In a groundbreaking judgment which is also a grand victory for advocates, the Kerala High Court has just recently on March 30, 2021 in a latest, learned, laudable and landmark judgment titled Adv KG Suresh vs The Union of India and 3 others in WP(C)No. 21946 of 2011(S) has declared as unconstitutional the bar on lawyers representing parties in matters before the Maintenance Tribunals constituted under the Maintenance Welfare of Parents and Senior Citizens Act, 2007 (Maintenance Act). It also rightly held that, “Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, is declared as ultra vires of Section 30 of the Advocates Act, 1961.” A two Judge Bench of Kerala High Court comprising of Chief Justice S Manikumar and Justice Shaji P Chaly pronounced this pathbreaking judgment thereby allowing a writ petition filed in 2011.

To start with, the two Judge Bench of Chief Justice S Manikumar who has authored this notable judgment for himself and Justice Shaji P Chaly of the Kerala High Court sets the ball rolling by first and foremost observing in para 1 that, “Petitioner, claiming to be an Advocate practicing in the Pathanamthitta courts, has filed the instant writ petition, seeking the following reliefs:-

“(i) Issue a writ, order or direction to declare that Section 17 of the Maintenance & Welfare of parents and Senior Citizens Act, 2007, is ultra vires the Constitution, and void, repugnant to Section 30 of the Advocates Act, 1960.

(ii) Issue a writ of mandamus or any appropriate writ, order or direction, declaring the right of the Advocates / Legal practitioners to represent the either parties before the Tribunal / Appellate tribunals / court, constituted under Act 56 of 2007.””

To put things in perspective, the Bench then enunciates in para 2 that, “Facts leading to the filing of this writ petition are that petitioner has challenged the validity of Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, (Act 56 of 2007). He has contended that the said provision is against the authority or right conferred by Section 30 of the Advocates Act, 1961, which speaks about the right of advocates to practice.”

To be sure, the Bench then points out in para 3 that, “Petitioner has further stated that Government of India have notified Section 30 of the Advocates Act, 1961, with effect from 15.06.2011, which according to him, is a subsequent legislation and overrides Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. According to him, by virtue of Section 30 of the Advocates Act, Section 17 of the Act 56 of 2007 is invalid.”

While elaborating further, the Bench then elucidates in para 4 that, “Petitioner has further stated that as per Section 30 of the Act, every advocate shall be entitled, as of right, to practice before any Court, Tribunal or person, legally authorised to take evidence. The said provision also enables the lawyers to practice in the courts across the country, irrespective of their enrollment in any Bar Council, without the need to transfer licence to their desired States.”

Furthermore, the Bench then states in para 5 that, “Referring to Sections 6(4) and 8(2) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, petitioner has stated that the Tribunal is empowered to take evidence and conduct inquiry, and, therefore, an Advocate and Legal Practitioner, is entitled as of right to appear before the Tribunal.”

Going ahead, the Bench then reveals in para 6 that, “Petitioner has further stated that the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, came into effect from 31.12.2007. By virtue of Section 1(3) of the Act, 2007, it came into force in the State of Kerala with effect from 24.09.2008, as per Notification SRO 999/2008.”

Be it noted, the Bench then observes in para 7 that, “Advocates for the last so many years have been claiming the right to practice in all the courts, as of right, and have been agitating for the enforcement of Section 30 of the Act in that behalf. Almost 50 years have passed since the Act was enacted and the provisions have been brought into force only w.e.f 15.06.2011.”

Seen in this light, the Bench then points out in para 8 that, “In this context, petitioner has relied on the decision in Aeltemesh Rein v. Union of India and Others [AIR 1988 SC 1768], wherein a writ of mandamus was issued to the Central Government, to consider, within six months, whether Section 30 of the Advocates Act, 1961 should be brought into force or not. The Hon’ble Supreme Court, however, held that it was the discretion of the Central Government to bring this Section into force by issuing a notification in that behalf.”

As a corollary, the Bench then puts forth in para 9 that, “Petitioner has further stated that pursuant to the abovesaid direction of the Hon’ble Apex Court, rendered in the year 1988, Government of India have brought Section 30 of the Advocates Act, 1961, in force only on 15.06.2011, and therefore, advocates can practice as a matter of right in all Courts and Tribunals.”

Significantly, the Bench then quite lucidly mentions in para 44 that, “Section 30 of the Act speaks about rights of advocates to practice and the same reads thus:

“30. Right of advocates to practise.― Subject to the provisions of this Act, every advocate whose name is entered in the 3 [State roll] shall be entitled as of right to practise throughout the territories to which this Act extends, ―

(i) in all courts including the Supreme Court;

(ii) before any tribunal or person legally authorised to take evidence; and

(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise.””

No less significant is what is then observed in para 45 that, “In exercise of the powers conferred by sub-section (3) of Section 1 of the Advocates Act, 1961, the Central Government have appointed 15th day of June, 2011 as the date on which Section 30 of the said Act shall come into force.”

What is also worth noting is that it is then most rightly and remarkably observed in para 50 that, “Contention of the learned counsel for the petitioner and the Bar Council of India, that the Tribunals are clothed with the powers of Civil Courts, for the purpose of taking evidence, enforcing attendance, production of evidence, and that denial of legal assistance to the parties before the Tribunal constituted under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, requires consideration, for the reason that parties to the lis are not expected to know the nuances of law, evidence, both oral and documentary , to be produced.”

Needless to say, it is then underscored in para 51 that, “Legal aid is a constitutional right guaranteed under Article 21 of the Constitution of India and legal assistance cannot be confined only to legal advice, which, in our view, would not be sufficient, in the interest of the parties.”

