaction selling certain assets to Reliance, which is a part of Mukesh Dhirubhai Ambani Group, to save itself from becoming insolvent. It is also vital to recount through this acquisition, Reliance strives to acquire not only Future Group’s Retail assets but also its liabilities amounting to closely Rs 12,801 crores. In addition to this, Reliance has also conceded to fund a sum of Rs 2800 crores into the merged entity which, besides others, will be utilized to pay Future Group’s residual liabilities. Therefore, it is striking that this transaction will avert Future Group’s insolvency and, in the event, the transaction flunks, Future Group will indisputably go into liquidation. Amazon contends that Future Group oversteps the overheads of the SHA by entering into a sale the transaction with Reliance, as Reliance falls under the category of restricted persons enumerated in the agreement. Future Group contends that it is Amazon that stands in violation of the ForeignExchange Management Act (FEMA)-Foreign Direct Investment (FDI) Rules. Reading the conflation of agreements between Amazon and Future Group, Future Group contended that besides, Amazon, creating protective rights it is transgressing into controlling Future Retail, which requires prior approvals of the Government. Bereft such endorsements Amazon would be in violation of FEMA-FDI Rules. Relying on Hira Lal Patni v. Sri Kali Nath and Sushil Kumar Mehta the Court said that prima facie the present suit cannot be held to be not maintainable on two grounds: the EA order cannot be challenged in the present proceedings and secondly, that the grounds urged by FRL before have already been urged and considered by the Emergency Arbitrator. The arbitration between FCPL and Amazon is an International Commercial Arbitration placed in New Delhi, India and overseen by Part I of the A&C Act, however, conducted in conformity with SIAC Rules. Relying on NTPC v. Singer, the Court declared that while it is perfectly legal for the parties to choose a different procedural law, the issue which is required to be considered is whether the provisions of Emergency Arbitration of such procedural law, are in any manner contrary cannot be restricted to mean that the parties agreed to arbitrate before an arbitral tribunal only and not an Emergency Arbitrator.

PERTINENCE OF ARBITRATION

The relevance of arbitration often arises in situations where a party is up, one sits constrained to seek and cut back relief. The principle of seeking an interim relief is a substantial notion in the field of arbitration, and instead of, like, oh, it’s a very settled principle of law that any court of law or any arbitral tribunal can only grant such interim relief that isn’t able to find relief. The arbitrary emergency arbitrator gives interim relief that interim Relief has to be the limited purpose of that interim Relief has to be in the aid of the final release. So, the final release will be given by the normal arbitral tribunal, which could be constituted later, but it is basically in continuation. The wavering in cases where arbitration is being passed by the courts to the tribunal where the arbitration is referred, the courts to the tribunal takes a lot of time because the courts have to examine these, they discuss the validity of the agreement clause. So, all of it takes a lot of time, even when sometimes the Tribunal has appointed the proceedings are very consuming, so they cause delay. Also, the damages to the aggrieved party. In such cases, one party can seek emergency arbitration. So, the functioning of the tribunal is limited when the functioning of the courts, like in the present scenario is limited, a lot of parties have opted for emergency arbitration just to save time and get immediate relief sometimes they have to get the assets frozen or have the other side of the other party, or they need a very important state. So, in that case, they can invoke emergency arbitration.

