COVID-19 pandemic has brought the Indian legal industry to a standstill. Even after the substantial reopening of the economy, Indian Courts and tribunals have continued to exhibit a cautious attitude by completely restricting physical functioning and functioning restrictively through virtual courts. Regrettably, with the COVID-19 cases on the rise, it is unlikely that this status quo would change any time soon. Such a scenario has only added to the woes of an average litigant who was already aggrieved due to the huge pendency and backlog of cases. Given such a backdrop, litigants have now started exploring the option of the settlement of disputes.
The settlement of disputes can be done in a number of ways including mediation, negotiation, conciliation, etc. Traditionally, settlement and mediation have been advocated to be ‘alternatives’ of court-based dispute resolution in lieu of their time savings and cost-efficiency. However, such alternatives have not been preferred as there is no certainty that a settlement exercise would necessarily result in the final resolution of a dispute. In other words, a settlement talk may or may not resolve the dispute.
This mindset underwent a radical shift during the nationwide lockdown when an aggrieved litigant had no option but to resort to the ‘so-called alternatives’ like settlement etc. This is because practically, settlement talks are not riddled with procedural requirements and could even take place over a phone call, thus making it the ‘preferred alternative’ in light of the social distancing norm of COVID-19. Moreover, the increased usage of the internet in the resolution of disputes has opened up new avenues like online mediation, settlement, etc. which is being rapidly adopted by the masses.
The Underrated Benefits of Settlement
The USP of the settlement of disputes lies in its time efficiency and cost savings. For instance, a typical arbitration dispute can take years after the amount is finally released to the claiming party. On the contrary, settlement of the dispute prior to initiation of arbitration can save this time as well as legal costs. Moreover, the paying party also saves substantial money on account of non-payment of interest due to early settlement of the dispute. Furthermore, in cases of sensitive disputes, the parties also have an option to keep the terms of their settlement confidential, and such settlement also helps to preserve the relationships of parties.
Apart from this, sometimes settlement becomes the only viable option especially in cases of impending criminal prosecution. To elaborate, one may choose to settle a dispute to avoid prison time, being banned from trading by authorities like SEBI etc. In such cases, the desire to avoid prison time and other penalties assume greater significance than to paying compensation in monetary terms. This can be seen in the case of Vijay Mallaya, who had recently proposed a settlement offer of Rs. 14,000 crores in exchange for dropping all criminal charges against him.
An underrated characteristic of settlement is that it has virtually no bearing on the final decision of the case. This implies that even if the settlement talks fail, the parties can always resort to formal adjudication of the dispute. Moreover, anything disclosed during settlement talks is not admissible in a court of law. Thus, a prudent litigant should always try to settle his dispute before resorting to litigation or arbitration.
Existing Legal Framework for Settlement of Disputes in India
One question that has held back litigants from opting for settlement is the lack of clarity in the enforcement of settlement agreements. Theoretically, every dispute is capable of being settled, however, depending upon the nature of the dispute, there is a separate procedure of settlement and subsequent enforcement.
In case a dispute has not been referred for adjudication by any forum, there is no formal requirement to initiate settlement talks. The parties can themselves take the initiative of entering into settlement talks and the result of a successful settlement can be penned down in the form of a legally enforceable settlement agreement. However, in case of a dispute pending before a court, either the parties on their own or the court on its own motion may refer the parties for settlement under Sec. 89 of CPC, 1908. In both these cases, the outcome of the settlement talks has to be communicated to the Court. If the parties are able to arrive at a settlement agreement then the same would require the approval of the Court and it can only then be said that the case is settled.
The provisions of the Arbitration and Conciliation Act, 1996 provide a slightly different but more effective mode of settlement of the dispute. This Act provides for two modes of settlement namely, settlement by a conciliator and the second being a settlement award. In the former, parties attempt to settle a dispute with the assistance of a third party, namely, the conciliator. In case a settlement is reached which is agreeable to both the parties, the same is recorded in form of settlement agreement by the conciliator under Sec. 73 of this Act which is final and binding on both the parties. Similarly, in case of an ongoing arbitration, the parties may agree to settle a dispute and the terms of the settlement are then intimated to the arbitrator who may record the same as a settlement award in terms of Sec. 30(2) of this Act. The primary advantage of settling a dispute within the parameters of this Act is that such a settlement agreement or settlement award (as the case may be) is treated like an ‘award’. This implies that such a settlement is treated equivalent to a decree of a court under Sec. 36 of the Act which can be directly enforced. Thus, the Arbitration Act offers faster legal recognition and enforcement to settlements arrived under the Act.
The recently enacted and enforced Consumer Protection Act, 2019 has also provided for settlement of consumer disputes through mediation. Even though the out-of-court settlement of consumer disputes is not a rare sight, the new law has empowered the consumer commissions to promote settlement of ongoing disputes. In fact, the preamble of the new Act recognizes settlement of disputes as one of the objectives for enacting a new law. In pursuance of the same, Sec. 37 of the new law empowers the adjudicating forum to refer the parties to settle a dispute through mediation. For these purposes, Chapter V of the Act establishes new mediation cells for settlement of disputes. The procedure of enforcement of settlement under the new consumer law is similar to a civil court, where approval of the Commission would be necessary to enforce a settled consumer claim.
Similarly, the criminal law also has mechanisms for settlement of disputes by way of compounding of offences etc. in exchange for no or lesser punishment.
Settlement Success Stories
Historically, matrimonial disputes and international disputes have shown great promise by being settled through various techniques like mediation, negotiation, etc. However, with increased usage, it has been seen that other forms of disputes including construction contract disputes, property disputes, labour disputes etc. are capable of being settled.
One recent success story in this regard is that of NHAI settling its arbitration claims. Recently, NHAI has settled an arbitration claim of around Rs. 13,349 crores for a little over Rs. 3,700 crores. Such a settlement offers twin benefits to the economy apart from the benefit incurred by the parties. On one hand, it reduces the liability of NHAI which ultimately reduces the burden on the public exchequer and the saved amount can be used to boost the economy. On the other hand, the Contractor receives substantial capital which would otherwise have remained tied up in years of litigation. This capital can be used to take up new projects, pay off existing liabilities, and expand business which would again inject capital into the economy and generate employment.
The success of the ‘Vivad se Vishwas’ scheme is another great example as to how even tax disputes can be resolved through settlement. In essence, this scheme was launched to settle tax disputes which are currently tied up at various stages of litigation or arbitration for years. Taking advantage of this novel scheme, large conglomerates like Max Financial Services Ltd, NTPC, Oil India, etc. have settled tax disputes worth crores of rupees apart from smaller businesses and individuals settling their disputes.
Another success story worth mentioning here is the settlement of salary disputes. During the period of lockdown, there was much hue and cry regarding payment of salary during the period of lockdown. While many employers grappled with this issue, smart and far-sighted MNCs and employers like Maruti were able to settle their salary disputes through strategic negotiation and mutual consultations.
