Emerging from a painful partition and struggle for independence, the first-ever education policy of the nascent Indian democracy was implemented in the year 1968, under the reign of the then Prime Minister Mrs. Indira Gandhi laying focus on Right to Education. Ever since then, India has seen a new education policy only once every few decades. Debated sparingly, it was then replaced by the policy of 1986, administered by Mr. Rajiv Gandhi. Embodying a few modifications, the policy of 1992 has since then, guided the education system of the country. It is now approximately 3 decades later, that a refurbished National Education Policy (NEP-2020) with sweeping amends has been unveiled by the government spearheaded by Mr. Narendra Modi. Not since 1992, has there been more educational reform. As a result, the NEP 2020, has been doing rounds of debate and suggests to touch down on several prime issues of educational development. The prominence of this new policy is that it redefines the education system on several trajectories enabling easy access and participation of students, multidisciplinary courses, system efficiency & governance, and facilities of research and development.
A Blow to Rote
The NEP-2020 welcomes some revisions as it establishes a single regulatory body for higher education institutions, discontinues MPhil programs, and provides for multiple entries and exit points in degree courses. It likewise suggests low stakes board exams and a common entrance exam for universities across the nation. This was necessitated due to the dearth of quality institutions and unreasonable entrance requirements such as high cut-off marks.
Another applauding step that the policy tenders is to universalize school education at all levels by expanding access to more early childhood education. It further envisions to ace a 100 percent Gross Enrolment Ratio (GER) from Pre-Primary to Secondary level (age group of 3 to 18 years) in school education by 2030 thereby proffering a strong foundational literacy and numeracy for all.
In a significant shift from the 1986 policy, the existing school curriculum structure of 10+2 will be revamped with a 5+3+3+4 structure thereby encapsulating children of all ages (3- 18 years) under the covers of formal schooling.
Beyond this, the policy aims to expand open schooling facilities through the establishment of an autonomous body to march open and distance learning (ODL) as well as massive open online courses (MOOCs). This step caters to the dropouts and working children who are unable to find the space to attend formal schooling. It also suggests the medium of education to optionally be in the regional language mother tongue or local language until at least grade 5 as it manifests better creativity and understanding abilities.
Assessment modules will see a comprehensive shift from a program outcome-based evaluation to a year-round assessment structure with regular and formative assessments that will promote learning and development and at the same time will test higherorder skills, analytical and critical thinking.
Additionally, the students will now be able to flexibly pick and choose their interests within-subjects ranging from arts and sciences to vocational and academic streams as well as extracurricular and curricular activities.
Another idea that the policy professes is the concept of bagless days or internship for students, so as to open them up to the realworld understanding of the subjects of their interest from local experts and inculcate skills at an early age.
Donning another feather in the policy is the inclusion of coding as a subject with the intent to merge with the rapidly increasing technological era. This will expand innovation and seamless creativity while promoting analytical and logical thinking. The policy likewise speaks of a comprehensive set of recommendations for the promotion of online and digital education consequent to the recent epidemic to better prepare the system with alternative modes of quality education in case such need arises.
The idea is to make education and learning easier accessible and engaging. The realization of this idea will involve board exams to be testing primarily core capacities and competencies rather than rote learning. There will also be a provision for an improvement exam after the main exam if the student so wishes. Standardized school exams will be introduced for students in grades 3,5& 8 for the purpose of tracking the progress throughout the years of study in the school rather than at the end. The National higher education regulatory council NHERC will be set up to function as the primary and sole regulator in the higher education sector including teacher education but excluding medical and legal education.
Orchestrating Legal Education
Under the helm of the new policy, private and selfgoverned institutes are witnessing a radical shift from being perceived as affiliated to a more self-reliant structure. This ‘autonomy’ will now bring organizations and institutions vested with financial and educational independence, to the brink of corporatism, wherein they are enabled to create additional courses and departments. Disjunctively, without funding from government bodies, institutions will naturally turn to the students. Under the guise of this autonomy and structure, a steep increase in the tuition fee will be witnessed, not just for students in that particular department, but all the students attending that institution. This coupled with the window of multiple exit options at universities will increase the dropout rates which will only exacerbate the already fragmented landscape of the Indian higher education system. Under the multiple exit and entry option, if a student decides to leave mid-course, he/she will bestow appropriate certification for credits earned until that point which will be then be digitally stored in an Academic Bank of Credit [‘ABC’]. A ‘certificate’, a ‘Bachelor’s degree’, a ‘diploma’, and a ‘Bachelor’s Degree with Research’ respectively will be accorded for each year of a four-year course. The financial autonomy resulting in financial burden on students and the availability of certification each year will propel students to consider dropping out. This creates an immense disparity between financially strong and other students where the former has the higher prospects for studies and is reinforced with better opportunities, thus creating an unlikely situation where higher studies become a privilege rather than a basic requirement only for those who can afford it.
