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Legally Speaking

Environment Protection Act: A concise critique




The need of Environment protection and conservation in the present times cannot be anymore, as the vegetation cover has been vanishing at a distressing pace, various species of flora and fauna have become extinct and many others have become endangered, the global temperature has been ticking up, glaciers are melting and unexpected climatic changes have been wreaking havoc here and there. As a consequence, environment conservation, should be made one of the fundamental agendas of concern for the nation, just like poverty or unemployment or anything else. Post- Industrial revolution and with a steady increase in global pollution since the previous century, has led to an indiscriminate exploitation of environmental resources, for satisfaction of essentially the material needs of human beings. These activities in consequence have put a tremendous pressure on the available environmental resources.

The seriousness of this problem can be said to have been globally recognised for the first time in the year 1972 when the United Nations Conference on Environment was organised in Stockholm, which gave the world the Stockholm Declaration, which has been an instrumental guiding force in matters pertaining to environment protection, not only for India but for various other countries of the World. Revolutionary principles, concepts or doctrines like Sustainable Development, Polluter Pays Principle and Precautionary Principle are some of the vital contributions of this event, which have been made a part of our Indian Legal framework, as stated in the landmark case of Vellore Citizens Welfare Forum v. Union of India (AIR 1996 SC 2715) and have even been invoked by the courts a couple of times to penalise the polluters or to prevent such actions which may cause serious damage to the environment.

The Stockholm Declaration, Rio Summit and the disasters like Bhopal Gas Tragedy, Oleum Gas Leak etc. have been some of those events which have been responsible for the development of an Environment Law jurisprudence in India. These events led to the enactment of various legislations in the country, like the Air Act, Water Act, Public Liability Insurance Act and others which have recognised the menace of Environment pollution and have led to directed efforts towards its prevention. However, the legislative efforts in the country have been piecemeal and there is no comprehensive legislation, in this regard (even now). The Environmental Protection Act, 1986 has been one such legislative effort, which strives in this direction and seeks to take within its realm the multifarious activities which can result in polluting and degrading the different elements of the environment.


As aforesaid, after enactment of the Water Act and Air Act, post the Bhopal Gas Tragedy and the Oleum Gas Leak incident, the Environment Protection Act, 1986 (EPA) was enacted by the Parliament as an umbrella legislation for environmental matters. Yet, even after this legislative intervention, the menace of environmental pollution could not be controlled to the required and expected levels and environmental degradation has been going on, adding up to the woes of global warming and other effects detrimental to the survival of the entire ecosystem. This, to some extent also points towards the efficacy of these legislations in controlling and regulating this ravage of the Environment, though it is not implied in any manner that the Executive have been performing their job up to the mark and have made sincere efforts towards it as the law enforcers of the country too, have equally failed in performing their jobs, though the reasons for the same may be a point of discussion on some other occasion.

The foregoing texts of this article, seek to critically analyse the EPA and find out such provisions of the Act which give loopholes to the perpetrators to commit environmentally detrimental actions and also save themselves from the clutches of law. This article seeks to come up with the limitations of this legislative piece, which reduce the efficacy of this Act and consequently thwart our committed efforts to make India, pollution free. In pursuance to this, various definitions, implementation and enforcement mechanism and the various remedial measures provided in the Act are analysed and some of the reasons which have failed the legislative efforts of our country and have left our environment to the mercy of some of the Environmental activists and the courts of the country for its protection, and who have been seen to be as the only resort, for preventing acts of degradation.


It is indeed comforting to note that this Act was the first attempt of the legislators to define certain technical terms like environmental pollutant, pollution etc. However, Section 2 which deals with the various definitions provided thereunder does not manifest an appreciation of the modern concept and causes of environmental pollution. In the definition of environmental pollutant, the understanding appears to be traditional and elementary in nature, it emphasises only upon the presence of any solid, liquid or gaseous substance. The definition does not include one of the major environmental ills of the present time that is noise. ( K. Jayakumar Environment Protection Act: A Critical Overview, 11 CULR 33, 35 (1984)) Though section 6(2)(b) of the Act, talks about noise, though the same is quite miniscule considering its relevance in the present times. In the case of Bijayananda Patra v. District Magistrate, Cuttack (AIR 2000 Ori 70) it was acknowledged by the High Court of Orissa that “Noise pollution has already crossed the danger point and noise like smog is threatening as a slow agent of death.” It was also stated that noise beyond 65(dB) or more than 100 dB, would be intolerable and affects the health of humans and animals adversely. Thus, in times when environmental pollution receives a lukewarm response from the authorities that be and the perpetrators are zealously watchful of the loopholes, it is expedient that inter alia, presence of noise beyond permissible limits in the environment should be expressly provided as environmental pollution. Also, in the present times of advanced scientific research and development and technological experiment, the world has become exposed to the fourth state of matter as well that is plasma, resorted to for various industrial purposes, though it is still a subject of research, the present definition would be problematic in dealing with the effects of uncontrolled use/presence of plasma. (K. Jayakumar Environment Protection Act: A Critical Overview, 11 CULR 33, 35 (1984)) Furthermore, heat, radiation and vibration, have also been great contributors of environmental degradation but they have not been adequately dealt by the Act. Hence, it is quite desirable that the legislature takes account of these latest changes/increments in the elements of environment and accordingly modifies the definitions.


As previously stated, EPA confers excessive powers upon the Central Government, the legislation minces no words and states in Section 3 that it shall have the “power to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution.” Though these wide powers give the Central Government a great opportunity to significantly turnaround the problem of environmental pollution in the country and even rejuvenate the lives of the living by doing away with this menace altogether, however, it is indeed rare to find instances, where the Central Government has lived up to the expectations. Perhaps, conferring these wide, almost unfettered powers upon the Central Government has the potential to bring arbitrariness in the system and instead of achievement of environment friendly objectives and aspirations, other vested interests may be promoted and taken care off. It is undeniable that environment law seeks to perform a very critical role in the society, that is of balancing the considerations of scientific and technological development and thereby improving the “material” quality of life of the people and also at the same time protecting environment and the ecosystem. The aforesaid nature of work, requires the concerned authorities to be quite proactive in their approach and operate with an impartial, unprejudiced and unbiased state of mind, driven with utmost sincerity and honesty towards the protection of environment and the well-being of people. It won’t be wrong to reiterate the old saying by John Dalberg Acton at this juncture, that “Power tends to corrupt, and absolute power corrupts absolutely. Thus, in order to ensure the fulfilment of the objective of this law, it is essential that there is a certain check over the excessive powers of the Central Government in taking measures, issuing directions and constituting authorities under Section 3 and in appointing officers and entrusting them with powers and functions, under Section 4 of the EPA. Specifically, the power to issue directions to the authority so created might be an impediment in its functional freedom. Any agency charged with the duty of environmental protection should have certain essential qualities of it is to function effectively they are namely: (i)environmental expertise; and (ii) ability to make independent decisions based on valid environmental criteria; and (iii)freedom from extraneous influences, the Environment Act does not take into account these considerations and thus in totality the agency created by it may be in no better position than the boards constituted under the Water Act or Air Act. (N. S. Chandrasekharan, Environmental Protection: Two Steps Forward, One Step Back, 30 JILI 184, 186 (1988)).

Notwithstanding anything stated above, before entertaining concerns with respect to functional freedom, firstly, the compliance of this provisions by the Central Government is necessary as even after a long period of 30 years since the enactment of EPA, the Government has not put in place a dedicated authority (even though under its authority) to look after the environmental issues and ensure compliance of the provisions of the Act and perform the functions of the Central Government, despite being reminded by the Supreme Court on different instances (Vellore Citizens Welfare Forum v. Union of India (AIR 1996 SC 2715).


Environmental Crimes have been recognised in the Environmental legal framework of the country and the various legislations like the Air and Water Act have duly put in place such actions which would be held criminally liable and have prescribed various punishments, imprisonment or fine or both for the same. The EPA going a step forward has prescribed more stringent punishments for the offences and has thereby sought to make the perpetrator pay for his acts and also to ensure a better deterrent effect in the minds of other people. However, the provisions in the Act have not been so framed such that the intended objective of legislature may be achieved.

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The Act lays down in Section 24(2) that where any act or omission is a punishable offence under this Act and also under any other Act then the respective convict shall be liable to punishment under the other Act and not under the EPA. Quite possibly, a single act may be an offence under two or more other legislations and consequently in such a situation, a polluter, by virtue of this mandatory punitive provision of the Environment Act, is bound to be subjected to the comparatively less punitive provisions of the Water Act or Air Act rather than that of the Environment Act. (K.I. Vibhute, Environment, Development ¬¬and Law: Indian Perspective, 37 JILI 182, 189 (1995) Thus, this section significantly whittles down the effect of enhancement of punishments under the Act and consequently its deterrent and punitive effects.


Another problematic element with respect to prosecution for environmental crimes is that the EPA under section 19 of the Act provides that for a court to take cognizance of any offence under this Act, it is essential that the person making the complaint should have given a notice of not less than 60 days of the alleged offence and his intention to make a complaint, therefor to the Central Government or the concerned officer or authority. In a country, where there are a handful of people, who are conscious and cognizant about environmental issues and seek to actively participate in the process of environmental conservation and reconstruction. This section, further makes it difficult for them to approach the Court and also lingers the entire process of prosecution and not only gives an opportunity to the polluter to continue polluting the environment for this period, but also gives him the chance to destroy the evidences or make such manipulations or arrangements, which could prevent him from getting convicted in the court. Thus, in effect this provision thwarts the Act from achieving its objects adequately.


