Ensuring Fairness in the Appointment of Arbitrators - The Daily Guardian
Connect with us

Legally Speaking

Ensuring Fairness in the Appointment of Arbitrators

Kumar Rishabh Parth

Published

on

INTRODUCTION

It is very crucial to ensure that the proceedings are impartial and fair, the appointment of arbitrators should be independent and impartial, and this is a sine qua non for a dispute resolution process to be effective. It is imperative for an arbitral proceeding to be effective, and for that, the parties should hold confidence in the arbitrators who are adjudicating the dispute. The questions of independence and impartiality assume particular importance in the context of the arbitrations, where parties appoint their arbitrators. However, to preserve the “binding essence of contracts” and “party autonomy,” the Indian arbitral tribunal for the longest time neglected the implicit prejudice and procedural discrimination in the appointment procedures, especially as a result of contracts in a boilerplate format between parties with unequal bargaining power. The Arbitration and Conciliation (Amendment) Act, 2015 have brought various reforms to the Arbitration and Conciliation Act 1996 (hereinafter referred to as ‘the Act’) which include the amendment in Part III of the Act, which deals with the “appointment of arbitrators.” Via this r, we aim to track the legislative journey and change of judicial patterns in the appointment of arbitrators and to determine whether the legal situation as it stands today is adequate to ensure consistency in the appointment process.

PARTY AUTONOMY VS PROCEDURAL FAIRNESS: POSITION PRE-2015 AMENDMENTS

There is a legal maxim, “Nemo judex in causa sua” (No one should be a judge in their cause), and it will be highly immoral and partial if one of the parties own employee could act as an arbitrator. It will be against the principle of the said legal maxim. The irony is that the Indian Arbitration space is well stocked with such cases where such clauses were held valid and was upheld by the tribunal, until the Arbitration and conciliation (Amendment) Act, 2015 came into force. Boilerplate agreements leave no room for negotiation, such as the contracts with the State entities, which routinely provided for arbitration by a retired or serving employee of that entity in case of a dispute. Pre 2015, there was no normative framework to explicitly disqualify or any criteria to judge the independence or impartiality of the arbitrators. Most parties exploited the lacuna in the law for their benefits in superseding the bargaining power over the other party to thrust their choice of arbitrators on the other party.

Such clauses were upheld continuously by the judiciary in the garb of “Party Autonomy”, without factoring the unequal bargaining power of the parties and boilerplate nature of the contracts. The only exception to such clauses was only if the arbitrator was controlling or dealing authority concerning the subject contract, or a direct subordinate to the officer whose decision is the subject matter of the dispute, such an appointment was held invalid as per Section 12 of the Act by virtue of the decision by Hon’ble Supreme Court in Indian Oil Corp. Ltd. v. Raja Transport (P) Ltd. However, as correctly pointed out in the 246th Law Commission of India’s Report: this exception was clearly “not enough”

246TH LAW COMMISSION REPORT

There was dissatisfaction expressed with the judiciary by the 246th Law Commission Report vis-à-vis appointment of arbitrators stood then. In the garb of “party autonomy” or the “binding nature of the contracts” the aspect of “procedural fairness” was lost.

There were several critical amendments proposed by the Law Commission to Section 11, 12 and 14 of the Act. The recommendations paved the way for the introduction of the “de jure” ineligibility of arbitrators in case the relationship of the arbitrator with any of the parties or counsel or subject matter of the dispute fell within categories specified in the schedule, as opposed to mere “de facto” disqualification as provided under Section 12 (3) of the unamended Act. In other words, the Law Commission recommended the introduction of specific categories of the relationship between the arbitrator and the party, counsel or subject matter, which would render such arbitrator ineligible by operation of law.

2015 AMENDMENT AND CURRENT NORMATIVE FRAMEWORK

The recommendations by the Law Commission was followed, and the Act was amended accordingly in 2015 through the Arbitration and Conciliation Act, 2015 and Sections 11, 12, and 14 were explicitly amended to ensure fairness in the appointment procedure of the arbitrator.

Now an Arbitrator must disclose when s/he is approached by the parties for the appointment, regarding existence relationship or interest of any kind which is likely to give rise to justifiable doubts regarding their independence or impartiality. Disclosure is required to be made in terms of the form provided in the Sixth Schedule of the Act.

The amendment introduced such requirements to assess whether there are justifiable doubts as to the competence or impartiality of the arbitrator based on the Red and Orange lists of the IBA Guidelines on Conflicts of Interest in International Arbitration (‘IBA Guidelines’).

The fifth schedule read with Section 12(1)(b) acts as a guideline to ascertain whether circumstances are giving rise to justifiable doubts as to the independence or impartiality of the arbitrator. The fifth schedule is based on the Orange List of the IBA guidelines, which lists down less severe circumstances constituting ‘De facto’ ineligibility.

The seventh schedule incorporates disqualification categories akin to the Red List of the IBA guidelines, which leads to ‘De jure’ inability to act as an arbitrator. If the case falls within any of the categories specified in the 7th schedule, such an appointment is invalid by operation of law, and the arbitrator’s mandate stands terminated. A proviso has been added to section 12 (5), which allows a waiver of applicability of section 12 (5). However, such a waiver can only be: after the disputes having being arisen; and by an express agreement in writing (as opposed to deemed waiver by conduct as stipulated under Section 4 of the Act).

On the other hand, if the appointed person is ineligible in terms of the seventh schedule: such a person would lack inherent jurisdiction to proceed any further and hence an application for termination of mandate may be filed under Section 14(2) of the Act, directly before the Court. If the appointment clause itself fulfils the conditions for de jure ineligibility, the parties may approach the Court under Section 11 of the Act, and seek an appointment by the Court.

THE SHIFT IN JUDICIAL TREND: THE CURIOUS CASE OF UNILATERAL APPOINTMENTS

Post the amendments of 2015; there was a shift in the judicial trend in contrast to what has been discussed earlier as Procedural Fairness. The amendments equipped the parties with effective recourse to challenge the unfair appointment procedures in arbitration agreements. Further, the specific disclosure requirements and the categories of grounds and disqualifications given under the fifth and seventh schedule enabled an objective test for independence and impartiality of potential arbitrators. As a result of the 2015 Amendment, the parties can no longer appoint their existing employees, consultants or advisors as arbitrators. However, the de jure disqualification does not cover former or retired employees who have retired beyond three years of their nomination, and they may still be appointed as arbitrators.

It is interesting to note that post-2015 amendments that the inquiry in judicial decisions has not been limited to “who may be appointed” and has extended to “who may appoint”. Under the notion of unilateral appointment of arbitrators, only one of the parties gets the power to nominate or appoint an arbitrator. This kind of appointments has been continuously under the judicial scanner post the 2015 amendment. Though, the Seventh schedule provides the criteria for ineligibility of the “appointed arbitrator”, the listed grounds do not apply to the “appointing authority”. So, there is no direct bar on unilateral appointments under the Act. In other words, if the appointed arbitrator does not otherwise fall under any of the disqualifications specified under the seventh schedule, a strict and narrow interpretation of the provisions of the Act would lead to the conclusion that such an appointment is valid even if the arbitrator is unilaterally appointed by one of the parties. Several High Courts even post the 2015 Amendment continued to hold this view, until the Supreme Court ruling in TRF Limited vs Energo Engineering Projects Limited (“TRF LtdCase”). in 2017, finally leading to the decision in Perkins Eastman Architects DPC and another v. HSCC (India) Limited (“Perkins Eastman Case”).

TRF Limited vs Energo Engineering Projects Limited (EEPL) was the first significant judgment which dealt with the issue of unilateral appointment of arbitrators. In this case, a three bench judge of the Supreme court relied upon the principle embedded in the maxim Qui Facit Per Alium Facit Per Se (what one does through another is done by oneself), and this was to hold that once the arbitrator (the MD in this case) becomes ineligible by operation of law under Section 12(5) of the Act as amended by the 2015 amendment, his power to nominate someone else is also lost.

The appointment clause in the Perkins Eastman case provided for arbitration by a person nominated by the Managing Director of one of the parties (the MD here had only one capacity: “appointing authority”). The Apex court, after examining the ratio in the TRF Case noted that the MD had an interest in the outcome of the dispute, hence he was found ineligible. The Court further noted that if the interest in the outcome of the dispute, is taken to be the basis for the possibility of bias, it will always be present if one of the parties is given a unilateral right of appointment of a sole arbitrator. The Supreme Court thus held that “the person who has an interest in the outcome or decision of the dispute must not have the power to appoint a sole arbitrator.”