More significantly, the Bench then minces no words to observe in para 52 that, “Contention of the Union of India, that since the main intention of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is to provide speedy and cost effective mechanism to the parents/senior citizens, to claim maintenance from their children/grandchildren/relatives, as the case may be, and participation of advocates in the proceedings will jeopardize this objective, cannot be accepted, for the reason that mere engagement of a lawyer would not delay the process of adjudication of a dispute before the Maintenance Tribunal.”

Adding more to it, the Bench then observes in para 53 that, “Cost effective mechanism, cited as one of the reasons for denying legal assistance, also cannot be accepted, for the reason that if any litigant is enable to engage a lawyer of his choice, Legal Services Authority, constituted under the Legal Services Authorities Act, 1987, comes into the aid of such litigant, by engaging a lawyer to assist him.”

Simply put, the Bench then also makes it plainly clear in para 54 that, “Union of India, cannot undermine the role of the Legal Services Authority, and the lawyers engaged by them, to assist the litigants, in comparison to the lawyers to be engaged by the children/ grandchildren/ relatives, solely on the ground that they are financially in a better position to avail the services of the best advocates.”

Of course, the Bench then concedes in para 55 that, “True that the legislation, Maintenance and Welfare of Parents and Senior Citizens Act, 2007, has envisaged that the disputes and differences should be resolved amicably and in that context, laid emphasis on the role of a Conciliation Officer, nominated by the Tribunal, but he will not be a substitute for a lawyer.”

What’s more, the Bench then also makes it amply clear in para 56 that, “Contention of the Union of India, that the makers of the Act foresaw that engagement of legal practitioners to represent cases will prolong the matter and will be more of a harassment for the parents in their last phase of life as judgment will be delayed, is wholly unacceptable.”

Finally and far most significantly, the Bench then holds in para 57 that, “As Section 30 of the Advocates Act, 1961 has been brought into force from 15.06.2011, Advocates enrolled under the said Act have been conferred with an absolute right thereof, to practice before all the Courts and Tribunals. By virtue of Section 30 of the Advocates Act, 1961, coming into force from 15.06.2011, the restriction imposed is taken away and in such circumstances, Article 19 of the Constitution of India, which guarantees the freedom to practice any profession, enables the Advocates to appear before all the Courts and the Tribunals, subject to Section 34 of the Advocates Act, 1961. In the light of the above discussion and decisions, Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, is declared as ultra vires of Section 30 of the Advocates Act, 1961 and thus, the petitioner is entitled for a declaration that he has a right to represent the parties before the Tribunal/Appellate Tribunal/Court, constituted under Act 56 of 2007. Accordingly, this writ petition is allowed.”

No doubt, this historic judgment is a victory not just of one or two advocates but of advocates as a whole because this will certainly benefit the entire class and not just one or two advocates only. It must be also mentioned here that the petitioner who is an advocate KG Suresh of Pathanamthitta instituted Public Interest Litigation in the year 2011 seeking a declaration that Section 17 was unconstitutional in light of the newly introduced Section 30 of the Advocates Act. Upon consideration of submissions, the Kerala High Court held that Section 30, being introduced and notified in 2011 had an overriding effect on Section 17 of the Maintenance Act. Of course, Kerala High Court thus clearly, cogently and convincingly holds that advocates are entitled to appear in Maintenance Tribunals and bar on legal representation is unconstitutional. Very rightly so!

Sanjeev Sirohi, Advocate

In a progressive, peculiar, penetrating and path-breaking judgment titled Treasa Josfine vs State of Kerala in WP (C). No. 25092 of 2020 (J) delivered on 9 April, 2021, the Kerala High Court observed most rightly, remarkably and reasonably that a woman who is fully qualified cannot be denied of her right to be considered for employment on the ground that she is a woman and because the nature of the employment would require her to work during night hours. A Single Judge Bench of Justice Anu Sivaraman who delivered this brief, brilliant, bold and balanced judgment put forth in simple, straight and suave words that, “Protective provisions cannot stand in the way of a woman being considered for employment for which she is otherwise eligible.” We thus see that Kerala High Court very rightly quashes “Only males can apply condition”!

To start with, a Single Judge Bench of Justice Anu Sivaraman who authored this notable judgment of Kerala High Court first and foremost dwells on the prayer in the writ petition in para 1 which stipulates that, “The prayers in this writ petition are as follows :-

“(i) Issue a writ of mandamus or any other appropriate writ, order or direction to call for the records relating to Exhibit P7 notification dated 24.10.2020 for the post of safety officer and quash the same as illegal and unconstitutional.

(ii) Issue a writ of mandamus or any other appropriate writ, order or direction to declare that section 66(1)(b) of the Factories Act, 1948 is unconstitutional as violative of Article 14, 15 and 16 of the Constitution.

(iii) Issue a writ of mandamus or any other appropriate writ, order or direction to the second respondent to issue a fresh notification to the post of safety officer, incorporating the qualified Women Candidates.””

While elaborating on the facts of the case, the Bench then puts forth in para 3 that, “It is submitted that the petitioner is an engineering graduate in Safety and Fire Engineering. The 2nd respondent, a public sector undertaking under the State of Kerala, has engaged the petitioner as Graduate Engineer Trainee (Safety) and the petitioner had worked as such for the period from 19.11.2018 to 18.11.2019 and from 26.11.2019 to 25.5.2020. It is submitted that there is a permanent post of Safety Officer available in the company. By Ext.P7, a notification was published inviting applications for the said post. However, it is stated in the notification that only male candidates need apply for the post. The petitioner has approached this Court challenging the said provision in the notification on the ground that it is discriminatory and that the right of the petitioner for being considered for appointment as Safety Officer is violated due to the said provision. The petitioner further contends that any provision as contained in Section 66(1)(b) of the Factories Act, 1948 to the extent it denies the right of the petitioner to participate in the selection for appointment as Safety Officer is violative of the valuable rights guaranteed to the petitioner under Articles 14, 15 and 16 of the Constitution of India and is, therefore, liable to be set aside.”