CONUNDRUMS CONCERNING POTENTIAL IMPLEMENTATION OF EA IN INDIA

Firstly, the conundrum of enforceability of EA Awards remains a grey area. Chapter I and II of the Amendment Act of 2015, the foreign awards passed through the New York Convention and the Geneva Convention respectively are enforceable. However, the fix that emanates is that these two conventions discern the recommendations given under the 246th Law Commission Report and the amendment proposed by it in Section 2(1)(d) of the Act would bring India on to the same pedestal as other countries and help attain the global trend for Emergency Arbitrations. The dilemma can be etched in two ways, one in which the seat is in India and the other when the seat of arbitration is decided as a foreign state. The main problem arises in the case of foreign seated arbitration, as Domestic Arbitration Tribunal, emergency orders can be enforced under Section 17(2) of the Act. There remain many more ambiguities concerning India’s take on Emergency Arbitration. For instance, speculating that Emergency Arbitration is doable only under the ambit of institutional arbitration, what will be the outcome when a party has chosen for ad-hoc instead of institutional arbitration, can the party invoke Emergency Arbitration using such an agreement? In such a scenario, should the Courts be conferred the power to appoint an Emergency Arbitrator? Will the parties have to embark into a separate agreement to choose arbitral institutions for providing an Emergency Arbitrator? In the absence of regulatory legislation governing this aspect and judicial clarification, answering such questions is certainly not easy. With the amendments brought by the 2015 Act and the subsequent Arbitration and Conciliation Amendment Bill of 2018 being silent about the assorted concerns scrutinizing Emergency Arbitration, parties, for now, are without guidance as to how they should proceed with Emergency Arbitration if at all. However, it is germane to note that if enforceability of final adjudicated matters only, not EA-related matters. Therefore, the same mandates an address by the Indian Statute. In such a scenario, International Conventions like ICDR, ICC, SIAC, SCC and LCIA that have introduced the concept of Emergency Arbitrator Procedures can be referred to. The second conundrum that we may observe with respect to EA is the Court’s jurisdiction on the non-concerned parties. In other words, we observe that the Courts have the power and jurisdiction to entertain parties other than the two main parties in a suit before Civil Courts under the Civil Procedure Code. However, the same does not seem possible in EA because of the principle of party autonomy. Only those two parties that have signed the arbitration clause/agreement are bound by their respective Arbitration Agreement. Confidentiality of the matter and prevention of interference by any other party is also important. In such a scenario, either the EA is given special powers regarding the same, or any other provision may be made that specifically speaks out about the mandatory inclusion of an EA clause in an Arbitration Agreement to enforce the same.

CONCLUSION & THE WAY FORWARD

The predicaments employing Emergency Arbitration have been increasing globally in massive numbers, however, most of the jurisdictions have failed to cope up with the same. The interim reliefs given by the Emergency Arbitrators are uncertain and many at times, with no enforceability. That is precisely the reason the parties are bound to approach national courts. The Indian arbitration law does eventually embrace Emergency Arbitration, catch-all phrases in the enumeration of interim measures granted by Tribunals should be substituted with a more illustrative rather than an exhaustive list similar to the English Arbitration Act, 1996. Considering that the concept of Emergency Arbitration is at a nascent stage, it certainly does not come without obstacles. It is definitely hoped that with the various arbitration institutions providing for Emergency Arbitration and the Government’s push towards institutional arbitration as highlighted in the Arbitration Amendment Bill, 2018, the incorporation of provisions dealing with Emergency Arbitration in the Indian legislation will be encouraged in the near future.

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THE SUPREME COURT TAKES THE CORONA CRISIS SERIOUSLY

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A three-judge bench of the Supreme Court led by Dr. D Y Chandrachud, and comprising Justices L. Nageswar Rao, and S. Ravindra Bhat has passed an interim order in a Suo Motu Writ Petition (Civil) No. 3 of 2021 yesterday directing the Central and State Governments to put on record efforts taken to curb the spread of coronavirus and the measures that they are planning to take in the future. The Court has also asked the Central Government to revisit its vaccine procurement policy observing that it would “prima facie result in a detriment to the right to public health which is an integral element of Article 21 of the Constitution”. In addition to this, the Court has also urged the Union and the States to consider imposing a lockdown to curb the virus in the second wave in the interest of public welfare. However, before announcing any lockdown, the Court has suggested to the government to make necessary arrangements for the marginalized sections of society. The Court further stated that no person should be denied hospitalization or essential drugs for lack of local residential proof or identity proof. This is a great affirmation of the right to health enshrined under Article 21 of the Constitution. This is the need of the hour. The Court issued a warning to the governments not to harass the users of social media during this trying time. This is an admirable and balanced order that takes care of public health, the national economy, governance issues, and public sentiments.

The Apex Court did not stop the High Courts from exercising their powers during this corona crisis. Let the High Courts continue to monitor the covid crisis in their respective jurisdictions. Fortunately, some High Courts like Delhi, Madras, Allahabad, and Kolkata have been very active in protecting human rights and dignity during this covid crisis. They have strongly reprimanded the respective governments for their failures to address the public grievances. The constitutional courts are expected to protect the fundamental and legal rights of the people when they knock on their doors or even suo motu. In times like these, the Courts need to push the governments to protect people’s lives effectively and quickly. If citizens are dying because of a shortage of oxygen, this is nothing but a total collapse of our health system and the executive cannot avoid its responsibility. The High Courts are within their rights to pressurize the governments to provide oxygen, life-savings drugs, and beds to the covid patients. The governments cannot be allowed to take the plea of the paucity of resources at this time. The Supreme Court has also taken serious notice of some these executive blunders and failures. This order will also be helpful to the Union Executive to prepare a national plan to handle the covid crisis.