Hence, it was conclusively ruled by the Supreme Court that the clauses that grant the right of “unilateral appointment of the sole arbitrator” to one of the parties are invalid.

CENTRAL ORGANISATION FOR RAILWAY ELECTRIFICATION: TWO STEPS BACK

Before delving into the facts and decision rendered in the Central Organization Case, it will be apposite to refer to the ruling by the Supreme Court in Voestalpine Schinen Gmbh v Delhi Metro Rail Corporation Ltd (“Voestalpine Case”). The arbitration clause in this case envisaged a three member tribunal, who were to be nominated from the panel of 31 arbitrators maintained by Delhi Metro Rail Corporation Ltd (“DMRC”) consisting of ex-Government and Railway employees. Under the appointment clause, DMRC was empowered to shortlist 5 names from the panel and the parties were to nominate one arbitrator each from such list, and such nominated arbitrators were to nominate the presiding arbitrator. Pertinently DMRC in this matter forwarded the entire list to the petitioner, excluding the serving and retired officers of DMRC for nomination. However, the petitioner challenged the clause as violative of section 12(5) of the Act. The Court opined that the discretion given to the DMRC to choose 5 persons from the panel gave very limited choice to the petitioner and further left room for suspicion that DMRC may pick its own favourites, and thus suggested deletion of the said clause. The Court, after noting that DMRC had given a wider list to the petitioner, which excluded the serving and retired employees of DMRC, upheld the procedure of selection from the wider list so provided. The Court in this case also emphasised on the need for “broad based panels”, consisting of people from various fields, both technical and legal.

In Central Organisation Case the arbitration clause contemplated appointment of sole arbitrator from a panel proposed by of one of the parties comprising of four of its retired employees. The other party was given an option to select two out those four names; and the Managing Director of the former was finally given the power to appoint one out of the two names as the arbitrator. The Court, after discussing the law laid down in both, Voestalpine Case and Perkins Eastman, upheld the validity of the appointment clause. The court expressed the opinion that the appellant had given a “wide option” to the respondent by proposing four retired employees as nominees. The court further held that the power of the General Manager to nominate the arbitrator is counter-balanced by the power of the Respondent to select any of the two nominees from out of the four names suggested from the panel of the retired officers .

This observation by the Court appears to be in face of the rationale of Voestalpine Case, where the court invalidated the clause which restricted the choice of arbitrators from merely five names out of an entire panel of thirty one. Further, the court in Voestalpine Case had specifically noted that the proposed list did not have retired employees from DMRC, which was not the case in Central Organisation, where all the four names in the proposed list were retired employees of Central Organisation Railway.

More importantly, the court in Central Organisation, seems to have completely misread the rationale in TRF Ltd. and Perkins Eastman. The Court placed reliance on the following excerpt from TRF Ltd:

“50. …We are singularly concerned with the issue, whether the Managing Director, after becoming ineligible by operation of law, is he still eligible to nominate an arbitrator. At the cost of repetition, we may state that when there are two parties, one may nominate an arbitrator and the other may appoint another. That is altogether a different situation. If there is a Clause requiring the parties to nominate their respective arbitrator, their authority to nominate cannot be questioned…”

The court further reproduced the following excerpt from Perkins Eastman:

“21….The next sentences in the paragraph, further show that cases where both the parties could nominate respective arbitrators of their choice were found to be completely a different situation. The reason is clear that whatever advantage a party may derive by nominating an arbitrator of its choice would get counter balanced by equal power with the other party….”

A plain reading of the aforesaid excerpts makes it clear that the court in both, TRF Ltd. and Perkins Eastman was referring to a situation where parties could nominate respective arbitrators of their choice and that it would get counter-balanced by equal power with the other party; and not a situation where the nomination is controlled by only one of the two parties. In the latter situation, the advantage does not get counter balanced. Applying the TRF Ltd. and Perkins Eastman logic, if a party having interest in the outcome of the dispute or an ineligible person does not have the unilateral right to appoint the sole arbitrator, by the same logic, such a party should not have the right to unliterally decide on the panel out of which the arbitrator is finally appointed.

The decision in Central Organization is not merely contradictory to Perkins Eastman with respect to unilateral appointments, but has also diluted the principle of neutrality of panels given under the Voestalpine Case, which had ruled against giving limited options to the other party while making appointments from a panel, and had further recommended the parties, particularly PSU’s and government authorities to maintain “broad based” panels.

In context of appointments from panel maintained by one of the parties, the decision by a single bench of Delhi High Court in Larson & Turbo Ltd. vs. PWD is worth discussing. The arbitration clause in this case contemplated appointment of sole arbitrator from a panel of arbitrators maintained by PWD, and accordingly a retired director of PWD was appointed as the sole arbitrator. The judgement in this case seems to have been reserved before Perkins Eastman, and hence no reliance has been placed on it to strike down the unilateral appointment. The court in this case noted that the appointed arbitrator was otherwise qualified under the seventh schedule. However, the court looked into the procedure of empanelment of arbitrators by the PWC to ascertain his independence and impartiality.Under the empanelment procedure, certain conditions for empanelment were specified by the PWD, viz:

“That the applicant has not appeared for private party and against the government interest before any Arbitrator of PWD/CPWD or DDA.”

“ The Officer to be empanelled should not have taken any commercial employment and have not appeared before any Arbitrator for CPWD/PWD Delhi or DDA in favour of any party and against the Govt.”

The Court after taking note of the conditions observed that the persons who are empanelled, are required to display a certain kind of trait or be imbued with attributes that are antithetical to the appointment of an impartial and an independent arbitrator, and terminated the mandate under of the arbitrator under Section 14(1)(a) of the Act. This case is another example of purposive interpretation of the Act.

CONCLUSION

The Indian arbitration space has shown a great deal of progress in making the arbitration procedure fair as well as efficacious through legislative reforms. The objective criteria under the fifth and seventh schedule have brought in a fair amount of objectivity in judging the independence and impartiality of arbitrators. Most of the PSUs and government authorities have amended the dispute resolution clauses in their contracts to do away with clauses that prescribed appointment of existing employees, consultants or advisors as the arbitrators. In a country like India, where ad-hocism in arbitration is a norm, these reforms are a welcome step in ensuring confidence of parties in the arbitral process. To bring about long term and systematic changes, institutionalized arbitration in India needs to be encouraged and strengthened. Further, a perusal of the judicial decisions post the 2015 Amendment reveals that the there is a fair amount of subjectivity shown by courts in interpreting the rigor of section 12(5) of the Act read with the seventh schedule. The contradictory position arising out decisions in TRF Case, Perkins Eastman on one handand Central Organisation Case on the other, needs to be settled by a larger bench, or through a statutory amendment. In the meanwhile, the parties, especially PSUs and government authorities should maintain “broad based” panels, with people from diverse backgrounds acting as arbitrators, in line with the ratio of the Voestapaline Case.

The Daily Guardian is now on Telegram. Click here to join our channel (@thedailyguardian) and stay updated with the latest headlines.

For the latest news Download The Daily Guardian App.

Legally Speaking

Public servants & rule of law: An analysis

A person who does any rash or negligent act which puts the human life or personal safety of others in danger can be punished under Section 336. A negligent act is that act which is committed without taking reasonable and proper care as the circumstances required. Similarly, a rash act is that act which a person commits with the consciousness that harm might be caused to someone by that act but still commits with the hope that it will not.

Published

on

With the lockdown opening again, the realization sets in that the second wave of the pandemic came and became a horrifying nightmare come true. India was in international eyes as India recorded lacks of news infections and thousands of deaths every day. The sudden upsurge in cases saw hospitals filled and an acute shortage of oxygen beds, oxygen cylinders, medicines and oxygen concentrators. What we also saw was people losing their loved ones. Everyday praying to not hear of another death. Undoubtedly, to some extent, every individual has his share of responsibility to stay safe. However, the responsibility of the state and its various organs who have duty to manage and foresee the situation is much more. When the second wave came on its peak, sadly the members of State organs instead of fulfilling their responsibilities committed some grossly negligent acts which may fasten criminal liability upon them. We have examined the criminal liability of these state instrumentalities in the view of the conduct of super spreader events, which directly stem out of maladministration.