Moreover, a centralized education system leading to social exclusion and dilution of the Right to Education Act is only the tip of the iceberg; the government stated that it is proposing to improve the quality and autonomy of higher education, however, is a completely backward move, it is dismantling the University Grants Commission [‘UGC’] which is a core structural and regulatory body for higher education. This will only accelerate the commodification and centralization of education, which is perilous considering the probability of the ruling party thrusting its ideological and capital requirements. This is in fact, not the first time such a move was attempted. The Atal Bihari Vajpayee Government tried to usher similar reforms but was met with strong opposition. The contemporary education reforms have come into being only because they were passed through the backdoor without the consent of the parliament and a proper code of conduct.
While NEP 2020 envisions a transformative sea of changes across India, the arcane passing of the bill and the possibility of augmented malfunctioning in the Indian landscape needs to be ventured into. On a superficial level, this policy will seemingly elevate the economic rift in a country that is already dissected by wealth, caste, religion, and gender.
The policy apparently envisages centralizing young Indian mindsets; however, a pertinent question that arises is whether that can paint the education system of the country with the hues of saffron? In this scenario, interdisciplinary, overall learning, multidisciplinary, holistic, could be a decoy to camouflage all the above-mentioned aspects. It will take ample time before this policy goes into full swing, letting the complexities rise to the surface. The procedure of its implementation will be put to test to decide its outcome. The drawbacks in this policy need to be addressed with a stringent and disciplined code of conduct to reduce the current deficiencies and prevent future adversities.
One of the critical fixes is to make the professionals equipped for changing situations. Professional education is the part and parcel of the overall higher education system; for professionals to take on the mantle, a skillset comprising education in the ethic, the importance of public purpose, interdisciplinary thinking, critical analysis, debate, innovation, and research must be inculcated and put to play. This can be surmountable if professional education does not suppress the individual’s forte. Selfgoverning bodies like the agricultural universities, health science universities, technical universities, legal universities, and autonomous institutions in other fields, must aim to become bodies propounding multidisciplinary education. All institutions offering either general or professional education will aim to naturally evolve into clusters in a centralized manner by the end of 2030. Legal education needs to be competitive globally, embracing novel practices, and espousing new technologies for extensive access and timely delivery of justice. Proactively, it must be enshrined with Constitutional attributes of Justice –Political, Social, and Economic, aimed towards national reconstruction through orchestration of rule of law, human rights, and democracy.
Another dire issue to be addressed is of the English language which is not only paramount for global competitiveness but is also necessary for communicating and connecting with people from other states in India. In the new scheme, English will only be offered from the secondary level. Discontinuing English as the primary medium of teaching and learning can hamper competition on a global level mostly where English is the parent/ first language. Career building, outsourcing technical support, and skills are hegemonized by the western countries where English has the utmost importance. Consequentially, students from impecunious families in India will not have strong communication attributes along with a low grasping power compared to the rest. This usually happens due to the lack of affordability of tuitions and students not being able to hone the English language ultimately growing averse to it. A disadvantage persists to the lower caste who see this language as a medium to escape caste hierarchy.
Additionally, it is also alleged that this policy promotes centralization because this policy has a point that states that a new teacher’s training board will be set up for all kinds of teachers in the country and no state can change. Further, the curriculum for legal studies must mirror the socio-cultural contexts with an evidence-based manner, history, legal principles and jurisprudence. Institutions offering legal education must consider offering bilingual education in English and in the language of the State where the institution is situated.
The Interplay of NLUs and NEP
The advent of the National Law Universities [‘NLUs’] for legal education in India has often been censured for fostering entitlement and remaining inaccessible and isolated to most of the law aspirants. A cursory glance examination of the system is enough to exemplify that the criticism is not bereft of merit. Voices have been pedestaled on multiple occasions to increase the diversity in and of NLUs. Most of these concerns were at the earliest expressed by late Prof. Shamnad Basheer, who through the establishment of Increasing Diversity by Increasing Access to Legal Education [‘IDIA’] attempted to equip and intercept some of these issues. However, these points of concern have suffered the consequences and costs of insufficient and slow institutional reforms. Moreover, a deeper analysis of recommendation, however, reveals flaws in design and possible implementation.