Notably, the Supreme Court has given the following interim directions to the Central and the State Governments to handle the Covid crisis. (1) The Union of India shall ensure, in terms of the assurance of the Solicitor General, that the deficit in the supply of oxygen to the GNCTD is rectified within 2 days from the date of the hearing, that is, on or before the midnight of 3 May 2021; (2) The Central Government shall, in collaboration with the States, prepare a buffer stock of oxygen for emergency purposes and decentralize the location of the emergency stocks. The emergency stocks shall be created within the next four days and is to be replenished on a day-to-day basis, in addition to the existing allocation of oxygen supply to the States; (3) The Central Government and State Governments shall notify all Chief Secretaries/Directors General of Police/Commissioners of Police that any clampdown on information on social media or harassment caused to individuals seeking/delivering help on any platform will attract a coercive exercise of jurisdiction by this Court. The Registrar (Judicial) is also directed to place a copy of this order before all District Magistrates in the country; (4) The Central Government shall, within two weeks, formulate a national policy on admissions to hospitals which shall be followed by all State Governments. Till the formulation of such a policy by the Central Government, no patient shall be denied hospitalization or essential drugs in any State/UT for lack of local residential proof of that State/UT or even in the absence of identity proof;(5) The Central Government shall revisit its initiatives and protocols, including on the availability of oxygen, availability, and pricing of vaccines, availability of essential drugs at affordable prices and respond on all the other issues highlighted in this order before the next date of the hearing, that is, 10 May 2021. Copies of all affidavits to be served upon the Amici in advance.

Admittedly, these directions are coming at a time when India is receiving lakhs of cases and thousands of people are dying daily. People are unable to get oxygen, beds, and even drugs. Unfortunately, the Centre and the States have failed people badly to provide them relief. Some High Courts, as mentioned earlier, had rightly intervened to mitigate the sufferings of the people. The Supreme Court has pushed to the governments to prepare a mechanism to deal with the unprecedented crisis created by the covid. The governments have no option but to arrange more resources at the earliest to fight against the covid. The Court has rightly intervened to protect the life and personal liberty of the citizens as per the basic spirit of Article 21 of the Constitution. This order reflects the true commitment of our top court to the cause of protection of human rights, dignity, and constitutional morality.

It is apposite to mention that the Court has protected the freedom of social media that has been a great tool for communicating the grievances of the people relating to an oxygen supply, drugs, and hospitalization, etc. Through social media, lakhs of public-spirited citizens have come together to help those who need it during this most difficult period. Sadly, some governments were more concerned about their image rather than public health. The Court has not appreciated that approach of the executive. Appreciating the use of social media, the Court observed as follows: “It is only appropriate then that when many cities in India are suffering through the second wave of the COVID-19 pandemic, many have turned to the internet, using applications/websites to find critical support. On these platforms, online communities led by members of the civil society and other individuals, have assisted the needy in multiple ways – often by helping them procure oxygen, essential drugs or find a hospital bed through their own networks or by amplifying original requests, and even by offering moral and emotional support. However, it is with deep distress that we note that individuals seeking help on such platforms have been targeted, by alleging that the information posted by them is false and has only been posted in social media to create panic, defame the administration or damage the “national image”. We do not hesitate in saying that such targeting shall not be condoned, and the Central Government and State Governments should ensure that they immediately cease any direct or indirect threats of prosecution and arrest to citizens who air grievances or those that are attempting to help fellow citizens receive medical aid. If this does keep happening even after the current order, this Court shall be constrained to use the powers available to it under its contempt jurisdiction. We also direct that all Directors General of Police shall ensure compliance down the ranks of the police forces within their jurisdictions.”