While elaborating further, the Bench then observes in para 4 that, “A counter affidavit has been placed on record by the 2nd respondent. It is stated that the post of Safety Officer is a statutory post and the provisions of the Factories Act have to be complied with while issuing notification for filling up the said post. It is submitted that as per Section 66(1)(b) of the Factories Act, 1948, women employees shall not be required or permitted to work except between 6 a.m. and 7 p.m. It is submitted that Graduate Engineer Trainee (Safety) is required to work only from 9 a.m. to 5 p.m. However, it is submitted that Safety Officer is a round the clock post and that the person engaged as Safety Officer will have to work even during night time, if required. It is stated that the company had, vide letter dated 22.7.2020, sought the opinion of the Director of Factories and Boilers, Kerala about the possibility of including women candidates in the recruitment process for selection to the post of Safety Officer by Ext.R2(a) letter. However, the Director had clarified that women cannot be engaged in factories beyond 7 p.m. and that therefore, permission cannot be accorded for considering women for the appointment. It is, therefore, contended that there is no illegality in excluding women from applying for the post of Safety Officer. It is stated that Section 66(1)(b) is a social welfare measure intended to safeguard the security and health of employees and cannot be held to be discriminatory or violative of the petitioner’s rights. It is further contended that the vires of Section 66(1)(b) had been considered by a Division Bench of this Court in Leela v. State of Kerala [2004 (5) SLR 28] and it was held that the provision is only a protective measure intended for the welfare of women and that it does not deny opportunity or livelihood to women employees. It is submitted that there is every power in the Government to regulate working hours of employees to meet the concerns of welfare of the employees and the larger public interest and that therefore, the provision is perfectly legal and valid. It is submitted that the respondents have not denied opportunity to the petitioner and were only obeying the statutory mandate of the Factories Act. It is further contended that no provision in an enactment can be struck down as being arbitrary or unreasonable and that the issue stands covered against the petitioner. Several decisions of the Apex Court are also relied on in support of the said contention.”

As we see, the Bench then states in para 5 that, “A reply statement has been placed on record by the petitioner.”

What’s more, the Bench then notes in para 6 that, “A statement has been filed by the 1st respondent as well, wherein, it is stated that the Labour Department has informed that draft ordinance for amendment of the Factories Act, 1948 enabling women employees to work night shifts was approved by the Council of Ministers on 5.8.2020 and the Labour Department has issued a letter to the Secretary, Ministry of Home, Government of India for approval of the Hon’ble President of India for the said amendment. It is submitted that the amendment has not been brought into effect and that therefore, going by the present situation, the restriction for women to be engaged in factories after 7 p.m. and before 6 a.m. continues in force.”

For esteemed readers exclusive benefit, it must be mentioned here that after hearing the contentions of the parties, the Bench then observes in para 7 that, “I have considered the contentions advanced. The issue is simply whether the provisions contained in Section 66(1)(b) of the Factories Act, 1948 would stand in the way of the 2nd respondent considering the application of the petitioner for appointment as Safety Officer. Section 66 reads as follows :-

“66. Further restrictions on employment of women.- (1) The provisions of this Chapter shall, in their application to women in factories, be supplemented by the following further restrictions, namely:-

(a) no exemption from the provisions of section 54 may be granted in respect of any woman;

(b) no woman shall be required or allowed to work in any factory except between the hours of 6 A.M. and 7 P.M.:

Provided that the State Government may, by notification in the Official Gazette, in respect of any factory or group or class or description of factories, vary the limits laid down in clause (b), but so that no such variation shall authorize the employment of any woman between the hours of 10 P.M. and 5 A.M.;

(c) there shall be no change of shifts except after a weekly holiday or any other holiday.

(2) The State Government may make rules providing for the exemption from the restrictions set out in sub-section (1), to such extent and subject to such conditions as it may prescribe, of women working in fish-curing or fish-canning factories, where the employment of women beyond the hours specified in the said restrictions is necessary to prevent damage to, or deterioration in, any raw material.

(3) The rules made under sub-section (2) shall remain in force for not more than three years at a time.””

Be it noted, the Bench then states in para 8 that, “A Division Bench of this Court in Hindustan Latex Ltd. v. Maniamma [1994 (2) KLT 111] considered the issue and held that the provisions of Section 66(1)(b) can only be a protection against exploitation of a woman worker by requiring her to work during night hours without her consent. Construing the provisions of Article 15, the Division Bench held that what is meant by special provision for women provided in clause (3) thereof is only a special provision in favour of women.

Please read concluding on thedailyguardian.com

Relying on the decisions of the Apex Court as well as other High Courts, it was held that a provision which has the protection under Article 15(3) cannot be struck down merely because it may amount to discrimination solely on the ground of sex. It was held that only such special provisions in favour of women can be made under Article 15(3), which are reasonable and do not obliterate or render illusory the constitutional guarantee enshrined under Article 16(2). It was further held that in a case where the woman herself seeks a consideration of her appointment which would involve waiving of the special privilege which is being granted to her under Section 66(1)(b), the State cannot rely on the said apparently beneficial provision to deny an appointment which the petitioner would otherwise be eligible for.”