By way of this article, one can have certain key takeaways, which can be handy in understanding as to why the laws in the country have not been able to suitably curb environmental degradation and instil fear in the minds of people from attempting anything which can have severe consequences for the environment. The first and foremost issue with the Act is with respect to its definition clause, which has not been able to provide a comprehensive definition of environment pollutant. The definition is traditional and elementary in its approach and especially to be effective in the present times it does not specifically take into consideration the new discoveries of the time which can/might have disastrous consequences to the environment. All these gaps make the law loosely worded and gives space for one to escape from its grip. Further, the Act, vests excessive and unfettered powers upon the Central Government to take any action as it may deem fit to ensure compliance of the provisions of this Act. However, these uncontrolled powers too can be counterproductive and may be a possible way for the people who vested interests or are politically connected to be able to prevent themselves from facing the brunt. Also, the provisions with respect to prosecution for environmental matters too are not appropriately word and require some necessary introspection and improvement. The Act though gives an individual citizen to complaint against environmental pollution, however, it mandates such person to send a notice of not less than 60 days about the alleged offence and of his intention to complain, to the appropriate authority, in order to enable the court, take cognizance of the same. This not only impedes prompt action but also leads to further pollution and provides the perpetrator an opportunity to escape from the clutches of law. Further, the Act also makes a provision which provides that if an act is an offence under any Act other than the EPA, the respective person shall be punishable under the former. This provision again weakens the effect of the relatively stringent provisions of EPA and significantly reduce its deterrent effect upon the people. Thus, in totality its limitations in acknowledging pollution, preventing it, discouraging the efforts of the ordinary people in preventing it and further offering an escape to the perpetrator significantly lowers the impact of this Legislative piece, boastfully known to be the umbrella legislation for environment pollution in the country.

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Legally Speaking

No ‘honour’ in killing the young & innocent: Fighting a long, arduous battle

‘Religion’ and ‘culture’ cannot and must not be used as excuses for murdering women, because religion and its rules are always a subjective interpretation. No ‘culture’ has the right, based on their sense of morality or integrity, to murder or mistreat women. Unfettered faith does not imply free killing and activist laws are thus the only remedy to such dishonest activities.



The so-called ‘honour crimes’ are acts of violence, typically killings, perpetrated by members of the family against women who have brought the family into supposed ‘disgrace’. A woman may be targeted by (persons in her own family) for a number of reasons, including: refusal to enter an arranged marriage, being the victim of sexual assault, seeking divorce even from an abusive spouse or in cases of adultery. The mere notion that a woman has acted in a manner that “dissonates” her family is enough to assault her life. Our nation was extremely selective of the kind of development it underwent. At the world level with the nuclear agreement, 8% growth rates, and India’s acknowledgment of its position, it appears that ‘India shines.’ But delving deeper into this growing country’s dark secrets, we still discover widespread murder of young couples by their family members in order to preserve their ‘honor’ because of the couple’s differential social status.

The “traditional” khap panchayat claims that marriage between individuals of the same village is deemed incestuous since they are considered siblings, and thus these weddings are not ethical. The panchayat thus orders the assassination of the couple and hangs their bodies at the village crossing as an example to other prospective couples. Two adults are allowed to marry and, according to the Chief Justice of India Dipak Misra, speaking out against honor murders in India,

“No third person” may harass or injure them. Women are regarded as property and the vessel of family honor in India, with its patriarchal culture. And any conduct that may block the prestige of the family gives the male members an unequivocal right to kill the girl, ‘correct’ their mistakes and gain back the honor.


Honor killings, as defined by the Human Rights Watch, are “acts of violence, usually murder, perpetrated by male family members against female family members who are perceived to have brought dishonour to the family by being romantically involved with or choosing to marry men outside their caste, class, or religion.” Frequently camouflaged and reported as suicides by relatives, women account for over 97 percent of honour killing victims in India itself, because “the regime of honour is not able to forgive a woman on whom suspicion has fallen” and remove the stain on their honour by attacking the woman.” Often named as homicide, Honour killing is a heinous crime and a greater evil, homicides may affect public interest whereas the offence of Honour killing shakes public conscience. The lack of a specific law to deal with these particular crimes, in which ‘honour’ is the common motive, results in them being reported under myriad laws, making them nearly impossible to track. These crimes against honour being grossly violative of the constitution, attract the violation of various enactments like-

• The Indian Majority Act, 1875

• The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

• The Protection of Women from Domestic Violence Act, 2005

• The Indian Evidence Act, 1872

• The Special Marriage Act of 1954 and

• The Indian Penal Code, 1860

In spite of being violative of the law on so many levels, honor killings are notoriously underreported – not by the media, but by the State. The institutional reluctance to enact specific laws, fearing a sway on political outcomes, results in a convenient scapegoat and the resulting underestimation.

To discover a remedy for such atrocities, it must be investigated from the very heart. The fundamental foundation of such a marital taboo in the same “gotra” is that it’s considered incest. The 1954 Hindu Marriage Act prohibits the marriage of sapindas, individuals falling in the third generation of the mother and the fifth generation of the father. In addition, marriage between specific ‘degrees of forbidden connections,’ including between sisters and brothers, is also prohibited. The law thus sets out the components for a legal marriage and excludes marriage between close family members.


Although the state action against this crime has been active, most of the state reforms have died in latency. The Prevention of Crimes in the Name of Honour and Tradition Bill, 2010, was introduced in Parliament, however it never progressed from its embryonic stage. On August 2010, the Supreme Court imposed the capital punishment in the case of U.P. v. Krishna Master & Ors to three defendants in the event of the ‘honour’ killing of six people in a district of Uttar Pradesh in 1991. The Divisional bench of Justices, H.S. Bedi and J.M. Panchal overturned the judgement of acquittal issued by the High Court of Allahabad after which, death penalty was handed over to them by the court. The Bench upheld the decision of the trial court and stated that: “murdering six people and squandering nearly the whole family on the weak basis for preserving the family’s honour would be one of the most unusual instances” As a condemnation of the crime,in the case of Lata Singh Vs State of Uttar Pradesh and others, a single Judge bench of the Supreme Court headed by Justice Markandey Katju had said, ‘’Honour killings are nothing but barbaric cold blooded slaughter and no honour is involved in such killings.’’ Thus, the stance of the judiciary, executive and the legislature on such cases, analyzed with the help of judicial precedents and other codified laws, hold such practices unacceptable. Honor killings violate various provisions and there exist distinct legislation and punishments against this, however each of these sections offer certain exceptions, and aren’t cut out for adept dealing of these crimes. For example: the Indian Evidence Act puts the burden of proof on the victims, this makes most of the crimes go unreported, as the victims don’t live to testify. A suggestive reform would be to amend it to place the burden of proof on the accused, however amending each of the provisions to meet the demands of penalizing this crime would be a futile exercise. The IPC, offers an exception for homicides, triggered by sudden provocation and honor crimes, done by family members through brutal, clever planning mostly hidden behind this. Thus is the requirement for a distinct law so that no innocent voice is stifled in demand of justice.


The government steadily took steps to prohibit honour killing by the time various laws were modified. We end our piece by referring to the most distinguished example given by the then Chief Justice Dipak Misra, who made a substantial improvement in the case of Shakti Vahini against the Union of India in 2018, one of the most significant cases and judgement by declaring that “liberty, using the word in its practical connotation includes right to choose.” Feudal thought must dissolve into darkness and provide the pleasant path towards freedom. The right to freedom must be kept constantly and fiercely to blossom with power and splendor. Rajasthan Government has adopted strict measures and changes by adopting a new bill on the prohibition against interference in the freedom of matrimonial alliances in the name of honour and tradition in 2019. ‘Religion’ and ‘culture’ cannot and must not be used as excuses for murdering women, because religion and its rules are always a subjective interpretation. No ‘culture’ has the right, based on their sense of morality or integrity, to murder or mistreat women. Unfettered faith does not imply free killing and activist laws are thus the only remedy to such dishonest activities.

The remedy to this problem is largely to eradicate the myths in people’s thoughts. They need to be informed about the requirements of the Hindu Marriage Act and what types of weddings are truly invalid. Given the difference in the idea of Gotras and Sapindas, they should be clarified.

‘Honour killings’ violate various provisions and there exist distinct legislation and punishments against this, however each of these sections offers certain exceptions, and isn’t cut out for adept dealing of these crimes. For example, the Indian Evidence Act puts the burden of proof on the victims, this makes most of the crimes go unreported, as the victims don’t live to testify. A suggestive reform would be to amend it to place the burden of proof on the accused, however amending each of the provisions to meet the demands of penalising this crime would be a futile exercise.

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Legally Speaking

Sexual violence and victim’s story: Believed or blamed?

