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Enka Insaat vs Chubb: What UK Supreme Court affirmed?

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INTRODUCTION

The five-judge bench of UK Supreme Court on 9 October 2020 pronounced a landmark judgment in Enka Insaat Vs Sanayi AS vs OOO Insurance Company Chubb [2020] UKSC 38, which is considered to be a leading authority in the arbitration regime on the governing law of arbitration agreements and the role of the courts of the seat in granting anti-suit relief.

FACTS

The claimant (“Enka”) is a Turkish company carrying on an international construction and engineering business based in Turkey but with a substantial presence and history of operations in Russia whereas the First Defendant (“Chubb Russia”) is a Russian company and part of the well-known Chubb insurance group. In the present case Enka was one of the subcontractors amongst others providing services in connection with a power plant for the Defendant (“Chubb Russia”).

On 1st February 2016 a severe fire caused massive damage to the plant. The owner, Unipro, claimed from its insurer, Chubb (in this case). In May 2019 Chubb Russia commenced proceedings against Enka and 10 other parties in the Russia (“Russian Proceedings” in Arbitrazh Court), seeking damages in relation to a massive fire in February 2016 at the power plant in Russia. However, over this claim, Chubb Russia asserted that “the accident was caused by defects (deficiencies) in the design, structures, fabrication and installation of the [power plant] including fuel oil pipelines”. To all this, Enka asserted that it had no liability and could have no liability, on the basis that in November 2014 the works which were alleged to have caused the fire had been excluded from the scope of works to be performed by Enka and had subsequently been performed by another contractor.

On 17 September 2019 Enka filed a motion in the Russian proceedings to have Chubb Russia’s claim against it dismissed (or “left without consideration”) pursuant to article 148(5) of the Arbitrazh Procedure Code, which is intended to give effect to Russia’s obligations under article II(3) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (“the New York Convention”) to refer to arbitration parties who have agreed to submit to arbitration a dispute of which a court of a contracting state is seized. It was well argued and contended by Enka that the claim against it fell within the scope of the arbitration agreement contained in article 50.1 of the construction contract and ought therefore to be resolved, not by the Russian courts, but by an arbitration conducted in accordance with that provision in London. Interestingly after some hearings, the judge in the Russian proceedings announced her decisions (a) not to grant Enka’s motion to refer the claim against it to arbitration and (b) to dismiss Chubb Russia’s claims against all the defendants on the merits. Meanwhile, Enka had on 16 September 2019 brought an arbitration claim in the Commercial Court in London seeking an anti-suit injunction to restrain Chubb Russia from further pursuing the Russian proceedings against Enka on the ground that this was a breach of the arbitration agreement in article 50.1 of the construction contract.

DECISIONS OF THE LOWER COURTS

On 15 October 2019 Carr J declined to grant an interim anti-suit injunction but gave directions for an expedited trial. The trial took place on 11 and 12 December 2019 before Andrew Baker J. He gave judgment on 20 December 2019, dismissing Enka’s claims against all the defendants. His primary reason for doing so was that he considered the appropriate forum to decide whether Chubb Russia’s claim against Enka falls within the arbitration agreement to be the Moscow Arbitrazh Court and not the English Commercial Court.

To note, Andrew Baker also relied on the fact that Enka did not seek an interim order from an arbitral tribunal, and that it did participate to some extent in the Russian court proceedings.

Aggrieved by the decision, Enka applied to the Court of Appeal for permission to appeal from this decision. The application was granted on 6 February 2020 and the appeal was heard on 7 and 8 April 2020. On 29 April 2020 the Court of Appeal (Flaux, Males and Popplewell LJJ) allowed Enka’s appeal and issued an anti-suit injunction restraining Chubb Russia from continuing the Russian proceedings. This appellate court swept the decision of Andrew Baker on the court that he made a wrong decision regarding the law governing the Arbitration Proceeding.

THE COURT OF APPEAL

The court also added that On forum non conveniens  grounds, the previous decision was wrong in principle. 

First, the choice of the seat of the arbitration is an agreement by the parties to submit to the jurisdiction of the courts of that seat. 

Secondly, the grant of an anti-suit injunction to restrain a breach or threatened breach of the arbitration agreement is an exercise of such powers.

The English Court as the court of the seat of the arbitration is for that reason the appropriate forum to exercise the jurisdiction to grant anti-suit relief. It is required to decide whether threatened or actual proceedings constitute a breach of the arbitration agreement, and if they do, to protect the integrity of the arbitration agreement by granting anti-suit relief unless there is a strong reason for not doing so. That is part of the supervisory jurisdiction of the court of the seat, to which the parties submit by choosing the place of the seat. There is no room for the application of any forum non conveniens consideration: either the forum conveniens question does not arise or it is automatically answered in favour of the English Court as the court of the seat.

Further, In order to decide whether to make an anti-suit injunction, the Court would need to decide whether the arbitration clause covered the dispute in question. This required a decision as to what law governed the arbitration agreement. This cannot be decided simply on the basis that the contract provides for the law governing the whole contract, because the arbitration agreement is considered a separate agreement whose governing law might be different (but usually is not). This is particularly possible where the seat of arbitration is different from the governing law, because that opens the way for the argument that it would make more sense for the arbitration agreement to be governed by the law of the place where the arbitration will be seated. Generally there is a presumption that the governing law of the arbitration agreement will be the same as the seat of arbitration.

Therefore, in light of these considerations, The Court of appeal concluded in this case that, even if the main contract was governed by Russian law, it made more sense for the arbitration agreement to be governed by the law of England, which the parties had chosen as the seat of arbitration and hence On the main issue of determining the proper law of the arbitration agreement, the Court of Appeal clarified the relevant principles. It is well established that the proper law of an arbitration agreement (“AA law”) may not be the same as the proper law of the main contract.

The court also clarified that the English Courts will exercise their “curial Jurisdiction” to grant anti-injunction based on the parties choice of London as an arbitration seat and regardless of the law governing the AA. The court also emphasized that the “anti-suit injunction jurisdiction is concerned to protect and enforce the integrity of arbitration agreement” and hence the role of the curial court is to “interrogate the substantive jurisdiction of the arbitral tribunal (or the putative or potential tribunal if none has been or is intended to be appointed) in determining whether the foreign proceedings are a breach of the agreement to arbitrate the dispute in question.” The court also pointed out that even in cases where the AA is governed by foreign law, consideration of foreign conveniens and comity should not be taken into account by English Courts in deciding the grant of anti-suit injunctions.

DECISION OF THE SUPREME COURT

In the landmark judgment given by Lord Hamblen and Lord Leggatt (with which Lord Kerr agreed), the Supreme Court confirmed that, under English common law, the search for the main contract law is governed by the Rome I Regulation (Regulation (EC) No 593/2008 of the European Parliament, see Article 3.1 and 4). However, Questions regarding the law governing arbitration agreements, on the other hand, are not covered by the Rome I Regulation and is excluded from the preview of Article 1(2)(e). The AA law is to be determined by applying the three stage test required by English common law conflict of laws rules, namely:

IS THERE AN EXPRESS CHOICE OF LAW?

If not, is there an implied choice of law?

If not, with what system of law does the arbitration agreement have its closest and most real connection?

The rules of English law on contractual interpretation will be applied by the English Court to decide the issue.

The court then relied on a previous decision where the valiant attempt by Hamblen J (as he then was) in Habas Sinai Ve Tibbi Gazlar Istihsal Endustrisi AS v VSC Steel Co Ltd [2013] EWHC 4071 (Comm); [2014] 1 Lloyd’s Rep 479, to set out, as clearly as possible, the relevant principles to determine the law governing the AA.

Even if an arbitration agreement forms part of a matrix contract (as is commonly the case), its proper law may not be the same as that of the matrix contract.

The proper law is to be determined by undertaking a three-stage enquiry into (i) express choice, (ii) implied choice and (iii) the system of law with which the arbitration agreement has the closest and most real connection.

Where the matrix contract does not contain an express governing law clause, the significance of the choice of seat of the arbitration is likely to be “overwhelming”. That is because the system of law of the country seat will usually be that with which the arbitration agreement has its closest and most real connection.

Where the matrix contract contains an express choice of law, this is a strong indication or pointer in relation to the parties’ intention as to the governing law of the agreement to arbitrate, in the absence of any indication to the contrary.

The choice of a different country for the seat of the arbitration is a factor pointing the other way. However, it may not in itself be sufficient to displace the indication of choice implicit in the express choice of law to govern the matrix contract.

Where there are sufficient factors pointing the other way to negate the implied choice derived from the express choice of law in the matrix contract the arbitration agreement will be governed by the law with which it has the closest and most real connection. That is likely to be the law of the country of seat, being the place where the arbitration is to be held and which will exercise the supporting and supervisory jurisdiction necessary to ensure that the procedure is effective.”

The principal rationale for treating an express choice of main contract law as indicative of a choice of AA law is because businessmen do not usually intend that their relationship should be governed by more than one system of law (see Sulamerica Cia Nacional de Seguros SA v Enesa Engelharia SA [2013] 1 WLR 102 per Moore-Bick LJ at [11]).

The Court of Appeal stipulated that “this is a sensible starting point where there is no arbitration clause with a different seat; but it ceases to have any application where there is. In such cases, whatever the AA law, the parties have necessarily chosen their relationship to be governed in some respects by two systems of law, namely the curial law and the main contract law” (paragraph 95, emphasis added). Overall, as emphasised by Lord Neuberger in Sulamerica at [51], determining the proper law of the arbitration agreement was in each case a matter of contractual interpretation.

Applying these principles set above, the Court of Appeal found that the AA law in the Contract was governed by English law. Whilst the governing law of the Contract was Russian law, this was not by express choice. 

Further, In this case, there was no choice of law to govern the contract as a whole and the general rule would be applied in that situation so that the law of the seat of arbitration governs the arbitration agreement.

Therefore English law governed the arbitration agreement and the Court of Appeal›s basis for granting the anti-suit injunction remains sound.

The Supreme Court considered the possibility that, where the law governing the contract also governs the arbitration agreement, this would nullify the arbitration agreement fully or partially. The Court acknowledged the possibility that might justify a departure from the general rule in order to give effect to the principle that generally, contracts should be construed so as to avoid invalidity.

The Supreme Court also confirmed the Court of Appeal›s decision that it was appropriate for the court to consider whether to grant the anti-suit injunction, given that England was the seat of arbitration.

Interestingly, Lord Burrows and Lord Sales partially dissented from the decision of three judges in this case.

CONCLUSION

This is a remarkable judgment by the Supreme Court of England and is going to be an authority in the pro-arbitration regime. The court has clearly clarified the position and power of the English courts to exercise the curial law in order to grant anti-suit injunctions as a matter of relief. As pointed out by Lord Justice Popplewell in paragraph 109 that “the scope of the curial law is not limited to the exercise of purely procedural powers. It involves the curial court determining aspects of the substantive rights of the parties under their arbitration agreement by reference to the curial law.” Saying this, Lord Justice Popplewell has vested a responsibility on the draftsman to draft the AA more diligently. The law set out with regard to the governing law of the arbitration agreement will also be considered to be a remarkable authority and will be a helpful percent for complicated cases in future.

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ADDITIONAL DISTRICT JUDGE HAS JURISDICTION TO ENTERTAIN A PETITION FILED UNDER SECTION 34 OF ARBITRATION AND CONCILIATION ACT: KERALA HC

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While setting all the speculation to rest on whether an Additional District Judge has jurisdiction under Section 34 of the Arbitration and Conciliation Act, 1996 or not, the Kerala High Court has just recently on 9 April 2021 in a latest, learned, laudable and landmark judgment titled Kasim VK vs M Ashraf in Arb.A.No. 37 of 2020 held in no uncertain terms that an Additional District Judge has jurisdiction to entertain a petition filed under Section 34 of the Arbitration and Conciliation Act. The two Judge Bench of the Kerala High Court comprising of Justice CT Ravikumar and Justice K Haripal observed that, “Principal District Judge can only be considered first among equals and the Additional District Judge is in no way considered to be inferior to the Principal District Judge.” The Kerala High Court observed thus while dismissing an Arbitration Appeal.

To start with, Justice K Haripal who has authored this judgment for himself and Justice CT Ravikumar sets the ball rolling by first and foremost pointing out in para 1 that, “Whether an Additional District Court has jurisdiction to entertain a petition touching the matters falling under the Arbitration and Conciliation Act; Can a party to an arbitration dispute challenge the jurisdiction of the Arbitrator for the first time before the court in a petition filed under Section 34 of the Act, are the two questions posed for consideration in this appeal.”

As we see, the Bench then puts forth in para 2 that, “This is an appeal preferred under Section 37 of the Arbitration and Conciliation Act, 1996, hereinafter referred to as the Act, challenging the correctness of the order of the III Additional District Judge, Kozhikode in OP(Arbitration) No.270/2018. That was a petition filed by the appellant before the District Court, under Section 34 of the Act seeking to set aside the award of the Arbitrator, dated 29.09.2018.”