To put things in perspective, the Bench then in para 9 opts to state that, “A learned Single Judge of this Court in Omana Oomen v. F.A.C.T. Ltd. [1990 (1) KLT 614] had considered a challenge against denial of appointment to women employees on the ground that they have to work in night shifts. Considering the factual aspects, where other women had been appointed to the same post earlier and where male employees were working in day shifts, it was held that Section 66(1)(b), which is a protective provision, cannot be relied on to deny appointment to the petitioners only on the ground that they are women. It was held that the company could have moved the Government for a permission as provided in the proviso to Section 66(1)(b), which was not done. It was, therefore, held that since it is possible for the company to accommodate male technicians exclusively in day shifts as asserted by the petitioners, the denial of employment to the petitioners on the ground that they would have to work night shifts was not sustainable.”

Adding more to it, the Bench then further points out in para 10 that, “In Leela v. State of Kerala [2004 (5) SLR 28], a Division Bench of this Court was considering a challenge to Section 66(1)(b) of the Factories Act. The petitioner therein had challenged the promotion given to a junior hand as Supervisor (Binding), on the ground that she could not be required to work between 7 p.m. and 6 a.m. as provided under Section 66(1)(b). The Division Bench considered the issue and held that Section 66(1)(b) is a beneficial provision and does not provide a bar against employment of women. It was held that the provision under challenge is a special provision which enjoys the protection of Article 15(3) and does not embody a principle of discrimination on sex but is calculated to save women from the hazards of working during night in factories. It was held that the proviso to Section 66(1)(b) is only an enabling provision and exemptions granted in certain industries cannot apply across the board. It was further held that the provision was calculated to ensure the women shall be able to take care of their families and that children do not suffer. The decision of the Andhra Pradesh High Court in K.S.Triveni & Ors. v. Union of India & Ors. [2002 Lab.I.C. 1714] and that the Madras High Court in Vasantha R. v. Union of India & Ors. [2001-II-LLJ 843] as well as of this Court in Rajamma v. State of Kerala & Ors. [1983 KLT 457] were considered and it was held that in the case on hand, there was no discrimination based on sex. The contentions were, therefore, rejected and it was held that the provision of Section 66(1)(b) embodies a special provision in favour of women and does not suffer from the vice of discrimination.”

To be sure, the Bench then states in para 11 that, “The Madras High Court in Vasantha R. v. Union of India & Ors. [2001-II-LLJ 843] had considered a similar challenge to Section 66(1)(b). It was held that the provision which denies an opportunity for women to work during night hours where they are desirous of doing so, for betterment of their employment prospects would be violative of the provisions of Articles 14, 15 and 16 of the Constitution and had struck down the said provision as being discriminatory.”

Moving on, the Bench then further adds in para 12 that, “The Andhra Pradesh High Court had also occasion to consider a similar challenge and it was held that the provision could not stand in the way of a woman being employed during night hours unless there is a compulsion on the part of the employer on the woman to carry out her duties in a factory during the night time.”

While continuing further in a similar vein, the Bench then holds in para 13 that, “This Court, in Sanuja v. Kerala State Beverages Corporation Ltd. [2017 (1) KLT 44] had considered a challenge to Rule 7(37) of the Abkari Shops (Disposal in Auction) Rules, 2002 which provided that women cannot be engaged to work in foreign liquor shops. After consideration of the case law on the point as also the changed circumstances, this Court held that the restriction against women being employed in liquor outlets would violate the provisions of Articles 14, 15, 16 and 19 of the Constitution. The provisions were, therefore, held to be discriminatory and violative of the provisions of Articles 14 and 15.”

Most significantly, the Bench then envisages in para 14 that, “Having considered the contentions advanced, I find that the basic contention urged by the respondent is that the provisions of Section 66(1)(b) are beneficial in nature and are intended to protect women from exploitation. In the factual situation involved, we have to consider the fact that Factories Act, 1948 was enacted at a time when requiring a woman to work in an establishment of any nature, more so in a factory, during night time could only be seen as exploitative and violative of her rights. Apparently, the World has moved forward and women who were relegated to the roles of home makers during the times when the enactment had been framed have taken up much more demanding roles in society as well as in economic spheres. We have reached a stage where the contributions made by women in the spheres of economic development cannot be ignored by any industry. Women are being engaged to work during all hours in several industries including Health Care, Aviation and Information Technology. Women have been engaged in several professions requiring round the clock labour and have proved themselves quite capable of facing the challenges of such engagement. The Apex Court in Secretary, Ministry of Defence v. Babita Puniya and others [(2020) 7 SCC 469] has declared that an absolute bar on women seeking command appointment violates the guarantee of equality under Article 14 of the Constitution. It was held that submissions based on stereotypes premised on assumptions about socially ascribed roles result in gender discrimination against women and violate their fundamental rights. In the present scenario, to say that a graduate engineer in safety engineering cannot be considered for appointment as Safety Officer in a public sector undertaking because of an offending provision under Section 66(1)(b) of the Factories Act, according to me, is completely untenable and unacceptable. This is evident from the fact that the State of Kerala has approved an amendment to the Rules which permits the engagement of women on condition that all safety precautions and facilities for such engagement are arranged by the employer.”