Given the above discussion, it is submitted this the Supreme Court has intervened at a right time when people were looking towards the Court for justice. The Court has not rightly touched the petitions pending in the different High Courts relating to the Covid mismanagement. This is a very difficult time that certainly needs an extraordinary degree of judicial activism to protect the lives and livelihoods of people. People cannot be thrown at the mercy of the centre and states. They need immediate relief to save their lives. All governments have failed them. There should be some uniformity to deal with the corona crisis. We can fight against the coronavirus jointly, not alone. The governments should not unwelcome criticism at this time. This is the time to make self-introspection and feel the public anger and protect humanity. The Supreme Court has demonstrated a great initiative towards the compliance of constitutional morality in this suo motu action. This is what the people expect from the judges of the Supreme Court who decide the legal destiny of a nation. Hopefully, the momentum of this great judicial statesmanship should be continued to mitigate the sufferings of people during this painful time. In difficult times like this, judges should not hesitate to create a new law to protect the human rights and dignity of the people. Let me conclude this discussion with these words of the eminent jurist, distinguished statesman, and renowned public intellectual Salman Khurshid: “Judges should ideally apply the law made by the legislature but where there is no possible answer in the words of the legislature, judges do make new law covertly or explicitly. In doing so, democratic considerations require them to fill up the gaps keeping in mind what the legislature would do if it were asked to.”

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MY FRIEND IMTIAZ AHMED

Salman Khurshid

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My friend, Imtiaz Ahmed, left us all on 29 April after struggling with Covid-19 for several days. One does not imagine the death of any living person easily or indeed be pushed to do so. As I look back, his special presence, the self-assured demeanor, the gentle cynicism, not easily persuaded about bird- brained schemes that people bring, devoted to Aligarh Muslim University and its alumni, quick to expand on elusive religious doctrines, attentive to prayer, nothing about him indicated that a virus of all things could get the better of him. He leaves behind a loving, grieving family and innumerable friends from Azamgarh, Aligarh, Hyderabad, Farrukhabad, and the legal fraternity across India. Of course, in Imtiaz saheb’s demise as indeed of the thousands of others, we are left with the perplexing, niggling pain that we have brought this upon us and lost talent that would have served India for long.

Throughout the pandemic last year, I saw little of him as we were all closeted in our homes. This year he insisted that I visit the Court premises once the Bar library and the canteen were reopened. As usual, he generously insisted on paying for the cold drinks; long ago I had given up trying to claim my right and duty as Senior Counsel over his determined generosity. A few days later he came to my chambers for a virtual hearing that went off satisfactorily. Unlike his normal practice, he did not leave hurriedly and instead opted to stay on to chat about various matters including the threat of the pandemic. And then I was told that he had been infected. We were in touch on the phone even when he was on Oxygen supplement and we were looking for matching AB+ plasma. But sadly, every effort of the medical team ultimately failed. He has gone away but must indeed be proud, wherever he is with his Maker, of the unflinching courage and devotion shown by Naghma, his beloved lawyer wife who shared legal appearances as indeed a wonderful home along with the boys, Zargham and Faraz. How suddenly their world must have stopped with one telephone call from the ICU is heart-rending. Even in the grief, one feels I cannot but vividly see Imtiaz saheb holding forth to an ethereal audience about mismanagement of Indian polity!

Imtiaz saheb had once hoped to become a judge but only fleetingly. Although two Chief Justices of India actively pursued the High Courts recruiting from the Supreme Court Bar there remained a feeling that periodic appearances before the concerned High Court were necessary. There might have been a momentary disappointment but he loved the Bar so passionately that it is difficult to imagine his bidding goodbye. It is therefore very strange to think that he has indeed bid it goodbye and with it his home family life that he was equally passionate about. Having tried many a time to invite him to events late in the evening but seldom having succeeded I took recourse to add that once he crossed the Jamuna for home after chamber work, he was lost to this part of town. He may have crossed over for the last time but he leaves behind many admirers and a school of young followers who will not forget him, as a benevolent guide and a hard taskmaster. Our Bar is varied and vastly talented and the absence of a colleague should in the normal course be filled by others. But I believe that is not the case with Imtiaz saheb because he had made a very special place that had a lot to do with his personality. He will therefore continue to be missed both for work and style. Many institutions and helpless persons he looked after over the years, often pro bono, will of course have a special reason to feel his absence. Unfortunately, his plans, known and discreet, will not unfold to add the excitement to the routine existence he was always looking for. Amongst the many who conveyed condolence was Chief Justice Khehar who said that he recalled him as a young member of the Bar whose eyes said that he would go places.

As he was laid to rest, the pandemic protocol and the prevailing personal precautions kept the mourners to a bare minimum; many of us could not even carry the bier or put a handful of earth on the grave. Some friends he cared for dearly and others often at the receiving end of his humor joined to bid the final goodbye. In a world already turned impersonal and transactional, this pandemic has forced us into greater distance physically but hopefully not emotionally and spiritually. As we close the graves and light the pyres a hollowness remains. I can only recall the quizzical smile Imtiaz saheb used to have whenever a much sought for SLP was summarily dismissed. And then, as though to test me, he would say, ‘shall we file a review?’ Well, this time, in our moment of sorrow there are no reviews or curative petitions except to bow to the Almighty and simply say, ‘As the Lord pleases’ instead of the usual ‘As your Lordships please.’