While elaborating on the facts of the case, the Bench then envisages in para 3 that, “It is the common case that the appellant and the respondent were partners in M/s.Shalimar Jewellery, a partnership concern dealing in the sale of gold. The partnership agreement was executed on 28.10.2013. Before the execution of that agreement, there were three partners in the firm, the appellant, the respondent and one V.K. Moidu. When Moidu chose to move out, the agreement dated 28.10.2013 was brought in existence. During the course of business the appellant and the respondent could not move on and thus, by a lawyer notice, the respondent notified the appellant his intention to dissolve the partnership. Thus he informed that the partnership stood dissolved with effect from 01.05.2015. In the matter of settlement of accounts the partners could not reach a consensus and that led to the appointment of two Arbitrators at the instance of the parties. The appellant nominated Sri. K. Aravindakshan as Arbitrator who dismissed the claim of the respondent. On the other hand, one Sri. Abdulla Manapurath was nominated by the respondent as Arbitrator who found that, at the time of dissolution of the partnership, 6481.580 grams of gold was the stockin-trade, the value of which was estimated to be Rs.1,91,85,476.80/- and thus the respondent was found entitled half of the said amount, i.e. Rs.95,92,738.40/-. In the light of divergent finding of the respective Arbitrators, both the Arbitrators jointly nominated Adv. Sri. A.K. Rajeev as the third Arbitrator, who, after taking evidence, passed an award to the effect that the respondent is entitled to claim Rs.1,13,77,405/- with interest at the rate of 11% on Rs.87,03,427/-. Aggrieved by the said award of the third umpire, the appellant moved the District Court with the above stated Original Petition under Section 34 of the Act. By the impugned order, on 02.03.2020, the learned III Additional District Judge dismissed the petition. Aggrieved by the same, the appellant has moved this Court under Section 37 of the Act.”

Needless to say, the Bench then states in para 4 that, “We heard Adv. Sri. B. Krishnan for the appellant and Adv. Sri. Mohammed Nias for the respondent. The records leading to the award and the order passed by the learned Additional District Judge were also summoned and perused.”

To say the least, the Bench then notes in para 5 that, “The point arising for consideration is whether the appellant could make out valid reasons for interference under Section 37 of the Act.”

Be it noted, the Bench then observes in para 6 that, “As mentioned earlier, it is the common case that both the appellant and the respondent were partners of a partnership firm by name M/s.Shalimar Jewellery doing business in gold at Nadapuram in Kozhikode district. The partnership agreement was executed on 28.10.2013 in continuation of the earlier business run by the parties themselves along with one V.K. Moidu. Clause 17 of the partnership agreement reads thus:-

“17. Any dispute or difference of opinion that may arise between the partners or their heirs or their legal representatives with regard to this partnership agreement or any other matter relating to this firm shall be mutually discussed and settled. If not settled, the dispute shall be referred to two arbitrators by common agreement of the partners. Where these arbitrators are themselves divided in opinion, the matters may further be referred to an umpire chosen by the said arbitrators.”

It is on the strength of the above clause in the agreement that the appellant and the respondent had nominated their respective Arbitrators. But divergent awards were passed by the Arbitrators, which necessitated the appointment of a third umpire and that was how the impugned award had come into existence.”

Furthermore, the Bench then envisages in para 7 that, “The impugned order indicates that even though the appellant had challenged the award with numerous contentions, at the time of argument he confined to one ground only namely, that the dispute is not capable of settlement by arbitration. The learned Additional District Judge considered this aspect and basing on the decision of the Hon’ble Supreme Court in M/s. V.H. Patel & Company and others v. Hirubhai Himabhai Patel and others [(2000) 4 SCC 368] and also A. Ayyasami v. Parasasivam and others [(2016) 10 SCC 386] ruled against the appellant and held that a dispute on the dissolution of a partnership is capable of being adjudicated by the Arbitrator and ultimately the petition was dismissed.”

It is worthwhile to mention that para 12 then stipulates that, “The preamble of the Act makes it amply clear that the Parliament enacted the statute almost on the same lines as the Model Law which was drafted by United Nations Commission on International Trade Law, UNCITRAL. Under the 1940 Act, an Arbitrator had no power to decide on his own jurisdiction. But Section 16 of the Act of 1996 is a recognition of the doctrine of competence-competence meaning that the Arbitral Tribunal can rule on its own jurisdiction. The crux of the arbitration process is the autonomy of the disputing parties with minimum judicial intervention. Once the Arbitral Tribunal, after hearing parties, gives a decision that the arbitration agreement exists between the parties, then by virtue of sub-section (5) of Section 16, the tribunal is bound to proceed with the arbitration matter and make the award and the validity of the order can be assailed by the aggrieved party only by filing objections against the award under Section 34.”

To put things in perspective, the Bench then envisages in para 13 that, “It is the requirement of the law that respondent must state his objections with regard to the jurisdiction of the Arbitrator before filing the statement of defence. However, the respondent may be allowed to raise objection to the jurisdiction of the Arbitrator even subsequent to the filing of the defence statement provided he can show good reasons to the Arbitrator for raising such an objection at a belated stage. In this connection, it is apposite to extract the following paragraphs from the decision reported in Gas Authority of India Limited and another v. Keti Constructions (I) Ltd. and others [(2007) 5 SCC 38]:-

“24. The whole object and scheme of the Act is to secure an expeditious resolution of disputes. Therefore, where a party raises a plea that the Arbitral Tribunal has not been properly constituted or has no jurisdiction, it must do so at the threshold before the Arbitral Tribunal so that remedial measures may be immediately taken and time and expense involved in hearing of the matter before the Arbitral Tribunal which may ultimately be found to be either not properly constituted or lacking in jurisdiction, in proceedings for setting aside the award, may be avoided. The commentary on Model Law clearly illustrates the aforesaid legal position.

25. Where a party has received notice and he does not raise a plea of lack of jurisdiction before the Arbitral Tribunal, he must make out a strong case why he did not do so if he chooses to move a petition for setting aside the award under Section 34(2)(a)(v) of the Act on the ground that the composition of the Arbitral Tribunal was not in accordance with the agreement of the parties. If plea of jurisdiction is not taken before the Arbitrator as provided in Section 16 of the Act, such a plea cannot be permitted to be raised in proceedings under Section 34 of the Act for setting aside the award, unless good reasons are shown.”

The above dictum is a complete answer to the argument raised by the appellant touching want of jurisdiction of the Arbitrator. At the risk of repetition, we may point out that the appellant has no dispute regarding the validity of the agreement, nor he had raised such a contention before the two Arbitrators chosen by the parties and also before the third umpire. In the circumstances, he is estopped from raising such a belated plea in a petition filed under Section 34 of the Act.”

While citing yet another relevant case law, the Bench then observes in para 14 that, “We have also come across the decision of a learned Single Judge of the Bombay High Court, reported in Yogendra N. Thakkar v. Vinay Balse and another [2018 KHC 5034], where the learned Judge has ruled, basing on the decision of the Hon’ble Apex Court in V.H. Patel & Company, quoted supra, that the power of dissolution of the partnership firm under Section 44(g) of the Indian Partnership Act on just and equitable grounds also is an action in personam and not in rem. We concur with the above view expressed by the learned Single Judge of the Bombay High Court.”

Of course, the Bench then hastens to add in para 15 that, “We have already referred to clause 17 of the agreement executed between the parties. It is quite patent that the said clause is very wide and the intention of the parties is to settle the dispute through arbitration, in the event it could be settled through mediation. Section 44 of the Partnership Act also does not impose any taboo or cause any restriction which prevents dissolution of partnership through arbitration. In other words, there is no inherent lack of jurisdiction in the matter of considering the question of dissolving the partnership through arbitration.”

To be sure, the Bench then points out in para 16 that, “During the course of argument, the learned counsel for the appellant also disputed the jurisdiction of the Additional District Judge in entertaining a petition under Section 34 of the Act. Referring to Section 2(e) of the Act, he said that ‘court’ means only principal civil court of original jurisdiction in a district and, therefore, the Additional District Judge has no jurisdiction to entertain the petition. In this connection, he placed strong reliance on Sree Gurudeva Charitable and Educational Trust, quoted supra. But we have no doubt in our mind that such an argument cannot be accepted in right earnest. Firstly, the decision in Sree Gurudeva Charitable and Educational Trust, was rendered in the context of Section 92 of the Civil Procedure Code and has turned up on its own facts. We are not called upon to make any opinion on the correctness of the said decision. Secondly, Section 2(1) (e) of the Act reads thus:

“2. Definitions.- (1) In this Part, unless the context otherwise requires,-

(e) “Court” means—(i) in the case of an arbitration other than international commercial arbitration, the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any Civil Court of a grade inferior to such principal Civil Court, or any Court of Small Causes;

(ii) in the case of international commercial arbitration, the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, and in other cases, a High Court having jurisdiction to hear appeals from decrees of Courts subordinate to that High Court.”

Most remarkably, the Bench then also points out in para 17 that, “A close reading of this provision will not impel us to adopt the argument raised by the learned counsel. The said provision enables the principal civil court of original jurisdiction in a district as the court having jurisdiction to decide the question forming the subject matter of arbitration; such a court does not include any civil court of a grade inferior to such a court or any Court of Small Causes. The latter limb of Section 2(1)(e) of the Act makes it abundantly clear that the definition of the ‘court’ does not include ‘any civil court of a grade inferior to such principal Civil Court, or any Court of Small Causes’. To put it in other words, legislature has not thought of excluding courts exercising identical or co-equal powers from the definition. In no stretch of imagination an Additional District Judge can be inferior to such principal civil court. A court is inferior to another court, when an appeal lies from the former to the latter. An inferior court must be construed to mean judicially inferior and has appellate jurisdiction. A court is an inferior court for the purpose of the prohibition in the provision whenever its jurisdiction is limited. The Additional District Judge enjoys an equal, concurrent jurisdiction with the District Judge. His powers are identical and co-equal with the Principal District Judge. Both are manned by officers in the category of District Judge. The Principal District Judge cannot revise an order passed by any Additional District Judge. District Court is the ‘court’ for the purposes of execution of the award and considering the matters under the Arbitration Act, it is important to note that the Principal District Judge has no appellate jurisdiction or revisional jurisdiction over the Additional District Judge. For all practical purposes, if there are more than one district court in a district, the Principal District Judge can only be considered first among equals and the Additional District Judge is in no way considered to be inferior to the Principal District Judge.”

Quite pertinently, the Bench then states in para 18 that, “When a similar contention, that an Additional District Judge has no jurisdiction to entertain an application under Section 9 of the Act, was raised, in Globsyn Technologies Ltd. v. Eskaaycee Infosys [2004 (2) ALT 174 : MANU/AP/0970/2003] the High Court of Andhra Pradesh ruled thus:-

“12. The short question that falls for consideration is as to whether the Court of the learned VI-Additional District Judge is a Civil Court of a grade inferior to the Principal Civil Court. The Court of the Principal District Judge and the Court of VI Additional District Judge are of equal grade. The Court of the learned VI-Additional District Judge is not a court of a grade inferior to the Court of the Principal District Judge. The expression “Court of a grade inferior” is required to be understood in its proper context.

13. The dictionary meaning of inferior is “lower in any respect, subordinate, a person who is lower in rank or station”. According to Black’s Law Dictionary, inferior means “one who, in relation to another, has less power and is below him; one who is bound to obey another. The term may denote any Court subordinate to the chief appellate Tribunal in the particular judicial system [eg. Trial Court]; but it is also commonly used as the designation of a Court special, limited or statutory jurisdiction”.

14. I find it difficult to accept the submission of the learned Additional Advocate General that the Court of the learned VI Additional District Judge at Visakhapatnam is a Court of a grade inferior to the Principal District Judge’s Court. ……..””

While continuing in a similar vein, the Bench then also states in para 19 that, “A Division Bench of the Madhya Pradesh High Court also considered the same question pointedly in Madhya Pradesh State Electricity Board and another v. ANSALDO Energia, S.P.A. and another [AIR 2008 M.P. 328]. After making an elaborate survey of authorities taken by various High Courts on the point, approving the dictum in Globsyn, mentioned supra, it was held that, the Additional District Judge has jurisdiction to entertain a petition filed under Section 34 of the Act. We are in respectful agreement with the above finding.”

Most significantly, the Bench then quite rightly points out in para 20 that, “In the context of the Kerala Civil Courts Act also such an argument of the learned counsel cannot hold good. Section 2 of the Civil Courts Act provides three category of positions namely, the court of a District Judge, the court of a Subordinate Judge and the court of a Munsiff. Section 3 provides for establishment of district court. Going by sub-section (2) of Section 3 of the Civil Courts Act, the Government shall establish a district court for each district and a Judge shall be appointed to such court. Section 4 provides for appointment of Additional District Judges. Under sub-section (1) of Section 4 when the state of business pending before a district court so requires, one or more Additional District Judges may be appointed to that court for such period as it deemed necessary. Sub-section (2) of Section 4 says that an Additional District Judge shall discharge all or any of the functions of the District Judge under this Act in respect of all matters which the District Judge may assign to him, or which under the provision of Section 7 may be instituted before him and in the discharge of those functions he shall exercise the same powers as the District Judge. When such additional district courts are established and Additional District Judges are appointed, sub-section (2) of Section 4 of the Civil Courts Act empowers the Additional District Judges so appointed with powers to discharge all the functions of the District Judges. It is very specific when it is provided that the Additional District Judge shall exercise the same powers as the District Judge. That is why it is stated that Principal District Judge is only first among equals among the District Judges in a district. In the circumstance, there is no jurisdictional error in Additional District Judges hearing petitions filed under the Act.”