Into the bargain, one of the primary recommendations of the policy is regarding a multi-disciplinary institute which acts like a double-edged sword which can either provide law students with the opportunity to interact with students and scholars from different fields and thus develop a more varied understanding of the law or lack the practicality of this facet to be warranted with the shortage of physical space, and deficiency of financial support. Most NLUs are, however, already facing space crunch and are unable to shelter the existing batch of students within the campus vicinity. They are working in a self-reliant model with limited funding from the state governments. In such cases, forcing them to open up new departments could further drive up their costs and hence decrease accessibility. Cluster model could function better for these institutes. The policy, however, does not elaborate on how these clusters shall operate.
The recommendation to promote bilingual teaching in state law universities is commendable, though it has certain pitfalls. The policy is intended towards implications to the state institutes offering legal education, which makes it applicable to the NLUs. As envisaged, the appointment bilingual teachers based on the regional language of the place could help to translate legal materials for students familiar with the respective language and also for the courts which function mostly in English. However, it disentangles the problem of a language barrier for NLU students only to a restricted extent. Though it certainly helps a student, who is studying at an NLU situated in her region, it turns a blind eye to account for people who could be taking admission in different states. De-emphasizing English as against regional languages is not the solution for legal education. To address this issue, it is necessary not merely to introduce bilingual education throughout, but to also start extra remedial courses/classes for English as it is the primary language used in the legal field.
The most pressing issue exists with the third recommendation in the NEP. The statement prima facie materializes to be a reaffirmation of the Constitutional ethos in legal education. However, phrases like national reconstruction and socio-cultural contexts that stipulate further travesties. While the term socio-cultural context finds its explanation in the policy, it does not throw any light on the exact meaning of national reconstruction.
The revised NEP as it elaborates, states, “It is the function of legal education to transmit the foundational values of Indian democracy to learners to give legal studies the necessary social relevance and acceptability.”
Novelty cannot be refurbished by looking at history and culture for understanding the legal aspect. Historical context has been jurisprudentially recognized as an important aspect of legal theory by scholars. The draft policy passed over all other aspects of law and tends to over-emphasize on culture, mythology, and tradition. The usage of the term “has to fall back upon culture and traditions” cannot be disregarded as a mere statement. The government on multiple stages has expressed its desire for reviving the Vedic traditions and Hindu sentiments. Taking this in the background, the verbatim of culture, mythology, and tradition while discussing legal education portrays an alarming situation. The draft further asserted that law cannot be independent of culture and states the study of classical law texts. Some of these texts, being the prominent have fallen into ignominy for cultivating an outdated and discriminatory frame of mind. Revisiting these texts in the educational framework shall do more harm than good to legal education. With assertion, it is true to say that the law is a memory, and hence has to derive from its past; but at the same time, some memories can only function as a reminder for the need to progress and cannot text to rely upon for the study of law.
It is noteworthy that the policy when dealing with legal education makes no recommendation towards making law schools more comprehensive. It remains tranquil on both the questions of caste and gender in graduate as well as in postgraduate studies. Its recommendations can potentially enhance concerns.
A nagging question that remains is whether there is more to this policy which was unceremoniously adopted by the Union cabinet without any juridical application of mind? Though the vital reforms required in the education sector, such as widening the availability of scholarships, strengthening infrastructure for open and distance learning, online education and increasing usage of technology are reflected in the new policy, it is also categorized as a political document which can be comprehended from the remarks of political and ideological organizations.
As education is catalogued under the concurrent list, laws made subsequent to this list are first put up as drafts for a minimum threshold period. This threshold period is to stimulate suggestions and discourse from the states or distinguished personalities from the respective field of the draft bill. However, the NEP 2020 was bypassed in the parliament, thereby violating the above-mentioned code of conduct and procedure. A new inherent policy introducing such substantial changes in the country must endure discourse in the parliament. Can this be visualized in the light of an existing ruptured system of higher education being replaced with the decoy of a commercialized and centralized education system?
Altogether the NEP policy on legal education, like most of its other policies is quite like a pie in the sky – agreeable to comprehend but implausible to be realized. It does change things academically and theoretically, but to implement them in real life is going to be a very onerous task. This policy needs to be followed in its spirit to realise its intricate benefits.