Salman Khurshid, Senior Advocate, Supreme Court of India & former Union Minister of External Affairs, Law & Justice

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SOLI J. SORABJEE: IMPRESSIONS OF AN UNKNOWN LAWYER

Sudhir Mishra

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It was the year 1999, a Legal Head of a Public Sector Undertaking asked me in quite a challenging tone, “Can you get a quick legal opinion from Mr. Soli J. Sorabjee, the Attorney General of India?” I paused for a moment while he kept on staring at me and I confidently said, “I will get the legal opinion”.

It was my first year of practice and I had no idea where the AG’s office was or how I would even get access to him as these were just my initial days in the legal profession after having been unsuccessful in the IAS interview of 1998 but I was certain to complete the assignment assigned to me for which I was given 3 days by the client.

With virtually no files and post-marriage responsibilities to cope with, a breakthrough in the legal field had become extremely critical for me. I was fed up of going to the Delhi High Court day after day, on my 10-year-old Priya scooter, in the hope that I would be appointed as a local commissioner in some matter.

It was with a lot of courage that I started my search for the Legendary Soli J. Sorabjee. I went to the Supreme Court and asked someone where Mr. Sorabjee’s office was. There were no emails, neither a system of court passes nor WhatsApp in those days and thus I was told by someone after a lot of effort that he was arguing in Court No. 2. As I rushed to the court room, the unassuming Soli came out around lunch time. I introduced myself and kept on walking with him. Seeing my desperation, he immediately calmed me down and motivated me to create a draft of the opinion, highlighting all important points after which he reframed and revised it into a great legal opinion. I came back home with the signed copy of the opinion in the next two days. I managed to meet the 3-day deadline given by the Central Government PSU and my confidence was sky rocketing. I was so grateful to Soli and was jumping with joy not realizing what was awaiting me.

After a week, a registered post was received at my home with a heavy invoice! I used to stay in Mayur Vihar during those days with a minimal monthly expense of only Rs. 5,000. Upon receiving the invoice, I was shaken and did not understand why it was raised in my name. I rushed to the PSU only to receive another round of shock. The legal head rebuked me and questioned as to why I had not fixed the fee before taking the opinion. The Legal Head remarked “We can’t pay so much. Could you politely request Soli to reduce it, if possible?” Completely out of sorts, I took my scooter and hurried back to Sorabjee’s office at Sundar Nagar. With a sad look, I shared my predicament with him just hoping that he would understand. The graceful Soli immediately instructed his stenographer to reduce the fees. My entire professional learning was shaped by this one experience. Starting from the drafting of an opinion to understanding the value of a senior’s time- it was a complete package! Even asking a senior about something in the corridors is of value and there is a fee for it all.

The second encounter was in the year 2006. There used to be a regular forest bench in the Supreme Court every Friday. I was in court despite a high fever, to appear in a road diversion matter for Corbett National Park. While Harish Salve was amicus and the Central Empowered Committee of the Supreme Court was making a representation, I, being part of an NGO, which had filed a few applications, was sitting at the rear bench which was normally not occupied by lawyers. Soli walked in post lunch, at 2:15 PM, looked at me, and trying hard to recognize, he mumbled softly, “Why are you sitting here?” I sprang up immediately from my seat. “You should be on your legs, young man! This is for clients,” he gently chided me.

But as soon as he came to know of my indisposition, his soft nature was revealed. “Just give a seat to this young boy,” he instructed a senior lawyer occupying a front seat. I cannot express how reassuring these words were for me then. I was surprised at how connected he was with his ecosystem.

After I had become an established lawyer post 2012, I had a couple of very close interactions with Soli at the U.S. Embassy get togethers, especially those functions which related to the alumni of the most coveted International Visitor Leadership Programme (IVLP). We both were invitees for the U.S. Government’s highest opinion making International Visitors’ Leadership Programme. The eloquent lawyer opened up to young lawyers during those evenings. “You must cherish your personal milestones, especially your birthdays.” he said to me. He also shared his love for personal time, hobbies and why he waited for his birthday parties.