Last but not least, there have been various instances where landlords and tenants, lessor and lessee have been able to renegotiate their rent agreements in light of COVID-19 without resorting to the now mainstream force majeure litigation.
Towards a Brighter Future
It can be seen that transformation of settlement as an ‘alternative’ mode of dispute resolution to ‘preferred alternative’ during the time of COVID-19 is in itself a testament to the success and utility of settlement of disputes.
The settlement of disputes which gained popularity as a product of necessity is now being recognized for its unique advantages which were historically unknown to an average Indian litigant. The credit of this development also goes to the judiciary and legal fraternity who are now regularly advising litigants to settle their disputes in light of the present state of affairs.
Moreover, it is noteworthy to mention here that with the signing of the Singapore Convention of Mediation, the Supreme Court had constituted a committee to draft a separation legislation on mediation. Given the current landscape, where mediation and settlement are now needed more than ever, it is possible that such legislation may be fast-tracked which would further promote the use of mediation in India.
Thus, on a concluding note, it can be said that an average Indian litigant who has been stereotyped as a spiteful litigant and unwary of benefits of settlement has now changed the status quo. If the current trend of increase in settlement of disputes continues, the day is not far when a litigant would not say that ‘I will see you in court’ but say ‘I will see you outside the court’.
Adv. Meenal Garg, Associate, AKB Lex practices in the Punjab & Haryana High Court.
The case of SC gag order against Sudarshan News
One of the arguments advanced by the intervenors is that ‘hate speech’ is punishable under Sections 153A
and 153B of the Indian Penal Code, Section 3(i)(x) of the SC/ST Act and Section 5 of the Cinematograph Act.
Without getting into the details of the said provisions and examining whether the content falls under their purview or not, what is to be seen here is that these provisions are punitive in nature, not preventive.
There has always been a huge debate on this among various writers. Locke provides an interpretation to this as well. He sternly believes that ideas do require labour. Well we can’t expect that an idea to invent a bulb was without an extreme labour being done by Thomas Edison.
The evolving nature and spectrums of the mode of data distribution by the fourth pillar of Indian Democracy has given rise to dynamic challenges for the existing legal framework to control and regulate. Media being the fourth pillar is indeed playing a pivotal role in the society by trying to educate masses. The freedom of press ensures that citizens are vigilant, well informed, and therefore, can discharge their role in a democracy by fixing accountability.
Freedom of Press and Right to Know
The public’s “right to know” has become an increasingly popular political ideal in India. The essence of this right, for both the public and the press, has gained significance and acquired a new meaning in the contemporary era. Although the Constitution does not expressly guarantee the public the “right to know”, an increasing number of constitutional scholars argue that it is an implicit right guaranteed under Article 19 of the Constitution and by the general principles of constitutional democracy. Freedom of press constitutes not only the individual right of the owner of the news publications, the editor, or the journalist; it also includes the right of the citizens to be informed. It can be forcefully argued that the tenets of Article 19 offers within its ambit, the ‘right to know’ without any constitutional, statutory or executive frame- work to restrict or regulate the same before the cause of action arises. Comparatively speaking, the judicial discourse had long evolved since the days of classical Greek and Rome or the 16th century France which staunchly believed in prior restraints along with post- facto substantive measures.
Thus, freedom of press flows from the citizens’ right to know, which is conceived to be paramount. The Hon’ble Supreme Court of India, through several of its decisions on fundamental rights, has developed this jurisprudence. The courts have always been of the opinion and champion of the concept that censorship, since it necessarily restricts freedom, has always been and will continue to be unpopular with those who, from principle, perversity or for profit, insist on unbridled freedom.
Here, as the journalist is claiming that his show is based on his investigation and analysis of data avail- able in the public domain on the selection of students in UPSC Civil Services Examination, it is not only the journalistic freedom which is restricted by the gag order, but it’s also affecting the people’s right to know about the pattern of selection of students in UPSC-CSE.
Writ Jurisdiction when Alternative Remedy is Available
The petitioners approached the Court by way of Article 32 of the Constitution of India, which allows the citizens to approach the Apex Court for enforcement of Fundamental Rights directly. It is settled law that this jurisdiction can only be invoked in the absence of a redressal mechanism or alternative remedy, unless there are compelling circumstances warranting interference of the constitutional court for vindication of fundamental rights. The doctrine of exhaustion of remedies also cements this. The powers conferred and vested with the Apex Court under Article 32 is too infallible to adjudicate upon such issues as well (emphasis on the word ‘adjudicate’).
Rule 6 of the Cable and Television Networks (Regulation) Rules has adequate provisions which disallow the running of any programme, which is an attack on any religion, defamatory or communal. As noted by the Hon’ble Supreme Court in its order, if a show is found to be violative of the said rule, sanctions under Sections 19 and 20 of the Cable and Television Networks (Regulation) Act, 1955 are imposed. A bare reading of Sections 19 and 20 makes it amply clear that such sanctions/prohibitions will come from “any authorized officer” or the “Central Government” respectively. The Court, after mentioning the previous sections, took it upon themselves to exercise a power which must be kept outside of their reach.
One of the arguments advanced by the intervenors is that “hate speech” is punishable under Sections 153A and 153B of the Indian Penal Code, Section 3(i)(x) of the SC/ST Act and Section 5 of the Cinematograph Act.
Without getting into the details of the said provisions and examining whether the content falls under their purview or not, what is to be seen here is that these provisions are punitive in nature, not preventive. Under no stretch of imagination can these be used by the Apex Court to issue a blanket order restricting the Freedom of Speech and Expression, which is guaranteed by Article 19(1)(a) of the Constitution. These provisions come into picture after the content is delivered/published, and if the person is found guilty, they shall be punished as per law. For the sake of argument, even if the Court interprets the said provisions to be preventive as well, it is well settled that Fundamental Rights will overpower statutory provisions if they are at loggerheads.
That right is not absolute; it comes with restrictions laid in Article 19(2). It is well settled that before restricting anyone’s freedom under Article 19(1)(a), the “speech/ expression” has to be examined; and if it passes the tests laid in Article 19(2) – post-examination – it may be restricted. One of the issues with this blanket gag order is that it was passed based on a “prima facie” view, formed after looking at some snippets of the show provided by the petitioners, even when the Counsel for Sudarshan TV requested the Court to watch and con- sider the series in toto. Quite interestingly, the Court did not enter the domain of Article 19(1)(a) vs. Article 19(2), but even if they had, it is not within the reach of the Court to pass gag orders invoking the restrictions laid in Article 19(2).
Notably, the constitutional text of Article 19(2) states that the State might make laws to restrict the right guaranteed under Article 19(1)(a). Firstly, it is the ‘State’ which can limit the right and secondly, it has to be done by bringing a ‘law’. In a long catena of judgments, the Hon’ble Apex Court has time and again held that judicial functions of the Judiciary are not under the ambit of “State” as per Article 12 of the Constitution. In the landmark judgment of K.A. Abbas vs The Union of India, the Hon’ble Apex Court held that pre-censorship is allowed as per Article 19(2), but the same has to be done by statutory bodies which are formed by the “State” as per law. It was also laid that statutory bodies will have to lay guidelines and clearly express what would not be permissible. The Court, while getting into the debate of free speech and hate speech, fails to observe that no such guidelines have been formulated as of now. The apex court could have directed the appropriate statutory body/executive body to con-sider the prior restraint position and take appropriate action instead of venturing into the content editorial domains. No matter how one justifies it, Sr. Counsel Shyam Divan’s submissions that a constitutional court should not enter into the fields of content regulation are legally sound.