WHETHER THERE IS ANY IMMUNITY AGAINST CRIMINAL CHARGES

The answer is no. This can be inferred from a judgement of the Apex court wherein it has held that Council of Ministers are public servants within the meaning of Section 21 of Indian Penal Code (IPC) and thus, offences defined under IPC apply equally to Council of Ministers as well as members of Election Commission. However, this immunity is subject to a procedural requirement provided under Section 197 CrPC.

(i) Officials may be held liable under Section 336 and Section 269 of Indian Penal Code, 1860

A person who does any rash or negligent act which puts the human life or personal safety of others in danger can be punished under Section 336. A negligent act is that act which is committed without taking reasonable and proper care as the circumstances required. Similarly, a rash act is that act which a person commits with the consciousness that harm might be caused to someone by that act but still commits with the hope that it will not.

Now let’s see what happened in India, the event of Kumbh Mela Shahi Snan was allowed to happen without following Covid protocols where even Chief Minister of the State was seen without any mask. It was also reported that thousands took the bath in the Ganges without a mask and COVID-19 negative report. All this happened without taking any proper and reasonable care. These facts clearly make the case of a rash and negligent act which endangered the lives of indefinite amount of people.

Then comes the political rallies. Most of the political leaders were found flouting the Covid protocols i.e., not wearing a mask. Election Commission forced the teachers and investigators to perform their duties in the absence of RT-PCR Test. By virtue of Section 32 IPC, the commitment of an offence by performing an act is equivalent to commitment of offence by not taking any action. Thus, the act of members of Election Commission of being mute spectators to the violations of covid protocols by political parties, it makes them liable under Section 336 IPC read with Section 32 IPC.

Proceeding next, a person who commits any act even when he knows that he by that act may spread a disease which is dangerous to life is punishable under Section 269 IPC. It needs no explanation that officials knew that allowing these super spreader activities in the pandemic without following necessary Covid protocols led to the spread of this deadly disease.

It is also important to note here that the “doctrine of contributory negligence” i.e. that the victim too was negligent along with accused does not apply to criminal cases. Thus, the defense that the people in rallies were themselves negligent would not be considered as a legitimate defense if the officials themselves were negligent under these sections.

(ii) Officials can also be made liable under Sections 337, 338 and 304A IPC

Apart from the liabilities mentioned above, if it is proved that any person contracted the disease only from the place of rally or polling station, these officials can be made liable under Section 337 IPC. Further, if the level of infection was so high that it nearly endangered the life of that patient, the officials would be liable under Section 338 IPC. More severely, if it is proved that the person died due to the infection, the officials can be held liable under Section 304A IPC. In fact, the Allahabad High Court has taken judicial notice of the death of 135 persons who were on election duty during Panchayat elections in the State due to Covid-19 because the social distancing norms were not followed at counting areas.

(iii) Liability under Disaster Management Act, 2005

Clause (b) of Section 51 of the Act may also make them liable because they have not followed the directions issued by Government under this Act. The Union Home Ministry has mandated the strict compliance of wearing masks in public places. The refusal of the wearing of masks by the officials in elections may make them liable under this provision.

Further, Section 55 further makes the heads of Department liable if any offence is committed by a specific department. The conduct of the Election Commission which did not mandate the RTPCR tests during elections makes its officials liable under Section 55 of the Act.

CONCLUSION

Clearly, the facts show incidents of clear injustice to the people. The question arises what can be done? The apex court may take action on its own against the officials if it is of the opinion that injustice has been caused to public. Additionally, anyone can also file PIL in Supreme Court under Article 32 or High Court under Article 226 of the Constitution to remedy the injustice caused because of the deprivation of right to life guaranteed under Article 21 of the Constitution. The courts have now become chief social activists by giving interest to society’s paramount importance and instituting legal actions against the criminal acts happening in the country to protect the rights of its citizens. It’s the time for courts to exercise that power.

Continue Reading

Legally Speaking

Forum shopping: Responsibility to recuse, but when

The problem of forum shopping can be congruously solved by the very judge who has been requested to recuse by his deliberation upon the matter on the basis of facts presented whether his recusal is appropriate for the case or whether the application for his recusal reeks malice. Further impetus can also be provided toward curbing the practice of forum shopping by penalising such litigants and their counsel for their effort toward perversion of the course of justice.

Published

on

Litigant cannot be permitted to browbeat the court by seeking a Bench of its choice.

Justice M.R. Shah

INTRODUCTION

Judges like other human beings are at times prone to succumb to their emotion while delivering their judgment instead of applying proper and sound reasoning to substantiate their decision. While most of the time it goes unnoticed, there are instances when it becomes too evident to be ignored by arguing counsel and justice seeking client before his bench. This change in heart while delivering judgement can be attributed to their prior personal or incidental experience of the Judge. While this unintended bias is possible this is not the case all the time. Such instances are used as a means to secure a judge who has a lenient attitude towards the litigant’s case. This practice of securing a more compassionate judge toward for the litigant is called forum shopping.

While, forum shopping predominantly relates to selection of country on the basis of laws in international transaction which appears more favourable in nature, this concept has now seeped into our own municipal legal system with clients trying to have their case presented before a judge who is considered more inclined to deliver judgement in favour of him or his class of litigant. The concept of forum shopping does not find any place in our statute books but numerous precedents and judgements delivered by Hon’ble Supreme Court and numerous High Courts has composed a basic jurisprudence around it.

SUPREME COURT AND HIGH COURTS’ VIEW ON THIS ISSUE

Justice Gautam Patel of Bombay High Court in the recent case of Raja Mahendragir & Anr v Shankuntaladevi Shankar Puri, came down heavily on the litigant seeking his recusal on the ground that his client will never get justice from him. The contention of litigant and his counsel were on flimsy grounds comprising of a string of judgements delivered on similar matter by him against a class of litigant to which the present litigant belonged. In his application requesting for recusal, he stated that,

“From the orders passed by the Honourable Justice G.S. Patel till this day as well as his way of working of not giving to the real heir enough opportunity to collect the necessary documents, I have become absolutely certain that I will never get justice from him. Hence, our aforesaid matter may kindly be transferred from his Court to some other Court as we have no faith in him.”

Thus, it was an identifiable trend in the Judge’s judgement (whether the trend identified by the litigant was erroneous or not the author does not wish to comment) which prompted the litigant to seek his recusal which was ultimately dismissed.

The Hon’ble Supreme Court has not just disapproved such practice but also depreciated it considering the effect it evidently has on the image of the impugned Judge and the Judiciary as a whole. In the case of M/s Chetak Construction Ltd. v. Om Prakash & Ors, the court deliberated upon the issue at length and remarked that litigants endeavour for forum shopping cannot be allowed by courts in the interest of impartial justice delivery system. The court further opined that, “A litigant cannot be permitted choice of the forum and every attempt at forum shopping should be crushed with a heavy hand”. The court in the aforementioned case categorised a set of acts which can be considered as forum shopping. Primary among them were.

Requesting the concerned Judge to recuse himself on flimsy grounds of conflict of interest.

In cases where the presiding Judge has a conflict of interest and has an inherent interest in the output of the case, he is required to recuse himself from the bench deliberating upon it. This is because; there is a possibility that the Judgement delivered by the Judge might be biased. While this rule is an unwritten one governed by good conscience and moral rectitude of the Judge, at times, this rule is used by litigants to have a judge recused from the case who has a record of delivering judgements not in favour of litigant belonging to particular class. Such instance puts the Judge in a state of topsy turvy where the Judgement he will be delivering at a future date will most probably be brought to question for its healthfulness.

By stipulating the valuation of suit in manner which put it before a judge or court of preferable jurisprudential standing.

One other way to have the case brought before a favourable court is to have the valuation according to the requirement of the preferred court. The jurisdiction of a court is determined by the plaintiff’s valuation in the plain. For instance under Andhra Pradesh Civil Courts (Amendment), Act, 2018, a case amounting to 20 Lakh Rs will be presented before Junior Civil Judge, cases amounting to between 20 Lakh to 50 Lakh Rs will be before Senior Civil Judge and cases amount to above 50 lakh will be before District Court. The litigant in such a situation will be within his right to stipulate the valuation in his Suit at such amount on reasonable grounds in order that his case may be presented before a judge or class of judge who is more likely to deliver judgement in his favour.

Appeal to superior court on not attaining a favourable Judgement

While this category cannot be considered as a mode of forum shopping per se but it has been used by litigants to have a critical judgement overturned on appeal in favour of him.