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India emerges as the world’s largest producer and consumer of sugar and world’s 2nd largest exporter of sugar
In Sugar Season (Oct-Sep) 2021-22, a record of more than 5000 Lakh Metric Tons (LMT) sugarcane was produced in the country out of which about 3574 LMT of sugarcane was crushed by sugar mills to produce about 394 LMT of sugar (Sucrose). Out of this, 35 LMT sugar was diverted to ethanol production and 359 LMT sugar was produced by sugar mills. With this, India has emerged as the world’s largest producer and consumer of sugar as well as the world’s 2nd largest exporter of sugar.
The season has proven to be a watershed season for Indian Sugar Sector. All records of sugarcane production, sugar production, sugar exports, cane procured, cane dues paid and ethanol production were made during the season.
Another shining highlight of the season is the highest exports of about 109.8 LMT that too with no financial assistance which was being extended upto 2020-21. Supportive international prices and Indian Government Policy led to this feat of Indian Sugar Industry. These exports earned foreign currency of about Rs. 40,000 crores for the country.
The success story of sugar industry is the outcome of synchronous and collaborative efforts of Central and State Governments, farmers, sugar mills, ethanol distilleries with very supportive overall ecosystem for business in the country. Timely Government interventions since last 5 years have been crucial in building the sugar sector step by step from taking them out of financial distress in 2018-19 to the stage of self-sufficiency in 2021-22.
During SS 2021-22, sugar mills procured sugarcane worth more than 1.18 lakh crore and released payment of more than 1.12 lakh crore with no financial assistance (subsidy) from Government of India. Thus, cane dues at the end of sugar season are less than ₹ 6,000 crore indicating that 95% of cane dues have already been cleared. It is also noteworthy that for SS 2020-21, more than 99.9% cane dues are cleared.
Government has been encouraging sugar mills to divert sugar to ethanol and also to export surplus sugar so that sugar mills may make payment of cane dues to farmers in time and also mills may have better financial conditions to continue their operations.
Growth of ethanol as biofuel sector in last 5 years has amply supported the sugar sector as use of sugar to ethanol has led to better financial positions of sugar mills due to faster payments, reduced working capital requirements and less blockage of funds due to less surplus sugar with mills. During 2021-22, revenue of about ₹ 18,000 crore has been made by sugar mills/distilleries from sale of ethanol which has also played its role in early clearance of cane dues of farmers. Ethanol production capacity of molasses/sugar-based distilleries has increased to 605 crore litres per annum and the progress is still continuing to meet targets of 20% blending by 2025 under Ethanol Blending with Petrol (EBP) Programme. In new season, the diversion of sugar to ethanol is expected to increase from 35 LMT to 50 LMT which would generate revenue for sugar mills amounting to about ₹ 25,000 crores.
There is an optimum closing balance of 60 LMT of sugar which is essential to meet domestic requirements for 2.5 months. The diversion of sugar to ethanol and exports led to unlocking of value chain of the whole industry as well as improved financial conditions of sugar mills leading to more optional mills in ensuing season.
DFS modifies Emergency Credit Line Guarantee Scheme for Civil Aviation sector
ECLGS necessary for collateral-free liquidity at reasonable interest rates to tide over their present cash flow problems
Recognising that an efficient and strong civil aviation sector is vital for the economic development of the country, the Department of Financial Services (DFS), Ministry of Finance, has modified the Emergency Credit Line Guarantee Scheme (ECLGS) yesterday to enhance the maximum loan amount eligibility for airlines under ECLGS 3.0 to 100% of their fund based or non-fund-based loan outstanding as on the reference dates or Rs. 1,500 crore, whichever is lower; and of the above, Rs. 500 crore shall be considered, based on equity contribution by the owners.
All other criteria terms and conditions parameters prescribed under the operational guidelines of the ECLGS on 30.8.2022 shall be applicable as it is.
The modifications introduced are aimed to give necessary collateral-free liquidity at reasonable interest rates to tide over their present cash flow problems.
Earlier in March 2022, the Emergency Credit Line Guarantee Scheme (ECLGS) was extended beyond March 2022, till March 2023, to implement the announcement made in the Union Budget 2022-23 by Union Minister for Finance & Corporate Affairs Smt. Nirmala Sitharaman. Keeping in view the high proportion of non-fund based credit in the overall credit of the civil aviation sector, the eligible borrowers were permitted to avail up to 50% of their highest total fund and non-fund based credit outstanding, subject to a maximum of Rs. 400 crore per borrower.