Finally and no less significantly, the Bench then holds in para 15 that, “True, a Division Bench of this Court considered the issue and held that Section 66(1)(b) is only a protective provision. If that be so, it can be operated and exercised only as a protection and cannot be an excuse for denying engagement to a woman who does not require such protection any more. The decision in Hindustan Latex Ltd.’s case cited supra and the subsequent laying down of the law by the Apex Court would make it abundantly clear that a woman who is fully qualified cannot be denied of her right to be considered for employment only on the basis of her gender. It is the bounden duty of the respondents who are Government and Government functionaries to take all appropriate steps to see that a woman is able to carry out the duties assigned to her at all hours, safely and conveniently. If that be so, there would be no reason for denying appointment to a qualified hand only on the ground that she is a woman and because the nature of the employment would require her to work during night hours. I am, therefore, of the opinion that the embargo contained in Ext.P7 that ‘only male candidates can apply’ is violative of the provisions of Articles 14, 15 and 16 of the Constitution of India. The said provision in Ext.P7 notification is, therefore, set aside. I reiterate the finding of the Division Bench that the provisions of Section 66(1)(b) are only protective in nature. I make it clear that such protective provisions cannot stand in the way of a woman being considered for employment for which she is otherwise eligible. There will, accordingly, be a direction to the 2nd respondent to consider the application submitted by the petitioner for appointment to the post of Safety Officer, notwithstanding the provisions of Section 66(1)(b) of the Factories Act, 1948. Appropriate action shall be taken without further delay. This writ petition is ordered accordingly.”

No doubt, it is a judgment which is par excellence and it most rightly endorses the women’s right to equality in employment. Why should a woman suffer for no fault of hers? Of course, the Kerala High Court as we see very rightly maintains that a woman can’t be denied employment saying work involves night hours. The Single Judge Bench of Justice Anu Sivaraman who is herself a woman thus very rightly quashes the discriminatory ‘only men can apply’ condition as it is perverse and violates even Article 14 of Constitution which talks about right to equality apart from Articles 15 and 16. There can be no denying it!

Sanjeev Sirohi, Advocate,

The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily, it applies as between past litigation and future litigation. When a matter — whether on a question of fact or a question of law — has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in Section 11 of the Code of Civil Procedure; but even where Section 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct.” – Justice K.C. Das Gupta.

The rule of conclusiveness of a judgment or the doctrine of res judicata is based on the principle that all litigation must sooner than later come to an end. It is founded on equity, justice, good conscience, and requires that once a party has succeeded on an issue, such a party should not be harassed by multiplicity of proceedings on the same issue. Section 11 of the Code of Civil Procedure, 1908, deals with the doctrine of res judicata and states: –

“11. Res judicata. —No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Explanation I.—The expression “former suit” shall denote a suit which has been decided prior to a suit in question whether or not it was instituted prior thereto.

Explanation II. —For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.

Explanation III. —The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

Explanation IV. — Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation V.—Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused.

Explanation VI. —Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.

Explanation VII. —The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.

Explanation VIII. —An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.”

The doctrine res judicata has originated from the English common law system and has also been termed as Purva Nyaya (former judgment) in the Hindu laws. The Commonwealth nations have acknowledged that once the matter has been decided by the trial court, it should not be attempted again. The doctrine of res judicata is based on three maxims, namely – nemo debet bis vexari pro una et eadem causa (no man should be vexed twice for the same cause), interest reipublicae ut sit finis litium (it is in the interest of the State that there should be an end to a litigation), and res judicata pro veritate occipitur (a judicial decision must be accepted as correct). The Supreme Court has time and again held that res judicata applies to the public interest litigation filed under Articles 32 and 226 of the Constitution of India. The judgments pronounced by the Courts possess a binding character and the State must preserve the authenticity of such pronouncements. The Supreme Court has also provided some exceptions to the doctrine of res judicata that apply when a judgment is passed by a court lacking jurisdiction, when a matter involves a pure question of law, and, when a judgment has been obtained by committing fraud on the Court. Res judicata is confined to a matter actually in issue but another principle known as the principle of constructive res judicata mentioned in Explanation IV of Section 11 of the Code of Civil Procedure, 1908, is an artificial form of res judicata. It provides that a party to a subsequent suit could invoke this principle on the ground that a matter which might and ought to have been made a ground of defence or attack in a former suit, shall be deemed to have been a matter directly and substantially in issue in such a suit.

In Workmen v. Board of Trustees, Cochin Port Trust, (1978) 3 SCC 119, the Supreme Court observed that though the doctrine of res judicata is codified in Section 11 of the Code of Civil Procedure, 1908, but it is not exhaustive. Section 11 generally comes into play in relation to civil suits. But apart from the codified law the doctrine of res judicata or the principle of res judicata has been applied since long in various other kinds of proceedings and situations by courts in England, India and other countries. The rule of constructive res judicata is engrafted in Explanation IV of Section 11 of the Code of Civil Procedure and in many other situations also, principles not only of direct res judicata but of constructive res judicata are also applied. If by any judgment or order any matter in issue has been directly and explicitly decided, the decision operates as res judicata and bars the trial of an identical issue in a subsequent proceeding between the same parties. The principle of res judicata also comes into play when by the judgment and order a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implication, then also the principle of res judicata on that issue is directly applicable. When any matter which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made, then such a matter in the eye of law, to avoid multiplicity of litigation and to bring about finality in it, is deemed to have been constructively in issue and, therefore, is taken as decided.