Aprajita Singh



Introduction : “Violence is defined as the use of physical force against another person with a high likelihood of resulting in murder, injury, psychological harm, or other undesirable consequences. Furthermore, it is the intentional or probable intentional use of physical force against oneself, another person, or a group that results in or is likely to result in damage, death, psychological harm, poor development, or deprivation. Physical, sexual, or psychological violence, as well as acts of deprivation or carelessness, are all examples of violence. Sexual violence is without a doubt one of the most deadly forms of violence. Physical or sexual abuse by an intimate partner or another criminal is a threat to women all over the globe. Medical injuries, deterioration in mental health, and particular chronic physical illnesses may all result from sexual assault and IPV. In rare instances, such acts of aggression may result in the victim’s handicap or death. Sexual violence occurs in all cultures throughout the globe, but it is defined differently. Physically forcing another person to have sexual intercourse without their permission, having sexual intercourse out of fear of the partner, and/or being forced to perform a sexual act considered degrading are all examples of sexual assault. Although both men and women are victims of sexual assault, women are more likely to be victims, and the offenders are usually male and known to the victim. Because sexual assault is a frequently underreported occurrence, statistics are unlikely to reflect the actual scope of the issue. The data that is accessible is sparse and scattered. For example, police data is often inadequate and restricted. On the other side, data from medico-legal clinics may be skewed toward more violent cases of sexual abuse. Furthermore, the percentage of individuals who seek medical help for acute issues linked to sexual assault is minimal. Shame and humiliation, fear of not being believed, fear of the perpetrator of the crime, fear of the legal procedure, or scepticism that the police would be able to assist them are all reasons for not reporting. Due to severe humiliation and worries about other people’s views, their masculinity, and the fact that they were powerless to prevent the attack, males are much more hesitant to disclose sexual violence. As a result, data on the prevalence of sexual assault against men is particularly scarce. Sexual abuse of children is also frequently unreported. The majority of the information comes from individuals who were asked about their previous experiences.”

Bombay High Court : Sexual violence knows no boundaries, it occurs in every country, across all parts of society, Bharati Dangre, J., while noting a case of sexual harassment caused to a child aged 17 years due to which she took the step of ending her life, rejected the bail of the accused.


• One of the reasons for India’s sexual violence problem could be the lack of female cops. When a woman is raped, she is more likely to report it to a female cop. In the past, just 7% of female police officers had worked in New Delhi. In fact, there is only one female station house officer in each of Delhi’s 161 district police stations.

• In Indian society, improper dress is blamed for the victim’s situation. This was demonstrated in an Indian judge survey, in which 68 percent of respondents agreed with the same premise. It’s a harsh reality, but it’s also the truth.

• Domestic violence is seen as deserving in Indian society. According to UNICEF, 57 percent of Indian boys and 53 percent of Indian girls believe that beating a wife is justifiable in one of their reports.

• No public safety- In most Indian societies, women who drink, smoke, or go late-night partying are considered as immoral and are the cause of rape. Women in India are obviously not safe in public areas if the general populace believes and accepts this kind of justification for rape. Victims of rape are discouraged from compromising because no family in Indian society is willing to accept that a member of their family has been raped. As a result, victims are frequently advised to avoid the chaos that follows rape in the police station.

• The majority of rapes in India are not even recorded. Despite the fact that laws are being drafted to protect rape victims and provide them with legal rights, there is still a problem with the laws’ execution.


Sexual Violence in South Asia: Legal and Other Barriers to Justice for Survivors, published in 2021, revealed that rape laws are still poorly implemented, and survivors, particularly those from vulnerable populations based on caste, class, or ethnicity, face numerous barriers to justice, including: Corruption among law enforcement officials, the failure of the police to register cases of sexual violence, the continued use of the two-finger test, difficulties in obtaining support services for survivors, such as compensation and victim and witness protection, pressure from families, community, and panchayat members to enter into extra-legal settlements, and many other issues. Control and patriarchy, as well as masculine entitlement, are at the heart of sexual assault. In India, society still frequently places blame on survivors, forcing survivors and their families to remain silent. This is especially true for people who are already on the margins of Indian society, making them particularly vulnerable to sexual abuse. The culture of shame follows survivors into law enforcement, the legal system, and hospitals, silencing their voices even more. 2021 report, Sexual Violence in South Asia: Legal and Other Barriers to Justice for Survivors, you can learn more about the legal and other barriers to justice for survivors in India.


A young girl aged 17 years jumped from the balcony of a flat and succumbed to injuries.

After a span of 96 days of the said incident, mother of the girl lodged a complaint against the applicant attributing to him that he had abetted a commission of suicide by her daughter on a fateful day.

Mother of the deceased got to know through the friend of her daughter that she had been receiving dirty messages from the applicant. On enquiring the same, daughter also showed her mobile phone which had the messages and a folder in the gallery, right after that the deceased barged out of the room. On inspecting, the screenshots were found in the mobile phone and immediately, by keeping mobile on the bed, the informant followed her daughter, who by that time, jumped from the gallery of another bedroom. On realizing the severity of the shocking incident, the informant became unconscious and she was informed that her daughter was taken to the hospital. The informant recollected that in the hospital, her daughter was little conscious and on being inquired as to why she took the extreme step, she murmured that it was because of “Gaurav uncle”. She did not utter anything further and was administered treatment in the hospital. A Chit which was found on the dressing table of the daughter was also given to police and then the CR was registered invoking Sections 306, 354A, 354-B of Penal Code, 1860 and Section 4 and 8 of the POCSO Act.


“Mummy, I have not told you about one person, Gaurav Uncle in our house. For no reason, he often came close to me and attempted to touch my private parts. I concealed the same from you, but that was my mistake. I kept mum because I thought if I disclose it to you, it would result in quibble. However, he messaged me. Before one week ago, he was talking to me about bad things. The screen shots of the said message are stored in my mobile in the folder ‘SS’. On receipt of the message, I blocked him, but yesterday night, he texted me. I was unable to understand what I should do and how I should disclose it. After you come to know about this, please do not quarrel and let the things continue to remain as they are. You and Papa should not fight. Bye, Take care. Because even if I blocked him on the mobile, I will have to face him some day. I carry no feelings for him in my mind, still he said so and further Kaki narrating it to aunt and no matter how much I tolerate, I will be blamed”


Bench noted that the deceased was a young girl who was hesitant to disclose the ill-intentions of the applicant, who was her own uncle.

The present matter revolved around an intimate relationship of the deceased with her own uncle, which posed a barrier for the victim girl to report the said incident to anyone in the family, but she chose to disclose it to her close friend. The chit which was scribed by the deceased referred to a message and screenshots of which were found in the mobile phone. From the screenshots, it was evident that a message was forwarded by the applicant which was responded to by the deceased by typing that she was not interested in talking to him. The unhappy tone was set and in the note which was scribed, the deceased had opened her mind to her mother where she spoke about his ill-deeds and also offered an explanation as to why she concealed it from her mother.

Court noted that the deceased had expressed her helplessness since she was apprehensive that even if she had blocked him, she would have to face him again and take the blame though she had no feeling in her mind. “screen shots from the mobile make it apparent that the applicant was harassing the deceased and in spite of her strong protest, was seeking something from her, leaving her in a despondent state.”

“The offence of abetment by instigation depends upon the intention of the person who abet and not upon the act which is done by the person who was abetted.”

“Abetment as contemplated under Section 107 of the IPC, may be by instigation, conspiracy or intentional aid and the words uttered in feet of anger or omission without any intention being attributed cannot be termed as instigation.”

The High Court stated that the young girl felt cornered by the conduct and demeanor of her own uncle, which was unexpected since she held him on a high pedestal as her own father and was unable to vent her anguish on account of the close proximity of the family with that of the applicant.


While concluding the matter, Court made certain significant observations that, a child may be subjected to sexual abuse or exploitation at home too.

Unfortunately, we have not been able to create an atmosphere in the Society where parents, teachers and adults in the company of the child can identify signs of abuse and make sure children receive care and protection. In the present matter, the fear of stigma, not being believed and being blamed, found the deceased in a precarious situation and left her isolated and insecure and which persuaded her to end her life. In view of the above stated discussion, the accused does not deserve liberty and another reason would be his close proximity with the family of the deceased and there would be every likelihood that on release he may pressurize them. [Gaurav v. State of Maharashtra, Criminal Bail]


Every year worldwide, many drive it, social, cultural, and economic contexts. Sexual violence has a core inequality between men and women. Interventions for resource-poor to objectively examine programmes in both developed and emerging nations. Professionals in the health care assisting sex assault victims medically and psychologically – and gathering help prosecutors. The health- abler in places where case-management protocols and guidelines collecting evidence with well-trained workers and where there is good co-operation legal system Finally, the firm commitment government and civil society involvement, as well as a coordinated response throughout to end sexual violence. In many nations, data on sexuality there is a tremendous need everywhere for sexual research violence.

To sum up, sexual violence undermines peace and security. It prevents women and children from engaging in post-conflict reconstruction and reconciliation activities. It is a tool of war that may become a way of life, long after the bullets have fallen silent. Violence costs many women their health, livelihood, spouses, families, and social networks. This can undermine the transfer of communal values to subsequent generations. Rape-addicted children can develop into rape-addicted adults. Every year, millions of people are victimised by sexual violence. Interventions are also vital. These are the essential ones. concern main sexual violence prevention, interventions for both men and women strategies to help sexual assault victims to encourage rape perpetrators to be caught and punished, and changing social norms and elevating women.

Sexual Violence in South Asia: Legal and Other Barriers to Justice for Survivors, published in 2021, revealed that rape laws are still poorly implemented, and survivors, particularly those from vulnerable populations based on caste, class, or ethnicity, face numerous barriers to justice, including corruption among law-enforcement officials, the failure of the police to register cases of sexual violence, the continued use of the two-finger test, difficulties in obtaining support services for survivors, such as compensation and victim and witness protection, pressure from families, community, and panchayat members to enter into extra-legal settlements, and many other issues. Control and patriarchy, as well as masculine entitlement, are at the heart of sexual assault. In India, society still frequently places blame on survivors, forcing survivors and their families to remain silent.

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Legally Speaking




“Giving punishment to the wrongdoer is at the heart of the criminal justice delivery system, but in our country, it is the weakest part of the administration of criminal justice.”