Analysis on “Climate resilient housing structures for marginalised communities living in coastal areas”
Climate change has emerged as one of the pressing issues of the 21st century. Climate change is like a pandemic, it does not spare even the most advanced countries. Weather and climatic extremes are becoming more common as a result of human-caused climate change across the world. Acute occurrences of storms, droughts, floods, cyclical fluctuations in precipitation and long-term variations in temperature and sea levels, are all made more likely by climate change. This will result in deaths, injuries, and poor health related diseases, as well as damage to infrastructure, livelihoods and natural resources. Marginalised communities who live in old and substandard houses and have limited resources are especially susceptible to floods and cyclones. Approximately 40% of the world’s population now lives within 100 km of a coastline and 100 m of sea level. it is anticipated that by 2030 half of the world’s population would reside in coastal areas. As per the World Bank study (2018), climate change will relocate 143 million people in sub-Saharan Africa, Latin America, and south Asia. Climate proofing the houses and infrastructure for all is a necessity.
Climate change and vulnerability of India’s Coastal infrastructure
India is one of the most vulnerable countries to the effects of climate change and simultaneously suffers from endemic levels of poverty. In recent years, India has experienced an increase in the severity and frequency of weather events and climate-related natural disasters.India is the third-worst-affected country due to the climatic disasters. In India 170 million people live in the coastal regions. According to the Internal Displacement Monitoring Centre, between 2008 and 2018, over 3.6 million Indians were moved every year, the majority as a result of monsoon rains, which are the heaviest in South Asia. As per the report Human Cost of Disasters (2000-2019) published by the United Nations Office for Disaster Risk Reduction, India has the third highest number of disaster events. It is also the second most impacted country by floods with 345 million people affected. Extreme cyclones namely the recent Yaas, Amphan, Fani, Gaja, and Hudhud, as well as catastrophic floods, have wreaked havoc on its coastal states of Odisha, Andhra Pradesh, Tamil Nadu, and Kerala. The mangrove ecosystem, which acts as a natural barrier against cyclones and coastal erosion in coastal areas, has been badly harmed and is expected to be further harmed as an outcome of climate change. According to estimates from the Central Water Commission, the total damage from climate-related extreme weather events on infrastructure and housing is more than INR 36 million, or 3% of India’s GDP.
The major cyclone Fani hit Odisha with a population of around 46 million people, in May 2019. State authorities used an effective early-warning system to evacuate 1.2 million people in 24 hours, making it one of the largest evacuations in history and earning praise from the United Nations. With the increasing effects of climate change, tens of thousands more people may be forced to migrate or be displaced from high-risk areas along the Indian coast. Many families may be forced to relocate within their own state or further afield to avoid the effects of sea level rise and coastal inundation if concrete climate and development action is not taken. It is imperative that climate resilient infrastructure and houses are built which are affordable, safe and adequate which could benefit the people living in poverty.
Safeguarding future prosperity
Acknowledging the effects of climate change on our lives and directing all our resources and efforts towards the attainment of climate resilience is important. Climate resilience refers to the ability to predict, prepare for, and assess how climate change can create hazardous events and take steps to cope with such events. Adaptation to climate change for people living in coastal areas is a necessity. Infrastructure that is both accessible and functional is critical to human well-being and economic progress. People living in coastal areas are vulnerable to triple threats which are limited resources for affordable housing infrastructure, socioeconomic vulnerability, and increased flooding due to sea level rise.
As climatic conditions worsens and extreme weather events like floods, storms and cyclones are becoming normal in the climate-constrained weather. To maintain the global average temperature below the Paris Agreement’s 1.5 degree safe limit, collaborative action and funding is required. Government and Non Governmental Organisation should come together to take preventive measures which would ultimately reduce disaster risks and post recovery losses. It is imperative to invest in making climate resilient housing for the people. There is a huge requirement of funds which can be solved if the government incentivises private investors to enter into the long term contracts with Development Financial Institutions to work on innovative and sustainable houses for the marginalised communities. If appropriately managed, relocating communities from hazard-prone places can be a valuable adaptation strategy for providing alternatives to physical protection. However, there is a need for more forward looking sustainable housing planning to protect the people living in coastal areas who are vulnerable. Sensitising and raising awareness amongst the people about the benefits of climate resilient houses is also a significant component for the planning. Furthermore, strong community demand and community support can lead to decision-makers and planners reaching a consensus. Currently, India’s construction industry is altering its building processes in order to minimise greenhouse gas emissions and make sustainable buildings more accessible to individuals with limited financial resources. Failure to do so sufficiently will put marginalised communities in more danger in the future.
Abhinav is an Practicing Advocate based out of Delhi & Parth is a law Scholar.