The principle laid down in the case of M/s Chetak Construction Case was further reiterated in the recent case of Neelam Manmohan Attavar v. Manmohan Attavar by a division bench of Hon’ble Supreme Court.

The law in this realm was succinctly laid down in the case of Seema Sapra v. Court on its own Motion wherein the court drew support from the Schedule Three of Indian Constitution which provides Oath of Judge for Judges of High Courts and Supreme Court requiring them to duly and faithfully perform the duties of the office they are upon to enter without fear and ill will. The Supreme Court considered the judge’s succumbing to such pressure to recuse from delivering judgement as not fulfilling the very oath they took will entering the coveted office to render service to the people.

In the very case of Seema Sapra, while it was being heard by the High Court of Delhi, a total of 28 judges had to recuse from hearing the case for one reason or another. Furthermore, even at the Supreme Court three judges had to recuse themselves from hearing it on grounds of conflict of interest. Such instance led to imposition of undue burden on the already over burdened courts which are required to hear hundreds of cases every single day.

SOLUTION TO THE PROBLEM OF FORUM SHOPPING

Their cannot be an absolute solution to this nodus of forum shopping. The solution to it lies with the decision of concerned judge on whether he will recuse himself or not. One has to keep in mind that recusal is matter own choosing for the concerned judge. It is open to him to either reject the application for his recusal or to accept it. While an impartial judge is quintessential to the justice deliverty system in our country or for that matter any other country, it is oblivious duty of the concerned judge to discharge the responsibilities he has been bestowed with.

The problem of Forum Shopping can be congruously solved by the very judge who has been requested to recuse by his deliberation upon the matter on the basis of facts presented whether his recusal is appropriate for the case or whether the application for his recusal reeks malice. Further impetus can also be provided toward curbing the practice of forum shopping by penalising such litigants and their counsel for their effort toward perversion of the course of justice. Such penalty will ensure that the litigants and their counsels are aware of possible ramification of their misadventure if it gets exposed before the court.

Continue Reading

Legally Speaking

Obligation of a father to maintain his son will not come to an end when he attains majority: Delhi High Court on Section 125 of CrPC

Published

on

In a brilliant, balanced, bold and brief judgment titled Urvashi Aggarwal & Ors vs Inderpaul Aggarwal in CRL.REV.P. 549/2018 & CRL.M.A. 11791/2018 (Stay) delivered on June 14, 2021, the Delhi High Court has minced no words to make it clear that the obligation of a father to maintain his son under Section 125 of CrPC would not come to an end when the son attains the age of majority after reasoning that the entire burden of his education including other expenses would fall entirely upon the mother. A single Judge Bench comprising of Justice Subramonium Prasad who delivered this extremely learned, laudable and landmark judgment directed that a sum of Rs 15,000 per month is to be given as interim maintenance to the mother from the date of the son attaining majority till completion of his graduation or starts earning, whichever is earlier. The Court observed that, “It cannot be said that the obligation of a father would come to an end when his son reaches 18 years of age and the entire burden of his education and other expenses would fall only on the mother. The amount earned by the mother has to be spent on her and on her children without any contribution by the father because the son has attained majority.” It also did not shy away from observing that, “The Court cannot shut its eyes to the rising cost of living. It is not reasonable to expect that the mother alone would bear the entire burden for herself and for the son with the small amount of maintenance given by the respondent herein towards the maintenance of his daughter.”

To start with, Justice Subramonium Prasad of Delhi High Court who authored this notable judgment first and foremost sets the ball rolling by observing in para 1 that, “The present revision petition is directed against the order dated 21.04.2018, passed by the Additional Principal Judge, Family court, Tis Hazari, Delhi, declining maintenance to the petitioner No.1/wife and granting maintenance only to the petitioner Nos.2 and 3 herein.”

While elaborating on the facts of the case, the Bench then puts forth in para 2 that, “The facts leading to the present petition are as under:

a) The petitioner No.1 got married to the respondent herein on 11.11.1997. Out of the wed-lock two children i.e. the petitioner Nos. 2 and 3 were born on 14.8.2000 and 14.8.2002 respectively.

b) Disputes arose between petitioner No.1 and the respondent herein. Petitioner No.1/wife filed a petition under Section 125 Cr.P.C for grant of maintenance.

c) The respondent/husband instituted a suit for divorce. d) During the pendency of the divorce petition, the petitioner No.1 filed a petition under Section 24 of the Hindu Marriage Act, 1955 seeking maintenance. The Family Court declined maintenance to the petitioner No.1 and granted maintenance of Rs.7,000/- per month to the two children which was later enhanced to Rs.13,000/- per month.

e) A decree of divorce was granted on 28.11.2011.

f) The petitioner No.1 filed MAT. APP. No.6/2012 challenging the decree of divorce, which is pending before this Court. This Court vide order dated 25.03.2015 directed the respondent to pay maintenance of Rs. 15,000/- each to the respondent Nos.2 and 3.

g) The respondent has married again and has got a child from the second marriage.

h) A perusal of the material on record shows that the petitioner No.1 and the respondent are both Government employees. The petitioner No.1, at the time when the impugned order was passed, was working as an Upper Divisional Clerk in Delhi Municipal Corporation and the respondent is working as a Joint General Manager (HR) with the Airports Authority of India. The monthly income of the petitioner No.1, in the affidavit filed by her in the year 2016, is shown as Rs.43,792/- per month and she has stated that her monthly expenditure is Rs.75,000/-. She also stated that her net income is Rs.37,762/- per month. On the other hand, according to the affidavit dated 06.02.2016, filed by the respondent, he was earning a gross salary of Rs.96,089/- per month.

i) The petitioner No.1 moved an application for grant of interim maintenance claiming a sum of Rs.40,000/- per month. The learned Family Court after considering various factors came to the conclusion that since the petitioner No.1 is earning sufficiently for herself, she is not entitled to any maintenance. As far as petitioner Nos. 2 and 3 are concerned, the learned Family Court apportioned the income of the respondent into 4 shares, out of which two shares have been given to the respondent and one share each i.e. 25% has been given to the two children. Out of 25% for each children, as directed by the Family Court, the respondent had to pay 12.5% to each of the child out of his gross income less minimum statutory deductions which were to be computed by the employer of the respondent. The learned Family Court has said that the petitioner No.2 i.e. the son of the parties would be entitled for maintenance till he attains the age of majority and the petitioner No.3 i.e. the daughter would be entitled for the maintenance till she gets employment or gets married whichever is earlier. The learned Family Court further said that since the respondent has to maintain his son, born from his second marriage, it was directed that from the date of birth of his son from the second marriage, the share of the respondent shall be 10% each for 2 kids, from the wedlock with the petitioner No.1, as his entire salary was apportioned to five shares (two for the respondent, one each for the three kids). It has been held that since the second wife of the respondent herein is also working, she has the liability to bear 50% of the cost of her son, thereby making the share of the respondent herein as 10% towards the child from the second marriage. The order dated 21.04.2018, reads as under:

“8. Interim maintenance to petitioner no. 1 is declined at this stage as she is able bodied and earning sufficiently for herself and as regards the standard of living behoving with the status of the respondent, the same are questions of fact and triable issues and would be looked into when it would be decided finally after trial whether petitioner no. 1 is entitled for maintenance or not.

9. As regards petitioner no. 2&3 are concerned, the income of the respondent has to be apportioned in four shares @25% i.e. two for himself and one each for the children and from that 25% share for each kid 50% thereof has to be contributed by the respondent for each kid. So the respondent is liable to pay 12.5% each to both the children as his share out of his gross income minus minimum statutory deductions which would be computed by the employer of the respondent However, amount of reimbursement obtained by the respondent for which he has spent from his own pocket will not be calculated for the purposes of apportionment of the share in favour of the children. The petitioner no. 2 and 3 would be entitled to 12.5 % each per month as share of the respondent in the aforesaid manner from the date of application till the pendency of the case. The son of the parties shall be entitled for the maintenance till he attains the age of majority and the daughter till she gets employment or gets married whichever is earlier. The respondent has no liability to maintain his mother-in-law and sister-in- law being under no such legal obligation. The mother of the respondent being pensioner as father of the respondent was a government employee, the respondent has no obligation to maintain her financially. 10. Since the respondent in this case has the liability to maintain his son born from his present wedlock it is ordered that from the date of birth of his son from second wedlock the share of the respondent shall be 10% each for 2 kids from the wedlock with the petitioner as his entire salary in the above terms needs to be apportioned to five shares (two for the respondent, one each for the three kids). Each shares comes to 20%. The second wife of the respondent being also working has the liability to bear 50% for son thereby making the share of the respondent as 10% for the son from second wedlock.”

j) It is this order which is under challenge in the instant revision petition.

k) It is pertinent to mention here that a number of petitions have been filed by the parties against each other. This Court is not dwelling into the details of those petitions since they are not relevant for the present proceedings.”