In this case, the Ministry of Information & Broadcasting, News Broadcasters Association and the Press Council of India were asked to reply, but the order was passed before they could submit their response. Simply put, no stakeholders – including the judges – could examine whether the impugned show could be termed as “hate speech” before the voice was muffled.
On a petition seeking similar reliefs in Delhi High Court, the Ministry of I&B, in its order dated 9th September 2020 refused to ban the show and stated that if the show violates the Programme Code under the Cable Television Networks (Regulation) Act, suitable action will be taken.
Jurisprudence on Prior Restraint: Bypassing the Statutory Mechanism
Delving into the jurisprudence of Prior Restraint, we shall start with the gold- en words of Mr. William Blackstone which strike at the heart of the current issue:“The liberty of the press is
indeed essential to the nature of a free state”. He emphasized on laying no previous restraints on publication, rather punish the publisher after publication, as per the established law. In Patter- son vs Colorado [205 U.S. 454, 462], Holmes J. of The Supreme Court of The United States, while referring to the cherished First Amendment of the American Constitution stated that it was passed to prevent previous restraints upon publications. Article 5 of the Basic Law for the Federal Republic of Germany and Article 21 of The Constitution of Japan guarantees Freedom of Speech and Expression and prohibit censorship of any kind, categorically that of the Press. In India, there are a plethora of cases which have held that prior restraint orders shall not be passed. While hearing a PIL filed by the NGO Common Cause in 2017 praying for regulating the content of the media, the Hon’ble SC had opined that pre-broadcast or pre-publication censorship is not the business of the Court and that all grievances against objectionable content will be dealt with in accordance with the law of the land after its publication.
The Counsel for the retired civil servants who intervened in the matter had argued that “hate speech undermines free market place of ideas”. Quite interestingly, in a blog, while defending free speech and criticizing blanket gag orders by the Apex Court, he had written: “Prior restraint is considered especially damaging to free speech because it chokes off the “marketplace of ideas” at its very source, and prevents certain individuals, or ideas, from entering the public sphere.” Subsequent to this, he also wrote: “we have been witnessing a disturbing trend where, in place of the legislature and the executive, it is the judiciary that has been taking upon itself the task of regulating, restricting, and censoring speech”. In another blog titled “Judicial Censorship: A Dangerous, Emerging Trend”, the Counsel had vehemently opposed the “trend” where Judiciary is passing gag orders which as per him is outside of the powers given to them by the Constitution of India. We, lawyers, have often been blamed for being biased towards our cause before the bench even though academically and legally we hold contradictory positions. But contradicting oneself with recorded writings is an insult to one’s own intelligence both as an academician and a lawyer.
It was argued that concession could be made in case of “hate speech”, which is distinguishable from “offensive speech”. For the sake of argument, even if we consider that the impugned show comes under the purview of hate speech, then also it has to be dealt with in accordance with the law. In Pravasi Bhalai Sangathan vs U.O.I. & Ors., the Hon’ble SC had laid: “As referred to here in above, the statutory provisions and particularly the penal law provide sufficient remedy to curb the menace of “hate speeches”. Thus, person aggrieved must resort to the remedy provided under a particular statute.” The precedents pertaining to categorization and classification of “hate speech” needs to be settled as well. Hate speech is an offence but dictating ‘prior restraint’ rationale akin to qui timet in the particular instance sets a dangerous precedent.
Observations of the Bench During Proceedings (Related to Constitution of a Committee of 5 Distinguished Individuals)
On Tuesday, in addition to free speech, self-regulation and legal restraint, the Court ventured into issues of ownership models of TV channels, revenue generation and the number of advertisements that the government gives to them. The discussion soon moved to the possibility of constitution of a committee of “distinguished individuals” to frame guidelines for the electronic media. Both the observations are deeply problematic because it’s not the domain of Judiciary to keep a check on the revenue model of media houses. The observation of the commis-be a case of judicial overreach.
Appointing committees and framing of regulations is a legislative and executive function. If someone believes in the idea of democracy, the concept of distinguished/eminent personalities can’t be said to conform with the high standards of constitutional democracy.
Hon’ble Justice Chandrachud observed that a pre-publication restraint is one of the rarest rationales to be exercised under extreme recourse and can take the Court down a slippery slope. The Court expressed its anguish but yet the gag order was not vacated and instead it went ahead with segments of content editorial suggestions. If one were to infer a ‘collateral bar rule’– which prevents any challenges to a court order if the party disobeys the order before first challenging it in court – arising out of such steps in the Indian context, it sets a duty of absolute obedience notwithstanding any constitutional rights un- less the concerned order has been set aside by a higher authority.
To conclude, the Court’s order of prior legal restraint is problematic in light of the availability of an alternative remedy under various Acts and the settled jurisprudence pertaining to the issue. It interferes with the people’s right to know. Moreover, it’s not the domain of Judiciary to keep a check on the revenue model of media houses; and the observation pertaining to the constitution of a commission, in our humble opinion, will be a case of judicial overreach.
Siddharth Nayak is Managing Partner, Atharva Legal. Vijay Tyagi is LL.M, Constitutional Law, Indian Law Institute and ex-LAMP Fellow. Krishnagopal Abhay is a 2nd-year student of LL.B at Campus Law Centre, University of Delhi.
Competition law and state aid for aviation sector
Does the sector need specific regulator or general regulator? A bird’s eye view.
With respect to having DGCA and Competition Commission of India as the adjudicating body, the question arises: Do we have a specific sector regulator for aviation or the general rules are applied by the competition commission? Observing the transit of the aviation sector through the Express Industry Case it is clearly observed that the investigation into cartel-like behaviour created in the oligopolistic market is a tricky one.
‘Competition law treats agreements among rival firms to set the terms on which they trade as extremely serious offenses. Most of the world’s approximately 120 systems of competition law assign the prosecution of cartels a high priority.
In the wake of LPG policy triggered in India in 1991, a perception gathered momentum that the existing law for Market Regulation i.e. the Monopolistic and Restrictive Trade Practices 1969(MRTP Act) was not sufficiently arrayed to handle the competition in the Indian Market. With removal of trade barriers in 1991 the Indian Market became the hot gate for trade amongst the domestic players as well global giants which demanded a level playing field and a trade friendly environment. Need arose for a legal backing which would stimulate and shift the traditional practices of curbing monopoly to encourage companies to invest and grow, in-turn enhancing competition without abuse of dominant position.