Dispute, Discrepancy, and Debate: Anti-Arbitration Injunctions in India
Overview of Anti Arbitration Injunctions
The conundrum of anti-arbitration injunctions is similar to the relationship between a devil and deep blue sea, thereby, addressing the two-sided sword of danger and distress irrespective of choosing directions. India’s approach on anti-arbitration injunctions can be summarized more or less on the same lines. In common parlance, an anti-arbitration injunction suit seeks to injunct the initiation of arbitration proceedings. Generally, the parties prefer to take this recourse before the initiating arbitration proceedings. However, the same is not confined to narrow boundaries and hence, recourse can be availed before the tribunal passes the final award.
There are two broad limbs while dealing with such injunctions. On one hand, it is argued that this remedy strikes the power of arbitral tribunal to regulate or decide its own jurisdiction which results in increasing judicial intervention. On the other hand, it is argued in cantena of judgments that the duty of the court to ‘refer’ parties to the arbitration plays a vital role. The Hon’ble Apex Court in Vidya Drolia & Ors. v. Durga Trading Corporation (“Vidya Drolia”) reiterated four-fold conditions for determining arbitrability of disputes by appropriate forum viz., (i) instances where cause of action and subject matter of the dispute relates to actions in rem, not pertaining to subordinate rights in personam which arise from rights in rem, (ii) mutual adjudication would not be appropriate when cause of action and subject matter of the dispute inherently affects third party rights and hence, centralized adjudication must be there, (iii) mutual adjudication not possible when cause of action and subject matter of the dispute relates to sovereign and public interest functions of the State, and (iv) when the subject-matter of the dispute is expressly, or by necessary implication non-arbitrable as per mandatory statute.
Further, in P. Anand Gajapathi Raju v. P.V.G. Raju (Died) another set of principles were crystalised, viz., firstly, there must be an arbitration agreement; secondly, a party to the agreement must bring an action in the court against the opposite party; thirdly, similar subject matter of the action and arbitration agreement; and fourthly, the other party must move to the court for arbitration before it submits its first statement on the substance of the dispute. Simultaneous reading of S. 8 & 45 of the Arbitration and Conciliation Act, 1996 (“Act”) makes it clear that the remedy of anti-arbitration injunction sustains limited judicial intervention. India is struggling to find a fine line of balance on the issue of autonomy to arbitral tribunals and ability of courts to interfere in matters pertaining to jurisdiction, injustices, or aggravation in any arbitration proceedings.
Narrow Bridge Prior to Bina Modi-Lalit Modi and Amazon-Future Retail
Section 16 of the Act encircles the principle of Kompetenz-Kompetenz which talks about the issue of jurisdiction by arbitral tribunal as sufficient and efficient. In the case of Uttarakhand Purv Sainik Kalyan Nigam Ltd. v. Northern Coal Field Ltd, the Hon’ble Supreme Court, while examining this backbone principle applied this principle and held that “the dispute related to the arbitrability should be decided by the tribunal itself and courts can interfere only when there is no agreement at all or whether the consent to enter into an agreement is vitiated by fraud or misrepresentation.” Hence, under the said Act, the challenge before a court is maintainable only after the final award is passed as provided by sub-section (6) of Section 16. In the case of N.N. Global Mercantile v. Indo Unique Flame Ltd, similar footings were observed while dealing with the said principle. Interestingly, in Kvaerner Cementation India Limited v. Bajranglal Agarwal, it was held that the civil court do not have the jurisdiction to interfere in arbitral matters, owing to the principle of Kompetenz-Kompetenz which focuses on the competence of a court.
Quite recently, the Calcutta High Court denied the contention of forum non conveniens while restraining the other party from taking steps for a London-seated arbitration while reiterating that the contract was signed cautiously. Similarly, in Sancorp Confectionary v. Gumlik, the Delhi High Court refused to interfere and stated that all objections shall be heard by the arbitral tribunal itself. The Hon’ble Supreme Court in World Sport Group v. MSM Satellite Singapore Ltd while analysing the issue whether the arbitration agreement was null and void applied the principles of Section 45 of the Act. However, it is interesting and vital to note the case of Board of Trustees of Port of Kolkata v. Louis Dreyfus Armatures SAS & Ors where the Calcutta High Court granted anti-arbitration injunction and warned that it must only be granted in exceptional and unprecedented circumstances.