– Soman v. State of Kerala

The above mentioned lines are very well depicting the significance of awarding proportionate punishments in the domain of criminal justice system. At the same instance, it is showing its current situation. Nowadays, the problem that is underlying in the criminal law is that the very purpose of punishment is not being fulfilled. Most often, Punishment is considered as the stage where all functionaries as defined by the Criminal Procedure Code, 1973 (2 of 1974) as well as the victim and the convict acquired the central position. It serves as a link between the criminal justice system and the society as “Justice must not only be done, but must also be seen to be done”. Punishments play a guiding role in avoiding harm to our society, in proper implementation of morals and values and in attaining a peaceful society.

This is not something that is recently developed. From ancient times, the concept of punishing the person who breaches the rules and regulations were in existence. Since then, this mechanism was used in order to regulate the social order and maintain harmony and peace in the society. Back then, the provisions of punishment and sentences were more stringent so as to set the example, giving it the deterrence effect. With the change in the perspective of the society and development, this notion of punishment became rational and tilted more towards the concept of reforming the convict rather than deterring them. Punishments can be divided into various types such as deterrent, rehabilitative, restorative and retributive. The purpose of each type of punishment is different but the ultimate goal is same, that is, to safeguard the society. All this will become crystal clear when in the initial section of this article, we will carefully analyze the meaning of sentence and punishment and policies, thereof, prevalent in India. This will pave the way for the discussion of major challenges faced by current sentencing policy and the need for well-defined sentencing policy as in England, Whales and America. The concluding section of this write-up will talk about the measures enshrined by the legislature, the judiciary and the committees also focusing upon their suggestions.


Punishment and Sentencing, though, two distinct entities but at the end, they both form the union. Most often, they are used interchangeably which lead to contradictions and confusions. That’s why, here, it becomes essential to know what exactly punishment and sentencing constitutes and how they differ from each other.

According to Britannica“Punishment is the infliction of some kind of pain or loss upon a person for a misdeed (i.e., the transgression of a law or command). Punishment may take different forms ranging from capital punishment, forced labour, flogging, imprisonment and fines.”

Macmillan Dictionary defines the term Sentencing as “an occasion when someone who has been found guilty in a court of law is told what their punishment will be.”

In general parlance, ‘Punishment’ is a method which is legally approved to control the task of crime. ‘Sentences’ are statements contained in the judgments which lay out the punishments for a particular offence according to the law. And, when the sentences get operationalized, it is known as ‘punishment’. The term ‘Punishment’ can be considered as the way of not only penalizing the one who commits any guilt but also a process to prevent the offender repeating further commission of heinous crimes. Thus, it can be rightly said that both sentences and punishments are closely interlinked, where former one is said to be the predecessor in order to actually inflicting the latter one.


Every country has a different set up of criminal justice system. Some are more focused towards harsh punishment that should be inflicted to the perpetrators of the crime where as some nations are concerned about rehabilitating or reforming the convict. Some nations are more concerned about the victims whereas some are concerned about the offenders. However, sentencing and punishing the criminal is most important component of any criminal justice process. For imposing accurate, just and proportionate punishment, a systematic procedure is something must that should be formulated. This structured process adopted by a specific country commonly known as ‘sentencing policy’. The sentencing policy is the culmination of many things like it contains the formula in order to calculate the right or appropriate punishment for a particular offence. Also, it reflects certain principles and other factors which must be taken into account by the court while deciding punishment. Thus, the prime objective of the justice system of any nation is to adopt a fixed regime of sentencing policy which, in turn, regulates all the inhumane activities happening in the society.

Indian justice system stick towards the reformative approach of giving punishment where primary aim of law is to promote rehabilitation, re-educate and reshape the personality of the criminal. Despite of such an inspiring approach, still, there exists no strict set of guidelines for regulating the sentencing policy in India. This is considered as a major lacuna, which not only hampers the basic purpose of criminal justice delivery system but also give rise to numerous violations of various fundamental and human rights. As said by the prominent judge D.P. Wadhva J, “Reformative theory is certainly important but too much stress to my mind cannot be laid down on it that the basic tenets of punishment altogether vanish.” However, the main legislations in India governing the sentencing and punishment system as well as criminal law are The Indian Penal Code, 1860 (IPC), The Indian EvidenceAct, 1872,The Code of Criminal Procedure, 1973 (CrPC),Probation of Offenders Act, 1958. Some provisions relating to Indian punishment and sentencing are described below-

Section 53, Chapter III of The Indian Penal Code, 1860 specifically states the different kinds of punishments which can be given by the Criminal Court to the offenders liable for various offences. The six mentioned punishments are–

1) Death

2) Imprisonment for life

3) Imprisonment – Rigorous with hard labour or Simple

4) Forfeiture of property

5) Fine

According to the Section 60 of the IPC, it is the discretion on the part of the competent court to decide the description of the sentences to which an offender is punishable. Further, it lays down the following types-

1) Wholly or partly rigorous; or

2) Wholly or partly simple; or

3) Any part to be rigorous and the rest are simple.

Section 235 of CrPC talks about judgment of acquittal or conviction under which it ensures that first accused will have an opportunity of last say then the judge after adjudicating upon relevant mitigating and aggravating factors shall pass sentence on him.

Section 354(1)(b) of the CrPC impose duty on judges to record the reasons for the decision of awarding a particular sentence and clause (3) of the same section states that whenever the conviction is for an offence punishable with life imprisonment or death penalty, special reasons must be recorded for passing such sentence.


Prima Facie, the existing sentencing policy does not seem to contain any flaws in it. However, a careful study shows that there are many challenges faced by this unregulated policy of sentencing. Let’s throw some light on the issues faced due to the lack of pronounced sentencing policy in India. The defects can be broadly categorized into following heads –

• Absence of fixed punishment: Under the Indian Criminal Law, the pattern that is prescribed for the punishments of all crimes contains only minimum and maximum penalty for a particular sort of offence. Due to this, a wide gap is generated which majorly affects the administration of sentencing. Exactlywhat sentence should be given from this gap to the offender solely depends on the judge’s discretion. Thus, judge while deciding the cases and awarding the punishments enjoys the latitude of power.

• Discretion of Judge: In India, no doubt several general factors such as severity, liability, guilty mind, etc. must be taken into account by judges while concluding cases. However, final decision is based on the judge’s personal experience, prejudice and considerations. Here, it is not wrong to refer judge as a king because the ultimate discretion lies in his hand only.

• Lack of consistency and faulty rationales: Due to the lack of structured guidelines, many times conflicts and contradictions arises when the courts awards different sentences in cases having almost same circumstances, using different reasoning. This leads to the inconsistency.

• Lack of binding force: While the court from case to case attempt to create a framework to limit discretion of judges and prevent arbitrary award of sentences but the larger bench observed that guidelines mandated by judiciary would go against the intent of legislature. This is the reason why, the apex Court highlighted that guidelines are indicative rather than exhaustive in nature. Therefore, courts have not followed their own sentencing guidelines strictly.

• Immense Disparity and Discrepancy: It has been noticed that in many cases judges imposes the different type of sentence on offenders while being tried under the same offence. This is because of the fact that every judge has their own considerations and reasons to believe whether a particular factor constitutes aggravating or mitigating circumstances for a particular case. Thus, due to the discrepancy and disparity, there exists an imbalance in the criminal justice system which is highly undesirable. As a result of it, offenders spend unnecessary time in prison.

• Indefinite and Scattered procedure: In India, the procedure of criminal law is disintegrated into enormous sections such as CrPC has 484 sections, 2 schedules which in turn contains 56 forms and IPC has more than 500 sections which increase the burden that is already present on the judges due to vast range of pending cases.

• Not defined reliable standards of proof: When it comes to produce sentencing material upon which Court will rely for giving the sentence to the accused still the Courts in India have not well established reliable standards of proof.

• Extracting sentencing material: Indian Courts have placed the whole burden of producing the sentencing material on the parties. If any of the party is not able to produce the sentencing material then the Court without any hesitation take the ex-parte decision. In many instances, the decision is delivered after only considering aggravating factors because of the simple reason that the defence have not produce sentencing material on mitigating circumstances with respect to the accused.

• Ambiguity in the quantum of sentences: In hierarchy of the judicial system, the quantum of sentences entirely changes from up and down. In absence of any proper guidelines, the Trial Court, the High Court and the Supreme Court mostly differ in awarding sentences, thereby causing confusion.

These challenges throw a serious concern on the part of the Indian legislature. This gives a red signal to the Parliament and other authorities to formulate a well-structured sentencing policy to safeguard the rights of the parties involved in a particular case.


From the above presented material, it can rightly be inferred that in India, there lies a huge disparity, inconsistency, arbitrariness and unguided discretionary power when it comes to deciding the punishment and awarding a sentence for a particular offence. It is an undisputable fact that there is a dire need of regulated sentencing policy for curtailing number of lacunas that are already discussed above. There exist the need of well-defined policy for sentencing and punishment even after the completion of the trial while determining the probation period of offenders. Section 360 and section 361 governs the principle of releasing the convicts on the basis of good behaviour and conduct and also states that special reasons must be recorded for the same. Here again, there is noclear-cut definition of ‘good conduct’, it varies from one jail authority to the other and also depends on the circumstances and type of offence committed by the offender. The implementation of the same legislation over two persons resulting in the different consequences despite of having same set of circumstances violates the right to equality defined under article 14 of Indian Constitution. When the person detained in the custody for a longer term than required, it violates another constitutional right. Thus, here, it becomes important to implement the policy which is well regulated, formulated and structured.