On the one hand, the Bench then points out in para 3 that, “The learned counsel for the respondent has taken the primary objection stating that the present application is not maintainable and is barred under Section 397(2) Cr.P.C inasmuch as the order granting interim maintenance is an interlocutory order. The said argument has been rebutted by the learned counsel for the petitioners.”

On the other hand, the Bench then brings out in para 4 that, “The learned counsel for the petitioners places reliance on the judgment of this Court in Manish Aggarwal v. Seema Aggarwal, 2012 SCC OnLine Del 4816, which reads as under:

“17. Interim maintenance had been granted under Section 125 Cr. P.C. and the issue arose whether a revision petition could be preferred against that order, as it was alleged to be interlocutory in nature. It was held that the order of interim maintenance was an intermediate or quasi final order. Analogy was drawn from Section 397(2) of the Cr. P.C. and the pronouncement of the Supreme Court in Amarnath v. State of Haryana, (1977) 4 SCC 137 : AIR 1977 SC 2185 qua the said provision was relied upon. Thus, an order which substantially affects the rights of an accused and decides certain rights of the parties was held not to be an interlocutory order so as to bar revision. However, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in the aid of pending proceedings would amount to interlocutory orders against which no revision would be maintainable under Section 397(2) of the Cr. P.C. On the contrary, those orders which decide matters of moment and which affect or adjudicate the rights of the accused, or a particular aspect of trial could not be labeled as interlocutory orders. The Madhya Pradesh High Court held that an application for interim maintenance is a separate proceeding, to be disposed of much earlier than the final order in the main case. Qua the said issue the matter is finally decided by the order passed by reference to the second proviso to Section 125(1) of the Cr. P.C. Such orders were, thus, intermediate or quasi final orders. Thus, if an order does not put an end to the main dispute, but conclusively decides the point in issue it can certainly not be said to be an interlocutory order. The judgement drew strength also from the observations of the Supreme Court in Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 : AIR 1978 SC 47, where the Supreme Court held that ordinarily and generally the expression “interlocutory order” has been understood and taken to mean as a converse of the term final order. But the interpretation, and the universal application of the principle that what is not a “final order” must be an “interlocutory order” is neither warranted nor justified. In V.C. Shukla v. State, 1980 (2) SCR 380 the Supreme Court held that the term “interlocutory order” used in the Cr. P.C. has to be given very liberal construction in favour of the accused in order to ensure complete fairness of trial, and revisional power could be attracted if the order was not purely interlocutory but intermediate or quasi final.

26. We, thus, conclude as under:

(i) In respect of orders passed under Sections 24 to 27 of the HM Act appeals would lie under Section 19(1) of the said Act to the Division Bench of this Court in view of the provisions of sub-section (6) of Section 19 of the said Act, such orders being in the nature of intermediate orders. It must be noted that sub-section (6) of Section 19 of the said Act is applicable only in respect of sub-section (1) and not sub-section (4) of Section 19 of the said Act.

(ii). No appeal would lie under Section 19(1) of the said Act qua proceedings under Chapter 9 of the Cr. P.C. (Sections 125 to 128) in view of the mandate of sub-section (2) of Section 19 of the said Act.

(iii). The remedy of criminal revision would be available qua both the interim and final order under Sections 125 to 128 of the Cr. P.C. under sub-section (4) of Section 19 of the said Act. (iv). As a measure of abundant caution we clarify that all orders as may be passed by the Family Court in exercise of its jurisdiction under Section 7 of the said Act, which have a character of an intermediate order, and are not merely interlocutory orders, would be amenable to the appellate jurisdiction under sub-section (1) of Section 19 of the said Act.” (emphasis supplied)

In view of the above, this issue is no longer Res Integra and stands covered fully in favour of the petitioners and the revision petition is maintainable.”

To put things in perspective, the Bench then puts forth in para 5 that, “It is contended by the learned counsel for the petitioners that after holding that each of the child is entitled to 25% of the amount of the income of the respondent, the learned Family Court ought not to have further apportioned the amount and limited the liability of the respondent only to 12.5% of the amount of the salary earned by the respondent. It is contended by the learned counsel for the petitioners that each of the child is entitled to full 25% of the amount of the salary earned by the respondent. It is further contended by the learned counsel for the petitioners that the learned Family Court has also erred in limiting the maintenance to be given to the petitioner No.2/son till he attains the age of the majority. It is contended by the learned counsel for the petitioners that Section 125 Cr.P.C has to be interpreted in such a manner that the object of Section 125 Cr.P.C is achieved. It is further contended by the learned counsel for the petitioners that the responsibility of a father to take care of his child does not cease after the child attains majority if the child is not able to sustain himself.”

As against what is stated above, the Bench then also points out in para 6 that, “Per contra, the learned counsel for the respondent contends that there is no infirmity in the order of the learned Family Court and that it is a well reasoned order. It is contended by the learned counsel for the respondent that the total amount paid by the respondent to the petitioner Nos.2 and 3 till date is about Rs. 29,25,825/- which is much more than the amount which has been directed by the learned Family Court. It is also submitted by the learned counsel for the respondent that apart from the salary, the petitioner No.1 has got several properties and has got income from other sources and is not only confined to her salary.”

Be it noted, after hearing the counsel of both the parties and perusing the material on record as stated in para 7, the Bench then envisages in para 8 that, “The purpose of Section 125 Cr.P.C has been laid down by the Supreme Court in several judgments. The object of Section 125 Cr.P.C is to prevent vagrancy and destitution of a deserted wife by providing her for the food, clothing and shelter by a speedy remedy. The object of Section 125 Cr.P.C is to bring down the agony and financial suffering of a women who left her matrimonial home so that some arrangements could be made to enable her to sustain herself and her child (refer: Chaturbhuj v. Sita Bai, (2008) 2 SCC 316, and Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353).”

Simply put, the Bench then states in para 9 that, “Since the purpose of granting interim maintenance is to ensure that the wife and the children are not put to starvation, the Courts while fixing interim maintenance are not expected to dwell into minute and excruciating details and facts which have to be proved by the parties.”

It would be worthwhile to mention here that the Bench then without mincing any words states in para 10 that, “The contention of the learned counsel for the petitioners that after recording that both the children are entitled to 25% each of the amount of the salary earned by the respondent, the learned Family Court ought not to have further apportioned the amount and limited the liability of the respondent only to 12.5% of the amount of the salary earned by the respondent, cannot be accepted. The balance has to be taken care of by the wife i.e. the petitioner No.1 herein, who is also earning and is equally responsible for the child. The respondent has married again and has a child from the second marriage. This Court cannot shut its eyes to the fact that the respondent has equal responsibility towards the child from the second marriage. The further reduction of the amount after the birth of the child from the second marriage of the respondent also cannot be found fault with and the reasoning given by the Family Court does not warrant any interference at this juncture.”

As it turned out, the Bench then holds in para 11 that, “The learned Family Court refused to grant maintenance to the petitioner No.1 herein on the ground that the petitioner No.1 is working as an Upper Division Clerk in Delhi Municipal Corporation and is earning sufficiently for herself. The learned Family Court further held that as regards the standard of living which was being enjoyed by the petitioners when the marriage subsided is a question of fact and would be looked into when the case is decided finally after both the parties lead evidence.”