Adding more to it, the Bench then states in para 21 that, “Arguments were also addressed stating that the award was given in total disregard of the time frame provided under Section 29-A of the Act. According to the learned counsel, the award is hit by subclause (4) of Section 29A of the Act. We are unable to subscribe this argument also. It is evident from the paper book produced by the learned counsel and also the records that, when two Arbitrators appointed by the parties had given divergent views, appointment of a third umpire became necessary. Accordingly, both the Arbitrators together, by letter dated 15.05.2017, nominated Sri.A.K. Rajeev, Advocate, Vadakara as the third umpire. The proceeding paper indicates that he had taken up the matter on 19.05.2017 and the impugned award was passed on 29.09.2018. No doubt such an award was not passed within a period of twelve months as provided under Section 29-A(1) of the Act. All the same, sub-clause (3) of Section 29-A provides that the parties may, by consent, extend the period specified in sub-section (1) for making award for a further period not exceeding six months. Referring to paragraph 8 of the impugned award, the learned counsel for the respondent submitted that the third umpire proceeded with the matter, as consented by the parties, under sub-section (3) of Section 29-A. Relevant portion of the award indicates that, ‘there was some delay in proceeding with the matter partly attributable to his personal inconvenience and also due to the delay and laches on the part of the parties in submitting their statements and documents before him’.

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The claimant filed his statement along with the documents only on 02.04.2018 whereas the respondent filed his statement on 09.05.2018. It is further stated that on 09.05.2018, that is before the expiry of twelve months starting from 15.05.2017, both the parties were requested by him to extend their cooperation to complete the proceedings and make the award as early as possible and at any rate on or before 15.10.2018. According to him, they accepted and agreed for the same and cooperated with him for completing the arbitration proceedings. In other words, taking the date of commencement of the proceedings as 15.05.2017, before the expiry of twelve months both the parties consented to extend the period specified in sub-section (1) of Section 29-A for making the award and the award was passed on 29.09.2018 within a further period of six months from the date of giving the consent. Sitting in this jurisdiction, we do not find any reason to disbelieve the version of the Arbitrator and to strike off the proceedings under sub-section (4) of Section 29-A of the Act.”

For the sake of clarity, the Bench then states in para 22 that, “This is not a regular appeal as provided under Order XLI CPC or Section 5 of the High Court Act, but an appeal under Section 37 of the Act. While considering an application under Section 34 of the Act, the District Court has only supervisory jurisdiction. The jurisdiction of this Court under Section 37, at the tapering end of the proceedings, is still narrow and thin.”

Quite aptly, the Bench then observes in para 23 that, “It is the settled proposition of law that an Arbitrator is a Judge chosen by the parties and his decision is final. The court is not expected to appraise evidence as done by a regular court of appeal. In a case where the award contains reasons, interference would not be available within the jurisdiction of the court unless reasons are totally perverse or the award is based on wrong proposition of law. An error apparent on the face of the records would not imply closer scrutiny of the merits of documents and materials on record. Once it is found that the view of the Arbitrator is a plausible one, the court will refrain from interfering in the matter.”

It cannot be glossed over that the Bench then states in para 24 that, “In the decision reported in P.R. Shah, Shares & Stock Brokers (P) Ltd. v. B.H.H. Securities (P) Ltd. (2012 (1) SCC 594 the Apex Court held that a court under Section 34(2) of the Act does not sit in appeal over the award of an Arbitral Tribunal by re-assessing or re-appreciating the evidence. An award can be challenged only under the grounds mentioned in Section 34(2) of the Act. In the absence of any ground under Section 34(2) of the Act, it is not possible to re-examine the facts to find out whether any different decision can be arrived at. Similarly, in Sutlej Construction Ltd. v. Union Territory of Chandigarh [(2018) 1 SCC 718], while commenting against an order passed under Section 34 of the Act, the Hon’ble Supreme Court held that the Judge ought to have restrained himself from getting into the meanderings of evidence appreciation and acting like a second appellate court.”

No doubt, the Bench then seeks to point out in para 25 that, “Coming down to the jurisdiction under Section 37, it is clear that the court cannot travel beyond the restrictions laid down under Section 34 of the Act. The Hon’ble Supreme Court has held that the Court cannot undertake an independent assessment of the merits of the award and must only ascertain that the exercise of power under Section 34 has not exceeded the scope of the provisions; in case an arbitral award has been confirmed by the court under Section 34, in an appeal under Section 37 the appellate court must be extremely cautious and slow in disturbing such concurrent findings.”

Finally, the Bench then holds in para 26 that, “We have considered the contentions of the parties bearing in mind the restrictions imposed by the statute and also the caution sounded by the Apex Court. On an overall consideration of the entire circumstances, we are sure that the learned Additional District Judge has considered the award in proper perspective and reached a correct conclusion. We are of the definite view that overwhelming reasons are not made out warranting interference in appeal. Point is answered accordingly and the appeal is dismissed. No costs. Before parting with, we once again record our deep appreciation for the erudite and enlightening arguments raised before this Court by the learned counsel for the appellant as also the learned counsel for the respondent.”

In essence, the two Judge Bench of the Kerala High Court comprising of Justice K Haripal and Justice CT Ravikumar in their 26-page painstaking brilliant, brief and balanced judgment make the picture pretty clear on whether Additional District Judge has jurisdiction to entertain a petition filed under Section 34 of the Arbitration and Conciliation Act. The Additional District Judge has jurisdiction to entertain a petition filed under Section 34 of the Arbitration and Conciliation Act and there is nothing wrong in doing so as this is permitted in law. Para 17 and para 20 explains this quite elaborately, explicitly, eloquently and elegantly and form the real backbone of this judgment which is par excellence.

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MORE AMMUNITION IN HANDS OF ARMED FORCES: PAKISTAN’S NEW LAW CURBS RIGHT TO FREE SPEECH

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An experiment that has completely failed, the vision of great leaders is futile for the nation for which it was separated from India. Once it was dreamt that nation would be on parity with its big brother India but the present picture is devastating. The nation is harbouring death squads, leaders of the nation turn into a vendor of delusion, on the world map the nation is now undoubtedly recognised as a heaven for terrorists, the conundrum on the Kashmir, the recent failure on weather war and a goof-up reports, the creeping failures, the recent development is the shocking and utterly unreasonable step from the legislatures of the nation and there is not an iota of doubt that democracy is just a misnomer that is not anymore existing in the nation. The nation about which I am talking is now clear to you, it is the Islamic Republic of Pakistan which is a democratic setup atleast as per the constitution of Pakistan but on the ground, it is a failed experiment. The latest development that will give you goosebumps is regarding the step of Pakistani legislatures and a clear violation of International law norms and basic human rights envisaged under Article 19 of UDHR.

A TOOL TO CURB FREE SPEECH: SHATTERING DEMOCRACY IN PAKISTAN

If you think people not responding to your WhatsApp messages and leaving you with blue ticks is an offence, think again. There are people in Pakistan who believe that making memes should be made illegal and criticism should be a criminal offence. If your mind thinking what about the right to free speech and expression don’t worry about it Pakistani legislatures tried every single attempt to curb it. Pakistan’s new bill criminalizes military criticism with two-year imprisonment coupled with a fine of five thousand Pakistani Rupees. The proposed bill already approved and passed by a panel of national assembly-the lower house of the country’s parliament. By approving this bill, the national assembly panel has approved the amendment in the country’s Penal Code and Criminal Procedure Code 198, sanctioning punishment to those who ridicule armed forces through intended criticism. Criminal Law Amendment Bill, 2020 proposes to amend Section 500 of the Pakistani Penal Code (PPC) which envisaged the punishment for defamation. As per the report, the amendment proposes “punishment for international ridiculing of the armed forces etc. Whosoever intentionally ridicules, brings into disrepute or defames the armed forces of Pakistan or a member thereof, shall be guilty of an offence punishable with imprisonment for a term which may extend to two years, or a fine which may extend to five hundred thousand rupees or both.”

The legislation will curb free speech and even constructive criticism against the army by anyone. It is a major question that is unanswered by legislators as to how they will define what will come under intentional criticism and what will not? It is again to be decided by the sole discretion of concerned authority that can lead to abuse of powers.

THE UNREASONABLE REASONING: WHY PROPOSED AMENDMENT IS UNACCEPTABLE

The proposed amendment has faced criticism in Pakistan itself by the opposition leaders. But, the reasoning tabled by the legislature presenting the bill was completely unreasonable and against the rule of law if we need a comparative aspect to analyze the law. The law is fundamentally a gross error and a step by the legislatures to completely curb down the criticism against the military in any way even if it’s a constructive one.

As per the constitution of Pakistan Article 19 already covered the freedom of speech etc. and the instant subject matter is already covered in the aforesaid article. Article 19 is a fundamental right and such rights cannot be taken by the government except is some conditions laid under the Article. Already, the aspect is covered under the Article and hence the proposed criminal amendment bill is futile. The key to catch here is that in the present time there is no law and any issue arises on the said aspect the discretion is on the judiciary to interpret Article 19 but if the proposed amendment comes into effect, then the criticism of the army is a crime and it curbs freedom of speech which violates Article 19 of the constitution as it is not a reasonable exception provided therein in Article 19. The ridiculous step of legislature once again a cause of mockery and high trolling of Pakistan in their won country as well as in the global arena. The law is for the society and not supposed to against the society but there is an exception which is Pakistan as in past also we have seen some absurd and shocking developments.

The proposed amendment is also violating the International law norms and conventions as it is violating the Universal Declaration of Human Rights Article 19 that envisaged the concept of Freedom of speech and expression The only contention to justify the proposed amendment is that it is a reasonable exception to Article 19 of Constitution of Pakistan but the case is it is not the reasonable one. So here, what legislatures have done simply forcing their justification to uphold their will over the choice of the people of Pakistan. Pakistan is known for this democratic setup has witness arrest in past when the military coup was there in the nation so it is not a very abnormal step but it is an unacceptable and unfavourable step of the current regime of the nation. But what the people can do there, simply nothing if you raise the voice you will be killed or if you survive then you need to exile from there. Simply it is a life without freedom but the nation portrayed itself as a life full of freedom. There is an urgent need to ponder upon it.

One of the basic universal human rights is freedom of speech and expression that is available to all of us. Free speech is a necessary precondition to the enjoyment of other rights, such as the right to vote, free assembly and freedom of association, and is essential to ensure press freedom. The newest development in Pakistan is completely a shocking one but these abnormal things are normal in Pakistan. A Parliamentarian from the ruling party in Pakistan introduced legislation that would punish criticisms of the military in the country. With the advent of the new development in Pakistan, it is clear that the democratic setup in-country is just a rubber stamp but the actual power vests in the hand of the Army. According to the report, the bill is proposed to prevent hatred and disrespectful behaviour against the armed forces. It is pertinent to note here that already military in Pakistan has accused of different allegations against everyone who worked opposite to their interest. According to the 2020 World Press Freedom Index, the country ranked 144 out of 180. Pakistan’s military has been accused of pursuing journalists and other members of Pakistan’s civil society who are thought to be acting against them in any way. Reporters Sans Frontieres (RSF), the international organization that publishes the annual World Press Freedom Index (WPFI), commented on the state of press freedom in Pakistan and the role played by the country’s military in curtailing it. RSF noted, “[t]he influence of this military ‘establishment,’ which cannot stand independent journalism, has increased dramatically since Imran Khan became prime minister in July 2018.” Different instances depict where the country stands in terms of freedom to free speech and why the proposed law is just unreasonable. The murder of journalist Daniel Pearl, the killing of activist Karima Baloch, turned Balochistan into the land of missing people and a hotspot for every plausible crime ranging from murder, extortion to rape and many more instances. The list is continuous and so long if I need to put it up but the crux is that behind all this the reason for murders is directly or indirectly has a nexus with raising the voice against atrocities of the Pakistani military. The new legislation is a tool for adding more fuel and ammunition legally in the hands of the Pakistani Army. It is already too strong in the Pakistani setup.

FINAL WORDS

In summation, the proposed amendment is new ammunition in hands of the Army to curb down the expression, voices, dissents and even constructive criticism by anyone including journalists as well. It needs to be noted that the only justification given by the legislature behind this amendment is to curb down the incidents of defamation against the armed force but is for curbing down the right to free speech. This amendment would make it illegal to ask reasonable questions about the military’s alleged involvement in civilian affairs, which is important in Pakistan because the threat of the democratic project being derailed is still present. The proposed amendment is already heavily criticised in Pakistan as the Minister of the ruling party indirectly passed a criticism as “Absolutely ridiculous to criminalise criticism.’

The finality as if the bill converts into law will depend on the subject to approval by the National Assembly and the Senate (upper house of the Parliament). If it gets passed by the upper house then once again free speech gets curbed by the red tape in Pakistan and the seldom exercised right will just turn into a new misnomer in the nation. Parliament must ensure that this bill is either abandoned or dismissed in the interests of democracy.  It is imperative that civil societies across the globe are vigilant in defending the freedom of expression. This is necessary for the enhancement of people’s lives and the creation and maintenance of strong, healthy democratic societies. But in Pakistan all these are just words, it is a hub of global terrorism as proved by UN report.

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Specious jury of social media

Our generation has got a new instrument in its hands: The instrument goes by many names and gets a new name every few years. That instrument drives its life from the majestic power of the Internet, and it has no brain of its own; it works as per the command of the user’s brain. Whenever a piece of news comes out, without verifying the veracity of the same, that user is either fuelled by rage or becomes a part of the herd being led by some learned jurymen of social media.

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It is very often that the so-called learned, educated, liberal jury of social media comes to the rescue of oppressed, who at the end of the proper trial comes out to be a perpetrator in the best-case scenario. This article which I am writing may attract undue criticism from self-acclaimed crusaders of liberalism but I must write in contempt of this jury of social media working behind screens, destroying reputations since its inception. To every coin, there are two sides: one is to be praised while the other should be buried fathoms below the ground.

