The World is going through a pandemic which has brought the world to a standstill. Apart from the annihilator impact that COVID-19 continues to unleash on living creatures across the world, it has also reached commerce and business. Economic activities were dreadful from the past two and a half months which have now started taking the baby steps in India. During this challenging time, India captured the real picture of administration across several functionaries. The Judicial system was always in the spotlight because of history of being delayed. However, the pandemic situation has affected by making it even worse because of overburden and heavy clogging of thousands of cases.
To ease pressure and to extract the burden of the courts, Alternate Dispute Resolution (ADR) methods for resolving the disputes were introduced as a time and cost-efficient method. Arbitration, being one of such alternates, emerged out as a most favourable way to avoid prolonged litigation in several countries across the world including India. Every difficult time in history brought some institutional changes, and most of the time these changes headed towards some better. Interestingly, the stream of arbitration being a private process is quickly adapting to COVID-19. Arbitration is an alternative and effective way of resolving a dispute usually with sole arbitrator or more being appointed by the parties to the dispute. During this challenging time, the advantage of the inherent flexibility, the pragmatism of the arbitral process, its efficiency, and innovative mechanisms makes it an attractive dispute resolution tool. The parties to the dispute can opt for the arbitration even though they have not negotiated an arbitration clause.
tiated an arbitration clause. In order to function efficiently, several arbitral institutions have brought certain changes in their operation amidst this difficult time. Almost every change is directly or indirectly paired by technology and the internet. To safeguard the health and wellbeing of staff, as well as the users, many arbitral institutions took precautionary steps shortly after the declaration of COVID-19 as a pandemic. Despite the ongoing difficulties, a logical prediction is that the number of matters being referred to arbitration may increase post COVID-19. As of now, fulfilment of contractual obligation is the biggest headache for almost every business entity. All the companies are taking legal pieces of advice on force majeure provisions and the ability or inability to fulfil their contractual obligations due to this pandemic. As arbitration is a popular choice in industrial and the corporate realm, parties may very soon find themselves submitting requests for arbitration to their chosen institution as per the agreed terms for adjudicating several contractual disputes. Although at present, the business entities are mainly focusing on continuity of their operations as a going concern; however, they will definitely look after dispute resolution at a later stage especially because of the commitment of arbitration institutions to operate as normal during these times.
Almost all popular arbitration institutions have adopted several measures in the wake of COVID-19. Several Institutions like International Chamber of Commerce (ICC), London Court of International Arbitration (LCIA), Singapore International Arbitration Centre (SIAC), Hong Kong International Arbitration Centre (HKIAC), and Australian Centre for International Commercial Arbitration (ACICA)/ Australian Disputes Centre (ADC) have adopted the virtual system of filing and hearing the matters. On 16thApril 2020 a joint statement was published by thirteen arbitral institutions, focusing on the importance of resolving disputes even during the COVID-19 outbreak, “Collaboration is particularly important as each of our institutions looks to ensure that we make the best use of digital technologies for working remotely.” The joint statement further reads as “Our institutions stand ready to assist to the best of our ability, and welcome parties and tribunals to reach out and to consult guidelines and information as published on our respective websites.” It is quite apparent that major arbitral institutions have welcomed this virtual change. Delhi International Arbitration Centre (DIAC) has also issued a statement that the Arbitrators and parties may conduct the proceedings through teleconference as per their convenience, with due intimation to DIAC by email.
It seems that the arbitration may become a suitable avenue in future and it may seize the opportunity post COVID-19. However, to maintain its efficiency, there will be an increase in the demand for technological tools and resources. There are several emerging mechanisms which gives arbitration an edge over traditional litigation, especially in commercial matters. Online dispute resolution or ODR being one of such emerging mechanism is a process to settle disputes outside courts with a combination of technology and alternative dispute resolution mechanisms. Countries like China, Brazil, and U.S.A have already adopted the ODR mechanism by constituting their separate platforms to resolve disputes arising out of e-commerce transactions. In India, ODR is in its initial stage but it may be adopted at a large scale in India especially during this pandemic. As it is proven fact that the technology improves with time and technology being the main ingredient of different ODR methods, it is obvious that ODR will serve as an efficient platform for quick disposal of cases. Another such efficient system is seen in recent years, where several arbitration institutions have established “Emergency Arbitrator” provisions which can be utilised in cases where urgent relief is required by any party to the dispute. Such provisions of urgent relief could provide companies speedy resolution to a dispute and therefore, recourse to these provisions may look more attractive during the COVID-19 pandemic. “Emergency Arbitration” is usually agreed and arranged by the parties themselves without recourse to a tribunal at the first instance. In India, in order to recognise Emergency Arbitrations, The Law Commission’s 246th Report on amendments to the Arbitration and Conciliation Act, 1996, proposed an amendment to Section 2(d) of the Act. This amendment was to ensure that institutional rules such as the SIAC Arbitration Rules, or ICC Rules or any other rule which provide for an appointment of an emergency arbitrator are given statutory recognition in India. The Amendment of 2015, however, failed to incorporate the recommendation of the Law Commission and does not provide for Emergency Arbitration in the amended provisions. It may be noted that even after getting no place in statutory provisions, Emergency Arbitration is trying to absorb its place in the rules and procedures of several arbitration institutions. The Delhi International Arbitration Centre, of the Delhi High Court in Part III of its Arbitration Rules, includes ‘Emergency Arbitration’. Further Section 18A enumerates ‘Emergency Arbitrator’ and also explains the appointment, procedure, time period and powers of an Emergency Arbitrator. The International Commercial Arbitration (ICA), under Section 33 read with Section 36(3), also enumerates the provisions of Emergency Arbitrator. However, India still awaits a formal statutory recognition of the awards of the Emergency Arbitrator.