Soli was full of life, gregarious, warm and friendly to both the young and the old alike. One never felt intimidated by his erudition and acumen. A disciplined lawyer, a champion of freedom of speech and expression and a great protector of human rights, Sorabjee was honoured with the Padma Vibhushan, the second highest civilian award in India, for his outstanding services.

However, to me, he was special for he served as the entry point in my life to a successful career. He enabled me to dream big. He was the first and the only Attorney General I have interacted with. His gracious and dignified approach in 1999 left such a mark on me such that it lifted my spirits to excel in the legal profession.

Once, during an interaction that I, along with Sridhar Potaraju, the Supreme Court lawyer had with Soli in the Supreme Court corridor, he said admonishingly, “You all should read more. Your generation hardly reads.” He was a voracious reader, counting amongst his favourites, the works of that famous bard from Stratford-upon-Avon as well as the literary works of our first prime minster, Pandit Nehru. A jazz enthusiast and a multi-hyphenate, he lived by the principles he set: a lawyer must never limit himself to only the law, for he would remain a mason; a lawyer who cultivates other interests, such as literature, music, human rights, amongst others, will instead become an architect.

Whenever I saw Soli, I had a broad smile to which he always reciprocated humbly. I must say, I saw his reflection in his accomplished daughter Ms. Zia Mody when I met her in Milan, Italy, a few years back. I was left impressed with the striking similarities.

Mr. Sudhir Mishra, Founder and Managing Partner, Trust Legal & Door Tenant, No5 Barristers Chambers, London

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JUSTICE JASPAL SINGH FONDLY REMEMBERS INTERACTIONS WITH SOLI SORABJEE

Soli Sorabjee appeared for Khushwant Singh on objections to his book, Women and men in my Life.

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Sardar Khushwant Singh had written a book titled Men and Women in my life. A petition was filed by a lady journalist through Mr. Shali Advocate( who later became a judge of Delhi High Court) that the book was obscene, needed to be banned and Khushwant Singh be prosecuted. Soli Sorabjee appeared for Khushwant Singh. I held that the book contained nothing which could be considered obscene and while so holding I went into the question as to what is obscenity and why the articles contained therein could not be considered as obscene..After the judgement was upheld by the Supreme Court, Soli met me and told me that the judgement had been reported in CommonWealth Law Review which was a unique honour.

Justice (Retd.) Jaspal Singh

Arun Jaitley

Khushwant SinghSoli Sorabjee

Before that he had sent me an article by Shoba De where she had complimented me.

Later when I gave judgement on the JMM case against Narsimha Rao and others he invited me to his house and complemented me. I had, in that judgement, compared the role of Buta Singh with a Sprint. Soli in his column referred to it.

I was from Judicial Service, on retirement from High Court service, judges used to be given farewell tea party while judges from Bar used to be given farewell dinner. I was the first service judge to be given farewell dinner and to my pleasant surprise Soli who was the then Attorney General made it a point to attend it.

On my retirement, he offered me the post of Chairman Company Law Board. I declined. He then asked me to become a member of the Law Commission .I told him I was opposed to after retirement assignments. With regard to it even Arun Jaitley had spoken to me and to him also I had made my stand clear.

Thereafter he invited me over dinner at IIC.. He made me its member.Much later he declined membership to a lady judge on some misinformation by another judge who later became Chief Justice of Punjab and Haryana High Court and who was quite close to Soli. When I came to know about it I talked to Soli who promptly made her a member. That lady judge on her retirement has distinguished herself with regular critical articles on judiciary in Indian Express.

On his 80th birthday he hosted a great party. He gave me a phone call inviting me and later came a reminder. I still feel the warmth of his embrace on that occasion.

Ah yes. He was a tenant in Sunder Nagar. The landlord wanted him to vacate. There was sharp correspondence from the landlord. I was honoured to be consulted by the person who had remained Attorney General of India. In fact I was honoured to draft a reply to his landlord.

He was so warm hearted. So witty. So sharp. And a wonderful host offering hard drinks to a teetotaler and wondering what sort of a Sardar I was.

I still remember the twinkle in his eyes.The mischief on his lips and the choicest Parsee jokes translated into English and prompting me to match them with equally choicest Sardar jokes.

I miss all this.And above all his ability to stand by what he felt to be right . Soli was the soul of the Bar. A man of conviction with indefatigable courage.

By God.I miss him.

Justice (Retd.) Jaspal Singh served as Judge, Delhi High Court.

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