Apart from the members of legal fraternity such as lawyers, advocates, judges, activists, various committees also recognized the need for a statutory sentencing policy. On various occasions, several committees have emphasized on the need of well-regulated policy for governing the sentencing and punishment system in India. The committees also stated that punishment should not be harsh rather it must be moderate enough to be effective. The reports of the committees suggest various other aspects which will improve the sentencing and punishment mechanism. In general, committees have pointed out the need to adopt such system that will ensure certainty during the whole process of giving sentences. Let’s briefly take alook on the report published by various committees –

In 2000, the Ministry of Home Affairs established the Committee on Reforms of Criminal Justice System, popularly known as the Malimath Committee for giving recommendations on the prevalent system of criminal justice. In March 2003, Committee issued the report which is of the view that despite of having provisions of maximum and minimum punishment in the Indian Penal Code, the judge enjoys the wide discretion within the statutory limit while inflicting sentences. With regard to selecting the most appropriate sentence, there is no proper guidance provided anywhere for the judges. The members of committee went on to criticize this unguided power and felt the need to minimize it to the some extent by using the law force and authority. Further, the Committee also noticed the fact that not every judge has the same set of mind and attitude while deciding the sentences, for instance, something may be grave for one judge but at the same time may not be as grave for other one. For the depth study of this matter, committee asserted that there is a requirement of an expert committee, which will evaluate the whole concern. This committee consisted of experts pointed out the need for a new code which classify the offences other than the parameters of cognizable and non- cognizable and a policy having the goal of social welfare should be adopted.

The Law Commission of India in its 47th report by reasserting the same states that an appropriate sentence is a culmination of different numerous factors such as the nature and circumstances under which offence is committed; the age, background, mental health, character, education, etc. of the offender; prior criminal record of the offender; prospective of rehabilitation, training or treatment and so forth. Further, the commission recommended for a committee that must be statutory in origin, to lay out the regulation under the Chairmanship of a former judge of Supreme Court or a former Chief Justice of a High Court, whosoever experienced in criminal law and with such other member as necessary. The summary of the report states that there should be a punishment harsher than imprisonment for life but at the same time it must kept in mind that it should be lenient than capital punishment.

Later, the Committee on Draft National Policy on Criminal Justice, popularly known as the Madhava Menon Committee also recognized the need to have a radical change in the law of sentencing. The committee in its report states that there is a need to re-think on the philosophy of sentencing in the criminal justice administration. Equality in every aspects of sentencing must be pursued vigorously. In news report of October 2010, the Law Minister stated that Government of India is in a stage of preparation where it is planning to establish ‘a uniform sentencing policy’ similar to the policy of that USA and UK. However, even after all such recommendations, no effort has been taken towards its creation.


While the legislature has not given any particular guidelines regarding the sentencing and punishment, the higher Courts from time-to-time have enunciated certain principles regarding this. The Indian Courts, over the period of time, through inconstant and faulty decision making process have indirectly pointed out the need for a sentencing policy. The Courts recognizing the absence of any such regulatedpolicy have provided judicial guidance by setting out certain factors that courts must look into while deciding punishments.

In Soman v. State of Kerala the Court put emphasis on the principles such as proportionality, deterrence and rehabilitation that need to be taken into consideration while giving judgment. Here, proportionality factor also contains the mitigating, aggravating and such other factor. Also,the Court noted that it is not good that our criminal legislation has no legislative or judicially laid down regulations to guide the court trial.

Further, most importantly the court in the State of M.P v. Bablu Natt said that the imposition of the principles laid down in the above case vary from case to case and depend on facts and circumstances of each case.

Moreover, the apex court in the Rajendra Pralhadrao Wasnik v. the State of Maharashtra acknowledge these above mentioned principles but at the same time held that since they are not absolute rules, the judiciary cannot be restrained with them.

In the case of State of Punjab v. Prem Sagar,it was pointed out by Justice S.B. Sinha that our legal system has so far not been able to develop certain principles as regards of sentencing and even the apex Court just made observations to this regard and left the matter untouched whereas other developed countries have done so.

In the famous case of Bachan Singh v. State of Punjab, the Hon’ble Supreme Court apart from the constitutionality of death penalty also addressed on the issue of lack of sentencing guidelines. The majority is of the opinion that it is upon the legislation to standardize the sentencing discretion if it deems fit. However the Court went ahead and formulated the guidelines for imposing death penalty and specifically defining the term ‘special reasons’ in Section 354(3) of CrPC thus set forth the doctrine of ‘rarest of rare case’.

Later, the court in the case of State of Madhya Pradesh v.Mehtab, pointed that there is a development of guidelines by judiciary, but the implementation is so far from reality which raises the major concern regarding the methodology of sentencing in India. Also,it stated that the development of a strict policy would lead to an obstruction of justice. So it is important to have a look on a larger picture which will improve our justice system and a major method through which same can be achieved is the development and implementation of a uniform sentencing policy.


Indian criminal justice has no doubt adopted the mechanism of sentencing as a restorative justice. But it is not considered much by the judges. Indian system, depending upon its convenience often fluctuatesbetween the three theories of punishment, namely, deterrence, retributive and reformative. This itself shows that justice system, particularly criminal, is in a state of ambiguity and is also directionless. There is a huge docket explosion in the statistics of the crime rate all over the world and India is no exception. Apart from this, India has also been experiencing an alarming increase in delay and arrears of pending cases. There are many reasons responsible for this problem. One of the major concerns is requirement of a fixed sentencing and punishment policy, a concept on which this whole article is based.

As we have already discussed, in detail, the number of infirmities faced by the current sentencing and punishment policy. There exists an exigency to fix those shortcomings to get an effective policy. There is a need for a policy which strikes balance between the rights of an accused and the rights of the citizens. So this is the high time that legislature must come forward to prepare a road map and take vital steps to draft a systematic and clear policy. While formulating a policy, the legislature should also take aid from the successful policies of various other jurisdictions such as US, UK and embed it in India according to the Indian needs. It is also mandated that this draft must be in the line to the proposals and work done by the Malimath Committee, the Madhava Menon Committee and the Law Commission of India in this regard. It is important to note that legislature cannot do this task in isolation. The judiciary would also play an important role in this exercise by ensuring that discretion power vested with them must be used in the interest of justice and should not be misused.

The criminal law mostly contemplated as an expression of the relationship between the society and its subjects. Therefore, it becomes necessary to revise this law through the principled and guided amendments. As said by Justice Chandrachud, “The need of the hour to mitigate the problem of pendency is to think out of the box”. Thus, policy makers must take immediate steps to counter the problems arising from indefinite punishment and sentencing system so that the people of the nation don’t lose their faith in the judiciary and also judiciary serve justice properly. With the help of this article, an endeavour is made to build a proper legislation for executing just and fair sentence and removing any kind of disparity before, after and during the trial.

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Young police officer lynched to death by mob has put humanity, spirit of Kashmiriyat to shame: J&K & Ladakh HC

‘It is a case where a young police officer has been lynched to death by a mob of miscreants of which the appellant is alleged to be a part, thereby putting the humanity in general and spirit of Kashmiriyat in particular to shame. Bail in such heinous and serious offences cannot be granted as a matter of course.’ If bail is given even in such cases then who will fear the ‘rule of law’?



In a brief, brilliant, bold and balanced judgment titled Peerzada Mohammad Waseem Vs Union Teritory of J&K in CrlA(D) No.10/2021 that was reserved on 26.08.2021 and then finally pronounced on 02.09.2021, the Jammu and Kashmir and Ladakh High Court has denied bail to a man accused of lynching a Deputy SP of 3rd Battalion Security after observing that his act has put humanity and spirit of Kashmiriyat to shame. While calling it a heinous and serious offence, Chief Justice Pankaj Mithal and Justice Sanjay Dhar observed most candidly, commendably, cogently and convincingly that, “It is a case where a young police officer has been lynched to death by a mob of miscreants of which the appellant is alleged to be a part thereby putting the humanity in general and spirit of Kashmiriyat in particular to shame. Bail in such heinous and serious offences cannot be granted as a matter of course.” If bail is given even in such cases then who will fear the “rule of law”? The best example to cite here is what happened in Kashmir Valley in 1990 when lakhs of Kashmiri Pandits were either killed or forced to leave as refugees in their own country as their houses were burnt, women were raped and still we saw little action on the ground! This was when Kashmiriyat was worst vandalized and burnt in reality as we all saw for ourselves!

To start with, this learned, laudable, latest and landmark judgment authored by Justice Sanjay Dhar for himself and Chief Justice Pankaj Mithal of Jammu and Kashmir and Ladakh High Court sets the ball rolling by first and foremost observing in para 1 that, “Through the medium of instant appeal under Section 21(3) of the National Investigation Agency Act (hereinafter referred to as the NIA Act), appellant has challenged the order dated 12.05.2021 passed by learned Additional Sessions Judge, TADA/POTA (Special Judge Designated under NIA Act), Srinagar, whereby bail application of the appellant has been dismissed.”

While elaborating on the facts of the case, the Bench then puts forth in para 2 that, “The facts giving rise to the filing of the instant appeal are that on 22.06.2017, while the holy festival of Shabe Qadar was being observed in Jamia Masjid, Nowhatta, the appellant and the co-accused raised inflammatory slogans against the Government of India and they caught hold of deceased Mohammad Ayoub Pandit Dy. S. P. of 3rd Battalion Security, who had been deployed in the area to supervise the manpower for access control at Jamia Masjid on the occasion of Shabe Qadar. The deceased was beaten up, dragged and lynched to death by the mob, of which the appellant was a part. His pistol was also snatched and the dead body was dragged and left at Batagali Nowhatta. Police registered FIR No.51/2017 for offences under Section 302, 148, 149, 392, 341 RPC read with 13 of Unlawful Activities (Prevention) Act and investigation of the case was set into motion. After conducting investigation of the case, the challan was presented before the trial court against 20 accused. Out of these, 17 accused were arrested and produced before the trial court at the time of presentation of challan whereas one accused Sajad Ahmad Gilkar was killed in an encounter prior to presentation of the challan. Two more accused including appellant herein absconded and they could not be produced before the Court at the time of presentation of the challan.”