Our generation has got a new instrument in our hands from an early age; the instrument goes by many names and gets a new name every few years. That instrument drives its life from the majestic power of internet, and it has no brain of its own; it works as per the command of the user’s brain. Whenever a piece of news comes out; without verifying the veracity of the same, that user is either fuelled by rage or becomes a part of the herd being led by some learned jurymen of social media.

There have been countless posts which went viral on the internet. Many of them have led to reforms and are to be applauded, they form the bright side of the coin. The other side of the coin, which is not so bright, is run by the learned jurymen of social media and is committed towards spreading either hatred or misrepresenting the facts to catalyse a conclusion which would not have reached if the facts were analysed in toto with an application of mind.

One of the fresh examples of misadventures of this brigade is Sarvjeet Singh Bedi, who was falsely accused by a Jasleen Kaur of molesting him at a traffic signal in Tilak Nagar, Delhi in August 2015; trial went on for 4 years during which she migrated to Canada while accused suffered the wrath of social media which inevitably led to social boycott however some people came forward to his rescue once trial commenced. Thankfully, in the October of 2019, he was acquitted of those charges. The fallibility of social media verdicts is that those people who shared such unverified claim of harassment suffer no consequences, and neither the one who made false accusations with the intent to harm his reputation through the massive reach of social media.

There is another recent case where a 17-year-old boy committed suicide in Gurugram after a girl made serious allegations against him on Instagram. When they checked his Instagram account, they were surprised to see that the minor girl had made serious allegations against him without any evidence. The girl had levelled false allegations against him due to which he faced social ostracization and was trolled by several others with a mammoth of hate messages. He probably unable to deal with them and went under depression, the father has alleged in his complaint.

This has now been a trend on social media, where many start sharing unverified or unproved bits of information; this inevitably leads to the defamation of the accused, who may even not be guilty. This is a disrespect of law and courts, but things haven’t stopped at it. Those social media jurymen are now at the throat of the judiciary, trying to mount pressure upon the Hon’ble Courts to bend down to their demands and their definition of justice, which I without any hesitation say, is flawed at its every corner.

Latest attempt to demean the judiciary can be seen at various social media platforms where it is being discussed that the Hon’ble Gauhati High Court granted divorce in Bhaskar Das v. Renu Das; Mat.App. 20/2019 just because women refused to wear ‘sakha and sindoor’. Those who are sharing or commenting upon this, have they even bothered to go through the text of the judgment? Judgments are not read or analysed in pieces, they are to be gone through in whole to understand the context and meaning of every word.

Let me assist the jurymen of social media on the text of the judgment, as an amicus.

Firstly, the women had filed a fake against her husband, his widowed step-mother and his sisters under section Section 498(A) of Indian Penal Code. The husband and his family members were compelled to apply for pre-arrest bail because of the said criminal case filed by the wife. He along with his family members were acquitted by the trial court. At this juncture, it is pertinent to mention that the Hon’ble Supreme Court in a recent judgment being Rani Narasimha Sastri vs. Rani Suneela Rani, 2019 SCC Online SC 1595 has held that filing of criminal cases like case under Sections 498(A) IPC etc. against the husband and the family members and which are subsequently dismissed/rejected by the Family Court, is sufficient to be construed as an act of cruelty by the wife. The fake complaint, even if considered in isolation, is a very valid ground for the decree of divorce to be passed.

In the background of the complaint filed under section 498(A), the husband contended that the wife compelled him to execute a written agreement to the effect that the couple will stay in a separate rental house together away family members were not to be permitted to come and visit them. The wife categorically admitted in her cross-examination about the presence of the said clause in the said agreement (It is shown below in cross-examination).

Secondly, let us see what the women said in her cross-examination. I’ll mention the relevant piece for the sake of brevity:

-That I am not wearing/putting sindoor right now because I don’t consider him as my husband.

– That it is not a fact that we entered into an agreement after the F.I.R.

-That I have objection regarding divorce in this case as because either he come to Dibrugarh to live with me or otherwise fulfil my demand i.e. monetary demand, only then I will divorce him.”

This shows that she removed her sakha and sindoor as a mark for her desire to end the marriage.

From the last point which I mentioned in cross-examination para, it looks like extortion is going on through filing of fake cases against her husband. When she in her cross-examination, and evidence states it clearly that her removing sakha and sindoor is the symbol of her unwillingness to continue in a marital relation with her husband; there remain no gaps in her intention of getting separated from her husband, and the same was considered was the court as a corroborating evidence not as the primary evidence for granting of the divorce. A fake case under Section 498(A) of Indian Penal Code is enough for the divorce to be granted.

Further perusal of the judgment will inform you of her conduct of separating her husband from his family and not even allowing them to visit him, which she has categorically admitted. It is noteworthy that the widowed step-mother of her husband has no personal source of income and she is a senior citizen and is dependent; therefore, the husband is bound by Maintenance and Welfare of Parents and Senior Citizens Act, 2007 to provide for his mother, and the attempt to keep her away from him with no visitation rights is cruelty, at the very least even if we ignore her stopping her husband to perform his statutory obligations.

She has also filed a case against him under Sections 471/420 of Indian Penal Code, 1860, which are still pending before the court.

She appears to be determined, armed with legal counsel, to extort money out of her husband and make him suffer unreasonably, her evidence and cross-examination stands tall proof of her wicked conduct.

When she herself is admitting in cross-examination that she took off her sakha and sindoor as she no longer considers him her husband, there is no space for the interpretation in that statement for courts. Hon’ble High Court simply referred to this statement of hers in order to corroborate their decision of allowing the appeal.

This is a classic case of misuse of laws by disgruntled wife against the husband; and the social media jury’s reaction of condemning the Hon’ble Judges is a classic example of ‘scandalising of court’, by bringing down the courts respect in eyes of common men and women.

Rhea Chakraborty’s media trial is another example of negative examples of over-active jury of social media. The actress has not yet even been tried by the Hon’ble Court let alone convicted and the whole social media led by a few jurymen went on to assail the reputation of actress and subjected her to mental stress and trauma. This cannot be allowed to happen; people must understand that there is no absolute right of freedom of speech and expression, it is subject to just and reasonable restrictions. The matter is currently sub-judice so it would not be proper for me to comment anymore on it.

I can only hope that this practice of social media will be depreciated in future, and learned jurymen of social media are sacked from their self-claimed judicial roles.

Social media is a place which can be used for much more than spreading hate and misinformation against the Hon’ble Court or some innocent person.

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Analysis of Insurance (Amendment) Act 2021: Effects and implications

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INTRODUCTION

On 1st of February when the Union Budget was presented by Hon’ble Finance Minister, it was made official that the Foreign Direct Investment in the insurance sector will increase to 74% from 49%. While concluding the speech respected finance minister also mentioned that it is proposed to amend the Insurance Act of 1938. This was indicative that such changes were to be brought by the way of amendment only. The said was complied with when on 18th March the Insurance (Amendment) Act 2021 (which was a bill then) got a nod from the Rajya Sabha and has been in effect from the 1st April, 2021.

With the change in composition of FDI limit certain additional regulatory changes were also announced under the new framework which includes A. Foreign ownership and control would be allowed with safeguards; B. The majority of directors on the Board and key management persons would be required to be resident Indians; C. 50% of directors would need to be independent directors; D. a specified percentage of profits of the insurance company would have to be retained as a general reserve.

HISTORY OF ADVENT OF FDI IN INSURANCE SECTOR

India first opened up the insurance sector in the year 2000 under the Atal Bihari Vajpayee government when it allowed private sector firms to set up insurance companies and allowed FDI of 26 per cent. After that, for a long time, there were demands from the industry to further increase this cap to 49 per cent. After many deliberations the amendment of 2015 raised the cap from 26 per cent to 49 per cent.

The amendments of 2015 and 2021 are an enabling amendment that gives companies access to foreign capital if they need it. It is an important shift in stance as the increase in the FDI cap means insurance companies can now be foreign owned and controlled as against the current situation wherein they are only Indian owned and controlled. This will give a foreign company the right to appoint a majority of directors, control the management and the policy decisions taken.

This decision is also a result of COVID-19 Impact on the GDP, and by increasing the FDI in insurance sector government aims at getting a influx of foreign capital in the economy in order to uplift the GDP of the country.

CHANGES BROUGHT BY THE AMENDMENT

The amendments introduced by the 2021 Amendment Act are as follows:

• Firstly, change is brought in section 2, clause (7A), for sub-clause (b) which has been substituted as:

“(b) in which the aggregate holdings of equity shares by foreign investors including portfolio investors, do not exceed seventy-four per cent. of the paid-up equity capital of such Indian insurance company, and the foreign investment in which shall be subject to such conditions and manner, as may be prescribed;”

The amended provision states that limit of foreign investment allowed in Indian insurance companies shall not exceed 74% (previously 49%), and foreign investment in insurance companies shall be “subject to such conditions and manner, as may be prescribed.”

• Secondly, the explanation to Section 27 clause 7 which states the provision which stipulated the requirement for an insurance company incorporated in India to hold assets in trust where at least: (i) 33% capital is owned by investors domiciled outside India, or (ii) 33% of the members of the governing body are domiciled outside India, now stands omitted;

• Thirdly, In section 114 of the principal Act, in sub-section (2), for clause (aaa), the following clause shall be substituted, namely:

“(aaa) the conditions and manner of foreign investment under sub-clause (b) of clause (7A) of section 2;”.

The requirement for the insurance company to be Indian owned and controlled has been omitted, and it has been stipulated that the conditions and manner of foreign investment shall be as prescribed.

IMPACT ON INDIAN INSURANCE COMPANIES

India has more than 60 insurance companies specialising in life insurance, non-life insurance and health insurance. The number of state-owned firms are only six and the remaining are in the private sector. A higher FDI limit will help insurance companies access foreign capital to meet their growth requirements. Insurance is a capital intensive business. Simply put, as an insurance company sells more policies and collects premiums from policy holders, it needs higher capital to ensure that it is able to meet the future claims.

The insurance regulator, Insurance Regulatory and Development Authority of India (IRDAI), mandates that insurers should maintain a solvency ratio of at least 150 per cent. Solvency ratio is the excess of assets over liabilities. Insurance is a long gestation business. It takes companies 7-10 years to breakeven and start becoming profitable. Allowing FDI upto 74 per cent could see more interest from foreign insurance companies who specialise in this business and who bring the so-called ‘patient’ capital.

In addition, the government will prescribe a specific percentage of the profits that will have to be treated as general reserve.

This will ensure that reserves will be available to meet the claims of policy holders regardless of a foreign investors’ own financial condition, Finance Minister Nirmala Sitharaman said Thursday in her reply to the debate on the bill in Rajya Sabha. It will also mean that the government will ensure that only a part of the profit can be repatriated to the foreign promoter and there is sufficient money available with the insurance company to pay every claim.

The government has also reiterated that the provision of Section 27E of the insurance act will continue to be applicable. This means that no insurance company, irrespective of its foreign shareholding, can directly or indirectly invest the money of the policy holders outside India. The insurance companies will also have to ensure that 50 per cent of the directors are independent directors so that insurance companies follow all Indian laws.

WAY FORWARD

The Amendment Act of 2021 has been introduced with the sole motive to increase FDI per cent in the insurance sector for this the Insurance Act, 1938 was amended accordingly, however the onus now lies upon the Regulator which is IRDA. The IRDAI may also prescribe conditions/restrictions with respect to matters such as related party transactions, and payment of dividend by an insurance company having majority foreign investment. However, the extent to which these conditions will be made applicable to insurance companies remains to be seen.

In generally, Higher FDI limits could see more global insurance firms and their best practices entering India. This could mean higher competition and better pricing of insurance products. Policy holders will get a wide choice, access to more innovative products and a better customer service and claims settlement experience. Therefore the amendment brings the new horizons in the insurance sector which the companies will thrive to achieve and benefit the economy.

The government will prescribe a specific percentage of the profits that will have to be treated as general reserve.

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Police personnel cannot be appointed jail superintendent, says Uttarakhand HC

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In a significant judgement pertaining to prisoners rights and affecting them directly, the Uttarakhand High Court has in a latest, landmark, laudable and learned judgement titled Sanjeev Kumar Akash v. State of Uttarakhand & Ors in Writ Petition (PIL) No. 25 of 2021 delivered on 12 April 2021 has held that police personnel cannot be appointed as Jail Superintendent. A Division Bench comprising of Chief Justice Raghvendra Singh Chauhan and Justice Alok Kumar Verma observed that we have come to the age of “Reformation and Rehabilitation of Prisoners”. It held that the purpose of police is very different from that of Jail Superintendents and as a natural corollary, their trainings and psyche are poles apart. Hence the former cannot possess the position of the latter.

To start with, Chief Justice Sri Raghvendra Singh Chauhan who has authored this notable judgment for a Bench comprising of himself and Justice Alok Kumar Verma of the Uttarakhand High Court sets the ball rolling by first and foremost pointing out in para 1 that, “Mr. Sanjeev Kumar Akash, the petitioner, has filed the present Public Interest Litigation in order to challenge the order dated 12.02.2021, passed by the Secretary, Department of Home, the respondent no. 2, whereby the Officers of the Police Department have been given the additional charge of the office of the Senior Superintendent/Superintendent of Jail at Sitarganj, Haldwani, Haridwar, Dehradun and Roorkee. The petitioner has further challenged the consequential order dated 12.02.2021, passed by the Inspector General of Prisons, the respondent no. 3, whereby the Officers of the Police Department have been transferred, and posted with the additional charge of Senior Superintendent/Superintendent of Jail at various prisons in the State of Uttarakhand.”