The impact of COVID-19 is reaching far beyond our imagination and we have a duty to take recommended precautions to prevent the spread of the virus. Along with this, we should also try that access to justice and business relationships should not be put on hold, to the extent possible, during the COVID-19 pandemic and we must take it upwards post this pandemic. With due consideration to all the advantages and drawbacks of virtual proceedings, the future frame of arbitration seems rightly shaped all over the world as the institutions are making endeavours to combine technology to aid them in resolving various disputes. The concept of virtual hearings will not only save a lot of time but also cut sort the costs involved in an arbitration hearing, particularly those related to travel and accommodation. As arbitration has the feature to quickly adapt its user needs, it had absorbed the ongoing situations quickly. However, the battle in India can be won more efficiently with some improvement by giving a place to technology in existing provisions.
Adv. Ashutosh K. Sharma practices at the Delhi High Court.
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INDIA’S APPROACH TO EQUALISATION LEVY
The 2016 equalisation levy was the result of the Official Committee constituted by Government of India (Committee on Taxation of E-Commerce) that presented its report on 3rd February 2016. The main factors that necessitated this review was the need for the new ways of doing business and not merely relying on the physical presence rule, exponential growth of digital business that emerged as a challenge to the traditional brick and mortar model and the reality that business derive substantial value from data collected and transmitted on telecommunication network. It is to be noted that this committee was the result if the OECD/G20 report that came in 2015 which mooted the taxability of the digital economies. Indian DST is also attracted from this model and it is also important to note that the committee constituted by GOI in 2016 had also endorsed this report.
But in doing so, there were certain considerations that needed to be factored and these included:
i. International consensus that was placed by the OECD/G20 BEPS Action-I Report of 2015.
ii. The need to establish a NEXUS and Valuation of data and user contribution.
iii. Need to address all forms of digital businesses i.e. B2B, B2C, C2C.
iv. Maintaining tax neutrality between domestic enterprise and the MNEs.
Taking all these pointers into mind the committee presented a report which was partly accepted by Government of India and enacted the 2016 Equalisation levy that came into force on June 1st 2016. With this enactment, India became amongst the selected few countries to impose a unilateral DST. Form the very beginning it lacked a global consensus as was mooted in OECD/G20 report 2016.
UNDERSTANDING EQUALISATION LEVY- 2016,
EL was not a part of the Income Tax 1961 and the same was enacted as a separate and distinct chapter under the Finance Act, 2016. (Chapter VII). This chapter contains within itself the complete provisions w.r.t. to the extent, applicability and the mechanics of EL.
The scope was limited to “Online Advertisements” only and the an EL @6% was levied for service provided by NR to Indian Business or a NR with Permanent Establishment in India(PE).
The provisions in Chapter VII excluded Services Connected with an Indian PE of NR service provider and those where the annual consideration was below threshold of INR 0.1mn. It further excluded B2C Services.
For the purpose of collecting the levy, an amount equivalent to EL is to be deducted from consideration payable by Indian recipient to NR service provider. Payment obligation is to be carried out on monthly basis.
PENALTIES & PUNISHMNETS
Interest would be payable for delayed discharge of EL. Also penalty equivalent to EL amount on failure to deduct EL from consideration payable to NR service provider and apart from this a distinct penalty for failure to discharge EL liability can also be levied. In case of falsification of returns, the provision for imprisonment and fine is also there.
ROAD TO EQUALISATION LEVY 2.0
It is very interesting to note that India has always participated and endorsed the OECD model of taxing digital services but at the same time its been unfortunate that India has opted for unilateral measures of taxing digital services without a global consensus. Both 2016 as well as 2020 EL is in violation with the consensus model that has been projected by OECD.
The seeds of EL 2.0 can be traced in the official amendment to the Finance Bill, 2020 which was tabled and passed by the Lok Sabha on March 23, 2020. The same became an Act on 27th March 2020 amidst the outbreak of COVID-19 without any discussions and deliberations in the Parliament. The said EL 2.0 is effective from April 1, 2020 and a levy of 2% would be applicable on non-resident e-commerce operators arising from e-commerce supply or services made to the Indian residents.
CONCERNS SURROUNDING LEVY 2.0
1. SCOPE: The scope of EL 2.0 is very wide and seems to be discriminatory in nature. It utterly covers within goods and services sold by non-resident based online marketplaces, non-resident retailers that sell to customers in India over internet as well non-resident manufacturers that operate online sales portals. This whole scope falls inconsistent to OECD model as well as our previous EL. This is going to act as a deterrent for many international businesses that sell their products in India and this will ultimately affect the advancement of the Nation. On a larger perspective the business in order to pay this levy will increase the costs and the levy will get transferred over the Indian Customers. The other aspect that needs to be taken care is that, this EL 2.0 does not take into consideration the interests of the MSMs and SMBs. Many SMBs and MSMEs rely on various services provided by non- residents in their initial growth. These services may be in the form of app stores, cloud services, digital infrastructures, and software compliances etc. now since EL would be levied on them so it would be difficult of such small businesses to avail their service.
2. IMPLEMENTATION AND ENFORCEMENT The EL 2.0 came into effect all of a sudden without any discussions and deliberations in the Parliament. It is also important to note that there wasn’t any advice that was taken from the industry people before bringing this in effect. The EL 2.0 appeared like a surprise for all of us amidst the outbreak of the Pandemic. The Government brought this legislation on 27th of March 2020 and gave it an effect from 1st of April. As a result of his the stakeholders had very less time of about 3 days to acquaint with it and begin accruing taxes from 1st of April. The levy further requires the non-resident digital companies to make quarterly payments to Indian Government and undertake periodic reporting compliances(which remains un-prescribed). Since the levy will be liable to be paid in starting of July 2020, which is big concern amongst the business as there is a very little time for companies to get acquainted with the process and pay the levy. Also concerning the outbreak of the covid-19, it would be difficult for most of the companies to make the payment of the levy. So, the only point that seems reasonable is to defer the levy for sometimes till the situation normalizes and business gets well acquainted to it.