Competition and liberalization together unleash the entrepreneurial forces and the same was experienced back in the late 19’s. Basically competition is a situation in the market where the seller strives for a buyer for business objectives. These competition needs to be regulated as somehow some businesses may opt for anticompetitive practices for short term perks which actually nullifies and makes the competition void. The countries across the globe over the time focussed on regulating the market forces by providing absolute legal backing to relinquish the anti- competitiveness in the market and also reinforcing economies through setting up of regulatory bodies. Following the international trends Competition Act, 2002 was enacted in India to regulate the competition and reduce the formation of cartels thereby encouraging better business practices and better consumer base.
Acc. to section to section 3 of the Act, no enterprise or association of enterprise or person can enter into any agreement which causes or likely to cause “appreciable adverse effect” on competition, otherwise the agreement would be void. It may include:
1. Directly or indirectly determining purchase or sale price,
2. Limiting or controlling production, supply, technical development, investment or provision of service,
3. Directly or indirectly results in bid rigging or collusive bidding shall be presumed to have an appreciable adverse effect on the competition. Provided that any agreement entered into through joint venture increasing efficiency in production, supply, distribution, storage etc. would not be void.
Acc. to section 4 of the Act, the enterprise would be apprehended to have abuse the position in cases:
1. He directly or indirectly imposes unfair condition in purchase or sale of goods,
2. Regulates purchase price,
3. Limits or restricts production of goods or provision of service,
4. Regulating technical or scientific development, 5.
Indulging in practices resulting in denial of market access etc. Being an omnibus code and regulating the market competition poses a great question towards the applicability of the Competition Act, 2002 to the Civil Aviation sector. The civil aviation sector has been considered to play in an oligopolistic market which entails a small group of players ruling the sector and somewhat indulging in the anti-competitive practices being in a dominant position.
Applicability of Competitive Rules
Increased deregulation and open market access to the players outside the territory of the country has led to adoption of advanced technology which has ultimately led to transformation in all sectors including the aviation sector. The sector has undergone radical changes in aeronautical science which has led to increased competition ultimately benefiting the consumers with competitive prices, more choices and being more choosy in opting for services. Despite this the airline industry operates in an oligopolistic market having more barriers for the entry thereby having reasonably less players which suspects apprehension of anti -competitive practices. Tacit domination of some players is highly apprehended.
In the recent past there has been no new policy or rules enacted regulating the aviation sector but to the extent back in 1994 and then in 2016 the govt. opted for open skies policy under National Civil Aviation Policy (2016) which enables liberalization and ease of rules in the aviation sector for the foreign airlines in order to increase the tourist flow and develop the potential of being an air hub. The 2016 agreement allows the govt. to enter into reciprocal arrangement with (SAARC). Since then the country observed the Air India and Indian Airline Merger and many other agreements were ratified. Rule 135(4) of the Aircraft Rules, 1937 empowered the DGCA (Directorate General of Civil Aviation) to issue order incase the companies engages is an anti-competitive practice or predatory pricing so on and so forth, despite the law coming into force and previous rule in place the civil aviation sector has been completely bolstered by the act and to the extent the sector has not experienced any control by the (Competition Commission of India) or the (DGCA) in foreign merger such as Delta and North West, KLM and Air Force despite laws in place.
The Competition Commission of India in 2013 approved 24% equity infusion by the UAE based airline in the Jet Airways with the prior approval of SEBI, FIPB (Foreign Investment Promotion Board), CCEA (Cabinet Committee of Economic Affairs). The Commission for the first time without going into the investigation approved the same by analysing that such combination does not have Appreciable Adverse effect on the Competition as per Sec 5 of the Act as there are several other competitors in the relevant market. The combination had almost 38 routes to serve and where they had approximately 1 competitor on the route. Despite this, the combination would make the network more strong & high market shares of both the companies in their respective hubs is an advantage. The minority ruling gave 2-3 points against the combination such as:
1. The Frequent Flyer Participation Policy would try to retain the consumer which creates barriers on new entrants thereby eliminating competition as the new entrant would be unable to create a customer base.
2. The minority also mentioned that both the airlines are the only remaining competitors on New Delhi- Abu Dhabi route which would itself be eliminated pursuant to combination.
3. One of several it mentioned that the airlines is not a substitutable product as precluded by the majority of judges. The airlines and also the consumer itself does not consider the services as substitutable and the connotation is based on wrong principle.
4. The minority panel also mentioned that making Abu Dhabi as an exclusive hub for scheduled services to and from South Africa, North America would disable the Jet to share the code for certain origin and destination which would lead to market foreclosure and abuse of dominant position.
In Turbo Aviation Pvt Ltd vs. Bangalore International Airport Pvt. Ltd (2016), the application filed by Turbo Aviation Pvt. Ltd in lieu of violation of section 3&4 of the Competition Act, 2002 by the Bangalore International Airport Ltd.(BIAL) & GVK. Power and Infrastructure Ltd. The commission while going into the merits of the case opined that there was no prima facie case against both the companies and put forth its opinion against the allegation in a precluded manner as in:
The commission stated that there was abuse of dominant position by the BIAL & GVK Power and Infrastructure Ltd. but per se there was no violation of Section 4 of the Act as the act prescribes only the abuse of dominant position by the dominant player in the relevant market.
It also pointed that there was no market denial to the Turbo Aviation Pvt Ltd.(informant) as the same needs to be previewed through the lens of GHS(Ground Handling Services) Regulation and the DGCA circulars and the laws governing it, no prima facie conclusion can be made out through the arguments put forth by the information. Further adding the commission pointed out that there was no violation of section 4(2)(e) of the act as the company itself was allowed to provide the GHS services at the Kempegowda International Airport Pvt. Ltd. through the DGCA GHS circular & GHS regulation. Although both the companies are in a dominant position but it is not clear as to how both are leveraging its position in the GHS market.
In Express Industry Council of India vs. Jet Airways Ltd and Ors. (2015) the Competition Commission of India penalized three airlines namely Jet Airways, Spice Jet, Indigo in allegation posed against them. The Council of India alleges that the companies entered into Anti –Competitive Practice by increasing the FSC(Fuel Surcharge) despite decrease in the ATF(Air Traffic Fuel) which is in contravention of Section 3 of the Act. The commission allowed for investigation into the matter towards which no collusive evidence was found against the airlines in the report submitted by the DG. Despite this, the Commission passed an order against the airlines penalizing all three stating that the act of the airlines was against the market performa. An appeal was filed In COMPAT(Competition Appellate Tribunal) which was allowed and the penalties were set aside on basis of lack of application of principle of PNJ and thereby the case was sent back to the commission for reconsideration. Adherence to the principle of fairness was followed and response from the airlines were taken into consideration and the commission on 7 March 2018 ordered that there is a clear pattern which shows coordinated and well – connected efforts by the airlines in determining the FSC charge and this clearly postulates the price parallelism and formation of cartel entering into a anti – competitive practices thereby violating the provision of Competition Act.