While elaborating on the facts of the case, the Bench then enunciates in para 2 that, “Briefly stated, the facts of the case are that, as per the structure in the Department of Prison in the State of Uttarakhand, there are three sanctioned posts of Senior Superintendent of Jail, and nine sanctioned posts of Superintendent of Jail. Out of the nine sanctioned posts of Superintendent of Jail, four posts are to be filled up by way of direct recruitment, and five posts are to be filled up by way of promotion from the post of Jailor. Presently, one post of Senior Superintendent of Jail, and four posts of Superintendent of Jail, have been filled up. Therefore, currently two posts of Senior Superintendent of Jail, and five posts of Superintendent of Jail are lying vacant. According to the State Government, considering the difficulties faced in running the Jails properly, it has taken a conscious decision to give additional charge of Senior Superintendent of Jail, and Superintendent of Jail, to officers of the Indian Police Service (IPS). Hence, the present Public Interest Litigation before this Court.”

On the one hand, the Bench first dwells on the petitioner’s contentions in para 3 stating that, “Ms. Kamini Jaiswal, the learned Senior Counsel for the petitioner, has raised the following contentions before this Court :-

Firstly, that the job responsibility and the training of the Police Officers, and those of the Officers of the Jail Administration, stand on different plains. The duty of the Police Officers is preventive and penal, and spans the arena of investigation, prevention and protection, and maintenance of law and order. On the other hand, with the emerging modern trends in penology and theories of punishment, the fundamental duty of the Officers of the Department of Jail is the protection, the reformation, and the rehabilitation of the prisoners. Since the job responsibilities are of different nature, the psychological makeup, the thinking, the conduct of the Police Officers and the Jail Officers, perforce, has to be quite different. Whereas, generally a Police Officer sees an offender as a culprit, as a person who has violated the law, and thus deserves to be condemned and punished, the Officers of the Department of Prison see prisoners as human beings, who have erred, who need to be reformed, who need to be rehabilitated, and brought back as productive members of the society. Thus, the very philosophy behind the interaction between a Police Officer and an offender, and the interaction between a Jail Officer and the prisoner, stand on a different footing. Therefore, one cannot be confused with the other.

Secondly, keeping this distinction in mind, even law has bifurcated these two services into two different classes; the laws have empowered them differently. Therefore, to confuse these two classes would be violative of the fundamental philosophy, which govern these two different services.

Thirdly, this bifurcation of the two departments, and the philosophy behind working of the two departments, is not unique to India. But has universal application throughout the world. According to the learned Senior Counsel, the United Nations has issued “Standard Minimum Rules for the Treatment of Prisoners”, better known as “the Nelson Mandela Rules”. These Rules prescribe the “good principles and practice in the treatment of prisoners and prison management”. Rules 74 to 82 deal with “Institutional Personnel”. Rule 74 provides for “careful selection of every grade of the personnel”. It emphasises “on their integrity, humanity, professional capacity, and personal suitability for the work that the proper administration of prisons depends”. Rule 74(3) further stresses on the need for appointment of prison personnel “on a full-time basis”. Rule 75(2) states that “before entering on duty, all prison staff shall be provided with training tailored to their general and specific duties, which shall be reflective of contemporary evidence-based best practice in penal sciences”. Rule 76 further states that the training referred to in Rule 75(2) shall include, at a minimum, training on “rights and duties of prison staff in the exercise of their functions, including respecting the human dignity of all prisoners, and the prohibition of certain conduct, in particular torture and other cruel, inhuman or degrading treatment, or punishment.” Rule 79 further states that “the Prison Director (Superintendent of Jail in India) shall devote his or her entire working time to official duties, and shall not be appointed on a part-time basis. He or she shall reside on the premises of the prison or in its immediate vicinity.”

Relying on the Nelson Mandela Rules, the learned Senior Counsel has emphasised that the Superintendents of Jail are required to undergo a particular training, which will inculcate a sense of dignity of all the prisoners, will make them humane, and sensitise them to the plight of the prisoners, to their families, and to the prison conditions. The learned Senior Counsel has further stressed on the need for appointing the Senior Superintendent/Superintendent of Jail on a full-time basis, rather than on a part-time basis.

Fourthly, referring to the Uttar Pradesh Jail (Group A and B) Service Rules, 1982 (for short “the Rules, 1982”), the learned Senior Counsel has submitted that Rule 3(k) defines the post of “Superintendent, District Jail” to mean “the whole-time Superintendent, Jail appointed in accordance with the 1982 Rules”. According to Rule 5(6) of the Rules, 1982, the post of Superintendent of District Jail is to be filled up fifty percent by direct recruitment, and fifty percent by promotion from amongst the regularly appointed Deputy Superintendents/Jailors with a minimum of five years’ service as Deputy Superintendents, or Jailors or both. Moreover, Rule 14 deals with “determination of vacancies”. Rule 15 deals with the “procedure for direct recruitment”. Rule 16 deals with the “procedure for recruitment by promotion to the post of Superintendent, District Jail”. Therefore, according to the learned Senior Counsel, the procedure for making an appointment to the post of Senior Superintendent/Superintendent of Jail is clearly prescribed by Rules 14, 15 and 16 of the Rules, 1982. These Rules do not permit ad-hoc appointment of Police personnel on the post of Senior Superintendent/Superintendent of Jail. Therefore, the impugned orders are clearly in violation of the Rules, 1982.

Fifthly, even the Code of Criminal Procedure, prevents the keeping of an undertrial prisoner in police custody beyond a stipulated period of time. According to Section 167 of Cr.P.C, an accused cannot be detained in police custody beyond a period of fifteen days. In case the investigation is not completed within a period of ninety days, for offences punishable with death, imprisonment for life or imprisonment for a term of not less than ten years, the offender would have to be granted bail under Section 167(2)(a)(i) Cr.P.C. Therefore, even the Cr.P.C. does not envisage keeping of undertrial prisoners in police custody for too long a period. Even otherwise, while keeping an offender in judicial custody, he/she cannot be kept beyond a period of sixty days or ninety days in case the investigation were not completed within the stipulated period of time. Moreover, in case the investigation were to be completed within the stipulated period of sixty days or ninety days, and in case bail were not granted by a competent Court, an undertrial is required to be kept in judicial custody. But, by appointing police personnel as Senior Superintendent/Superintendent of Jail, for all practical purposes, the custody is suddenly changed from a judicial one to a police one. Therefore, the learned Senior Counsel submits that the impugned orders violate the letter and the spirit of Section 167 Cr.P.C.

Lastly, despite the fact that a prisoner loses the freedom of movement, he/she continues to enjoy the other fundamental rights, as guaranteed by the Constitution of India. Therefore, Article 21 of the Constitution of India, guaranteeing protection of Life and personal liberty, continues to shine even in the dark corners of a prison cell. According to the learned Senior Counsel, once a procedure has been established by law that too a procedure backed by certain penological philosophy- it cannot be violated by the State. Therefore, the State is legally bound to implement the service rules as contained in the Rules, 1982, to implement the requirements of Cr.P.C, to implement the constitutional philosophy, as embodied in the Preamble of the Constitution of India, and to implement the “Nelson Mandela Rules”. Hence, according to the learned Senior Counsel, the impugned orders deserve to be set-aside by this Court.”

On the other hand, the Bench then further states about the States contention in para 4 wherein it is put forth that, “On the other hand, Mr. Anil Kumar Bisht, the learned Additional Chief Standing Counsel for the State, has raised the following counter-contentions before this Court :-

Firstly, in the order dated 17.11.2006, issued by the Principal Secretary, Uttaranchal Administration, it was clearly mentioned that the Inspector General of Prisons would either be the Secretary, Home, or IAS officers, or of equivalent posts. Similarly, Additional Inspector General of Prisons would be from the post of Additional Secretary, Home/Joint Secretary, Home, or from PCS Cadre. In fact, even presently, the post of the Inspector General of Prisons is occupied by a person belonging to the IPS cadre. Therefore, the appointment of police personnel to the post of Senior Superintendent/Superintendent of Jail can certainly be made from Police Officers.

Secondly, considering the fact that presently there are two posts of Senior Superintendent of Jail, and five posts of Superintendent of Jail, which are lying vacant, considering the fact that direct recruitment to these posts would require some time, considering the fact that there is no one in the post of Jailors, who has completed five years of required service for being promoted to the post of Senior Superintendent/Superintendent of Jail, the State is justified in making Police Officers incharge of these two posts on a temporary basis. Therefore, the learned counsel has supported the impugned orders.”

As a corollary, the Bench then brings out in para 5 that, “In rejoinder, Ms. Kamini Jaiswal, the learned Senior Counsel for the petitioner, has pleaded that the letter dated 17.11.2006 does not support the case of the State. For, while the post of Inspector General of Prisons and Additional Inspector General of Prisons may be permitted to be filled up from IPS Officers, the post of Senior Superintendent/Superintendent of Jail is covered by the Rules, 1982. Once the Rules, 1982 have been promulgated, they cannot be diluted by a mere letter issued by the Principal Secretary. In fact, the appointment to the post of Senior Superintendent/Superintendent of Jail has to be strictly in accordance with the Rules, 1982.”

Needless to say, the Bench then after hearing the learned counsel and perusing the impugned orders as stated in para 6, it is then brought out in para 7 that, “Prisons are as ancient as human civilization. Initially, prisons were created as detention centres for detaining those who were threat to the political power. According to the Bhagavata Purana, an ancient text on the life of Lord Krishna, his parents, Devaki and Vasudeva, were imprisoned by Kansa, the King of Mathura. However, over the centuries, prisons were constructed for the purpose of punishing those, who violate the law. Soon the purpose of prisons was changed from detention to punishment. In ancient Athens, Socrates was imprisoned for punishing him for having corrupted the minds of the youth. Long imprisonment sentences catered to the retributory and deterrent theories of punishment.”

Quite alarmingly, the Bench then observes in para 11 that, “In 1835, Lord Macaulay presented a note to the Legislative Council in India as he was shocked by the horrifying and inhumane conditions prevalent in the Indian jails. The next year, on 02.01.1836, Lord William Bentick constituted a “Prison Discipline Committee”. The report of this Committee, submitted to Lord Auckland in 1838, revealed the rampant corruption, the laxity in discipline, and the abuse of men and women, who were imprisoned. However, surprisingly, the Committee rejected the thought of reforming the criminals.”

Going ahead, the Bench then further observes in para 12 that, “Over the years, the “Conference of Experts” held in 1877, and the “Fourth Jail Commission” in 1888, recommended that there should be a uniformity in all the Jails functioning in British India. Since Indians were seen as subjects and not as citizens, since the Britishers saw themselves as the Ruler, they recommended rigorous prison sentences, and even punishments within the confines of the Jails, such as whipping and solitary confinement, and keeping the prisoners in gunny clothing. The outcome of the recommendations of the “Conference of Experts” and the “Fourth Jail Commission” was the enactment of the “Prisons Act of 1894”. The Prisons Act, 1894 continues to govern most of the Jails even today.”

Needless to say, it is quite baffling that why no new Prisons Act has been passed even after 127 years till now? Why our lawmakers care a damn for the prisons? Why they never acted till now to meet the conditions of prisons to the present circumstances and now that of 1894 or 1895?

In this context, it has to be mentioned that the Bench then elucidates in para 13 stating that, “The “All India Jail Committee (1919-1920)” for the first time recommended the reformation and rehabilitation of offenders as one of the objectives of the prison administration. The Committee spoke about the adequate training of the prison staff, and about the separation of executive/custodial, ministerial and technical staff in prison service. The Committee believed that a different sort of training needs to be provided to the prison staff, than the training being provided to the police staff.”

Furthermore, the Bench then mentions in para 14 that, “After independence, a number of Committees have been constituted, beginning with the Jail recommendations made by Dr. W.C. Reckless, a U.N. Expert on Correctional Work. While submitting his report on “Jail Administration in India”, he advocated the reformative theory of punishment; he emphasised on specialized training of correctional personnel; he stressed on the need for a cadre of properly trained personnel staff.”

While underscoring the dire need to ameliorate the condition of prisons and prisoners, the Bench then states in para 15 that, “In 1972, the Ministry of Home Affairs, Government of India, appointed a “Working Group on Prisons”. In its report submitted in 1973, the Committee again emphasised the need for proper training of prison personnel. It also stressed that “prison administration should be treated as an integral part of the social defence components of national planning process”. Thus, the very basis for prison administration was to protect, reform and rehabilitate the prison population. Moreover, the prison population is not a population to be neglected. But it is a population, which needs to be encouraged to be productive. Therefore, skill upgradation is a sine qua non.”

While continuing in a similar vein, the Bench then observes in para 16 that, “In 1980, the Government of India constituted an “All India Committee on Jail Reforms” under the chairmanship of Hon’ble Mr. Justice A. N. Mulla. The Mulla Committee submitted 658 recommendations. According to the Committee, prisons in the country shall endeavour to reform and reassimilate offenders in the social milieu by giving them appropriate correctional treatment. One of the most important recommendations is that “prison services shall be developed as a professional career service. The State shall endeavour to develop a well-organized prison cadre based on appropriate job requirements, sound training and proper promotional avenues. The efficient functioning of prisons depends, undoubtedly, upon the personal qualities, educational qualifications, professional competence and character of prison personnel. The status, emoluments and other service conditions of prison personnel should commensurate with their job requirements and responsibilities. An All-India Service, namely the ‘Indian Prisons and Correctional Service’ shall be constituted to induct better qualified and talented persons at higher echelons. Proper training of prison personnel shall be developed at the ‘national, regional and State levels’.”