3. THE PROBLEM OF NEXUS: The provision under the Indian legislation mandates that any law made by the Parliament must have nexus with India. For any law to have extra territorial application it must fulfill the nexus test. Indian law on this point is not straight and direct and this matter has been time and again decided by the Indian Judiciary as to what will determine sufficient nexus. The matter for the 1st time was extended for the determination before the constitutional bench in M/S ELECTRONICS CORPORATION OF INDIA V CIT & ANR. 1989 AIR 1707, 1989 SCR (2) 994, but the matter was withdrawn later on and the question surrounding the nexus remained unanswered. However, it is to be noted that, in order to attract sufficient nexus the provocation for the law must be found within India itself. Such a law may have extra-territorial operation in order to sub-serve the object and that object must be related to something in India. However, in the current situation surrounding the equalization 2.0 there are a lot of discussions surrounding the ‘nexus’ factor to determine the constitutionality of this enactment. It is also important to note whether Indian Judiciary will opt for the ‘new nexus’ as provided by the OECD BEPS report or will stick to the conventional approach of determining the territoriality.
RECOGNISING ARBITRAL CORRUPTION
The Arbitration and Conciliation (Amendment) Ordinance 2020 addresses a pressing need today; it recognises the field reality of corruption and fraud beyond that of the dispute, but of the tribunal arbitrating the dispute. The Ordinance targets the cases where the arbitration awards or the underlying contracts are induced or secured by fraud or corruption and further aims to give an opportunity to all the parties to seek an unconditional stay on execution till the challenge to the award under Section 34 is decided, where the court is prima facie satisfied of the existence of fraud or corruption.
The effect of the Ordinance is that it has reversed the 2015 amendment to a certain degree. Where the 2015 Amendment had done away with the concept of automatic stay on enforcement of awards as soon a challenge was made to the award under Section 34, the 2020 Amendment provides for an unconditional stay as long as the award is vitiated by allegations of corruption or fraud on the part of the tribunal itself. The mandate of the Ordinance is that an award shall be “unconditionally” stayed pending disposal of the challenge under section 34, “where the Court is satisfied that a prima facie case is made out,
(a) that the arbitration agreement or contract which is the basis of the award, or
(b) the making of the award, was induced or effected by fraud or corruption.”
The reasons for what necessitated this judgment have been apparent to us in the legal fraternity for a while now. Corruption and fraud have led to bleeding of the national exchequer. Most recently in the recent landmark case of HCC v. Union of India, the Supreme Court categorically noticed the arguments made by the Government of India that the means employed to get such awards was less than honourable.
Another reason that necessitated this amendment was that after the 2015 Amendment Act, execution of an award is stayed by Courts on conditions which are same as that for the grant of stay of a money decree under the CPC. The idea behind this was that the award holder is not denied the fruits of the award due to unecessary litigation, therefore invariably stay of award is granted only on deposit of award amount which can be withdrawn by the award holder subject to the outcome of the Section 34 application. However, as is with most things, the other side of the coin are the cases where the award or the underlying agreement is induced by corruption and fraud, in which case, the beneficial legislation becomes an unjust burden on the petitioner under Section 34.
In Arbitrations involving construction contracts/infrastructure projects between private concessionaires and PSUs like the NHAI, etc. or Government departments like the CPWD etc., the awards are invariably in the favour of the private concessionaire. As an example Hindustan construction company, in the above case, claimed to have awards against the government undertakings and PSUs amounting to a whopping Rs. 6000/- crore and in some cases the awards were more than 100% of the value of the contract.
One would argue that the functioning of PSUs and other government authorities is marked by pachyderm pace, red-tape and bureaucratic approach, in sharp contrast with the professional and “time is money” approach of the private corporations, which results in cost overruns and loss of profit, being the two favourite heads of claim against the government/PSUs.
But as an Arbitration practitioner and having been a law officer for the Union of India, I have to accept the sentiment that more often than not there is corruption in arbitral proceedings and the submissions of the Government resonate across. As a concept, corruption or fraud in arbitration law means employing corrupt practices in securing the contract and the discussions have always centred around the jurisdiction of a tribunal to decide such disputes where corruption is alleged in the process leading to the entering into of a binding contract.
For example, the Agusta Westland case, where a contract for supply of 12 VVIP helicopters was secured by corrupt means. Augusta Westland invoked arbitration against the Government of India alleging breach of contract. In this case the defence of Government of India before the Arbitral tribunal and later before the High Court of Delhi rested primarily on the fact that the contract was secured by fraud and corrupt means by Agusta and others and therefore the dispute was not arbitrable.
The jurisprudence on whether corruption in arbitrable or not is more or less settled.
In Rashid Raza vs. Sadaf Akhtar, the Supreme Court clarified the scope of arbitrability of disputes involving allegations of fraud. Relying upon the landmark ruling in the case of A. Ayyasamy vs. A. Paramasivam (“Ayyasamy”), Justice R. F. Nariman set out the working tests for determining whether an allegation of fraud is arbitrable. In Rashid, the Supreme Court held that since the dispute pertains to a ‘simple allegation of fraud’, the same is arbitrable.
Analysing the law laid down on arbitrability of disputes involving fraud in the case of Ayyasamy the Supreme Court held that a simple allegation of fraud may not be a ground to nullify the effect of an arbitration agreement. However, when serious allegations of fraud are involved, held that courts can dismiss an application to refer a dispute to arbitration under Section 8 of the Act. Serious allegations of fraud would involve:
Allegations which would make it a case of criminal offence;
Allegations of fraud are so complicated that it becomes essential that such complex issues can be decided only by civil court on the appreciation of the voluminous evidence that needs to be produced;
In Ayyasamy, the Supreme Court further held that in the scenario where there are simple allegations of fraud touching upon the internal affairs of the parties inter se without any implication in the public domain, the arbitration clause need not be avoided and the parties can be relegated to arbitration.