In Daryao v. State of U.P., (1962) 1 SCR 574, the Supreme Court observed that the judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive between the same parties, upon the same matter, directly in question in another court and that the judgment of a court of exclusive jurisdiction, directly upon the point, is in like manner conclusive upon the same matter, between the same parties, coming incidentally in question in another court for a different purpose. The Court also observed that the doctrine of res judicata is not a technical doctrine applicable only to records but it is a fundamental doctrine of all courts that there must be an end of litigation. The doctrine applies equally in all courts, and it is immaterial in what court the former proceeding was taken, provided only that it was a Court of competent jurisdiction, or what form the proceeding took, provided it was really for the same cause. Res judicata is a rule of universal law pervading every well-regulated system of jurisprudence, and is put upon two grounds, embodied in various maxims of the common law; the one, public policy and necessity, which makes it to the interest of the State that there should be an end to litigation, the other, the hardship on the individual that he should be vexed twice for the same cause.

The Indian Judiciary is already overburdened with frivolous claims and hence, time is ripe to apply this doctrine effectively for saving judicial time. The doctrine of res judicata needs to be used by the Courts frequently for achieving finality in litigation so that the rights of the people are not encompassed by chaos and confusion. This principle has always sought to prevent the abuse of the process of law and promote honesty as well as administration of justice that is fair. If the doctrine is not used constructively, there would be no stop to litigation and the institution of repetitive suits would be very difficult to be prevented. Therefore, it is the need of the hour to make use of this doctrine to promote justice, equity, and good conscience.

Is Section 89 of CPC, 1908 really an attempt to put a cart before the horse? Can the clash between Section 89 of CPC and Section 73 of ‘The Arbitration And Conciliation Act,1996’ be resolved ?

The Arbitration Act, 1940 was replaced by the Arbitration and Conciliation Act, 1996. The object of the Act was to consolidate and amend the law relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards and also to define law relating to conciliation and for matters connected therewith or incidental thereto. It was in larger compliance with the United Nations Commission on International Trade Law (UNCITRAL)- The Model Law on International Commercial Arbitration in 1985.

Post WTO Free Trade regime and globalisation of world economy, commercial transactions had witnessed a sea-change in its nature. With growing complexities in world trade, there was an urgent need to revamp the conventional mechanism for speedy settlement of domestic and international commercial disputes. This was facilitated through alternative dispute resolution by means of arbitration, conciliation, mediation, and negotiation which are considerably speedy, inexpensive, and confidential as compared to the conventional method of court proceedings.

The Judgement of Afcons Infrastructure and Ors. v. Cherian Verkay Construction and Ors 2010 (8)SCC 24 changed the course of arbitration proceedings in India in addition to Salem Advocate Bar Association case. The scope and interpretation of Section 89 of CPC,1908, suitability and unsuitability of arbitration for various disputes, consent of parties to the suit for arbitration , mandatoriness or voluntariness of ADR process and many other co-related issues were largely settled by the apex court burying the hatchet once and for all.

BRIEF FACTS OF THE CASE

Cochin Port Trust(2nd Respondent) entrusted the work of construction of certain bridges and roads to Afcons Infrastructure(appellants) under an agreement dated 20th April,2001. The appellants sub-contracted a part of the said work to the first respondent i.e. Cherian Varkey Construction (hereinafter referred as CV Constructions) under an agreement dated 1st August,2001. The agreement did not contain any provision for reference of the disputes to arbitration.

The first respondent Cherian Varkey Construction had filed a suit against appellants Afcons Infrastructure for recovery of Rs. 2,10,70,881 which includes the amount due to the appellants from the employer with interest .

In the same suit an order of attachment was made in regards to Rs.2.25 crores. The first respondent , CV Construction thereafter filed an application under section 89 of the CPC,1908 before the trial court praying that court may formulate the terms of settlement and refer the matter to arbitration.

Afcons Infrastructure filed a counter stating that they were not agreed for arbitration process under Section 89. Thus, the first respondent agreed for arbitration, whereas defendants 1 and 2 were not agreeable for arbitration.

The trial court held that since the claim was related to work contract , so dispute should be settled by arbitration. The appellants Afcons Infrastructure filed for revision against order of the trial court in High Court. It was dismissed by High Court holding that apparent tenor of section 89 of CPC permitted court, in appropriate cases to refer the dispute to arbitration even if parties are unwilling. The pre-existing arbitration agreement as mandated under Arbitration and Conciliation Act,1996 for referring the disputes to arbitration is inapplicable under section 89 of CPC,1908, further stated the court.

The said order of the Kerela High Court was thus challenged in Supreme Court through an appeal.

ISSUE BEFORE THE COURT

On the contentions pressed by the appellant, two questions arise for consideration before the apex court –

What is the procedure to be followed by a court in implementing Section 89 of CPC,1908 and Order 10 Rule 1A of the Code ?

Whether Consent of all the parties to the dispute/suit is mandatory for reference to arbitration under Section 89 of the Code?

Section 89 was incorporated in the Code of Civil Procedure, 1908 by the Amendment Act of 1999 to resolve the disputes without going to trial and pursuant to recommendations of the Law Commission and Malimath Committee report. The object, purpose, scope, and tenor of Section 89 was dealt in-depth by the apex court in this case.

Section 89 of CPC deals with Settlement of disputes outside the court and it reads- 1)Where it appears to the court that there exist elements of settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the court may reformulate the terms of a possible settlement and refer the same for-

a) arbitration

b) conciliation

c) judicial settlement including settlement through Lok Adalat ; or

d)mediation

2) where the dispute has been referred –

a) for arbitration or conciliation , the provisions of Arbitration and Conciliation Act,1996 shall apply as if the proceedings for the arbitration or conciliation were referred for the settlement under the provisions of that Act;

b)to Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section(1) of section 20 of the Legal Services Authority Act,1987 and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat;

c)for judicial settlement, the Court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be Lok Adalat and all the provisions of the Legal Services Authority Act,1987 shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act;

d) for mediation, the Court shall effect a compromise between the parties and shall follow such procedure as may be prescribed.