To put things in perspective, the Bench then enunciates in para 3 that, “In terms of order dated 12.12.2017, the learned trial court framed charges for the offences mentioned in the charge sheet against 17 accused who had been produced before it at the time of presentation of the challan. During pendency of the trial, the appellant was also arrested and produced before the trial court. Charges against him for offences under Section 302, 148, 392, 341 RPC read with Section 13 ULA(P) Act were framed by the trial court in terms of its order dated 16.05.2019. The appellant/accused pleaded not guilty and trial against him also commenced.”

While continuing in the same vein, the Bench then envisages in para 4 that, “It appears that after recording of statements of some of the prosecution witnesses, the appellant/accused moved an application before the trial court for grant of bail on the ground that material prosecution witnesses to the extent of his case have turned hostile and, as such, he deserves to be enlarged on bail. The bail application came to be dismissed by the learned trial court vide its order dated 16.09.2020. The appellant preferred an appeal against the said order before this Court which was registered as CrlA(D) No.17/2020. Vide order dated 26.02.2021 passed by this Court, the order of learned trial court was set aside and the appellant was given liberty to move a fresh application before the trial court.”

As we see, the Bench then observes in para 5 that, “It appears that the appellant moved another application before the trial court on similar grounds as were projected by him in his earlier bail application and the same has been rejected by the learned trial court vide the impugned order dated 12.05.2021.”

Be it noted, the Bench then points out in para 9 that, “The contention of learned counsel for the appellant that the appellant was impleaded as an accused at the time of filing of supplementary challan and he was not an accused in the original challan is factually incorrect. In the first charge sheet itself filed by the Investigating Agency before the trial court, the name of appellant is shown in Column No.2 indicating therein that the said accused has not been arrested. In fact, after the presentation of the challan, the learned trial court has, vide its order dated 16.10.2017, issued general warrants of arrest against two accused including the appellant herein after recording satisfaction that there are no immediate prospects of his arrest. So, it is not a case where appellant/accused has been implicated in the case after presentation of the charge sheet but it is a case where involvement of the appellant/accused is based upon the evidence collected by the investigating agency which forms part of the first challan itself.”

Furthermore, the Bench then hastens to add in para 10 that, “The record further shows that the contention of the learned counsel for the appellant that he has moved an application before the learned trial court in terms of Section 272 of J&K Cr. P. C, wherein he has admitted the remaining part of the evidence which the prosecution proposes to lead in support of its case, is also factually incorrect. We could not lay our hands on any such application on the trial court record nor there is any interim order of the trial court evidencing the said fact.”

It is worth noting that the Bench then remarks in para 11 that, “That takes us to the merits of the contention of the appellant that material witnesses who have deposed about the involvement of the appellant having turned hostile, as such, no amount of evidence that may be led by the prosecution in support of its case would lead to his conviction. In this regard, a perusal of the trial court record shows that protected witnesses Mark E, F and K, who, during investigation of the case, have in their statements recorded under Section 164 of Cr. P.C, deposed about the involvement of appellant in the occurrence being part of the unlawful assembly, have turned hostile when their statements were recorded before the Court. All these three witnesses have admitted having made statements under Section 164 Cr. P. C before the Magistrate in which they have implicated the appellant/accused. Protected witnesses Mark F and K have stated that they made these statements under pressure from police whereas protected witness Mark E has stated that he does not recollect what was stated by him. These three witnesses have been cross-examined by the prosecution as well as by the defence. The question arises as to whether at the time of considering the bail application, it is open to this Court to give a finding even on prima facie basis with regard to reliability and evidentiary value of the statements of these witnesses.”

Quite significantly, the Bench then makes it a point to state in para 12 that, “At the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merit of the case cannot be undertaken. What is the effect of statements of hostile witnesses would be a moot point to be decided during the course of trial of the main case and cannot be decided during bail proceedings. The mere fact that material witnesses have turned hostile, in our opinion, by itself is not sufficient to grant bail because of the simple reason that this Court cannot imagine what would happen till the disposal of the case. If the Court were to accept or to rely upon the evidence of the prosecution recorded by the trial court, it would amount to appreciation of evidence on record which is impermissible in these proceedings. Till the completion of evidence and the trial, appreciation of evidence at the time of granting or rejecting bail, this Court cannot step into the shoes of the trial court for the purposes of appreciating the material on record.”

Adding more to it, the Bench then makes it clear in para 13 that, “What would be the effect of prosecution evidence led so far, is an issue which cannot be determined by this Court and the same has to be determined by the learned trial court at the conclusion of trial. Even the Investigating Officer, who is a star witness in the case, is yet to be examined and without examining him, this Court cannot even frame a prima facie opinion as to the merits of the prosecution case. It is a settled law that conviction of an accused can be based even on the statements of hostile witnesses and the Investigating Officer provided the same inspire confidence. This question can be determined only by the trial court and not by this Court in these proceedings.”

As an aside, the Bench then brings out in para 14 that, “Learned counsel for the appellant has contended that the appellant has been in custody for quite some time now and in the face of the fact that material witnesses have turned hostile, it may work harshly against the appellant if he is kept in custody till the remaining evidence of the prosecution is recorded, particularly when there are no chances of his conviction.”

Truth be told, it cannot be just glossed over that the Bench then specifically points out in para 15 that, “A perusal of the trial court record shows that it is only in May, 2019, that charges have been framed against the appellant/accused and until that date, he was absconding. Due to COVID-19 pandemic, the normal work of trial courts got seriously hampered and in spite of this, a large number of witnesses have already been examined by the prosecution in the case. Therefore, it cannot be stated that there has been any delay in trial of the case.”

Most significantly, what forms the cornerstone of this remarkable, robust and rational judgment is then illustrated best in para 16 wherein it is held that, “Apart from the above, we also need to take into account the gravity of the offence and the circumstances in which the offence has been committed by the accused including the appellant herein. It is a case where a young police officer has been lynched to death by a mob of miscreants of which the appellant is alleged to be a part, thereby putting the humanity in general and spirit of Kashmiriyat in particular to shame. Bail in such heinous and serious offences cannot be granted as a matter of course.”

Finally and as a corollary, the Bench then holds in the last para 17 that, “For the foregoing reasons, we do not find any merit in this appeal and the same is, accordingly, dismissed.”

In conclusion, every Indian must feel proud that this notable judgment by Chief Justice Pankaj Mithal and Justice Sanjay Dhar of Jammu and Kashmir and Ladakh High Court has made it absolutely clear that there has to be zero tolerance for mob lynching. Kudos to them for this! The Court very rightly refused bail to the offender. If they are not deal most firmly then we will only see the rise of Talibani forces in our country also whom even hard line Muslims like the most famous AIMIM chief Asaduddin Owaisi demands should be declared a terror organization!

Of course, it goes without saying that Owaisi has hit the “biggest and tightest slap” with “full force” on the ‘face’ of all such “Muslim Maulvis” and “other Muslims” and so called “secular leaders” who are welcoming Taliban like former CM Farooq Abdullah and Mehbooba Mufti among others who are demanding that India maintain bilateral relations with Taliban as they have become a reality now! Shame to UN if it watches all this like a mute and helpless spectator! Violence in any form can never be justified and if India starts justifying Taliban then this will ensure the return of hardline Islam in India just like it existed prior to the advent of Britishers during Aurangzeb’s rule among others which India can never afford under any circumstances as it will ensure that democracy is buried and India is converted into a hard line Islamic state or India is partitioned again and again which no true Indian no matter whether he is a Hindu or Muslim or anyone else would ever justify under any circumstances just like imposing monogamy on Hindus alone in 1955 can never be justified under any circumstances and this my best friend Sageer Khan resented most!

It is high time and monogamy also must be imposed on one and all straightaway as the population explosion is rocking our country and hitting us hard which alone explains why Sageer Khan felt most strongly that it should be abolished for one and all as this will ensure that India progresses, prospers and emerges powerful! Even Delhi High Court had recently called for uniform civil code! If uniform civil code is going to take time then why can’t polygamy be outlawed just like Pandit Nehru most commendably outlawed polygamy and polyandry for Hindus in 1955 even though Dr BR Ambedkar in his Hindu Code Bill favoured retention of polygamy among Hindus in his Hindu Code Bill 1951 due to which I term Pandit Nehru as “Real Father And Real Reformer Of Hindus”?

It merits no flogging again and again that law must be same for one and all as Sageer Khan used to often underscore so that no Hindu like eminent film actor Dharmender among others are forced to convert to Islam just for the sake of marrying and same was the case of son of former Haryana Chief Minister and Congress leader Bhajan Lal! Kowtowing in front of “hardline Islam” which Taliban preaches will definitely destroy our nation as Sageer Khan often pointed out way back in 1993-95 and now even Owaisi just recently has gone all out in making it absolutely clear and thundering that Taliban is a “terror organization” which has to be mocked with full force and it must be declared so by the Centre right now without wasting any time! Very rightly so!