With respect to having DGCA and Competition Commission of India as the adjudicating body the question arises do we have specific sector regulator for aviation or the general rules are applied by the competition commission? Observing the transit of the aviation sector through the Express Industry Case it is clearly observed that the investigation and the propagation in cartel like behaviour created in the oligopolistic market is a tricky one. The concurrent challenges faced in regulating the same is difficult to strangulate in a market where there is dominance of certain players. To the extent there is no specific regulator both the agencies albeit try to comprehend economic efficiency. However on the other hand the DGCA has evolved as an sector regulator but not the market regulator which is concentrated in the hands of competition commission. There are no sector specific competition laws, the general rules of the act apply and this also imbibes that there is no state aid to the aviation sector except given to Pawan Hans Ltd. a government owned carrier.
The CCI abruptly and concretely would modify agreements or make the agreement null and void if the same enables an appreciable adverse effect on the competition or any of business practice which tends to abuse their position and is derogatory to section 4&5 of the Act would be under strict scrutiny. Combinations are strictly dealt under section 5 of the act. Moreover the distinction between the specific sector regulator was also taken into consideration in Air India vs. Competition Commission of India and Interglobe Aviation Ltd. (2016) the COMPAT while upholding the decision by CCI held that predatory recruitment of pilots by Indigo does not intervene into any alteration in the structure of market. The DGCI have investigated into the matter which clearly showed that there is no competition concern in the market. The appellate tribunal also stated that the complainant should establish that the violator has indulged in predatory hiring of pilots from other airlines which thereby is causing adverse effect on flying operation and is in contravention to section 4 of the act albeit abusing the position in the market which is not the case in this pertinent scenario.
The Way Forward
It is a well settled principle that no enterprise or association of enterprise has the audacity to enter into an agreement which so makes them in a position to which they can use that position to dominate the competition in the market. It is recognized that identification of anti -competitive agreements entails exposure of cartel like behaviour. High interdependence of the players in the oligopolistic market tends them to move in a direction which excludes the new entrance of players and thereby deciding the output which make it very difficult to determine the existing cartel like behaviour. In light of this the Competition Commission of India strictly abrupts any activities which are in contravention of the act and is having appreciable adverse effect on the structure of the market. Few recommendations:
1. Removal of Frequent Flyer Policy is not a solution to any effect as this only acts as a marketing strategy rather than a tool for abuse of dominant position. The DGCA should be empowered to investigate any kind of marketing strategy which tends to abrupt the market competition.
2. The powers of DGCA and Competition Commission of India should go hand in hand and none of the agencies should supersede each other’s powers as the basic objective of both the agencies is economic efficiency and to the extent adequate laws are in place but implementation has always been an issue. Despite having adequate agencies in place, investigation and cheque balance system in cartel like behaviour has always been a part of debate.
3. Being an oligopolistic market the basic objective of the agencies should be aligned prominently to cater the contravention of competition act to the extent prevention of anti -competitive agreement beyond that controlling each and every action of the sector would entail much interference.
4. Major focus should aim at bringing about better services at affordable prices to the end consumer. Need for sector specific regulators or competition laws is not the need of the hour. State aid concept needs to step in smoothly to bring about a consumer centric approach and also due to the pandemic the aviation sector has been significantly impacted which calls for financial assistance from the state.
The Competition Act is comprehensive enough and meticulously carved out in the light of current market structure which has dawned upon the Indian Economy. The current milieu of the act serves holistically the competition forces in India which is in synchronization of FDI policies, FEMA policies so on and so forth. The Competition Commission of India has risen up to the occasion and has acted as a general regulator for all the sectors so is the case with the aviation sector whereby seeking and encouraging better competition in the market. From our personal point of view, the need for a specific regulator for the aviation sector is not the need of the hour.
State police versus CBI: A long time dissidence
State Police and Central Bureau of Investigation (CBI) both distinctive entities that were regulated through the Police Act, 1861, and the Delhi Special Police Establishment Act, 1946 respectively. State Police falls within the subject of the state government due to which different states have their own way of regulation of state police. Some state follows and regulates as per the Police Act, 1861 that was enacted and enforced by the Central government whereas, some of the states bring their own laws for the regulation of State Police.
In the year 1963 a resolution passed by the Home Ministry in order to amend and rename the already established ‘Delhi Special Police Establishment’ as Central Bureau of Investigation when the government feels the dire need of a proper and specific agency which is totally inclined towards the investigation process related to the corruption matters of the government agency.
State Police vs CBI:
Separation on matter’s Jurisdiction This article specifically talks about State Police and CBI so without entangled in the difference between State Police and Central Armed Police Force and why there is a change in name of Delhi Special Police Establishment, we will deal with the matter’s jurisdiction of both separately.
State Police as mentioned above that it is a subject of State Government so it particularly inclined and involve in dealing with the local matters i.e. Maintenance of law and order, Investigation related to crimes and other pertinent issues in that particular state jurisdiction. State Police is not more involved in others matters like terrorist attack, large-scale riots and other serious offenses because Central Reserved Police Force specifically trained for these matters to deal with minimal devastation.
As per 2015, report of National Crime Records Bureau over 73 lakh complaints have been filed for the cognizable offenses where there is no requirement of a warrant for investigation and also as per the data of Commonwealth Human Rights Initiative there is a gradual increase in the number of state police forces (1951-2011).
Whereas, Central Bureau of Investigation (CBI) from the beginning established with the purpose of tackling the cases of corruption in Public sector but after the globalization with the emergence of more and more private sector undertakings the jurisdiction of dealing with corruption based matter extends up to the private sector also. This jurisdiction extend more when a five-judge Constitution bench of Supreme Court held that the higher judiciary can direct CBI to indulge themselves in the investigation process on public order, safety, police which falls within the ambit of the state government without its consent. Currently, CBI deals in almost 8 different matter’s jurisdiction.
The recent news of Sushant Singh Rajput case that CBI will handle the suspicious case of death of SSR and this is totally on the direction of Supreme Court to take up this serious case that is also raising question on the investigation done by the State Police and to solve this long going mystery.
A Controversial and Noteworthy Matter On 23rd October 2018, the Central Vigilance Commission (CVC) passed an order divesting Shri Alok Kumar Verma, Director of CBI of the powers, functions, duties and other supervisory role vested in him as the Director of the CBI and Central government stand by the decision of the CVC and make Shri Alok Kumar Verma deprived of the rights vested in him as the Director of CBI.
In against this order of CVC and Central government, two petitions were filed in Supreme Court one by Alok Verma itself and another one by the NGO (Common cause) challenging the order of the Central government. The Supreme Court on 8th January 2019 in the case named Alok Verma v. UOI and Common cause v. UOI, quashed the orders issued by the Central government of divesting the CBI Director, Mr. Alok Verma, of his responsibilities and reinstate him as the Director of Central Bureau of Investigation (CBI).
State Police vs CBI:
Right to Denial of Right to Information Right to Information an enactment made by the Parliament of India which gives immense and valuable power to the citizens of India to receive information by following some procedure from the governmental bodies or setup. But like everything it has also some exceptions and one of them is in the case of CBI.