Order 10 Rule 1A- Direction of the Court to opt for any one mode of alternative dispute resolution- After recording the admissions and denials, the Court shall direct the parties to the suit to opt either mode of the settlement outside the Court as specified in sub-section (1) of Section 89.

A bare perusal of Section 89 can seem to be nothing more than importation of Section 73 of the Arbitration and Conciliation Act,1996 which to a much extent is like its replica. Section 73 of the 1996 Act has provision for settlement agreement and it reads- 1) When it appears to conciliator that there exist elements of settlement which may be acceptable to the parties, he shall formulate the terms of a possible settlement and give them to the parties for their observations. After receiving the observations of the parties, the conciliator may reformulate the terms of a possible settlement in light of such observations.

2) If parties reach agreement on a settlement of the dispute, they may draw up and sign a written agreement. If requested by the parties, the conciliator may draw up, or assist the parties in drawing up, the settlement agreement.

3) When the parties sign the settlement agreement, it shall be final and binding on the parties and the persons claiming under them respectively.

4) The conciliator shall authenticate the settlement agreement and furnish a copy thereof to each of the parties.

One may infer that Section 89 is trying to transcend the express powers of ADR mechanism provided under Section 73 of 1996 Act. Furthermore, Section 89 also empowers the court to formulate and reformulate the terms of settlement at a stage prior to reference to an ADR process. Even if court draws the terms of settlement , those will be totally redundant in any subsequent ADR process. Thus, civil courts are unnecessarily burdened with the task of formulating the terms of settlement at a pre-reference stage.

Apex Court has thus aptly observed that Section 89 of CPC,1908 is like “putting a cart before the horse and is wholly impracticable, if not impossible, yet the object behind it was laudable.”

Section 89 of CPC presupposes that there is no-preexisting arbitration agreement between the parties. Its only when by means of a joint application, the parties to the dispute agree for ADR before the court , the matter can be referred to arbitration under section 89 of CPC and on such reference, the provisions of Section 8 or Section 11 of the Arbitration and Conciliation Act,1996 would apply. This will take the dispute out of the court stream once and for all.

Furthermore, the apex court pointed out various drafting errors in Section 89 of the Code of Civil Procedure,1908 . The first anomaly is the mixing up of the definitions of ‘mediation’ and ‘judicial settlement’ under the clauses (c) and (d) of the Sub-section( 1) of Section 89 of the Code.

Clause (c) states that for judicial settlement , the court shall refer the same to a suitable institution or person who shall be deemed to be a Lok Adalat.

Clause (d) provides that where reference is to mediation, the court shall affect a compromise between the parties by following such procedure as may be prescribed.

It makes no sense to call a compromise effected by a court as a mediation as is done in clause (d). One even wonders how can a reference of a dispute made by court to a suitable institution or a person for settlement purpose be described as a ‘judicial settlement’. The mix-up of terms ‘Judicial Settlement’ and ‘Mediation’ in Section 89 has indeed created a jumble and confusion and appear as typographical or clerical errors in drafting.

JUDGEMENT

Supreme Court pronounced that it’s not necessary for the court to formulate and reformulate the terms of possible settlement before referring the dispute to arbitration. It’s sufficient even if court merely describes the nature of dispute or its summary and makes the reference.

Section 89 starts with words- ‘where it appears to the court that there exists elements of settlement’. This amply implies that only those cases suitable for ADR should be referred by courts to ADR and cases which are not suited for ADR process should not be referred under Section 89 of the Code.

The suitability and unsuitability of cases for ADR process was elaborated by apex court by providing an illustrative list. The Supreme Court stated that all cases of civil nature whether pending in civil courts or any tribunals can be referred to ADR process such as-

All cases relating to trade, commerce, and contracts

All cases arising from strained relationship , such as matrimonial cases

All cases where there is a need for continuation of pre-existing relationship such as disputes between neighbours and members of societies

All cases relating to tortious liability, including motor accident claims and all consumer disputes.

The apex court also held that it’s not ‘Mandatory’ to refer the parties to any ADR process in all cases. Where case falls under an excluded category, the court need not refer it to ADR process. In all other cases, reference to ADR is a must.

It was also held that a civil court cannot refer a suit to arbitration unless all the parties to the suit agree for such a reference. Thus, consent of parties in suit will be necessary for referring the subject-matter of the suit to arbitration.

CONCLUSION

ADR mechanism facilitates speedy resolution of disputes. It also reduces the burden of civil courts that are already dealing with whopphing number of pending cases yet to be cleared by them. Furthermore, only those cases capable of being resolved through arbitration are referred to ADR mechanism. Under the Act of 1996, the award of arbitration is enforceable as if it were a decree of court. The Afcons case thus put an end to most of the debatable issues that were a bone of contention in ADR mechanism.

The author is a budding lawyer at Delhi.

The Arbitration Act, 1940 was replaced by the Arbitration and Conciliation Act, 1996. The object of the Act was to consolidate and amend the law relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards and also to define law relating to conciliation and for matters connected therewith or incidental thereto. It was in larger compliance with the United Nations Commission on International Trade Law (UNCITRAL)—The Model Law on International Commercial Arbitration in 1985.

WhatsApp, in January 2021 announced its revised privacy policy which would impact the user interactions with business accounts, including those which may be using Facebook’s hosting services. The text of the notification reported in the Media read as follows:

WhatsApp is updating its terms and privacy policy. Key updates include more information about:

WhatsApp’s service and how we process your data.