Window of Interference Post Bina Modi-Lalit Modi and Amazon-Future Retail
Recently, the Hon’ble Supreme Court in Vidya Drolia laid down certain principles while analysing the issue of non-arbitrability, while placing substantial reliance on Duro Felguera and Boghara Polyfab. Firstly, the scope of judicial review under Section 8 and 11 of the Arbitration and Conciliation Act, 1996 (“Act”) is identical but vastly limited, secondly, arbitral tribunal is the preferred authority to determine and decide all questions of non-arbitrability and court is the second option on such aspects, and thirdly, the court may interfere rarely only when it is manifestly and ex facie precise that the arbitration agreement is non-existent, invalid, or / and the disputes are non-arbitrable. Further, while following the principle of Kompetenz-Kompetenz, the Apex Court strongly observed that it is the arbitral tribunal which must be preferred as first authority to determine and decide all questions of non-arbitrability.
Recent judgments have shaken the balance between the courts and tribunals while sliding towards granting autonomy to arbitral tribunals. The suits in Bina Modi vs Lalit Modi were dismissed while reiterating the observation in Kvaerner Cementation wherein the Hon’ble Supreme Court dismissed suits as unmaintainable since an alternative remedy was present under Section 16 of the Act. Reliance was also placed on Section 41(h) of the Specific Relief Act, 1963, which bars the grant of injunctions when there is a possibility of deriving equally effective relief by any other usual mode of proceedings. The court while disallowing observed that the adequate remedy would be to approach the arbitral tribunal instead.
While hearing the Amazon-Future Retail, Justice Amit Bansal, stated that “there is only a very small window for interference with orders passed by the arbitral tribunal while exercising jurisdiction under Article 227. The said window becomes even narrower where the orders passed by the arbitral tribunal are procedural in nature.” The bench while upholding non-interference stated that the willingness of the court must be of utmost importance and added that arbitrators have a far greater flexibility in adopting procedure to conduct the arbitration proceedings as compared to civil courts and concluded by stating that nothing was found to suggest that the arbitral tribunal has denied equal opportunity to the parties or that it has not been accommodating towards the requests of the petitioners. Recently, the Supreme Court has set aside the orders of the Delhi High Court which initiated coercive steps against the companies and its promoters Biyanis for alleged violation of the Emergency Award passed by the Singapore Tribunal on the application filed by e-commerce giant Amazon.
In Vidya Drolia, the Hon’ble Supreme Court’s attempt to pose responsibility on the lower Courts while ensuring caution in exercising authority over proceedings referred to it under the Act clearly shows that we’re moving towards a pro-arbitration regime which must be accepted by open arms in order to curb over-burdening of judiciary. Prima facie, there are two important questions; firstly, can we have a common rule that everything must be decided by the arbitral tribunal with no power in hands of the court?, and secondly, has India approached this issue as if it were caught between the devil and the deep sea in choosing to exclusively rest the jurisdiction with the arbitral tribunal? Practically speaking, in the Indian context, we cannot shut eyes on the fact that there may be instances wherein the courts need to interfere in rare and exceptional circumstances. At times, the arbitral proceedings can be oppressive, vexatious, and inequitable. The law on anti-arbitration injunction suits in India has certainly reached a stifling point and hence, aim to not evolve as oppressive, manifestly unfair, unreasonable, and prejudicial to the interest of the parties.
Bapu! Why don’t you come back again?
Not only India but the whole world celebrated Mahatma Gandhi’s birthday, which made me think…
Let me say sorry to you. Your birthday was celebrated yesterday, October 2. It has become a tradition to write something on your birthday, just as there is a tradition of garlanding your statues at various intersections. There is the tradition of singing panegyrics to your virtue and then the misfortune of forgetting everything the next day. Even though I did not write anything, Bapu, my mind kept me restless throughout the day. Several questions kept raising their heads. I kept wondering who imprisoned our dear Bapu only in statues. Bapu! You took on the world’s biggest empire with such an ease and patience that the world was stunned! Have we forgotten the great man who freed us from the slavery of centuries?
As the Sun was about to set after celebrating your birthday, I felt that the questions which were stirring my mind must be agitating more people like me. Was it any easy task to awaken an almost uneducated country that had been in a deep slumber of ignorance for centuries? Bapu, when you came to India in 1915, toured the whole country and became active in the freedom movement in 1917, the literacy rate of the country was not even 7 per cent. The British were sending your sons and daughters across the sea as indentured labourers. The morale of the country was shattered but you did an amazing thing Bapu! No one had even imagined that your efforts, which looked very simple, would infuse consciousness in the country. Be it the Nilaha Kisan movement of Champaran or the 24-day Dandi March in March-April 1930 for the right to salt, they shook the sleeping soul of India awake. You taught this country to talk to the British on equal terms. When the Viceroy gave you the message to come to Delhi to meet him, what a befitting reply you gave! That, this country is ours. If you want to meet me, come down to Sevagram and I will be there! This also reminds me of the incident when you met George V in London. You were asked why you were clad in so few clothes? And what a wonderful answer you gave him: The king is wearing all the clothes!