Applying the relevant principles from Ayyasamy to the allegations of siphoning and improprieties, the Supreme Court held that a distinction must be drawn between ‘serious allegations’ of forgery or fabrication supporting the plea of fraud, and ‘simple allegations’ – to determine arbitrability. The Supreme Court held that the allegations are arbitrable as they fall within the ambit of ‘simple allegations’. It set aside the judgment of the High Court and proceeded to appoint an arbitrator under Section 11 of the Act to resolve the disputes between the parties.
In any event, the Supreme Court’s ruling does set a positive precedent ensuring cautioned and minimum interference by courts in matters involving arbitration and allegations of fraud. It also reposes faith in the arbitral tribunal to determine these allegations to fruition.
What has not found place in the popular legal discourse is the corruption in adjudication of disputes.There is no statutory code of conduct for arbitrators apart from what has been broadly stated in the Arbitration Act 1996 about impartiality and fairness of arbitrator. Recently however international arbitral institutions have been actively considering transparency in arbitral process. The ICC task force on “Addressing issues of corruption in International Arbitration” is still to put forth its recommendations.
The question of impropriety in arbitral process is not one merely of academic interest nor it is in the realm of impossibility. Although there are measures to shield a party from such awards under Section 34, but there is no repercussion for the Arbitrators engaging in such exercise.The Amendment ordinance of 2020 is a pioneering step taken by the government for this recognises the fact thatposition of the arbitrator is that of Caesar’s wife who should be above all suspicion, given the fact that under the Act, the challenge to arbitrator is to be made to the arbitral tribunal itself.
The Law Ministry Ordinance said the amendment was necessary “to address the concerns raised by stakeholders after the enactment of the Arbitration and Conciliation (Amendment) Act, 2019 and to ensure that all the stakeholder parties get an opportunity to seek an unconditional stay of enforcement of arbitral awards where the underlying arbitration agreement or contract or making of the arbitral award are induced by fraud or corruption.”
In Section 36 of the Arbitration and Conciliation Act, Arbitrators are adjudicators under the Act, they decide disputes between the parties and their findings are binding. Arbitration is not merely a mechanism to settle disputes, it is a machinery of justice and the aspiration of making India a preferred destination for arbitration cannot overwhelm the pursuit of justice, the concepts of party autonomy and minimal interference of courts in arbitration etcnotwithstanding.
Sr. Adv. Pinky Anand has served as the Additional Solicitor General of India
Why Kulbhusan Jadhav refuses to file review petition
Formal conferences on the benefits of the case were held from 18 to 21 February 2019. In its Judgement of 17 July 2019, the court originally illustrated the foundation of the question, prior to presuming that it had locale to engage India’s cases dependent on supposed infringement of the Vienna Convention.
The Kulbhushan Jadhav case is one of the questionable case having India and Pakistan as gatherings in the International Court of Justice (ICJ). The Indian side kept up that Jadhav was captured from Iran where he had business interests in the wake of resigning from Navy. India tested Pakistan’s choice in the International Court of Justice.
On 8 May 2017, India documented an Application founding continuing against Pakistan in regard of a question concerning affirmed infringement of the Vienna Convention on Consular Relations of 24 April 1963 “in the matter of the detainment and preliminary of an Indian public, Mr. Kulbhushan Sudhir Jadhav”, who had been condemned to death by a military court in Pakistan in April 2017. India guaranteed that Pakistan had neglected to advise it, immediately, of the capture and confinement of its public. It further battled that Mr. Jadhav had not been educated regarding his privileges under Article 36 of the Vienna Convention on Consular Relations, and that India’s consular officials had been denied admittance to Mr. Jadhav while he was in guardianship, detainment and jail, and had been not able to banter and compare with him, or mastermind his legitimate portrayal. As reason for the Court’s ward, India alluded in its Application to Article 36, section 1, of the Statute of the Court and Article I of the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes.
Around the same time, India additionally recorded a Request for the sign of temporary measures, mentioning the Court to guide Pakistan to “take all estimates important to guarantee that Mr. Kulbhushan Sudhir Jadhav isn’t executed” and to “guarantee that no move is made that may bias the privileges of the Republic of India or Mr. Kulbhushan Sudhir Jadhav regarding any choice the Court may deliver on the benefits of the case”.
By an Order dated 18 May 2017, the Court guided Pakistan to “take all measures available to its” to guarantee that Mr. Jadhav would not be executed forthcoming a ultimate choice for the situation, and to illuminate the Court regarding all the measures taken in usage of that Order. It additionally concluded that, until the Court had given its ultimate choice, it would remain seised of the issues which framed the topic of the Order.
Formal conferences on the benefits of the case were held from 18 to 21 February 2019. In its Judgment of 17 July 2019, the Court originally illustrated the foundation of the question, prior to presuming that it had locale to engage India’s cases dependent on supposed infringement of the Vienna Convention. The Court next tended to the three issues with acceptability raised by Pakistan, which depended on India’s supposed maltreatment of cycle, maltreatment of rights and unlawful lead. The Court reasoned that India’s Application was acceptable.
Going to the benefits of the case, the Court inspected thusly every one of Pakistan’s three disputes concerning the pertinence of the Vienna Convention. Having discovered that none of the contentions raised by Pakistan could be maintained, the Court reasoned that the Vienna Convention was appropriate for the situation, “paying little heed to the claims that Mr. Jadhav was occupied with reconnaissance exercises”.