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Non-communication of right to make representation against detention order violates constitutional right: MP HC



While fully, firmly and finally endorsing the Constitutional right to make representation against the detention order, the Indore Bench of Madhya Pradesh High Court has in a learned, latest, laudable and landmark judgment titled Lokendra Singh v/s The State of Madhya Pradesh & Others in Writ Petition No. 12166/2021 delivered just recently on September 6, 2021 has quashed a detention order on the ground that it did not contain a stipulation informing the detenue about his right to prefer a representation against his detention by the detaining authority. It must be mentioned here that a Division Bench comprising of Justice Sujoy Paul and Anil Verma relied on a catena of judicial precedent to support their observations which they drew and they shall be discussed later on. It must also be apprised here that it was the petitioner’s case that the detention order did not mention that a representation can be sought before the same authority, thereby violating a valuable right of the petitioner under Article 22 of the Constitution of India.

To start with, the Division Bench comprising of Justice Sujoy Paul and Anil Verma of Indore Bench of Madhya Pradesh High Court who authored this brief, brilliant, balanced and bold judgment sets the ball rolling by first and foremost observing in the opening para that, “The singular point raised by the petitioner is that in the detention order dated 07.06.2021, the learned District Magistrate has not mentioned that detenue – Narendra Thakur can prefer representation against the detention order before the same authority namely District magistrate thereby violating a valuable right of the petitioner flowing from Article 22 of the Constitution of India. This point is squarely covered by a recent Full Bench Judgment of this Court passed in W.P. No.22290/2019 (Kamal Khare v/s The State of Madhya Pradesh) which is followed in W.P. No.9630/2021 (Gurubachan Singh Saluja v/s The State of Madhya Pradesh & Others) by this Court.”

It certainly cannot be just glossed over that the Division Bench then very rightly points out in the next para that, “Shri Vivek Dalal, learned Additional Advocate General for the respondents / State fairly admitted that the detention order does not contain any such stipulation that petitioner can prefer representation against the detention order before the same authority. He further agreed that on this ground, Full Bench in Kamal Khare (supra) has held that the detention order stands vitiated because of infringement of said right.”

Quite significantly, the Bench then observed in the next para that, “This Court in Gurubachan Singh Saluja (supra) followed the Full Bench decision and opined as under:-

“6) In one of the aforesaid matters (WP No.9792/2021), this Court held as under:-

31) Indisputably, the detention order does not contain any stipulation that the detenu has right to prefer representation before the same authority namely, District Magistrate. The reliance is placed on the recent Full Bench judgment of this Court passed in the case of Kamal Khare (supra). To counter this argument, the bone of contention of learned AAG was that the said Full Bench decision is distinguishable. Full Bench judgment is based on a constitution bench judgment in the case of Kamleshkumar Ishwardas Patel v. Union of India, (1995) 4 SCC 51. In Kamleshkumar (supra), the Apex Court was dealing with the provisions of COFEPOSA Act and the PIT NDPS Act and not with NSA Act. Hence, the said constitution Bench judgment could not have been relied upon.

32) We do not see much merit in this argument because similar argument was advanced by the Govt. before Full Bench in the case of Kamal Khare (supra) which is reproduced in extenso in para-14 of the said judgment. The similar argument could not find favour by the Full Bench.

33) In Kamleshkumar (supra), Apex Court opined as under:-

“6. This provision has the same force and sanctity as any other provision relating to fundamental rights. (See: State of Bombay v. Atma Ram Shridhar Vaidya [1951 SCR 167, 186 : AIR 1951 SC 157] .) Article 22(5) imposes a dual obligation on the authority making the order of preventive detention: (i) to communicate to the person detained as soon as may be the grounds on which the order of detention has been made; and (ii) to afford the person detained the earliest opportunity of making a representation against the order of detention. Article 22(5) thus proceeds on the basis that the person detained has a right to make a representation against the order of detention and the aforementioned two obligations are imposed on the authority making the order of detention with a view to ensure that right of the person detained to make a representation is a real right and he is able to take steps for redress of a wrong which he thinks has been committed. Article 22(5) does not, however, indicate the authority to whom the representation is to be made. Since the object and purpose of the representation that is to be made by the person detained is to enable him to obtain relief at the earliest opportunity, the said representation has to be made to the authority which can grant such relief, i.e., the authority which can revoke the order of detention and set him at liberty. The authority that has made the order of detention can also revoke it. This right is inherent in the power to make the order. It is recognised by Section 21 of the General Clauses Act, 1897 though it does not flow from it. It can, therefore, be said that Article 22(5) postulates that the person detained has a right to make a representation against the order of detention to the authority making the order. In addition, such a representation can be made to any other authority which is empowered by law to revoke the order of detention.

14. Article 22(5) must, therefore, be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the detaining authority, i.e., the authority that has made the order of detention or the order for continuance of such detention, which is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained. The right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation.

38. Having regard to the provisions of Article 22(5) of the Constitution and the provisions of the COFEPOSA Act and the PIT NDPS Act the question posed is thus answered: Where the detention order has been made under Section 3 of the COFEPOSA Act and the PIT NDPS Act by an officer specially empowered for that purpose either by the Central Government or the State Government the person detained has a right to make a representation to the said officer and the said officer is obliged to consider the said representation and the failure on his part to do so results in denial of the right conferred on the person detained to make a representation against the order of detention. This right of the detenu is in addition to his right to make the representation to the State Government and the Central Government where the detention order has been made by an officer specially authorised by a State Government and to the Central Government where the detention order has been made by an officer specially empowered by the Central Government, and to have the same duly considered. This right to make a representation necessarily implies that the person detained must be informed of his right to make a representation to the authority that has made the order of detention at the time when he is served with the grounds of detention so as to enable him to make such a representation and the failure to do so results in denial of the right of the person detained to make a representation.”


34) The Full Bench after considering the constitution Bench judgment opined as under:-

“20. The Supreme Court in Life Insurance Corporation of India v. D.J. Bahadur and Others, (1981) 1 SCC 315 dealing with the aspect whether the Life Insurance Corporation Act, 1956 is a special statute qua the Industrial Disputes Act, 1947 when it came to a dispute regarding conditions of service of the employees of the Life Insurance Corporation of India held that the Industrial Disputes Act would prevail over the Life Insurance Corporation of India Act as the former relates specially and specifically to industrial disputes between the workmen and employers. Relevant discussion in paragraph No.52 of the report would be useful to reproduce hereunder:-

“52. In determining whether a statute is a special or a general one, the focus must be on the principal subject-matter plus the particular perspective. For certain purposes, an Act may be general and for certain other purposes it may be special and we cannot blur distinctions when dealing with finer points of law. In law, we have a cosmos of relativity, not absolutes – so too in life. The ID Act is a special statute devoted wholly to investigation and settlement of industrial disputes which provides definitionally for the nature of industrial disputes coming within its ambit. It creates an infrastructure for investigation into, solution of and adjudication upon industrial disputes. It also provides the necessary machinery for enforcement of awards and settlements. From alpha to omega the ID Act has one special mission – the resolution of industrial disputes through specialised agencies according to specialised procedures and with special reference to the weaker categories of employees coming within the definition of workmen. Therefore, with reference to industrial disputes between employers and workmen, the ID Act is a special statute, and the LIC Act does not speak at all with specific reference to workmen. On the other hand, its powers relate to the general aspects of nationalisation, or management when private businesses are nationalised and a plurality of problems which, incidentally, involve transfer of service of existing employees of insurers. The workmen qua workmen and industrial disputes between workmen and the employer as such, are beyond the orbit of and have no specific or special place in the scheme of the LIC Act. And whenever there was a dispute between workmen and management the ID Act mechanism was resorted to.”

30. Now coming to the question as to what would be the effect of not informing the detenu that he has a right of making representation, apart from the State Government and the Central Government, also to the detaining authority itself, the Constitution Bench of the Supreme Court in Kamlesh Kumar Ishwardas Patel (supra) even examined this aspect in paragraph No.14 of the report and categorically held as under:-

Please read concluding on thedailyguardian.com

“14. Article 22(5) must, therefore, be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the detaining authority, i.e., the authority that has made the order of detention or the order for continuance of such detention, who is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained. The right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation.”

33. In view of the above, the Constitution Bench of the Supreme Court in Kamlesh Kumar Ishwardas Patel (supra) analyzed the effect of not informing the detenu of his right to make a representation to the detaining authority itself in paragraph No.47 of the report and held that this results in denial of his right under Article 22(5) of the Constitution of India, which renders the detention illegal. The relevant paragraph No.47 is reproduced hereunder:-

“47. In both the appeals the orders of detention were made under Section 3 of the PIT NDPS Act by the officer specially empowered by the Central Government to make such an order. In the grounds of detention the detenu was only informed that he can make a representation to the Central Government or the Advisory Board. The detenu was not informed that he can make a representation to the officer who had made the order of detention. As a result the detenu could not make a representation to the officer who made the order of detention. The Madras High Court, by the judgments under appeal dated 18-11-1994 and 17.1.1994, allowed the writ petitions filed by the detenus and has set aside the order of detention on the view that the failure on the part of the detaining authority to inform the detenu that he has a right to make a representation to the detaining authority himself has resulted in denial of the constitutional right guaranteed under Article 22(5) of the Constitution. In view of our answer to the common question posed the said decisions of the Madras High Court setting aside the order of detention of the detenus must be upheld and these appeals are liable to be dismissed.”