Please read concluding on thedailyguardian.com

Finally and far most crucially, the Bench then holds in para 12 that, “The petitioner No.1 is working as an Upper Division Clerk in Delhi Municipal Corporation, earning about Rs.60,000/- per month. The records indicate that the respondent has filed his salary certificate which shows that his gross monthly income, as on November, 2020, is Rs.1,67,920/-. The two children are living with the mother. After attaining the age of majority, the entire expenditure of the petitioner No.2 is now being borne by the petitioner No.1. The petitioner No.1 has to take care of the entire expenditure of the Petitioner No.2 who has now attained majority but is not earning because he is still studying. The learned Family Court, therefore, failed to appreciate the fact that since no contribution is being made by the respondent herein towards the petitioner No.2, the salary earned by the petitioner No.1 would not be sufficient for the petitioner No.1 to maintain herself. This Court cannot shut its eyes to the fact that at the age of 18 the education of petitioner No.2 is not yet over and the petitioner No.2 cannot sustain himself. The petitioner No.2 would have barely passed his 12th Standard on completing 18 years of age and therefore the petitioner No.1 has to look after the petitioner No.2 and bear his entire expenses. It cannot be said that the obligation of a father would come to an end when his son reaches 18 years of age and the entire burden of his education and other expenses would fall only on the mother. The amount earned by the mother has to be spent on her and on her children without any contribution by the father because the son has attained majority. The Court cannot shut its eyes to the rising cost of living. It is not reasonable to expect that the mother alone would bear the entire burden for herself and for the son with the small amount of maintenance given by the respondent herein towards the maintenance of his daughter. The amount earned by the petitioner No.1 will not be sufficient for the family of three, i.e. the mother and two children to sustain themselves. The amount spent on the petitioner No.2 will not be available for the petitioner No.1. This Court is therefore inclined to grant a sum of Rs.15,000/- per month as interim maintenance to the petitioner No.1 from the date of petitioner No.2 attaining the age of majority till he completes his graduation or starts earning whichever is earlier. The instant petition was filed in the year 2008. The learned Family is directed to dispose of the petition as expeditiously as possible, preferably within 12 months of the receipt of a copy of this order.” It is then held in the last para 13 that, “Accordingly, the revision petition is allowed in part and disposed of along with the pending application.”

In essence, the crux of this notable judgment delivered by Justice Subramonium Prasad of the Delhi High Court is that the obligation of a father to maintain his son will not come to an end when he attains majority and only the mother alone would not maintain her without any contribution by the father just because the son has attained majority! The Court very rightly took into account the rising cost of living and obligated the father to maintain his son till he completes his graduation or starts earning whichever is earlier as this is what is in the best interest of the child and of the family! It is the bounden duty of all the lower courts to abide by this notable judgment in all such similar cases without fail.

Continue Reading

Legally Speaking

Judicial reforms in India need to go beyond informal calls for inclusivity

Published

on

On 7 June 2021, it was reported that the Chief Justice of India, in a virtually closed-door meeting with the Chief Justices of all the High Courts, emphasised that the High Court collegiums must recommend Dalit, tribal, OBC, minorities and women for elevation as judges so that the High Court would truly reflect the vast social diversity of the country.

This move is revolutionary because several adverse remarks had been made in the past regarding the demography of the higher judiciary but little had changed. Mr George F. Gadbois’ (a political scientist) in his book titled ‘Judges of the Supreme Court of India’, stated that 92.2% of the Supreme Court comprised male Brahmins and other forward castes based on empirical data between 1950-1989; fast forward to the present-day scenario, Supreme Court now has only 1 woman judge, 1 judge from the Dalit community and 3 judges from the Parsi, Christian and Muslim minority communities collectively. Further, the Ministry of Law & Justice’s 2020 report on ‘Judges of the High Courts’ stated that only 12% of the judges in the High Courts were women; and, Vidhi Centre for Legal Policy’s 2018 report stated that there were only 27.6% of women judges in the lower judiciary. In 2016, even the former director of the National Judicial Academy had remarked that “The typical Indian judge is Hindu, upper-class, upper-caste and male.”

For an institution which according to the aforesaid data has been a bastion of few select privileged classes of the society; the decision by the CJI to diversify the higher judiciary comes as a move that warrants acceptance with arms wide open. However, in spite of the substantive part of the inclusivity policy being in tune with the ethos of a representative democracy, the existing practises concerning the elevation of judges to the higher judiciary based on inclusivity grounds, does not facilitate its smooth and sociologically legitimate implementation.

A glimpse of the collegium resolution dated 08.05.2019

This was a time when there was no representation from the Scheduled Caste community in the Supreme Court for a decade. Thus, the Supreme Court Collegium elevated a judge belonging to the Scheduled Caste community from the Bombay High Court. While doing so the Collegium resolution stated that “His (the judge from the SC community’s) recommendation, in no way, is to be misconstrued to mean that three senior-most Judges from Bombay High Court (two of whom are serving as Chief Justices) are less suitable than him”. Now, there are several challenges attached to such ad-hoc elevations. Firstly, the aforesaid statement made by the Collegium makes it look like the only reason why none of the three other senior-most judges of the High Court were elevated is because they were at the right place at the wrong time; secondly, it still does not ensure that representation of judges with non-traditional background in the judiciary would continue in a sustained manner because after all, it took a decades’ time for the Collegium to realise the lack of representation of the SC community in the Supreme Court; and lastly, the lack of a well-defined policy for selection of the candidates belonging to the SC/ST/women/minority communities could exacerbate the allegations of nepotism and favouritism, a charge that the higher judiciary already has been saddled with time and again.

In light of the same, it is natural that the call for diversification by the CJI must be supplemented with procedural policies that both sustain as well as accelerate the prospect of constituting a diverse, democratic and representative judiciary.

JUDICIAL PERFORMANCE EVALUATION

Judicial Performance Evaluation Programmes conduct periodic assessment of the performances of the judges. It dates back to the year 1978 when the government of Alaska conducted the first judicial performance evaluation programme. However, over the years the judicial performance evaluation programmes have evolved across varied array of jurisdictions to meet their own unique needs; some are also meant for enhancing the accountability of the judges apart from determining the career paths of the judges. The 2017 Vidhi Centre for Legal Policy’s report stated that despite the differences among the practice of judicial performance evaluation; there are few commonalities that remain axiomatic across jurisdictions i.e., they are official state-run programmes, data and information on several parameters is collected from a wide audience through survey mechanisms, and the survey results and recommendations are widely circulated.

Further, the 2017 report after wide consultation with eminent jurists, judges, academicians and advocates recommended that India’s judicial performance evaluation programmes must be run by a statutory body or commission that would carry out the surveys annually to evaluate the performances of the judges for the elevation to the higher judiciary. The programme would be conducted in three phases – the first stage would entail the survey which would be filled by peers on the bench, court staff, eminent advocates to name a few; the second stage would carry out the collation of data, and the third and last stage would be the publication of the data in a public domain along with the recommendations made by the body/commission.

The induction of the judicial performance evaluation programmes is not only desirable but even the need of the hour because the aforementioned statistics evinced that the lower judiciary comparatively enjoyed a greater diversity of judges; it gives a fair, if not ideal, pool of candidates whose performances can be evaluated in order to be elevated to the higher judiciary. This would also prove to be a game-changer because not only would it provide for a rational and uniform basis for the elevation/non-elevation of a particular judge to the higher judiciary but also inhibits the scope for favouritism/nepotism, and its annual reports would ensure that the diversification policy is not compromised or ignored over time. Lastly, since the aim of such programmes is also to ensure that merit is rewarded, it would also cause only the meritorious candidates from non-traditional backgrounds to be elevated to the highest echelons of the judiciary; which is in tune with the vision of the drafters of the constitution who envisaged merit as the sole ground for appointment to the judiciary.

Continue Reading

Legally Speaking

How Madras High Court judge broke his preconceived notions for LGBTQIA+ community

Published

on

‘There are many branches on the tree of life. There is no one way to be, and there is room for everyone to be who they are.” ~ Justice A. Venkatesh

The Tale of two brave girls

This movement for change began when two girls named S. Sushma and U. Seema Agarval who were in a romantic relationship with each other faced harassment and mental pressure from their family due to their sexual orientation and therefore decided to run away from their respective homes and shift to Chennai.

S. Sushma had pursued a bachelor’s degree in Mathematics from Madurai and Seema was pursuing a bachelor’s degree in the Tamil language at that time. They both knew each other from the past two years and their friendship in the sue course of time blossomed into a unique, romantic relationship and both of them see each other as their partner for life time. When the parents of the couple received the knowledge of their relationship, they strongly opposed it and started pressuring them, and that’s when they decided to leave Madurai and shift to Chennai to start their new life.

The girls belong to the LGBTQIA+ community. The NGO’s and other members of the community supported the girls and arranged for accommodation for ensuring their protection. Meanwhile, their parents filed different missing FIR’s for each girl and the police began their search. The Petitioners in the apprehension of threat and danger to their life approached the Hon’ble Court of Madras to issue direction to the Police to protect them from any kind of threat and danger.