Next, the Court analysed India’s case that Pakistan had acted disregarding its commitments under Article 36 of the Vienna Convention, by neglecting to illuminate India, immediately, of Mr. Jadhav’s detainment. The Court saw that Pakistan didn’t challenge India’s statement that Mr. Jadhav had not been educated regarding his privileges under Article 36, passage 1 (b), of the Convention, and subsequently inferred that Pakistan had penetrated its commitment under that arrangement.
As respects Pakistan’s supposed break of its commitment to educate India, immediately, of the capture and confinement of Mr. Jadhav, as accommodated in Article 36, section 1 (b), of the Vienna Convention, the Court found that since Pakistan had neglected to illuminate Mr. Jadhav of his privileges, it was under a commitment to advise India’s consular post of his capture and detainment, that commitment likewise being inferred by the privileges of consular officials, under Article 36, passage 1 (c) of the Convention, to visit the public, “to chat and relate with him and to mastermind his legitimate portrayal”. The Court at that point brought up that Pakistan had told India of Mr. Jadhav’s capture and confinement on 25 March 2016, somewhere in the range of three weeks after his capture; assessing the specific conditions of the case, the Court thought about that Pakistan had in this way penetrated its commitment to educate the consular post “immediately”, as needed by Article 36, passage 1 (b), of the Vienna Convention.
The Court at that point went to India’s third case concerning Pakistan’s supposed inability to permit Indian consular officials to speak with Mr. Jadhav, reviewing in such manner that “Article 36, passage 1, makes singular rights, which, by ideals of Article I of the Optional Protocol, might be conjured in this Court by the public State of the confined individual”. It being undisputed that Pakistan had not allowed any Indian consular official admittance to Mr. Jadhav, the Court was of the view that India’s supposed inability to co work in the examination cycle in Pakistan didn’t assuage Pakistan of its commitment to concede consular access, and didn’t legitimize Pakistan’s disavowal of admittance to Mr. Jadhav by consular officials of India. Further, Mr. Jadhav’s decision to be spoken to by a protecting official qualified for legitimate portrayal didn’t get rid of the consular officials’ entitlement to orchestrate his lawful portrayal. The Court thusly reasoned that Pakistan had penetrated the commitments occupant on it under Article 36, passage 1 (a) and (c), of the Vienna Convention, by denying India’s consular officials admittance to Mr. Jadhav, as opposed to their entitlement to visit him, chat and relate with him, and mastermind his lawful portrayal.
As to India’s dispute that it was qualified for restitutio in integrum, its solicitation for the Court to cancel the choice of the military court and limit Pakistan from offering impact to the sentence or conviction, and its further solicitation for the Court to guide Pakistan to find a way to dissolve the choice of the military court, discharge Mr. Jadhav and encourage his protected entry to India, the Court found that the entries made by India couldn’t be maintained. The Court additionally found, nonetheless, that Pakistan was under a commitment to give, by methods for its own picking, compelling survey and reexamination of the conviction and sentence of Mr. Jadhav, in order to guarantee that full weight was given with the impact of the infringement of the rights set out in Article 36 of the Vienna Convention.
MOST RECENT REPORTS
According to Pakistan media reports, Pakistan government has offered second consular admittance to Jadhav, who was condemned to death by a Pakistani military court on charges of “reconnaissance and psychological oppression” in April 2017.
Jadhav, nonetheless, will keep on after up on his benevolence request forthcoming with the President. His choice to defer the rights for a survey request places India in a predicament.
India had contended that Jadhav had been denied a reasonable preliminary by Pakistan. Harish Salve, India’s legitimate advice for the situation at the International Court of Justice, had brought up that the military preliminary after which Jadhav was condemned to death was a hoax.
Recently, at a talk coordinated by the Akhil Bhartiya Adhivakta Parishad, Salve had stated, “It has become an enormous self image issue for Pakistan. We were trusting they would let him (Jadhav) go. They haven’t. We have composed four-five letters. They simply continue denying.” “We have now been in a tussle with Pakistan attempting to get them to set up a hardware (for sufficient audit and reevaluation)”. (Cited as Salve has said)
The decision of the ICJ—a success for Jadhav—had held that Pakistan needed to “give, by the methods for its own picking, powerful audit and reexamination of the conviction and sentence’’ of Jadhav, in order to guarantee that full weight is given with the impact of the infringement of the rights set out in Article 36 of the Vienna Convention. The court had likewise guided Pakistan to give consular admittance to India.
Pakistan had denied India the option to approach Jadhav in confinement just as the option to mastermind his legitimate portrayal. As Pakistan didn’t furnish Jadhav with lawful portrayal, even the admission—which Pakistan had held up—was not viewed as substantial.
Pakistan had contended that the law gave plan of action to Jadhav to bid against his decision. Notwithstanding, the ICJ’s structure showed that Pakistan needed to “give successful survey and reexamination’’ of the sentence. In May 2020, Pakistan instituted the International Court of Justice Review and Reconsideration Ordinance.
The law fixed a period of 60 days for an appeal to be recorded by Jadhav, his family or the Indian high commission in Islamabad. Jadhav, who was welcomed on June 17 to record a request for survey, can’t. He was likewise offered help for legitimate portrayal, another offer Jadhav decided to can’t.
His refusal to record an audit appeal agrees with the story that Pakistan has decided to assemble. Jadhav, Pakistan had asserted in its contentions in court, had postponed outside portrayal. However, his choice to defer the survey request, successfully wasting the additions of a hard-battled triumph at the ICJ, just as Pakistan’s choice to call an uncommon public interview to declare this choice, simply days before the time passes, bring up major issues. All things being equal, as the consular admittance to Jadhav, an unmistakable mandate by the ICJ, was not smooth. India at last acknowledged the solicitation to consular access, notwithstanding reservations to how it was given, in September.