Central Bureau of Investigation got some privilege of not disclosing their any kind of information whether it is related to corruption matter, public order or any other types to the public and also there is no application of RTI Act, 2005 on CBI. The question here arises why CBI is exempted from disclosing their information to the public?
The reason behind this is simply that it is exempted to secure National interest and National security from any kind of threat due to disclosure of significant information in public at large. Whereas, if we talk about the denial of the Right to Information in the context of State Police there is no such exemption made to them and even no privileges available on their part. The Public has full right to get information regarding the investigation or any other related matter and no one can stop them from doing so.
After the resolution passed and the Delhi Special Police Establishment transform in the Central Bureau of Investigation, the CBI came into highlight and overcome as a separate body that has power to control all the corruption related cases in beginning and later in other issues with the wider jurisdiction. State Police since from the very beginning particularly attached with some fixed matter’s jurisdiction and controlled effectively to deal with the minimal state level matters in different way by each state government.
Different pronouncement of judgment by the higher judiciary authorities makes it more effective and supreme agency in dealing with different subject matter and some of the exemption like, RTI helps CBI to emerge on a larger scale without any interruption and paves way to act as ‘interpol’. Many times CBI faces a lot of criticism or words against them but all these criticism paves way to the better handling of different arena of cases in upcoming times.
Covid warrants increased acceptance of digital and electronic signatures
Electronic transactions have become a part of everyone’s lives in this era, owing to the massive and large-scale utilisation of technology in business, trade and commerce.
CONCEPT OF DIGITAL AND E-SIGNATURES Electronic transactions have become a part of mostly everyone’s lives in this era, owing to the massive and large scale utilization of technology in business, trade and commerce. This consequently entails ‘n’ number of electronic documents being transferred over various networks. In order to curtail the risk of tampering of information contained in the electronic documents, the concept of digital/e-signature was introduced. In essence, digital/e-signatures provide authenticity to electronic records. Notably, the Information Technology Act, 2000 (hereinafter referred to as the “2000 Act”), recognizes such signatures.
SECTION 2 DEFINES THE TWO SIGNATURES AS
“[(ta) —electronic signature means authentication of any electronic record by a subscriber by means of the electronic technique specified in the Second Schedule and includes digital signature; (p) —digital signature means authentication of any electronic record by a subscriber by means of an electronic method or procedure in accordance with the provisions of section 3;” The distinguishing characteristic of a digital signature is that it makes use of cryptography – a process requiring encryption and decryption of an electronic record to be accessible.
It is not an unknown fact that cryptography not only ensures the integrity of an electronic record but also its confidentiality. This implies that, if for instance, “A”, digitally signs a bank document, his document will never be under the risk radar i.e. to say that nobody, will be ever be able to temper its contents, unless they get access to the decryption key, which is unique to the original receiver.
Interestingly, electronic signature does not restrict itself only to the aforementioned process, but allows in its dimension, “any process” which ensures that the signer, at the time of signing the document, had full control over it and that if in the scenario, the contents are tempered before it could reach the original receiver, then such change should be capable of being detected. Therefore, both the signatures intend to provide maximum security and authenticity to an electronic record, thereby proving that they are no less than the wet signatures.
Provisions of the 2000 Act are premised on the Model law of E-Commerce, provided by the United Nation Commerce on International Trade Law, which, basically enshrines the principle of minimalist neutral approach. This approach advocates that the law should remain neutral with the changing technology, as the legislators cannot constantly change laws in order to keep pace with the ever advancing technology. One of the most important Articles of the Model lays down, that where it is prescribed that there ought to be a signature of a person, any technology can be used. Clearly, it hints towards the validity of electronic signatures.
The 2000 Act has ratified similar provisions and the same have been reproduced below: “Section 4. Legal recognition of electronic records.— Where any law provides that information or any other matter shall be in writing or in the typewritten or printed form, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is– (a) rendered or made available in an electronic form; and (b) accessible so as to be usable for a subsequent reference.
Section 5. Legal recognition of 1 [electronic signatures].— Where any law provides that information or any other matter shall be authenticated by affixing the signature or any document shall be signed or bear the signature of any person, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied, if such information or matter is authenticated by means of 1 [electronic signature] affixed in such manner as may be prescribed by the Central Government. Explanation.–For the purposes of this section, —signed, with its grammatical variations and cognate expressions, shall, with reference to a person, mean affixing of his hand written signature or any mark on any document and the expression —signature shall be construed accordingly.” It can be safely concluded that, in India, electronic / digital signature is valid and it can be affixed in place of a wet signature.
TAKE OF BANKING SECTOR ON DIGITAL & E-SIGNATURES
Though, the Reserve Bank of India has not issued any specific guidelines on the acceptance of electronic/ digital signatures in all types of bank transactions universally, it has still, through various circulars acknowledged its validity. Undernoted are some of such circulars: Amendment to Master Direction (MD) on KYC, RBI/2019-20/138 Vide this circular, the RBI, with a view to leveraging digital channels for Customer Identification Process (CIP) by Regulated Entities (REs), permitted Video based Customer Identification Process (V-CIP) as a consent based alternate method of establishing the customer’s identity, for customer onboarding. In this process of Digital KYC, all the electronic documents containing electronic/digital signatures, are to be verified (compliance with 2000 Act) by the RE. A clear inference that can be drawn from this circular is that the RBI encourages the use of digital/electronic signatures. E-Tender, RBI/Chennai/ Issue/26/18-19/ET/260 The RBI issued a Tender for supply of sufficient number of fully covered closed vans/ vehicles for transportation of coins from RBI, Chennai to various currency chests and other places in the States of Tamil Nadu and Puducherry under the cover of Bank Guarantee.
It is important to note that for the submission of the bid, it was mandatory for the vendors to submit their digital signature certificates. Again, it can be inferred that RBI permits the use of digital/electronic signature. Report of the Working Group on FinTech and Digital Banking In this report, the following was highlighted: “22.214.171.124 Banks are also collaborating with IT service providers for e-Sign(digital signature) facility to help digitally signing the loan documents.
This will help in faster approval process, lesser paper work and lesser paper storage space.” Master Direction – Know Your Customer (KYC) Direction, 2016 (Updated as on April 20, 2020), RBI/ DBR/2015-16/18 In terms of the provisions of Prevention of Money-Laundering Act, 2002 and the Prevention of Money-Laundering (Maintenance of Records) Rules, 2005, as amended from time to time by the Government of India as notified by the Government of India, Regulated Entities (REs) are required to follow certain customer identification procedures while undertaking a transaction either by establishing an account-based relationship or otherwise and monitor their transactions.
REs shall take steps to implement the provisions of the aforementioned Act and Rules, including operational instructions issued in pursuance of such amendment(s). Vide this direction, the RBI again acknowledged the use of digital signatures. Apart from RBI, other Government agencies like, Controller of Certifying Authority, also accepted the usage of the Digital signatures.
PARA 2: Where the e-Sign Online Electronic Signature Service can be used?