Justice Anand Venkatesh took note of the facts of the case and arranged for a meeting in the mediation centre for the couple and their parents, he also sat with the parents to understand their viewpoint on the notice of same-sex relationship.

Counselling session were arranged for the parents to understand the same-sex relationship in today’s world and also, to understand their daughter’s emotional state and feelings toward the relationship but nothing good came out of it. No change was recorded in the attitude and thinking of the parents.

For the very first time, the Indian Judiciary has given a helping hand to the LGBTQIA+ community not just by issuing the guildlines for their protection and safety, but also actively took part understand their feelings and emotions, and to break the pre-conceived notion which exists in our society concerning the LGBTQIA+ community.

How did the Judge overcome his Prejudice?

The Hon’ble Judge of the Madras High Court, Justice Anand Venkatesh passed an order while deciding on the Writ Petition no. 7284 of 2021, S. Sushama and another v Commissioner of Police and others, in favour of the Lesbian couple who were continuously subjected to harassment by the police officials after their respective parents filed a missing report against them.

The Judgment is itself is a step towards creating a safe environment for the LGBTQIA+ community in our Country, but it was not easy for him to break this pre-conceived notion about the Gay and Lesbian community which exists in our society.

Justice A. Venkatesh agreed that it was not easy for him to understand the mindset and the situation of the petitioners as he has never encountered anybody belonging to the LGBTQIA+ Community and therefore never had a chance to understand in depth about their emotions and mindset.

For better understanding and the analysis of the situation in hand Hon’ble Justice of the Madras High Court underwent psycho-educative session with various counsellors and professionals who deal with the LGBTQ+ community to understand their issues better.

In a report submitted by the clinical Phycologist Dr Vidya Dinkaran, she stated that the Hon’ble Judge participated in a session with her and broke his flawed notions about the LGBTQ+ community. The Hon’ble Judge after interacting with the Petitioners and the parents realised that “There has been a misconception that went to the cutting edge was how homosexuality is all the time saw distinctly with a sexual undertone (i.e.), a relationship restricted uniquely to sex.

The report stated that how Justice Venkatesh communicated on paying attention to the lesbian couple was the point at which he understood the imperfect notion about the community he had and how two ladies came to be viewed as a couple before the finish of that conversation for him. He came in with the consciousness of the bias he holds. This was developed by seeing how no two heterosexuals in a relationship will be judged promptly as being together just to participate in sex and it shouldn’t be different for any two individuals with different sexual Orientations.

After realising his bias toward this community, Justice Venkatesh interacted with different people belonging to the LGBTQ+ community to deepen his knowledge and understanding of the diversity amongst people of his own country. Also to gain insights on their living situations and the discrimination being faced by them in the society. Therefore, an interaction was scheduled with Dr Trinetra Haldar Gummaraju, MBBS Intern and an influencer from Kasturba Medical College and her mother Ms Haima Haldar. Dr Trinetra, a transwoman herself shared her journey and lived experiences with the judge and Dr L.Ramakrishnan, Vice President, SAATHII.

All these interactions finally broke all his notions about the LGBTQ+ Community and he started looking at them as a normal human being and in the judgement, he confessed that, Dr Vidya Dinakaran and Dr Trinetra and his Guru’s who helped him to break his pre-conceived notion and pulled him out of the darkness.

Justice Anand Venkatesh noticed that a cultural change is required in the approach towards LGBTQIA+ connections. The threats they face are because of the way that their relationship loath cultural authorization. He quoted in his Judgement, S. Sushama and another v Commissioner of Police and others that, 2021:-

“…the actual problem is not the fact that the law does not recognise a relationship but that the sanction that is accorded by the society is not available. It is only for this reason, I strongly feel that the change must take place at a societal level and when it is complemented by law there will be a remarkable change in the outlook of the society by recognising same-sex relationships”,

And therefore, in the light of the above-made observations this court feels that there should be stringent laws made by the Legislative Authorities for the LGBTQ+ community to protect them from the harassment, social and mental torture and from prohibiting any kind of activities to change their sexual orientation through means such as black magic or undergoing medical operations.

GUIDELINES ISSUED BY COURT FOR PROTECTION OF THE LGBTQIA+ COMMUNITY

The Hon’ble High Court of Madras issued notice to the Union and the Central Government to make laws that protect them and till the time, the laws do not come into force the following guidelines shall be followed to protect the LGBTQIA+ community who are living in the most vulnerable environment and there is no law for their safety and protection. The guidelines are as follows:

On receipt of a missing complaint of any adult who after the investigation is found to belong to the LGBTQ+ community, the Police officials, in that case, shall shut the complaint without any further actions and harassment to the persons.

The Ministry of Social Justice and Empowerment (MSJE), needs to enrol Non-Governmental Organizations (NGOs) which have the adequate ability and experience in dealing with the issues looked at by the LGBTQIA+ people group. The rundown of such NGOs alongside the location, contact subtleties, and administrations gave will be published on the official website which will be updated regularly.

Anyone belonging to the LGBTQIA+ community, who is facing harassment of any kind can approach the listed NGOs for the protection of their interests.

The Service provider NGOs shall maintain a record of the person in private who seeks help from them and share such data with the Ministry regularly to keep a check on the atrocities faced by them and take measure accordingly.

The offences faced by the person belonging to the LGBTQIA+ community shall be dealt with adequately with the help of the Counsellors and the State Legal Service Authority and in certain cases, law enforcement agencies shall also provide help.

With particularity of issue of convenience, reasonable changes are to be made in existing short stay homes, Anganwadi covers, and “Gramin greh” (a haven home for transsexual people, the motivation behind which is to give asylum to transsexual people, with fundamental conveniences like a safe house, food, clinical consideration and sporting offices. Plus, it will offer help for limit building/expertise improvement of people locally, which will empower them to lead an existence of nobility and regard) to oblige any and each individual from the LGBTQIA+ people group, who require covers or potentially homes. The MSJE will make sufficient infrastructural courses of action in such a manner, inside a time of 12 weeks from the date of receipt of a duplicate of this request.

Any such measures need to be taken for safeguarding the interest of the LGBTQIA+ community and help them to lead a normal life like any other person. The Central Government is also requested to frame such policies to protect the LGTQIA+ community from being harassed by their family members and society.

Awareness programmes to break the prejudices against the LGBTQIA+ community shall be carried out by the concerned department of the Union and State Ministries to spread awareness amongst the people.

LGBTQIA+ RIGHTS IN INDIA: CURRENT SCENARIO

The present scenario in India is that the Apex Court in their Judgement of Navtej Singh Johar v. Union of India (2018) SCC 1, decriminalised Homosexuality between the consenting adults. But there are no laws for the protection of the LQBTQIA+ community in India, they can get married but there are no laws for the legalisation of their marriage which deprives them of many rights which a heterosexual couple have like, buying life insurance for your partner and adopting children etc. Adoption by a single person belonging to the community is recognised but not by same-sex couples. Despite strong political movement in support of Pride Month and the guidelines still today the LGBTQIA+ community continue to suffer on daily basis.

CONCLUSION

The current situation is grim for lesbian, gay, sexually open, and transsexual youth in India. Many faces provocation and tormenting, and to stay away from embarrassment and savagery they regularly skip classes or exit school out and out.

In the past year’s Court decisions has laid down a better guideline for their safety and protection from harassment based on their sexual choices and sexual character, and the Indian government’s position on LGBT rights has developed impressively. Yet, substantially more is expected to ensure individuals based on sexual and sex character in India.

Continue Reading

Legally Speaking

SC shocked as bail plea not listed for a year

Published

on

While according due respect, prime importance and high priority to even the rights of the accused, the Supreme Court has as recently as on June 15, 2021 in a latest, learned, laudable and landmark judgement titled Chunni Lal Gaba vs Assistant Director, Directorate of Enforcement in Special Leave Petition (Criminal) Diary No. 11581/2021 (Arising out of impugned final judgement and order dated 29-04-2021 in CRMM No. 8112/2020 passed by the High Court of Punjab & Haryana at Chandigarh) (FOR ADMISSION and I.R. and IA No.66481/2021-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT and IA No.66482/2021-EXEMPTION FROM FILING AFFIDAVIT and IA No.66476/2021-PERMISSION TO FILE SLP WITHOUT CERTIFIED/PLAIN COPY OF IMPUGNED ORDER) minced just no words to hold that non-listing of bail application impinges on liberty of accused. While expressing shock over a bail application filed before the Punjab and Haryana High Court not being listed for hearing for more than one year, the Supreme Court did not take time in observing that under the prevailing pandemic, at least half of the judges should sit on alternative days so that hearing is accorded to the person in distress. Very rightly so!