Indeed, even Sartaj Aziz, Sharif’s international strategy counselor, was on record saying the “proof” against Jadhav were “simple proclamations”. Between mid-2016 and mid-2017, the Indian government chose to be innovative and moved toward the ICJ in The Hague and discovered it had a solid lawful argument against Pakistan on consular relations under Article 36 of the Vienna Convention.
In mid-2017 as well, Pakistan had moved toward India for “help” in its test on Jadhav, saying the charges of psychological oppression against him included examinations against National Security Adviser Ajit Doval and afterward heads of Intelligence Bureau and the Research and Analysis Wing.
After Pakistan had circulated another “admission video” by Jadhav, at that point outside undertakings serve Sushma Swaraj told parliament in April 2017: “They (Pakistan) connected giving consular admittance to our acknowledgment of their position… We called attention to that consular admittance to Shri Jadhav would be a basic essential to confirm current realities and comprehend the conditions of his quality in Pakistan.”
For Pakistan, Jadhav was viewed as an incredible catch. After an assault on a military camp in Uri in September 2016 and ventured up penetration in Jammu and Kashmir, Jadhav was something Pakistan could use to pick up identicalness against India. It felt the Baluchistan saying could be focused on with conviction that India was supporting psychological oppression in Pakistan, leaving India no ethical space. Never one to avoid hazards, Pakistan added to this by articulating a capital punishment on Jadhav in April 2017.
As Swaraj stated: “To make matters considerably more ridiculous, three hours after capital punishment was reported, the Indian High Commission got an official correspondence from the Foreign Ministry of Pakistan emphasizing the Pakistani proposition for contingent consular access. That discloses to us a great deal about the ridiculous idea of the asserted proceedings…” It turned out to be clear then that paying little heed to the conditions of Jadhav’s capture, Pakistan’s sole interest was to tar India on the insurrection in Baluchistan . Pakistan was shocked at the ICJ case, since it was a reasonable takeoff from how it figured India would act.
For India, this case was exceptional from numerous points of view. Since the time at that point Prime Minister Jawaharlal Nehru took the Kashmir record to the UN Security Council in 1948, India has diligently avoided “internationalization” of reciprocal issues, especially with Pakistan. That it was India which took the Jadhav case to ICJ had a few ramifications.
India was sure it had a strong body of evidence against Pakistan. From the beginning, it has restricted its reaction to requesting consular admittance to Jadhav, which has been denied multiple times by Pakistan. For this, India used a little escape clause left over in the Vienna Convention on consular issues, one of only a handful few regions where the two India and Pakistan recognize ward by the ICJ.
Indeed, the Indian case has been a decidedly ready and determinedly contended one on a basic solicitation – of admittance to Jadhav. Second, India needed to verify that this case would not give Pakistan an opening to utilize the ICJ course on different issues like Kashmir or Indus water sharing.
This bet required solid political support. Executive Narendra Modi, who doesn’t avoid taking unusual ways, was firmly behind Swaraj and afterward unfamiliar secretary and current unfamiliar clergyman S Jaishankar. It might have conflicted with India if ICJ had acknowledged Pakistan’s contention that the 2008 reciprocal understanding would win. Indeed, the July 17 decision settled one significant point always – that the Vienna Convention bests the reciprocal agreement.
Julia Sequined, one of the ICJ judges, in her announcement, stated: “Apparently – directly from the capture of Mr. Jadhav and without hanging tight for his preliminary – Pakistan confirmed that he was a government agent who under Pakistani law was not qualified for consular access and, comparably, that India having “meddled in the interior issues of Pakistan – had likewise relinquished its entitlement to consular access, under Article 36 of the Vienna Convention”.
What happens now? Despite the turn given to the decision by Pakistan’s advertising division, it needed to declare that Indian authorities would gain admittance to Jadhav. India will need that admittance to be free, that is, without the presence of any Pakistani authorities in the room. New Delhi wants to get a clearer image of how Jadhav was gotten.
Second, the ICJ decision has made the whole “preliminary” harmful and universally inadmissible. Yet, no Pakistan Army boss can endorse Jadhav’s delivery.
India will push for a non-military personnel and open preliminary, where the story may be not the same as the current one scripted by the ISI, Pakistan’s government operative office.
Pakistan would need to keep away from that as well. Jadhav is presently a hot potato for the Imran Khan government. They can’t execute him and clutching him implies Indians will trample any procedure. Be that as it may, they will at present need to trade him for an official exchange with India or some other type of commitment. India needs Jadhav’s profit yet for various terms.
Jadhav may need to spend a lot more years in a Pakistani prison or, more terrible, be under the danger of being assaulted in – prison revolt – like the one in which Sarabjit Singh, sentenced on spying charges, was slaughtered in 2013.
In any case, Pakistan will stay under Indian tension. The ICJ decision just added to the weight.
Joined by Queen’s advice Barrister Khawar Qureshi, a 13-part Pakistani designation, driven by Attorney General Anwar Mansoor alongside the Foreign Office’s Director General South Asia Dr Mohammad Faisal and including authorities of the services of law and international concerns, was available in the court.
The ICJ said that despite the fact that it had discovered Pakistan infringing upon Article 36 the Vienna Convention on Consular Relations (VCCR), “it isn’t the conviction and sentence of Mr. Jadhav which are to be viewed as an infringement of Article 36 of the Vienna Convention.”
The most the ICJ said it could do was to arrange Pakistan to stop infringement of Article 36 and audit the case considering how that infringement may have influenced the case’s result.
“The Court takes note of that Pakistan recognises that the fitting cure in the current case would be successful audit and reevaluation of the conviction and sentence,” it noticed.
To this end, Pakistan was coordinated to quickly educate Jadhav of his privileges under Article 36, award India consular access, and afterward survey the case while considering, under the laws of Pakistan, how not doing so prior may have affected the case’s result.