An Application Service Provider (ASP) can integrate eSign online electronic signature service so that the users of that ASP will be able to use eSign. A physical paper form/document which is currently used to obtain digital signature certificate can be replaced by its electronic form and thereby facilitate electronic signature of the signer through eSign. ASPs who can be potential users of eSign include Government agencies, Banks and Financial Institutions, Educational Institutions etc.
In view of the Authors, guidelines with respect to use of digital/electronic signatures in relation to; opening of bank account, procuring loan, opening demat account and other bank related transactions, must be brought in universally. Though banks like Standard Chartered do provide the facility of digitally/ electronically signing the documents, still, there is a need for a categorical circular permitting the use of e-signatures. In light of the aforesaid instances, wherein the RBI permitted and encouraged the use of digital/ electronic signatures, it becomes imperative that such facilities be provided to the customers especially in these extraordinarily testing times. This suggestion of the authors is not restricted just to these trying times but must be considered for the future transactions also, as it will lead to a smooth-effectivetime-efficient-paperless banking system. This initiative will surely help in limiting outdoor movements, consequently aiding in containing of the virus; as they call it – we are all in this together.
Ambika Pratiyush Swain is a Managing Associate at L&L Partners Law Offices. The author wishes to thank Ms. Siddhi Kochar, final year law student studying at Amity Law School Delhi, Guru Gobind Singh Indraprastha University, for her valuable contributions.
Justice Ruth Bader Ginsburg: A Sentinel of Justice
“If you want to be a true professional you will do something outside yourself. Something to repair tears in your community. Something to make life a little better for people less fortunate than you. That’s what I think a meaningful life is—living not for oneself, but for one’s community.” –
She firmly believed, “Dissents speak to a future age. It’s not simply to say, ‘My colleagues are wrong and I would do it this way.’ But the greatest dissents do become court opinions and gradually over time their views become the dominant view. So that’s the dissenter’s hope: that they are writing not for today, but for tomorrow.” It would not be wrong to say that her dissents did pave the way for future.
Hon’ble Justice Ruth Bader Ginsburg was an American Jurist, who became the Court’s second female justice. She spent her lifetime working for the social drawback of gender discrimination and unified the liberal block of the court. She at- tended James Madison High School, where a courtroom in her honour was dedicated to her later. She attended Cornell University in Ithaca, New York and Harvard Law School, where she was one of the 9 female students among a class of 500 male students.
She faced a lot of gender discrimination for being a female student trying to rise up to the level of men. She had an exceptional academic record throughout and became the first woman to be on two major law reviews, the Harvard Law Review and Columbia Law Review.
She argued on some very famous cases and kept on fighting for women’s rights while practicing as an advocate before she began her career as a justice. The majority opinion was written by her in the case of United States v. Virginia, “where it was held that admission cannot be denied in Virginia Military Institute to qualified women.” At all stages of her career, whether it was being an advocate or being a justice, she always used a calculated, slow and steady approach, which was always evident in all her actions. Instead of creating sweeping limitations on gender discrimination, she attacked specific areas of discrimination and violations of women’s rights one at a time, so as to send a message to the legislatures on what they can and cannot do. She stood for women’s abortion rights and fought for the issue of sexual equality for a very long time.
She even asserted a legislation to impede women’s access to abortion rights. She influenced and inspired many of her colleagues as well to stand for women empowerment, so that no woman ever becomes a part of gender discrimination.
At Vice-President Al Gore’s request, Justice Ginsburg administered him the oath of office to a second term during the second inauguration of Bill Clinton. In 2012, she went to Egypt for discussions with people associated with law and believed that Egypt should be “aided by all Constitution-writing that has gone on since the end of World WarII”. During separate interviews in 2016, she criticised Donald Trump and didn’t even want to think about the possibility of his presidency, later apologising for giving her ill-advised remarks on the presumptive Republican nominee. Her first book titled, “My Own Words” was released in 2016, which debuted on the New York Times Best Seller List.
During her promotions for the same, she criticised Colin Kaepernick for being “dumb” and not standing during the national anthem, for which she later apologized calling her comments “dismissive and harsh”. She conveyed her support for the #MeToo movement, as it encouraged women to break their silence and speak up about their experiences of sexual harassment. She even shared her personal disturbing experience regarding sexual harassment, in support of the movement. She has received huge recognition for her contribution to the field of law and in bringing about some major reforms. To name a few, she was named in the 100 Most Powerful Women in 2009 and was inducted into the National Women’s Hall of Fame. A glamour magazine in 2012 named her the Woman of the Year and in 2015, she was one of Time magazine’s 100 Most Influential People. She received the 2019 $1 million Berggruen Prize for Philosophy and Culture. She has always been seen as an inspiring and encouraging person, standing for human rights and gender equality.
Some of her very promising judgment including the one discussed above includes- (a) Gonzales v. Carhart, here the court upheld Congress Partial-Birth Abortion Ban Act of 2003. Ginsburg strongly dissented to it and I quote, “The Court deprives women of the right to make an autonomous choice, this way of the right to make an autonomous choice, this way of thinking reflects ancient notions about women’s place in the family and under the constitution- ideas that have long since been discredited.”
In Ledbetter v. Goodyear Tire & Rubber Company, while addressing the wage gap in the year 2007, she dissented in support of equal wage and called the congress to take action, which later on resulted in the passing of the Ledbetter Fair Pay Act. Notably and strongly, she was the only judge to have dissented in the bench of 9 and said, “In our view the court does not comprehend, or is different to, the insidious way in which women can be victims of pay discrimination.”
Yet another landmark dis- sent of RBG can be traced in another notable decision of the Court in Shelby County v. Older (2013) and Rucho v. Common Cause (2019). These notable decisions pose discriminatory voting practices regarding the blacks and other racial-ethnic minorities’ voters from exercising their voting rights. RGB strongly dissented to this in her words, “throwing out pre- clearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in rainstorm because you aren’t getting wet.”
She firmly believed that, “Dissents speak to a future age. It’s not simply to say, ‘My colleagues are wrong and I would do it this way.’ But the greatest dissents do become court opinions and gradually over time their views become the dominant view. So that’s the dissenter’s hope: that they are writing not for today, but for tomorrow.” It would not be wrong to say that her dissents did pave the way for future.
Unfortunately, she lost her life to complications of pancreatic cancer on September 18, 2020. Justice Ginsburg has proven time and again that she is a force to be reckoned with, and those who doubt her capacity to effectively complete her judicial duties need only to look at her record in oral arguments, where she has always been among the most avid questioners on the bench today. Though, we have lost her but her work and contribution to the society and fraternity will always keep her alive amongst all of us.
Afspa: The way forward
J&K perhaps has a new normal. A rollback of the changes, with the restoration of Article 370, though being demanded by certain political parties, is quite unlikely. There is no political space for it at the national level. It was only a temporary provision, which rightfully stands nullified. Sooner than later, people shall reconcile, particularly as the violence levels are dipping. After the basic needs of a conflict-free Valley are met,the next requirement is of jobs,industry and trade. The shikaras in the Dal Lake need to ply on the gentle waters, and the carpet-makers need to charm the tourists with their exquisite wares. In such a happy Valley, the AFSPA can be selectively removed, with its removal linked to normalisation. It shall both be a healing touch as well as a political masterstroke. The law shall be happy.