Without mincing any words, the top court while taking up the cudgels to protect the rights of he accused also and observed aptly that, “Non-listing of application for regular bail, irrespective of seriousness or lack thereof, of the offences attributed to the accused, impinges upon the liberty of the person in custody.” We all know how Mohammad Aamir Khan kept fighting for years and was wrongly kept in jail for 14 years before he was granted bail. Similarly we also saw how in another case an Army Officer named Lt Col Prasad Shrikant Purohit was kept in jail for more than 9 years even though the charge-sheet was not filed against him and he is still a serving Army Officer and this can only be labelled as worst “judicial murder and police murder”!

To put it mildly: Why was evidence not produced in court for nine years if there was any evidence? Under no circumstances can this be ever justified. Had it not been a legal super giant named Harish Salve who is the highest paid lawyer of India and who is also former Solicitor General of India who represented India even in the high profile Kulbhushan Jadhav case in ICJ against Pakistan perhaps Ly Col Purohit would have been rotting in jail even after 14 years just like Mohammad Aamir Khan for which the whole Indian Army must feel terribly ashamed that an honest and upright serving Army Officer was falsely implicated by Mumbai ATS and even former Defence Minister Manohar Parikar had conceded that wrong had been done with Col Purohit and asked Army to hand over documents and copies of court of inquiry to him so that he could come to know what all was there in it. Army must feel terribly ashamed over it that it did not hold the hand of an honest and upright officer like Lt Col Purohit and instead cooperated fully with Mumbai ATS which cannot be justified under any circumstances!

, coming back to the present case, it must be mentioned here that the vacation Bench of Justice Hemant Gupta and Justice V Ramasubramanian of the Apex Court was considering a Special Leave Petition (SLP) against an April order of the Punjab and Haryana High Court whereby the request for hearing of an application for bail under Section 439 of the CrPC pending since February 28, 2020 was declined. It must also be mentioned here that Justice Hemant Gupta who was earlier a Judge of the Punjab and Haryana High Court told the senior advocate who was arguing the case that, “I am aware of the situation of the Punjab and Haryana High Court.”

While elaborating on the facts of the present case, it must be stated here that the SLP petitioner, Chunni Lal Gaba is a former President of a Municipal Council in Punjab and is also an accused in a multi-crore synthetic drug racket. In addition to being charge-sheeted under the NDPS Act, the ED has charge-sheeted Gaba and nine members of his family associated with his 11 firms in connection with the infamous ‘Bhola drug case’ for the alleged violation of the Prevention of Money Laundering Act. Gaba was granted interim bail on March 28, 2020 which was further extended till June 20, 2020 and finally till July 3, 2020.

Furthermore, the ED had moved the High Court contending that the Department was not heard of granting interim bail at the initial stage and thereafter. It must also be noted that on July 2, 2020, the High Court directed the Trial Court to afford full opportunity to the Department to oppose the extension of interim bail, taking into consideration the gravity of the offence.

Truth be told, it may be recalled that the Punjab and Haryana High Court had said that, “We also make it clear that while hearing the matter, learned trial court shall take into consideration the clarificatory order dated 13.04.2020 passed by the Hon’ble Supreme Court as well as Section 45 of the Prevention of Money Laundering Act, 2002. We also make it clear that bail in cases involving heinous crimes like the offences under the Narcotics Drugs and Psychotropic Substances Act, 1985, the Protection of Children from Sexual Offences Act, 2012 and the Prevention of Money Laundering Act, 2002, may not be granted as a matter of right.” We saw subsequently how on July 4, 2020, the CBI court which is also a designated ED court had cancelled Gaba’s interim bail and sent him to judicial custody.

At the outset, the vacation Bench of Apex Court comprising of Justice Hemant Gupta and Justice V Ramasubramanian sets the ball rolling by observing in the introductory para that, “Permission to file SLP without certified/plain copy of impugned order granted.”

While laying the background and the purpose of the petition, the Bench then puts forth in the next para that, “The present special leave petition is directed against an order whereby the request for hearing of an application for bail under Section 439 of the Code of Criminal Procedure, 1973, pending since 28.02.2020, was declined.”

Most significantly, what forms the cornerstone of this extremely commendable judgment is then stated by observing that, “Normally, we do not interfere with an interim order passed by the High Court but we are constrained to pass the present order as we are shocked to see that the bail application under Section 439 CrPC is not being listed for hearing for more than one year. The accused has a right to hearing of his application for bail. In fact, the denial of hearing is an infringement of right and liberty assured to an accused.”

Adding more to it, the Bench then also sought to make it absolutely clear that, “Even during the pandemic, when all Courts are making attempts to hear and decide all matter, non-listing of such an application for bail defeats the administration of justice. Under the prevailing pandemic, at least half of the judges should sit on alternative days so that hearing is accorded to the person in distress. Non-listing of application for regular bail, irrespective of seriousness or lack thereof, of the offences attributed to the accused, impinges upon the liberty of the person in custody.”

While striking the right chord, the Bench then further adds in the next para that, “Therefore, we hope that the High Court will be able to take up the application for bail at an early date so that the right of the accused of hearing of application for bail is not taken away by not entertaining such application on the mentioning memo.”

In its concluding part, the Bench then finally observes that, “Let the Registrar General of the High Court bring this Order to the notice of the competent authority to take remedial steps at the earliest. The special leave petition stands disposed of accordingly. Pending applications stand disposed of.”

Before winding up, it has to be said in all fairness that this most commendable and noteworthy judgment which speaks out vociferously for the rights of the accused also and shows concern for their liberty too has to be applauded, emulated and implemented by all the courts, in all the states and in all the parts of the country without any exception whatsoever! To lock up a person in jail for years without giving him any opportunity to argue his/her case in court is the worst travesty of justice and is nothing but most horrible “judicial and police murder” for which both the judiciary and the police are culpable and cannot be exonerated under any circumstances! A law must be made in this effect that no person shall be kept in jail beyond few days without being produced before the court to face trial! This status quo of accused languishing in jail for years has to be wiped out and a new system where accused rights are taken care of also must be implemented now itself!

It goes without saying that if there is proof with the police, why it does not file chargesheet for nine years as we saw in Lt Col Shrikanth Purohit’s case and just keeps chanting “Swaha, Swaha, Swaha, Swaha” not for one year or two year or three years or five years or eight years but for full nine years and to rub to the wounds of the affected accused person, judiciary does virtually nothing but to inexplicably observe everything happening like a mute and most helpless spectator until some legal super giant like Harish Salve appears suddenly on the scene to speak up for the worst affected person for which judiciary has lots of explaining to do itself and it cannot be ever pardoned because judiciary has lots of power which it must exercise whenever and wherever it finds that the human rights of the accused person are being violated with impunity by the police in cahoots with an inactive judiciary failing which its own reputation will take the worst beating! It must be asked as to why in such cases should judiciary also not be held equally culpable just like police? All the courts, let me repeat, all the courts must always accord supreme importance to the personal liberty of the accused also because the accused also until proven guilty is innocent and has to be treated so!

Needless to say, the rampant misuse and abuse of draconian laws like UAPA, sedition, anti-dowry laws and several others has to be checked most strictly now itself as police too many times have been found to be on the extreme wrong side of law on grounds of extraneous considerations like money, personal enmity or political pressure and so on! We all know how recently three to four senior police officers were dismissed in Maharashtra for being on the wrong side of law!

Please read concluding on thedailyguardian.com

We also saw how senior IPS officers were making most serious corruption charges against top politicians and of demanding crores of rupees in extortion extorted from the people at large in Maharashtra and it is high time that police reforms too must be implemented and police freed from political control so that police can function independently without being adversely affected by politicians of any party no matter who it may be!

Last but not the least, no one is saying that stringent laws should be abolished but all that one is advocating is that an active judiciary must ensure that such stringent laws are not abused and promptly take action against the erring police or other men in uniform whenever they commit any such wrong which impinges on the personal liberty of the accused without any valid ground just like we see in this case which is why this most historic judgment even though is so short yet is being hailed all over most generously and which cannot be questioned also as there are valid reasons also for it! This can no longer be brushed aside now under carpet! It has to be addressed now itself and most effectively by holding police strictly accountable whenever they hold to ransom the personal liberty of the accused!

Continue Reading

Trending