71st birthday of Indian Constitution
I feel that the Constitution is workable, it is flexible and it is strong enough to hold the country together both in
peacetime and in wartime. Indeed, if I may say so, if things go wrong under the new Constitution, the reason will
not be that we had a bad Constitution. What we will have to say is that Man was vile,’ says Dr B.R. Ambedkar.
The Ministry of Social Justice and Empowerment on 19th November, 2015, notified the decision of the Government of India to celebrate the 26th day of November every year as the Constitution Day to promote constitutional values among citizens. Before the issuance of the notification, November 26th was celebrated as the National Law Day to honour the 207 members of the Constituent Assembly. Therefore, Constitution Day is celebrated in our country on 26th November every year now to commemorate the adoption of the Constitution of India. The Constituent Assembly of India adopted the Constitution on 26th November, 1949 which came into effect from 26th January, 1950. Justice Krishna Iyer once aptly enunciated that the Indian Constitution is the cornerstone of a liberated nation which lays the grand foundation of a great people’s political edifice of governance and spells out the fundamental rights and socialistic aspirations of the vast masses long inhibited by an imperialist ethos. It creates a trinity of democratic instrumentalities with checks and balances, parliamentary in structure, quasi-federal in character. An independent judiciary, an accountable Parliament at the Centre and like legislatures at the State level, a powerful Election Commission and fearless, critical Comptroller and Auditor General provide a paramountcy of democracy, at once responsible and responsive. Judicial review of State action, public finance auditable by a constitutional authority, obligation to seek fresh mandate through general elections with the adult franchise, accountability, direct and indirect, to the people in several ways, — these are fundamental in the governance of the country. The people, though free, have fundamental duties mandated by Art. 51A of the Constitution to exercise which, as in cases of environmental and ecological preservation, compassion for living creatures, protection of the value of composite culture, the authority of judicial writ power may be moved in aid.
The Constituent Assembly took a total of two years, eleven months and seventeen days to complete the Constitution. The Constituent Assembly considered a total of 2473 amendments proposed to the Draft Constitution from 9th December, 1946 to 26th November, 1949. Dr. Rajendra Prasad, the President of the Constituent Assembly confirmed the Constitution and fifteen articles were immediately given effect to on 26th November, 1949, which were, the provisions of Citizenship, Oath and affirmation by the President, Election, Definitions, Interpretation, Powers of the President to remove difficulties and the short title of the Constitution. The rest of the provisions came into effect from 26th January, 1950 and the working of the Constituent Assembly came to a stop. The preamble, a part of the Constitution, also came into force on 26th January, 1950, which presents the intention of the framers of the Constitution and the principles of the nation. The President in his address, on 26th November, 1949, talked about the Judiciary and enunciated that we have provided in the Constitution for a judiciary which will be independent. It is difficult to suggest anything more to make the Supreme Court and the High Court’s independent of the influence of the Executive. There is an attempt made in the Constitution to make even the lower judiciary independent of any outside or extraneous influence. One of our articles makes it easy for the State Governments to introduce separation of Executive from Judicial functions and placing the magistracy which deals with criminal cases on similar footing as Civil Courts.
The Fundamental Rights enshrined in Part III of the Constitution represent the basic values enriched by the people and the object of the fundamental rights is to ensure the inviolability of certain essential rights against political vicissitudes. Fundamental rights are not distinct but are mutually exclusive, as has been held by the Supreme Court in a catena of judgments. Dr. B.R. Ambedkar while highlighting the central importance of Article 32 of the Constitution stated that I am very glad that the majority of those who spoke on this article have realised the importance and significance of this article. If I was asked to name any particular article in this Constitution as the most important – an article without which the Constitution would be a nullity – I could not refer to any other article except this one. It is the very essence of the Constitution and the very heart of it and I am glad that the House has realised its importance. Dr. B.R. Ambedkar, in his speech on November 25, 1949, stated that if we wish to maintain democracy not merely in form, but also in fact, what must we do?
“The first thing in my judgment we must do is to hold fast to constitutional methods of achieving our social and economic objectives. It means we must abandon the bloody methods of revolution. It means that we must abandon the method of civil disobedience, non-cooperation and satyagraha. When there was no way left for constitutional methods for achieving economic and social objectives, there was a great deal of justification for unconstitutional methods. But where constitutional methods are open, there can be no justification for these unconstitutional methods. These methods are nothing but the Grammar of Anarchy and the sooner they are abandoned, the better for us. The second thing we must do is to observe the caution which John Stuart Mill has given to all who are interested in the maintenance of democracy, namely, not “to lay their liberties at the feet of even a great man, or to trust him with powers which enable him to subvert their institutions”. There is nothing wrong in being grateful to great men who have rendered life-long services to the country. But there are limits to gratefulness. As has been well said by the Irish Patriot Daniel O’Connel, no man can be grateful at the cost of his honour, no woman can be grateful at the cost of her chastity and no nation can be grateful at the cost of its liberty. This caution is far more necessary in the case of India than in the case of any other country. For in India, Bhakti or what may be called the path of devotion or hero-worship, plays a part in its politics unequalled in magnitude by the part it plays in the politics of any other country in the world. Bhakti in religion may be a road to the salvation of the soul. But in politics, Bhakti or hero-worship is a sure road to degradation and to eventual dictatorship. The third thing we must do is not to be content with mere political democracy. We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it social democracy.”