Quite significantly, the Bench then lays bare in para 17 that, “On 17.07.2009, the Ministry of Home Affairs, Government of India had written to the Principal Secretary (Prison)/Secretary (Home) (In-charge of Prisons) – All State Governments / UTs DGs/ IGs incharge of prisons- All State Governments / UTs, wherein it had emphasised the large number of judgments delivered by the Hon’ble Supreme Court with regard to the prison administration and the jail system prevalent in India. It had further made certain recommendations as under:-

(i) Establishing well equipped training infrastructure in the State, with adequate skilled and well qualified instructional staff, to cater to the normal needs of basic and in-service training for the prison staff in different discipline.

(ii) Creating adequate posts for prison staff as per norms in different categories, commensurate with operational needs of safe custody, reformation, rehabilitation, health care, legal assistance etc.

(iii) Filling up all the vacancies, presently running up to 17.58% (in 2006) within time bound frame and ensure proper cadre management through timely trainings, promotions, recruitments etc.”

While dwelling on the yeoman role of the Apex Court, the Bench then puts forth in para 18 that, “Over the decades, the Hon’ble Supreme Court has rushed to the rescue of the prisoners. The Apex Court has not only given the protection of Article 21 of the Constitution of India to the prisoners, but has also emphasised on the penological philosophy of reformation, and rehabilitation of the prisoners. It has, thus, stressed on the need for having a well-trained prison staff, who would cater to the needs of the prisoners on a full-time basis.”

Quite pertinently, the Bench then observes in para 19 that, “Recently, in the case of Inhuman Conditions In 1382 Prisons, In re [(2018) 18 SCC 777], keeping in mind the dire necessity of reforming in prison administration, and the prison management, the Hon’ble Supreme Court has constituted a Supreme Court Committee on “Prison Reforms” consisting of : (i) Hon’ble Mr Justice Amitava Roy, a former Judge of the Supreme Court as its Chairperson, (ii) Inspector General of Police, Bureau of Police Research and Development as its Member, and (iii) Director General (Prisons) Tihar Jail, New Delhi as its Member.

The Committee has made the following recommendations with regard to the staffing patterns in the jails:

“RECRUITMENT OF STAFF

The Hon’ble Court may issue following directions in this regard:-

(a) All State Governments will hold special recruitment drives to fill up the existing vacancies in different ranks with the following timelines.

(i) In case of regular recruitment against permanent vacancies, the recruitment process should start within three months and should be completed within one year in the maximum.

(ii) All promotional vacancies should be filled up within six months”.”

Of immense significance is what is then stated in para 20 that, “At the International level, the United Nations has issued the “Nelson Mandela Rules”, which deal with the “Standard Minimum Rules for the Treatment of Prisoners”.

Please read concluding on thedailyguardian.com

As mentioned hereinabove, these Rules prescribe the accepted good principles, and practices in the treatment of prisoners and prison management. Rules 74 to 82 deal with “Institutional Personnel”.”

On these Rules, it is first and foremost stated in para 21 that, “Rule 74 is as under :-

“Rule 74

1. The prison administration shall provide for the careful selection of every grade of the personnel, since it is on their integrity, humanity, professional capacity and personal suitability for the work that the proper administration of prisons depends.

2. The prison administration shall constantly seek to awaken and maintain in the minds both of the personnel and of the public the conviction that this work is a social service of great importance, and to this end all appropriate means of informing the public should be used.

3. To secure the foregoing ends, personnel shall be appointed on a full-time basis as professional prison staff and have civil service status with security of tenure subject only to good conduct, efficiency and physical fitness. Salaries shall be adequate to attract and retain suitable men and women; employment benefits and conditions of service shall be favourable in view of the exacting nature of the work.””

As we see, the Bench then states in para 22 that, “Rule 75 is as under :-

“Rule 75

1. All prison staff shall possess an adequate standard of education and shall be given the ability and means to carry out their duties in a professional manner.

2. Before entering on duty, all prison staff shall be provided with training tailored to their general and specific duties, which shall be reflective of contemporary evidence-based best practice in penal sciences. Only those candidates who successfully pass the theoretical and practical tests at the end of such training shall be allowed to enter the prison service.

3. The prison administration shall ensure the continuous provision of in service training courses with a view to maintaining and improving the knowledge and professional capacity of its personnel, after entering on duty and during their career.””

As we progress, we see that the Bench then observes in para 23 that, “Rule 76 is as under :-

“Rule 76

1. Training referred to in paragraph 2 of rule 75 shall include, at a minimum, training on:

(a) Relevant national legislation, regulations and policies, as well as applicable international and regional instruments, the provisions of which must guide the work and interactions of prison staff with inmates;

(b) Rights and duties of prison staff in the exercise of their functions, including respecting the human dignity of all prisoners and the prohibition of certain conduct, in particular torture and other cruel, inhuman or degrading treatment or punishment;

(c) Security and safety, including the concept of dynamic security, the use of force and instruments of restraint, and the management of violent offenders, with due consideration of preventive and defusing techniques, such as negotiation and mediation;

(d) First aid, the psychosocial needs of prisoners and the corresponding dynamics in prison settings, as well as social care and assistance, including early detection of mental health issues.

2. Prison staff who are in charge of working with certain categories of prisoners, or who are assigned other specialized functions, shall receive training that has a corresponding focus.””

Not stopping, the Bench then adds in para 24 that, “Rule 79 is as under :-

“Rule 79

1. The prison director should be adequately qualified for his or her task by character, administrative ability, suitable training and experience.

2. The prison director shall devote his or her entire working time to official duties and shall not be appointed on a part-time basis. He or she shall reside on the premises of the prison or in its immediate vicinity.

3. When two or more prisons are under the authority of one director, he or she shall visit each of them at frequent intervals. A responsible resident official shall be in charge of each of these prisons.””

Be it noted, the Bench then hastens to add in para 25 that, “Since India is a member of the United Nations, these Rules are equally binding on the country. Therefore, neither these Rules, nor the recommendations of the various Committees, nor the letter issued by the Ministry of Home Affairs, Government of India dated 17.07.2009, can possibly be ignored by the State.”

What’s more, the Bench then observes in para 26 that, “All these recommendations, and Rules are in conformity with the great transformation, which has occurred in the theory of punishment : from the theory of “Retribution And Deterrence”, we have come to the age of “Reformation and Rehabilitation of Prisoners”. These Committee recommendation and the Nelson Rules emphasize the need for carefully selecting the prison personnel, for providing rigorous training, both prior to their joining the service, and subsequent thereto, of the appointment being a full-time, regular appointment. It is only when these factors are inculcated in the prison administration that the prison system succeeds in protecting, reforming and rehabilitating the prisoners. Otherwise, it is a self-defeating proposition.”

Quite remarkably, the Bench then waxes eloquent to hold in para 27 that, “Needless to say, the purpose of the Police is not to reform, or to rehabilitate, but to prevent the occurrence of crime, and to punish the criminals. Therefore, the very training of a police personnel is carried out with a different purpose in mind, and with different goals prescribed by law. Thus, there is a vast difference in the philosophy that permeates the police administration, and the jail administration. Hence, even their training and the psychology of the police personnel and prison personnel are poles apart.”

No less remarkable is what is then divulged in para 28 that, “Keeping the differences in two systems, the Rules, 1982 clearly provide that the post of Superintendent, District Jail should necessarily has to be filled up in accordance with the Rules, 1982. Rule 5(6) of the Rules, 1982 is as under :-

“5(6) Superintendents, District Jails. – (i) 50 per cent of posts in the cadre by direct recruitment through the Commission.

(ii) 50 per cent of post in the cadre by promotion through the Commission from amongst regularly appointed Deputy Superintendents/Jailors with a minimum of 5 years services as Deputy Superintendents of Jailors or both.””

In the same vein, the Bench then points out in para 29 that, “Rule 14 of the Rules, 1982 is as under :-

“14. Determination of vacancies.- The appointing authority shall determine and intimate to the Commission the number of vacancies on the posts of Superintendents, District Jails to be filled during the year of recruitment as also the number of vacancies to be reserved for candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories under Rule 6.””

Going forward, the Bench then envisages in para 30 that, “Rule 15 of the Rules, 1982 is as under :-

“15. Procedure for direct recruitment.- (1) Application for permission to appear in the competitive examination for direct recruitment shall be invited by the Commission in the prescribed form which may be obtained from the Secretary to the Commission on payment, if any.

(2) No candidate shall be admitted to the examination unless he holds a certificate of admission, issued by the Commission.

(3) After the results of the written examination have been received and tabulated the Commission shall, having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes, Scheduled Tribes, and others under Rule 6, summon for interview such number of candidates as, on the result of the written examination, have come up to the standard fixed by the Commission in this respect. The marks awarded to each candidate at the interview shall be added to the marks obtained by him in the written examination.

(4) The Commission shall prepare a list of candidates in order of their proficiency as disclosed by the aggregate of-marks obtained by each candidate at the written examination and interview and recommend such number of candidates as they consider fit for appointment. If two or more candidate obtain equal marks in the aggregate, the name of the candidate obtaining higher marks in the written examination shall be placed higher in the list. The number of names in the list shall be larger but not larger by more than 25 percent of the number of vacancies. The Commission shall forward the list to the appointing authority.

Note. – The syllabus and rules for the competitive examination shall be such as may be prescribed by the Commission from time to time.”

Also, still ahead, the Bench then states in para 31 that, “Rule 16 of the Rules, 1982 is as under :- “16. Procedure for recruitment by promotion to the post of Superintendent, District Jail.- Recruitment by promotion to the post of Superintendent of District Jail shall be made on the basis of seniority subject to the rejection of the unfit in accordance with the Uttar Pradesh Promotion by Selection in Consultation with Public Service Commission (Procedure) Rules, 1970 as amended from time to time.””

Most significantly, the Bench then minces no words to state it upfront in para 32 that, “A bare perusal of these Rules of 1982 clearly reveals that the post of Superintendent of Jail necessarily has to be filled up either by direct recruitment (fifty percent), or by promotion (fifty percent). The Rules do not permit an ad-hoc appointment from any other service, much less the police service. Therefore, the post can be filled up either directly from candidates from the open market, or from the post of Deputy Superintendents/Jailors having a work experience of minimum of five years. Hence, the appointment of the police personnel, by the impugned orders, is clearly illegal.”

Equally significant is what is then pointed out in para 33 that, “Although the learned counsel for the State has tried to support the impugned orders ostensibly on the ground that the Inspector General of Prisons and the Additional Inspector General of Prisons can be appointed from the IPS cadre, the said argument is clearly untenable. For, once the Rules, 1982, which deal with Group A and B services, clearly provide a procedure for determination of vacancy, and selection and promotion for filling up the post, the said Rules cannot be deviated from. After all, it is a settled position of law that once a procedure has been established by law, it cannot be circumvented from. Therefore, merely because the post of Inspector General of Prisons, and Additional Inspector General of Prisons can be filled up from persons belonging to the IPS cadre, it does not empower the State to fill up the post of the lower echelons by posting police personnel on the post of Senior Superintendent/Superintendent of Jail.”

As a consequence, the Bench then holds in para 34 that, “For the reasons stated above, the impugned order dated 12.02.2021 passed by the Secretary, Department of Home, respondent no. 2, and the consequential order dated 12.02.2021, passed by the Inspector General of Prisons, respondent no. 3, are hereby set-aside. The State is directed to immediately fill up the posts of Senior Superintendent and Superintendent of Jail either through direct recruitment, or through promotion. Since the Rules permit ad-hoc promotion as a temporary measure, even ad-hoc promotions may be granted by the State till regular promotions are made. The said exercise shall be carried out as expeditiously as possible and preferably within one month from the date of receiving the certified copy of this judgment.” Finally, it is then held in para 35 that, “The Writ Petition is, hereby, allowed.”

No doubt, words cannot be adequate to describe the brilliance with which this judgment is written which is par excellence and substantiating them with relevant Rules followed in India and simultaneously backing them up with rules at international level as for instance the Nelson Mandela Rules issued by UN already dwelt in detail above dealing with the standard minimum rules for the treatment of prisoners. It is now abundantly and manifestly clear from the aforesaid discussion that we had on the ruling by a two Judge Bench of the Uttarakhand High Court comprising of Chief Justice Raghvendra Singh Chauhan and Justice Alok Kumar Verma that police personnel cannot be appointed as jail superintendents.

Sanjeev Sirohi, Advocate,

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Police personnel cannot be appointed jail superintendent, says Uttarakhand HC

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In a significant judgement pertaining to prisoners rights and affecting them directly, the Uttarakhand High Court has in a latest, landmark, laudable and learned judgement titled Sanjeev Kumar Akash v. State of Uttarakhand & Ors in Writ Petition (PIL) No. 25 of 2021 delivered on 12 April 2021 has held that police personnel cannot be appointed as Jail Superintendent. A Division Bench comprising of Chief Justice Raghvendra Singh Chauhan and Justice Alok Kumar Verma observed that we have come to the age of “Reformation and Rehabilitation of Prisoners”. It held that the purpose of police is very different from that of Jail Superintendents and as a natural corollary, their trainings and psyche are poles apart. Hence the former cannot possess the position of the latter.