Emphasis supplied

35) Another Division Bench in WP No.5866/2015 (Salma vs. State of MP) opined as under:-

“On the last date of hearing opportunity was granted to the learned counsel for the State to examine the law laid down b the Apex Court, which has been made applicable in the various cases by the Division Bench of this Court, in the matter of compliance of provisions of Article 22 (5) of the Constitution of India in the matter of detention itself, intimating the detenu that he/she is entitled to make a representation before the Detaining Authority himself against the order of detention. Such law was considered and made applicable in view of the law laid down by the Apex Court in the matter of State of Maharashtra and others Vs. Santosh Shankar Acharya (2000) 7 SCC 463, vary same law was made application by this Court in W.P. No.1830/2015, W. P. No.3491/2015, W .P. No.3677/2015 & W. P. No.3683/2015 in the following manner :

Notably, both these points have been considered by the Supreme Court in the case of State of Maharashtra and others vs. Santosh Shankar Acharya (2000) 7 SCC 463 in para 5 and 6 in particular. The Supreme Court following the dictum in the case of Kamleshkumar restated that noncommunication of the fact to the detenu that he could make a representation to the detaining Authority so long as order of detention has not been approved by the State Government in case the order of detention has been issued by the Officer other than the State Government, would constitute infringement of right guaranteed under Article 22(5) of the Constitution and this ratio of the Constitution Bench of the Supreme Court in Kamlesh kumar would apply notwithstanding the fact that same has been made in the context of provisions of COFEPOSA Act. In para 6 of the reported decision, the Supreme Court rejected the similar objection canvassed by the learned counsel for the State relying on Veeramanâ s™ case and noted that the said decision does not help the respondents in any manner. Inasmuch as, in that case the Court was called upon to consider the matter in the context of situation that emerged subsequent to the date of approval of the order of detention by the State Government and not prior thereto. In none of the cases on hand the observation in the case of Veeramani will have any application. Suffice it to observe that the detention order and the disclosure of the fact that detenu could make representation to the detaining Authority before the State Government considered the proposal for approval has abridged the right of detenu under Article 22(5) of the Constitution. As a result, the continued detention of the detenu on the basis of such infirm order cannot be countenanced.

These petitions, therefore, must succeed. The impugned detention orders in the respective petitions are quashed and set aside and respondents are directed to set the petitioners/detenu at liberty forthwith unless required in connection with any other criminal case.” Emphasis supplied

36) In view of these authoritative pronouncements, there is no manner of doubt that the detenu had a valuable right to make a representation to the detaining authority and denial of this opportunity vitiates the impugned order. Resultantly, impugned order of detention dated 10/05/2021 is set aside.

37) In view of foregoing analysis, the impugned order of detention cannot sustain judicial scrutiny.

38) Before parting with the matter, we deem it proper to observe that the main grievance of detenue/complainant was that the District Magistrate while passing the order of detention did not inform him about his valuable right to prefer a representation against the detention order before the same authority namely District Magistrate. Full Bench recognized the said right of the detenue in light of the constitutional bench judgment in the case of Kamleshkumar Ishwardas Patel (supra). Thus, in the fitness of things, it will be proper for the State to ensure that henceforth in the order of detention, it must be mentioned that the detenue has a right to prefer a representation before the same authority.” Emphasis Supplied

7) In view of the Full Bench decision in Kamal Khare (supra) which was followed by Indore Bench in aforesaid matter, we deem it proper to set aside the impugned orders of detention.” Emphasis Supplied.”

Finally, the Division Bench then holds that, “In view of dicta of Full Bench in Kamal Khare (supra), the impugned order dated 07.06.2021 has become vulnerable and is accordingly set aside. The Writ Petition stands allowed.”

In a nutshell, it can thus be said that the Indore Bench of Madhya Pradesh High Court comprising of Justice Sujoy Paul and Justice Anil Verma have made it absolutely clear that the non-communication of ‘right to make representation against detention order’ violates Constitutional right under Article 22 of the Constitution of India. It was rightly mentioned that the Constitutional Bench in Kamleshkumar Ishwardas Patel case noted that Article 22(5) must be construed to mean that the person detained has a right to make representation against the order of detention. This representation can be made not only to the Advisory Board but also to the detaining authority and any other authority that is competent under law to revoke the order for detention and thereby give relief to the person detained.

Sanjeev Sirohi, Advocate,

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Legally Speaking

One contract, two arbitrations: Res Judicata in international arbitration contradicting public policy



Speed is the essence of arbitration. Parties opt for arbitration believing that it is a timelier dispute resolution cog. Unfortunately, however, this is often not the case. Complex, commercial arbitrations take momentous time to finish off and prosperous parties would then have to corroborate with challenges to the tangibility as well as enforcement of the arbitral award. Arbitrations are an increasingly civil element of long-term commercial relationships. However, the confidentiality of arbitral proceedings means there is a little publicly available aisle in the contour of awards to work for us to understand the complex legal and practical issues that arise in subsequent proceedings when an earlier tribunal has rendered a decision on a particular matter.

So, in general words resolution of the disputes emanating under the international commercial contract via the rotation of arbitration is known as International Commercial Arbitration. In addition, the 1996 Arbitration & Conciliation Act discerns ICA specifically as arbitration of a legitimate linkage which shall be contemplated commercially if either of the bands is a foreign national or an inhabitant or a foreign person in a commercial context, in accordance with section 2(1) (f) for International Commercial Arbitration. It is used as a better alternative to litigation, and the complete process is controlled primarily by the parties themselves instead of following the national legislation or an established procedure rules. Most of the international commercial contracts contain a dispute resolution clause that specifies that if any dispute arises under the contract, it could be resolved through arbitration, rather than litigation.

The rule of res judicata is the enormous regulation which is solidified in all refined countries by the authorised structures. The precepts of the res judicata should be blended to arbitral tribunals since arbitral courts are an alternative to courts and when an award is required to be included in the country’s lawful order.


That’s an interest that is in principle, Common to all disputes whether common law, civil law, or even international or any other system form whether in litigation or arbitration. However, an international arbitration difficulty arises when you try to drill down in any given case on precisely what has been decided, and what can be revisited the multiplicity of governing laws that have a bearing on rescue gives rise to complexities that tribunals need to resolve as part of their mandate. Questions of rescue as they commonly arise in long term legal relationships can take many forms, including international projects, a natural resource can check concessions partnerships shareholder agreements and various other long-term investments. Unfortunately, the private and confidential nature of arbitration means that judicial guidance is in the way of the waters.


Indian laws procure for dispute resolution of any international commercial disputes through arbitration and conciliation act 1996 arbitration involving a foreign party, and with its seat in India will be considered as an ICA. In this case, the first part of the 1996 act of arbitration and conciliation will apply. If the seat is outside India, however, part two of the Act would apply rather than part one. This mechanism aims to nail the commercial disputes between the foreign and Indian entities within the framework of the Indian arbitration laws. Now being an international or domestic arbitration, the arbitration is of two types, number one, institutional arbitration. Secondly, in ad hoc arbitration, the parties agree to have an arbitral institution, administer the dispute. These institutions establish their own arbitration rules which would apply to their arbitration procedures. These rules supplement the existing provisions of the Arbitration Act in matters of procedure, and the other details, as the legislation permits the dispute dealt by There may also be general and specific in nature, the arbitration Institute’s have fixed the arbitrators fees, administrative expenses, qualified arbitration panels rules governing the arbitration proceedings, etc, which exalted in smooth and orderly conduct of arbitration in India.


The filing of arbitrations established in multiple arbitration agreements, incorporated in two (or more) diverse agreements, in a single arbitration proceeding may be conceivable, but must be accomplished with caution.

ADR is an undertaking to ad lib machinery which ought to be competent of rendering substitute to the conventional outlines of untangling confrontations. The genealogy of the alternative resolution of disputes may be described in India. Corpses like the Panchayat, a group of people in a geriatric or persuasive hamlet who agree on a quarrel among locals, are still not exceptional today. The appointed judicial agent was the Kazi, which adjudicated disagreement between persons under the Principles of Muslim Law in Indian culture. There are several instances documented where the Kazi decided on a matter outside the law by getting the parties to approve a solution reached through conciliation without really adding that colour to the judgement. The 1996 Arbitration and Conciliation Act is a Parliament attempt to adopt an overall strategy to the settlement of alternatives to disputes in India. It is an act that enables conflict settlement either through arbitration or conciliation. In connection with international arbitration, the doctrine of res judicata might be combined. Res judicata fits in with the symposia on “post-award issues” solely to the extent that it concerns the repercussions of arbitrative awards. In this context, questions are arising as to whether a given arbitral award is res judicata in the same arbitrage (whereas the question arises of the effects in the subsequent phases of the same arbitrations of partial or interim awards), other arbitrations (whether or not based on the same arbitration agreement) and proceedings before domestic courts. Additional aspects of the doctrine which do not involve awards and which are therefore beyond the scope of this discussion are the res judicata effects of domestic judgments (for example findings of nullity or ineffectiveness of an Arbitrative Agreement) in arbitral or domestic courts and the res judicata effects in Arbitration Process.

The Final Award is the climactic ruling in an arbitration that has significant sequels, in the perception that it is the climax of an animosity, or a dispute shelved to an arbitral tribunal or a sole arbitrator, and it will concuss the contracts between the parties and may not chiefly be played against. In addition to stapling the legal or factual antagonisms between the parties, the Final Award may also speculate upon the version of contract stints or distinguish the respective liberties and obligations of the parties to a contract.


In other words, the arbitrator’s judgement on the application of the concept should also be respected by the court.

But while analysing circumstances of res judicata and restricting their powers accordingly, Arbitrators should meticulously do their analyses, since their wrong conclusion in relation to a prior award or judgement would likewise contradict public policy.

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