It is over one year since the abrogation of Article 370. While the nation’s attention has been taken up by a larger strategic challenge from China, the Kashmir Valley is slowly returning to normal. Returning, debatable but yes, as the violence parameters are down, the security forces have neutralized a number of terrorists, internet is restored at many places, and the political activity is picking up in Srinagar and Jammu, albeit cautiously. Both the naysayers and the optimists have been proved wrong. The Valley did not burn post the removal of Article 370, as predicted naysayers, but nor did the investors flock to down-town Srinagar to set up Call Centers and fancy manufacturing units, as predicted the ever-optimists. However, Kashmir has lot of resilience, eventually the things will settle down, and then the elephant in the room shall once again loom large. The elephant is the Armed Forces (Special Powers) Act (AFSPA). The AFSPA question shall reemerge, and shall be an important cog, if not in the normalization process, then in the political process in J&K. By all predictions, the political process shall revolve around three key demands, restoration of the special status, restoration of the statehood, and the removal of AFSPA, perhaps in this order of priority.
The debate is divisive. In this maze of hardened opinions, many essentials have been lost. The utility of a legal cover for the security forces in any counter-insurgency situation cannot be overstated. However, firstly the politics. The divisive debate on the AFSPA may be out of primetime thanks to trio of China, Corona and (Rhea) Chakraborty, but is sure to gain prominence, as the newly constituted political parties in J&K shall try to woo voters while the older parties shall find new agendas. AFSPA shall be old wine in new bottle. In fact, the demands for the repeal of this Act or the contrary views are highly cyclic in nature. The removal demand fosters rather well during peace spells in J&K or when political mileage is in sight while these agitating voices fade away as soon as there is a spike in terrorist activities, a Pulwama-type heinous terror attack or the overall violence levels increase in the Valley. From one liberal end of the spectrum, which describes the Act as ‘draconian’ and ‘arbitrary’ to the other end led by the security establishment and the right- of-centre parties, which justifies the Act to enable security forces to combat terrorism, the stances have been hardened and there is apparently no middle path.
Secondly, the law. In fact, the law should always come first, not only for a lawyer like me, but for everyone, but I allow the politics as described above to take the centre stage. We begin with establishing the necessity of the law. No country in the world allows its soldiers to be devoid of legal cover while operating in combat, war-like, counter-insurgency, anti-terrorism, or related situations. It did not happen in Iraq, Afghanistan or Vietnam in overseas deployment, or it did not happen in Chechnya in Russia.
More about the law. It may be noted that there is nothing extraordinary or ‘Special’ about the Act. It is
named as ‘Special’ as there is no ordinary provision in the CrPC or IPC which can allow the Armed Forces of the Union to suitably act in a terrorism affected area. By all accounts, there is nothing arbitrary in the Act and its constitutional validity has been upheld by the Supreme Court of India in the 1998 Naga People’s Movement for Human Rights versus the Union of India. In fact, in this landmark judgment the Supreme Court made it mandatory for the Armed Forces to adhere to the highly comprehensive Do’s and Don’ts.
It may be noted that finally, it is a law, and violations of the law can be punished, and in fact while enabling the Security Forces to operate, the violations have not gone unpunished. For many years, the Army has been regularly giving out figures of Army personnel, including officers, who have been found guilty of human rights violations and awarded exemplary. This is in spite of being protected under the Section 6 of the Act. Therefore, it may not be inaccurate to state that the necessity of the act and the validity debate is settled, but the political situation and the healing debate is not.
According to the critics, the Act had become a symbol of the high-handedness of New Delhi and another example for their insensitivity to the people and the (earlier) democratically elected government of J&K. The way forward may lie here. A prerequisite to the Act is that the area should be declared “disturbed” under the Disturbed Areas Act, the enabling provision of law, which facilitates the summoning of the Army and any other security forces. In this, the final decision vests with the Centre with the State Government (or the Union Territory (UT)) only in a recommendatory, but not binding, role. The 1972 amendments to AFSPA extended the power to declare an area disturbed to the Central Government whereas in the 1958 version of AFSPA, only the State Governor had the power. This may be rolled back wherein the recommendations of the State Government, except in grave circumstances, with respect to the area being “disturbed” or otherwise, shall be necessary under Section 3 for the Act to be imposed. In spirit, if not in modalities, this arrangement shall be akin to the Status of Forces Agreement, which the UN and even US sign with the host country before deploying peacekeepers or troops. It shall give more power to the State, or now the Union Territory of J&K.
A precedent exists. On July 11, 2004, the alleged rape and killing of Thanjam Manorama, suspected to be a cadre of the People’s Liberation Army, sparked agitations throughout Manipur for the withdrawal of the AFSPA. In response, the AFSPA was withdrawn by the Manipur State Government from seven assembly constituencies of Greater Imphal in August 2004. The State Government acted unilaterally, despite reservations expressed by the Central Government. However, the Central Government conceded and commenting on the issue, Prime Minister Manmohan Singh stated that, “AFSPA was enforced in Manipur by an explicit decision of the Government of Manipur and hence they have a right to modify their decision”. If it can be done in Manipur, it may be replicable in J&K, a UT which is much closer to the hearts of policy makers in the national capital. Maybe giving a leading voice to the Governor, if not to the people, shall be the healing touch, which New Delhi is long searching for, particularly as the situation is returning to near-normal. This would be an incentive for conflict prevention in the J&K.
Lastly, some caution and taking take of the operating needs as well as the sensitivities of the security forces. The implementation in Manipur was not without its pitfalls. The Greater Imphal area had become a safe haven for the insurgents, wherein if not violent acts, but incidents of extortion, arms-smuggling, drug- dealing and plotting violence had become commonplace, putting significant strain on the Army and the Assam Rifles. Finally the security forces had to isolate the area and minimize the linkages between the AFSPA and non-ASPSA areas, and the situation still presents legal challenges to the security forces. A repeat wherein Sopore or Shopian becomes a ‘safe territory’ within the Kashmir valley cannot be allowed. The Governor shall have to ensure that while making his or her recommendations.
J&K perhaps has a new-normal. A roll-back of the changes and a restoration of Article 370, though being demanded by certain political parties, is quite unlikely. There is no political space for it at the national level. It was only a temporary provision, which rightfully stands nullified. Sooner than later, people shall reconcile, particularly as the violence levels are dipping. After the basic needs of a conflict-free valley are met, the next requirement is of jobs, industry and trade. The Shikaras in the Dal Lake need to ply on the gentle waters, and the carpet-makers need to charm the tourists with their exquisite wares. In such a happy valley, the AFSPA, can be selectively removed, with its removal linked to normalization. It shall both be a healing touch as well as a political masterstroke. The law shall be happy.
Major Nirvikar Singh, Retd, is an advocate in the Supreme Court of India.
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