To start with, Chief Justice Sri Raghvendra Singh Chauhan who has authored this notable judgment for a Bench comprising of himself and Justice Alok Kumar Verma of the Uttarakhand High Court sets the ball rolling by first and foremost pointing out in para 1 that, “Mr. Sanjeev Kumar Akash, the petitioner, has filed the present Public Interest Litigation in order to challenge the order dated 12.02.2021, passed by the Secretary, Department of Home, the respondent no. 2, whereby the Officers of the Police Department have been given the additional charge of the office of the Senior Superintendent/Superintendent of Jail at Sitarganj, Haldwani, Haridwar, Dehradun and Roorkee. The petitioner has further challenged the consequential order dated 12.02.2021, passed by the Inspector General of Prisons, the respondent no. 3, whereby the Officers of the Police Department have been transferred, and posted with the additional charge of Senior Superintendent/Superintendent of Jail at various prisons in the State of Uttarakhand.”

While elaborating on the facts of the case, the Bench then enunciates in para 2 that, “Briefly stated, the facts of the case are that, as per the structure in the Department of Prison in the State of Uttarakhand, there are three sanctioned posts of Senior Superintendent of Jail, and nine sanctioned posts of Superintendent of Jail. Out of the nine sanctioned posts of Superintendent of Jail, four posts are to be filled up by way of direct recruitment, and five posts are to be filled up by way of promotion from the post of Jailor. Presently, one post of Senior Superintendent of Jail, and four posts of Superintendent of Jail, have been filled up. Therefore, currently two posts of Senior Superintendent of Jail, and five posts of Superintendent of Jail are lying vacant. According to the State Government, considering the difficulties faced in running the Jails properly, it has taken a conscious decision to give additional charge of Senior Superintendent of Jail, and Superintendent of Jail, to officers of the Indian Police Service (IPS). Hence, the present Public Interest Litigation before this Court.”

On the one hand, the Bench first dwells on the petitioner’s contentions in para 3 stating that, “Ms. Kamini Jaiswal, the learned Senior Counsel for the petitioner, has raised the following contentions before this Court :-

Firstly, that the job responsibility and the training of the Police Officers, and those of the Officers of the Jail Administration, stand on different plains. The duty of the Police Officers is preventive and penal, and spans the arena of investigation, prevention and protection, and maintenance of law and order. On the other hand, with the emerging modern trends in penology and theories of punishment, the fundamental duty of the Officers of the Department of Jail is the protection, the reformation, and the rehabilitation of the prisoners. Since the job responsibilities are of different nature, the psychological makeup, the thinking, the conduct of the Police Officers and the Jail Officers, perforce, has to be quite different. Whereas, generally a Police Officer sees an offender as a culprit, as a person who has violated the law, and thus deserves to be condemned and punished, the Officers of the Department of Prison see prisoners as human beings, who have erred, who need to be reformed, who need to be rehabilitated, and brought back as productive members of the society. Thus, the very philosophy behind the interaction between a Police Officer and an offender, and the interaction between a Jail Officer and the prisoner, stand on a different footing. Therefore, one cannot be confused with the other.

Secondly, keeping this distinction in mind, even law has bifurcated these two services into two different classes; the laws have empowered them differently. Therefore, to confuse these two classes would be violative of the fundamental philosophy, which govern these two different services.

Thirdly, this bifurcation of the two departments, and the philosophy behind working of the two departments, is not unique to India. But has universal application throughout the world. According to the learned Senior Counsel, the United Nations has issued “Standard Minimum Rules for the Treatment of Prisoners”, better known as “the Nelson Mandela Rules”. These Rules prescribe the “good principles and practice in the treatment of prisoners and prison management”. Rules 74 to 82 deal with “Institutional Personnel”. Rule 74 provides for “careful selection of every grade of the personnel”. It emphasises “on their integrity, humanity, professional capacity, and personal suitability for the work that the proper administration of prisons depends”. Rule 74(3) further stresses on the need for appointment of prison personnel “on a full-time basis”. Rule 75(2) states that “before entering on duty, all prison staff shall be provided with training tailored to their general and specific duties, which shall be reflective of contemporary evidence-based best practice in penal sciences”. Rule 76 further states that the training referred to in Rule 75(2) shall include, at a minimum, training on “rights and duties of prison staff in the exercise of their functions, including respecting the human dignity of all prisoners, and the prohibition of certain conduct, in particular torture and other cruel, inhuman or degrading treatment, or punishment.” Rule 79 further states that “the Prison Director (Superintendent of Jail in India) shall devote his or her entire working time to official duties, and shall not be appointed on a part-time basis. He or she shall reside on the premises of the prison or in its immediate vicinity.”

Relying on the Nelson Mandela Rules, the learned Senior Counsel has emphasised that the Superintendents of Jail are required to undergo a particular training, which will inculcate a sense of dignity of all the prisoners, will make them humane, and sensitise them to the plight of the prisoners, to their families, and to the prison conditions. The learned Senior Counsel has further stressed on the need for appointing the Senior Superintendent/Superintendent of Jail on a full-time basis, rather than on a part-time basis.

Fourthly, referring to the Uttar Pradesh Jail (Group A and B) Service Rules, 1982 (for short “the Rules, 1982”), the learned Senior Counsel has submitted that Rule 3(k) defines the post of “Superintendent, District Jail” to mean “the whole-time Superintendent, Jail appointed in accordance with the 1982 Rules”. According to Rule 5(6) of the Rules, 1982, the post of Superintendent of District Jail is to be filled up fifty percent by direct recruitment, and fifty percent by promotion from amongst the regularly appointed Deputy Superintendents/Jailors with a minimum of five years’ service as Deputy Superintendents, or Jailors or both. Moreover, Rule 14 deals with “determination of vacancies”. Rule 15 deals with the “procedure for direct recruitment”. Rule 16 deals with the “procedure for recruitment by promotion to the post of Superintendent, District Jail”. Therefore, according to the learned Senior Counsel, the procedure for making an appointment to the post of Senior Superintendent/Superintendent of Jail is clearly prescribed by Rules 14, 15 and 16 of the Rules, 1982. These Rules do not permit ad-hoc appointment of Police personnel on the post of Senior Superintendent/Superintendent of Jail. Therefore, the impugned orders are clearly in violation of the Rules, 1982.

Fifthly, even the Code of Criminal Procedure, prevents the keeping of an undertrial prisoner in police custody beyond a stipulated period of time. According to Section 167 of Cr.P.C, an accused cannot be detained in police custody beyond a period of fifteen days. In case the investigation is not completed within a period of ninety days, for offences punishable with death, imprisonment for life or imprisonment for a term of not less than ten years, the offender would have to be granted bail under Section 167(2)(a)(i) Cr.P.C. Therefore, even the Cr.P.C. does not envisage keeping of undertrial prisoners in police custody for too long a period. Even otherwise, while keeping an offender in judicial custody, he/she cannot be kept beyond a period of sixty days or ninety days in case the investigation were not completed within the stipulated period of time. Moreover, in case the investigation were to be completed within the stipulated period of sixty days or ninety days, and in case bail were not granted by a competent Court, an undertrial is required to be kept in judicial custody. But, by appointing police personnel as Senior Superintendent/Superintendent of Jail, for all practical purposes, the custody is suddenly changed from a judicial one to a police one. Therefore, the learned Senior Counsel submits that the impugned orders violate the letter and the spirit of Section 167 Cr.P.C.

Lastly, despite the fact that a prisoner loses the freedom of movement, he/she continues to enjoy the other fundamental rights, as guaranteed by the Constitution of India. Therefore, Article 21 of the Constitution of India, guaranteeing protection of Life and personal liberty, continues to shine even in the dark corners of a prison cell. According to the learned Senior Counsel, once a procedure has been established by law that too a procedure backed by certain penological philosophy- it cannot be violated by the State. Therefore, the State is legally bound to implement the service rules as contained in the Rules, 1982, to implement the requirements of Cr.P.C, to implement the constitutional philosophy, as embodied in the Preamble of the Constitution of India, and to implement the “Nelson Mandela Rules”. Hence, according to the learned Senior Counsel, the impugned orders deserve to be set-aside by this Court.”

On the other hand, the Bench then further states about the States contention in para 4 wherein it is put forth that, “On the other hand, Mr. Anil Kumar Bisht, the learned Additional Chief Standing Counsel for the State, has raised the following counter-contentions before this Court :-

Firstly, in the order dated 17.11.2006, issued by the Principal Secretary, Uttaranchal Administration, it was clearly mentioned that the Inspector General of Prisons would either be the Secretary, Home, or IAS officers, or of equivalent posts. Similarly, Additional Inspector General of Prisons would be from the post of Additional Secretary, Home/Joint Secretary, Home, or from PCS Cadre. In fact, even presently, the post of the Inspector General of Prisons is occupied by a person belonging to the IPS cadre. Therefore, the appointment of police personnel to the post of Senior Superintendent/Superintendent of Jail can certainly be made from Police Officers.

Secondly, considering the fact that presently there are two posts of Senior Superintendent of Jail, and five posts of Superintendent of Jail, which are lying vacant, considering the fact that direct recruitment to these posts would require some time, considering the fact that there is no one in the post of Jailors, who has completed five years of required service for being promoted to the post of Senior Superintendent/Superintendent of Jail, the State is justified in making Police Officers incharge of these two posts on a temporary basis. Therefore, the learned counsel has supported the impugned orders.”

As a corollary, the Bench then brings out in para 5 that, “In rejoinder, Ms. Kamini Jaiswal, the learned Senior Counsel for the petitioner, has pleaded that the letter dated 17.11.2006 does not support the case of the State. For, while the post of Inspector General of Prisons and Additional Inspector General of Prisons may be permitted to be filled up from IPS Officers, the post of Senior Superintendent/Superintendent of Jail is covered by the Rules, 1982. Once the Rules, 1982 have been promulgated, they cannot be diluted by a mere letter issued by the Principal Secretary. In fact, the appointment to the post of Senior Superintendent/Superintendent of Jail has to be strictly in accordance with the Rules, 1982.”

Needless to say, the Bench then after hearing the learned counsel and perusing the impugned orders as stated in para 6, it is then brought out in para 7 that, “Prisons are as ancient as human civilization. Initially, prisons were created as detention centres for detaining those who were threat to the political power. According to the Bhagavata Purana, an ancient text on the life of Lord Krishna, his parents, Devaki and Vasudeva, were imprisoned by Kansa, the King of Mathura. However, over the centuries, prisons were constructed for the purpose of punishing those, who violate the law. Soon the purpose of prisons was changed from detention to punishment. In ancient Athens, Socrates was imprisoned for punishing him for having corrupted the minds of the youth. Long imprisonment sentences catered to the retributory and deterrent theories of punishment.”

Quite alarmingly, the Bench then observes in para 11 that, “In 1835, Lord Macaulay presented a note to the Legislative Council in India as he was shocked by the horrifying and inhumane conditions prevalent in the Indian jails. The next year, on 02.01.1836, Lord William Bentick constituted a “Prison Discipline Committee”. The report of this Committee, submitted to Lord Auckland in 1838, revealed the rampant corruption, the laxity in discipline, and the abuse of men and women, who were imprisoned. However, surprisingly, the Committee rejected the thought of reforming the criminals.”

Going ahead, the Bench then further observes in para 12 that, “Over the years, the “Conference of Experts” held in 1877, and the “Fourth Jail Commission” in 1888, recommended that there should be a uniformity in all the Jails functioning in British India. Since Indians were seen as subjects and not as citizens, since the Britishers saw themselves as the Ruler, they recommended rigorous prison sentences, and even punishments within the confines of the Jails, such as whipping and solitary confinement, and keeping the prisoners in gunny clothing. The outcome of the recommendations of the “Conference of Experts” and the “Fourth Jail Commission” was the enactment of the “Prisons Act of 1894”. The Prisons Act, 1894 continues to govern most of the Jails even today.”

Needless to say, it is quite baffling that why no new Prisons Act has been passed even after 127 years till now? Why our lawmakers care a damn for the prisons? Why they never acted till now to meet the conditions of prisons to the present circumstances and now that of 1894 or 1895?

In this context, it has to be mentioned that the Bench then elucidates in para 13 stating that, “The “All India Jail Committee (1919-1920)” for the first time recommended the reformation and rehabilitation of offenders as one of the objectives of the prison administration. The Committee spoke about the adequate training of the prison staff, and about the separation of executive/custodial, ministerial and technical staff in prison service. The Committee believed that a different sort of training needs to be provided to the prison staff, than the training being provided to the police staff.”

Furthermore, the Bench then mentions in para 14 that, “After independence, a number of Committees have been constituted, beginning with the Jail recommendations made by Dr. W.C. Reckless, a U.N. Expert on Correctional Work. While submitting his report on “Jail Administration in India”, he advocated the reformative theory of punishment; he emphasised on specialized training of correctional personnel; he stressed on the need for a cadre of properly trained personnel staff.”

While underscoring the dire need to ameliorate the condition of prisons and prisoners, the Bench then states in para 15 that, “In 1972, the Ministry of Home Affairs, Government of India, appointed a “Working Group on Prisons”. In its report submitted in 1973, the Committee again emphasised the need for proper training of prison personnel. It also stressed that “prison administration should be treated as an integral part of the social defence components of national planning process”. Thus, the very basis for prison administration was to protect, reform and rehabilitate the prison population. Moreover, the prison population is not a population to be neglected. But it is a population, which needs to be encouraged to be productive. Therefore, skill upgradation is a sine qua non.”