Bapu! You were a source of inspiration for not just India but more than 40 countries. Thanks to you Bapu, those countries are free today! It was you who created awakening against apartheid. During his visit to India, Barack Obama too had said in the Parliament that had Gandhiji not been there, he would not have become the President.
You experienced and understood the pain in the common man’s life, and that is why you could do what no one could imagine. There is no such feeling of sensitivity left in our leaders, Bapu! I wish our leaders could learn from you! Today, the whole country is engaged in the Beti Bachao Beti Padhao campaign, something which you taught us Bapu. You fought for women’s education and equal rights when neither family nor society even thought about it. Today, the Sarva Shiksha Abhiyan is in full swing, but the credit goes to you, Bapu! You must be seeing from wherever you are Bapu that the daughters of Mother India are scaling the pinnacle of success today. The national flag is flying high all over the world. There is a discussion to give one-third reservation to women today, whereas you had said long ago that if the country has to be taken on the path of progress, women will have to be given equal rights. If I think about your philosophy of life, I feel proud that on our soil there was a Mahatma called Mohandas Karamchand Gandhi who thought about the welfare of humanity. Seeing the women using blowpipes to blow air into the hearth and ending up with damaged lungs, Bapu called the scientist Magan Bhai to Sevagram and asked him to invent such a hearth that would rid women of this problem. In this way, the Magan chulha came into existence! The practice of open defecation is being phased out today, and the credit for this too goes to you, Bapu. You taught us the skill of digging a pit and burying the dirt so that it gets converted into manure. Your goal was that man should get freedom from manual scavenging.
You understood India in a true sense and also found solutions to the problems in accordance with its ambiance. You talked about naturopathy. You taught us the value of everything right from the value of livestock to the value of soil. Rajiv Gandhi talked about ensuring and taking the fruits of democratic power to the last person in the villages, and today our Prime Minister Narendra Modi is making rapid efforts in that direction, but you are the father of this concept of village development, Bapu! You understood the power of youth, recognised the power of women, and realised the need for solidarity in society.
You started the eradication of untouchability and opened the temple gates for Dalits. You propagated humanity as the biggest religion to unite the country divided by caste, religion, and creed. When you talked about Ram Rajya, there was no religious exclusivity anywhere in it. There was a sense of equality for all. You paved the way for truth and non-violence when history was being stained with blood due to long periods of violence. That’s why you taught us to sing: Raghupati Raghav Raja Ram, Patit Pawan Sita Ram; Ishwar Allah tero naam, sabko sanmati de bhagwan! You believed in forgiveness, non-violence, fasting, friendship, and brotherhood. Lord Mahavir and Lord Buddha resided in your conscience.
You also wanted the villages to benefit from science, so you became friends with the great scientist Albert Einstein. He rightly said about you: “Generations to come will scarce believe that such a one as this ever in flesh and blood walked upon this Earth.” The situation is the same today. It is our fault Bapu that today’s generation does not know anything about you properly! Bapu, why don’t you come to this land of Bharat once again? Many of your dreams are still unfulfilled, Bapu!
The author is the chairman, Editorial Board of Lokmat Media and former member of Rajya Sabha.
Bombay High Court grants bail to Anil Deskmukh, remains in jail
In a money laundering case brought by the Enforcement Directorate, the Bombay high court on Tuesday granted bail to former Maharashtra minister and Nationalist Congress Party (NCP) leader Anil Deshmukh.
The bail was granted on a surety amount of Rs 1 lakh. The ED has asked for a two-week delay in the order’s implementation.
Deshmukh was arrested in November of last year and moved the high court after his bail request was rejected earlier this year by a special PMLA court.
Deshmukh has been given bail in the ED case, but he will continue to be held in relation to the CBI case that was brought against him in April of last year.
The Supreme Court had earlier ordered the High Court to quickly hear and resolve the NCP leader’s case because it had been pending for six months.
Deshmukh’s lawyers, Vikram Chaudhari and Aniket Nikam, argued that the senior NCP politician ought to be given bail in light of his age (72), good health, and lack of prior convictions.
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