As we celebrate the 71st birthday of the Constitution, it will be apposite to remind ourselves of the objectives of the Constitution. We must draw our attention towards the basic principles of law in our society and call to mind the purpose which the law has in view to serve in a country governed by rule of law envisaged by the Constitution. Fundamental rights and fundamental duties have to be given equal importance. Fundamental duties, though non-justiciable, are rules of law. In Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625, the Supreme Court observed that there may be rule which imposes obligation on an individual or authority and yet it may not be enforceable in a court of law and therefore not give rise to a corresponding right in another person. But it would still be a legal rule because it prescribes a norm of conduct to be followed by such individual or authority. The law may provide a mechanism for enforcement of this obligation, but the existence of the obligation does not depend upon the creation of such mechanism. The obligation exists prior to and independent of the mechanism of enforcement. A rule imposing an obligation or duty would not therefore cease to be a rule of law because there is no regular judicial or quasi-judicial machinery to enforce its command. Such a rule would exist despite of any problem relating to its enforcement. Otherwise the conventions of Constitution and even rules of international law would no longer be liable to be regarded as rules of law. It is our duty to abide by the Constitution and carry out our fundamental duties effectively for instilling a sense of obligation and discipline amongst ourselves. We have to fulfil the objectives of law to dispense social justice to the people of our country. The Judiciary has played a magnificent role in upholding the Constitution and must always travel on the same path of delivering justice constructively. Article 51-A (j) obliges us to strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavour and achievement. Therefore, on the Constitution Day, let us pledge to uphold the Constitution and also remember the words of Earl Warren, Former Chief Justice of the United States, when he said:- “Where there is injustice, we should correct it; where there is poverty, we should eliminate it; where there is corruption, we should stamp it out; where there is violence, we should punish it; where there is neglect, we should provide care; where there is war, we should restore peace; and wherever corrections are achieved, we should add them permanently to our storehouse of treasures.”
In Re Noise Pollution and Judicial Restraint
‘The festival of Diwali is mainly associated with puja performed on the auspicious day and not
with firecrackers. In no religious textbook, it is written that Diwali has to be celebrated by bursting
crackers. Diwali is considered a festival of lights not of noises. Shelter in the name of religion cannot
be sought for, for bursting firecrackers and that too at odd hours.’
And so without any reference to any text or calling for any evidence, in just a handful of lines, a Bench of the Supreme Court comprising the then Chief Justice of India R.C. Lahoti and Justice Ashok Bhan concluded in 2005 in the landmark judgement of In Re Noise Pollution that there was no nexus between the bursting of firecrackers and Diwali/Deepawali. The judgement is mostly known for prescribing noise-level related ceiling for firecrackers, apart from proscribing the bursting of firecrackers between 10 p.m. and 6 a.m. What isn’t known as much is the fact that the very same judgement also issued directions with respect to the use of loudspeakers. It is an indication of the times we live in that noise created by firecrackers is a constant source of discussion, while loudspeakers are discussed in palpably hushed tones; I guess noise too has an identity in this country which decides the treatment it gets even in private conversations. One could paraphrase a popular adage about the law and say “show me the source of the noise and I’ll show you the rule”.
Coming back to firecrackers, while I do understand and agree with the need for their regulation from the standpoint of safety and pollution, I certainly believe that at the very least the sense of restraint and the respect for facts and evidence that Courts are expected to observe in secular (meaning non-religious) matters, they must equally extend to religious matters given that their words carry weight. This applies all the more since Indian Courts are ostensibly secular bodies and are, therefore, as institutions not trained in matters of theology or religion. As individuals, certain members of the system may be trained or may have an interest in or aptitude for such subjects, but from an institutional perspective, Courts are secular/non-religious organs. Such being the case, to hold forth with certitude on matters of ritual or celebration or religion or to draw from limited personal experience or knowledge goes against the nature of the forum and the measured role one is expected to perform when donning the institutional hat.
In fact, from a reading of the judgement, it appears that the nexus between bursting of firecrackers and Diwali was peremptorily denied merely because the submission was made on behalf firecracker manufacturers, which was no reason to deny the nexus. After all, it ought to have been tested on merits as the outcome has resulted in the denial of the religious beliefs of millions of members of Indic communities by the unreasoned and unsustainable conclusion of the highest Court of the land on a subject which isn’t its strong suit, and which the system isn’t institutionally designed to handle with expertise.
In my view, this judgement and its treatment of religious beliefs and traditions is perhaps not a one-off because there appears to be a marked tendency to approach religious beliefs, not all but select, with a certain sense of urban and elitist reductionism, which does injustice to the rights of those who put stock in such beliefs. I am not on “hurt sentiments” lest I be mistaken for being too sensitive, I am specifically on the perceptible impact of an elitist approach on the rights available under Article 25(1). Given that observations, let alone findings, of Constitutional Courts are widely reported by the media, and the symbiotic and cordial relationship that such observations and the media have enjoyed for some time now, it would seem prudent for Constitutional Courts to observe a measure of restraint when they comment on matters of religious importance. While Courts certainly don’t need to and must not pander to populism of any kind, discretion is always the better part of advocacy, even of the judicial kind. And discretion begets respect, which is what, one suspects, the “majesty of the law” ultimately and truly rests on. Who knows, it may even obviate the need for the use of contempt powers at least in some respects.
From a reading of the judgement, it appears that the nexus between bursting of firecrackers and Diwali was peremptorily denied merely because the submission was made on behalf of firecracker manufacturers, which was no reason to deny the nexus.
J. Sai Deepak is an Advocate practising as an arguing counsel before the Supreme Court of India and the High Court of Delhi.
Reconstitution of NCLT benches
The benches of the National Company Law Tribunal (NCLT) have been reconstituted with
effect from 1 December 2020. The benches shall hear matters of respective jurisdiction as
were hearing before location (before 23 March 2020). All matters including pending before
lockdown and filed during the lockdown shall be heard regularly on all working days. The
benches shall sit as per Rule 9 of NCLT rules, 2016. The order has been issued by Shiv Ram
Bairwa, Registrar, NCLT with the approval of BSV Prakash Kumar, Acting President of NCLT.
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