While continuing in a similar vein, the Bench then observes in para 16 that, “In 1980, the Government of India constituted an “All India Committee on Jail Reforms” under the chairmanship of Hon’ble Mr. Justice A. N. Mulla. The Mulla Committee submitted 658 recommendations. According to the Committee, prisons in the country shall endeavour to reform and reassimilate offenders in the social milieu by giving them appropriate correctional treatment. One of the most important recommendations is that “prison services shall be developed as a professional career service. The State shall endeavour to develop a well-organized prison cadre based on appropriate job requirements, sound training and proper promotional avenues. The efficient functioning of prisons depends, undoubtedly, upon the personal qualities, educational qualifications, professional competence and character of prison personnel. The status, emoluments and other service conditions of prison personnel should commensurate with their job requirements and responsibilities. An All-India Service, namely the ‘Indian Prisons and Correctional Service’ shall be constituted to induct better qualified and talented persons at higher echelons. Proper training of prison personnel shall be developed at the ‘national, regional and State levels’.”

Quite significantly, the Bench then lays bare in para 17 that, “On 17.07.2009, the Ministry of Home Affairs, Government of India had written to the Principal Secretary (Prison)/Secretary (Home) (In-charge of Prisons) – All State Governments / UTs DGs/ IGs incharge of prisons- All State Governments / UTs, wherein it had emphasised the large number of judgments delivered by the Hon’ble Supreme Court with regard to the prison administration and the jail system prevalent in India. It had further made certain recommendations as under:-

(i) Establishing well equipped training infrastructure in the State, with adequate skilled and well qualified instructional staff, to cater to the normal needs of basic and in-service training for the prison staff in different discipline.

(ii) Creating adequate posts for prison staff as per norms in different categories, commensurate with operational needs of safe custody, reformation, rehabilitation, health care, legal assistance etc.

(iii) Filling up all the vacancies, presently running up to 17.58% (in 2006) within time bound frame and ensure proper cadre management through timely trainings, promotions, recruitments etc.”

While dwelling on the yeoman role of the Apex Court, the Bench then puts forth in para 18 that, “Over the decades, the Hon’ble Supreme Court has rushed to the rescue of the prisoners. The Apex Court has not only given the protection of Article 21 of the Constitution of India to the prisoners, but has also emphasised on the penological philosophy of reformation, and rehabilitation of the prisoners. It has, thus, stressed on the need for having a well-trained prison staff, who would cater to the needs of the prisoners on a full-time basis.”

Quite pertinently, the Bench then observes in para 19 that, “Recently, in the case of Inhuman Conditions In 1382 Prisons, In re [(2018) 18 SCC 777], keeping in mind the dire necessity of reforming in prison administration, and the prison management, the Hon’ble Supreme Court has constituted a Supreme Court Committee on “Prison Reforms” consisting of : (i) Hon’ble Mr Justice Amitava Roy, a former Judge of the Supreme Court as its Chairperson, (ii) Inspector General of Police, Bureau of Police Research and Development as its Member, and (iii) Director General (Prisons) Tihar Jail, New Delhi as its Member.

The Committee has made the following recommendations with regard to the staffing patterns in the jails:

“RECRUITMENT OF STAFF

The Hon’ble Court may issue following directions in this regard:-

(a) All State Governments will hold special recruitment drives to fill up the existing vacancies in different ranks with the following timelines.

(i) In case of regular recruitment against permanent vacancies, the recruitment process should start within three months and should be completed within one year in the maximum.

(ii) All promotional vacancies should be filled up within six months”.”

Of immense significance is what is then stated in para 20 that, “At the International level, the United Nations has issued the “Nelson Mandela Rules”, which deal with the “Standard Minimum Rules for the Treatment of Prisoners”.

Please read concluding on thedailyguardian.com

As mentioned hereinabove, these Rules prescribe the accepted good principles, and practices in the treatment of prisoners and prison management. Rules 74 to 82 deal with “Institutional Personnel”.”

On these Rules, it is first and foremost stated in para 21 that, “Rule 74 is as under :-

“Rule 74

1. The prison administration shall provide for the careful selection of every grade of the personnel, since it is on their integrity, humanity, professional capacity and personal suitability for the work that the proper administration of prisons depends.

2. The prison administration shall constantly seek to awaken and maintain in the minds both of the personnel and of the public the conviction that this work is a social service of great importance, and to this end all appropriate means of informing the public should be used.

3. To secure the foregoing ends, personnel shall be appointed on a full-time basis as professional prison staff and have civil service status with security of tenure subject only to good conduct, efficiency and physical fitness. Salaries shall be adequate to attract and retain suitable men and women; employment benefits and conditions of service shall be favourable in view of the exacting nature of the work.””

As we see, the Bench then states in para 22 that, “Rule 75 is as under :-

“Rule 75

1. All prison staff shall possess an adequate standard of education and shall be given the ability and means to carry out their duties in a professional manner.

2. Before entering on duty, all prison staff shall be provided with training tailored to their general and specific duties, which shall be reflective of contemporary evidence-based best practice in penal sciences. Only those candidates who successfully pass the theoretical and practical tests at the end of such training shall be allowed to enter the prison service.

3. The prison administration shall ensure the continuous provision of in service training courses with a view to maintaining and improving the knowledge and professional capacity of its personnel, after entering on duty and during their career.””

As we progress, we see that the Bench then observes in para 23 that, “Rule 76 is as under :-

“Rule 76

1. Training referred to in paragraph 2 of rule 75 shall include, at a minimum, training on:

(a) Relevant national legislation, regulations and policies, as well as applicable international and regional instruments, the provisions of which must guide the work and interactions of prison staff with inmates;

(b) Rights and duties of prison staff in the exercise of their functions, including respecting the human dignity of all prisoners and the prohibition of certain conduct, in particular torture and other cruel, inhuman or degrading treatment or punishment;

(c) Security and safety, including the concept of dynamic security, the use of force and instruments of restraint, and the management of violent offenders, with due consideration of preventive and defusing techniques, such as negotiation and mediation;

(d) First aid, the psychosocial needs of prisoners and the corresponding dynamics in prison settings, as well as social care and assistance, including early detection of mental health issues.

2. Prison staff who are in charge of working with certain categories of prisoners, or who are assigned other specialized functions, shall receive training that has a corresponding focus.””

Not stopping, the Bench then adds in para 24 that, “Rule 79 is as under :-

“Rule 79

1. The prison director should be adequately qualified for his or her task by character, administrative ability, suitable training and experience.

2. The prison director shall devote his or her entire working time to official duties and shall not be appointed on a part-time basis. He or she shall reside on the premises of the prison or in its immediate vicinity.

3. When two or more prisons are under the authority of one director, he or she shall visit each of them at frequent intervals. A responsible resident official shall be in charge of each of these prisons.””

Be it noted, the Bench then hastens to add in para 25 that, “Since India is a member of the United Nations, these Rules are equally binding on the country. Therefore, neither these Rules, nor the recommendations of the various Committees, nor the letter issued by the Ministry of Home Affairs, Government of India dated 17.07.2009, can possibly be ignored by the State.”

What’s more, the Bench then observes in para 26 that, “All these recommendations, and Rules are in conformity with the great transformation, which has occurred in the theory of punishment : from the theory of “Retribution And Deterrence”, we have come to the age of “Reformation and Rehabilitation of Prisoners”. These Committee recommendation and the Nelson Rules emphasize the need for carefully selecting the prison personnel, for providing rigorous training, both prior to their joining the service, and subsequent thereto, of the appointment being a full-time, regular appointment. It is only when these factors are inculcated in the prison administration that the prison system succeeds in protecting, reforming and rehabilitating the prisoners. Otherwise, it is a self-defeating proposition.”

Quite remarkably, the Bench then waxes eloquent to hold in para 27 that, “Needless to say, the purpose of the Police is not to reform, or to rehabilitate, but to prevent the occurrence of crime, and to punish the criminals. Therefore, the very training of a police personnel is carried out with a different purpose in mind, and with different goals prescribed by law. Thus, there is a vast difference in the philosophy that permeates the police administration, and the jail administration. Hence, even their training and the psychology of the police personnel and prison personnel are poles apart.”

No less remarkable is what is then divulged in para 28 that, “Keeping the differences in two systems, the Rules, 1982 clearly provide that the post of Superintendent, District Jail should necessarily has to be filled up in accordance with the Rules, 1982. Rule 5(6) of the Rules, 1982 is as under :-

“5(6) Superintendents, District Jails. – (i) 50 per cent of posts in the cadre by direct recruitment through the Commission.

(ii) 50 per cent of post in the cadre by promotion through the Commission from amongst regularly appointed Deputy Superintendents/Jailors with a minimum of 5 years services as Deputy Superintendents of Jailors or both.””

In the same vein, the Bench then points out in para 29 that, “Rule 14 of the Rules, 1982 is as under :-

“14. Determination of vacancies.- The appointing authority shall determine and intimate to the Commission the number of vacancies on the posts of Superintendents, District Jails to be filled during the year of recruitment as also the number of vacancies to be reserved for candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories under Rule 6.””

Going forward, the Bench then envisages in para 30 that, “Rule 15 of the Rules, 1982 is as under :-

“15. Procedure for direct recruitment.- (1) Application for permission to appear in the competitive examination for direct recruitment shall be invited by the Commission in the prescribed form which may be obtained from the Secretary to the Commission on payment, if any.

(2) No candidate shall be admitted to the examination unless he holds a certificate of admission, issued by the Commission.

(3) After the results of the written examination have been received and tabulated the Commission shall, having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes, Scheduled Tribes, and others under Rule 6, summon for interview such number of candidates as, on the result of the written examination, have come up to the standard fixed by the Commission in this respect. The marks awarded to each candidate at the interview shall be added to the marks obtained by him in the written examination.

(4) The Commission shall prepare a list of candidates in order of their proficiency as disclosed by the aggregate of-marks obtained by each candidate at the written examination and interview and recommend such number of candidates as they consider fit for appointment. If two or more candidate obtain equal marks in the aggregate, the name of the candidate obtaining higher marks in the written examination shall be placed higher in the list. The number of names in the list shall be larger but not larger by more than 25 percent of the number of vacancies. The Commission shall forward the list to the appointing authority.

Note. – The syllabus and rules for the competitive examination shall be such as may be prescribed by the Commission from time to time.”

Also, still ahead, the Bench then states in para 31 that, “Rule 16 of the Rules, 1982 is as under :- “16. Procedure for recruitment by promotion to the post of Superintendent, District Jail.- Recruitment by promotion to the post of Superintendent of District Jail shall be made on the basis of seniority subject to the rejection of the unfit in accordance with the Uttar Pradesh Promotion by Selection in Consultation with Public Service Commission (Procedure) Rules, 1970 as amended from time to time.””

Most significantly, the Bench then minces no words to state it upfront in para 32 that, “A bare perusal of these Rules of 1982 clearly reveals that the post of Superintendent of Jail necessarily has to be filled up either by direct recruitment (fifty percent), or by promotion (fifty percent). The Rules do not permit an ad-hoc appointment from any other service, much less the police service. Therefore, the post can be filled up either directly from candidates from the open market, or from the post of Deputy Superintendents/Jailors having a work experience of minimum of five years. Hence, the appointment of the police personnel, by the impugned orders, is clearly illegal.”

Equally significant is what is then pointed out in para 33 that, “Although the learned counsel for the State has tried to support the impugned orders ostensibly on the ground that the Inspector General of Prisons and the Additional Inspector General of Prisons can be appointed from the IPS cadre, the said argument is clearly untenable. For, once the Rules, 1982, which deal with Group A and B services, clearly provide a procedure for determination of vacancy, and selection and promotion for filling up the post, the said Rules cannot be deviated from. After all, it is a settled position of law that once a procedure has been established by law, it cannot be circumvented from. Therefore, merely because the post of Inspector General of Prisons, and Additional Inspector General of Prisons can be filled up from persons belonging to the IPS cadre, it does not empower the State to fill up the post of the lower echelons by posting police personnel on the post of Senior Superintendent/Superintendent of Jail.”

As a consequence, the Bench then holds in para 34 that, “For the reasons stated above, the impugned order dated 12.02.2021 passed by the Secretary, Department of Home, respondent no. 2, and the consequential order dated 12.02.2021, passed by the Inspector General of Prisons, respondent no. 3, are hereby set-aside. The State is directed to immediately fill up the posts of Senior Superintendent and Superintendent of Jail either through direct recruitment, or through promotion. Since the Rules permit ad-hoc promotion as a temporary measure, even ad-hoc promotions may be granted by the State till regular promotions are made. The said exercise shall be carried out as expeditiously as possible and preferably within one month from the date of receiving the certified copy of this judgment.” Finally, it is then held in para 35 that, “The Writ Petition is, hereby, allowed.”

No doubt, words cannot be adequate to describe the brilliance with which this judgment is written which is par excellence and substantiating them with relevant Rules followed in India and simultaneously backing them up with rules at international level as for instance the Nelson Mandela Rules issued by UN already dwelt in detail above dealing with the standard minimum rules for the treatment of prisoners. It is now abundantly and manifestly clear from the aforesaid discussion that we had on the ruling by a two Judge Bench of the Uttarakhand High Court comprising of Chief Justice Raghvendra Singh Chauhan and Justice Alok Kumar Verma that police personnel cannot be appointed as jail superintendents.

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