How businesses can use Facebook-hosted services to store and manage their WhatsApp chats.

How we partner with Facebook to offer integrations across the Facebook Company Products

By tapping AGREE, you accept the new terms and privacy policy, which take effect on February 8, 2021. After this date, you will need to accept these updates to continue using WhatsApp. You can also visit the Help Center if you would prefer to delete your account and would like more information.

This updated privacy policy presented users with the option of either mandatorily accept the privacy policy of greater data sharing between WhatsApp and Facebook in its entirety or being unable to use the platform after 15th May 2021. This had arisen a huge debate throughout the world concerning protection of the privacy of individuals as well as the abuse of data sharing by the technologically giant companies.

WhatsApp on January 13 2021 published a blog post as a response and clarified through it that the updated privacy policy did not apply to personal chats or communications i.e. with friends, families, or relatives, but applied only to communications with business accounts via the WhatsApp platform. According to the blog, “But whether you communicate with a business by phone, email, or WhatsApp, it can see what you’re saying and may use that information for its own marketing purposes, which may include advertising on Facebook.”

The Competition Commission of India (CCI) relying on these media reports and the concern of potential harm to the competition framework in the country, decided to take suo moto cognizance of the matter In Re: Updated Terms of Service and Privacy Policy for WhatsApp Users, and seek a response from both WhatsApp and its parent company Facebook about the said privacy update. Similar issue was discussed by the Hon’ble Supreme Court of India, however, in this article, I shall restrict the analysis only from the angle of Competition Law and discuss the order of the Competition Commission of India which held WhatsApp and Facebook prima facie in violation of abuse of dominance under Sec 4 of the Competition Act, 2002 and hence, ordered the DG (Director General) investigation into the said matter.

PAST ENQUIRIES

In 2016, WhatsApp had announced similar privacy and data sharing policy with Facebook, wherein WhatsApp would share some user data with Facebook for several purposes like target advertising. Targeted advertising is a form of online advertising that focuses on the specific traits, interests, and preferences of a consumer. Advertisers discover this information by tracking the activity of the user or collecting specific data from the user on the Internet. This privacy policy was challenged before the Competition Commission of India In Re: Shri Vinod Kumar Gupta v. WhatsApp Inc. Case No. 99 of 2016, (hereinafter referred as Vinod Gupta case) for alleged abuse of dominance of WhatsApp in the relevant market for instant messaging services using consumer communication apps through smartphones in India under Sec 4 of the Competition Act. However, the Commission then had held in favour of WhatsApp on the grounds that it had provided its users the option of opting out from the sharing of user account information with Facebook within 30 days of agreeing to the updated privacy policy. The Commission held that, “We are therefore, of the view that it is always open to the existing users of “WhatsApp” who do not want their information to be shared with “Facebook” to opt for deletion of their account…….”

Additionally, in 2020, WhatsApp was again brought before the CCI In Re: Harshita Chawal v. WhatsApp Inc. Case No. 15 of 2020, (Hereinafter referred to as the Harshita Chawla Case) for anti-competitive conduct by integrating its payment option (WhatsApp Pay) into its user application. The Commission even then had held in favour of WhatsApp on the grounds that mere installation of WhatsApp messenger does not coerce the user to use WhatsApp Pay exclusively or to influence the consumer choice implicitly in any other manner. The Commission in this case did not discuss the allegations of data sharing with Facebook, as there was a lack of specific information and evidence provided by the Informant.

The present order

The general approach of the CCI is that before passing the order of investigation to the DG under Sec 26(1) of the Competition Act, the CCI, in most cases, relies on the information produced by the Informant in forming a prima facie opinion. In its previous orders, the CCI relied on the information provided by the informant, the market analysis, statistics, and market data while deciding in favour of WhatsApp, this time it simply relied on media reports and took a suo moto cognizance of the matter. This is, however not the first time that the CCI has taken a suo moto cognizance of contravention of the competition law. In Re: Alleged anti-competitive conduct by Maruti Suzuki India Limited (MSIL) in implementing discount control policy vis-à-vis dealers, Suo Moto Case No. 01 of 2019, wherein it had received an anonymous mail and on that basis, the CCI took suo moto cognizance of the matter against Maruti Suzuki. This demonstrates the evolving approach of the CCI while taking up matters by giving more importance to harm to the competition framework rather than the procedural requirements.

In the present matter, while presenting its contentions, WhatsApp relied on the previous approach of the CCI in its decisional practice in the Harshita Chawla Case, Vinod Kumar Case, and also in the case of XYZ v. Alphabet Inc. Case No. 07 of 2020, and contended that allegations against data sharing, data localizations cannot be looked in under the Competition Law. However, in this order, the CCI observed that in digital markets, unreasonable data collection and sharing thereof may grant competitive advantage to the dominant players and may result in exploitative as well as exclusionary effects, which is a subject matter of examination under competition law. This shows the evolving approach of the CCI while taking up matters related to the digital economy wherein consumer data is the most important consideration and can severely impact the dominance of an enterprise and its conduct in the market. This is also in consonance with the global decisional practices under antitrust laws wherein the competition regulators across the globe are considering the non-price competition factors involved in the dominant conduct of the enterprise in the market. The European Commission in Microsoft/LinkedIn merger case, Case Comp/ M.8124, had noted that although privacy concerns fell under data protection laws, it could be seen as a non-price competition factor in merger control assessments to the extent that consumers saw it as a significant factor in the quality of the services offered.

WhatsApp also contended that the privacy policy update has not been implemented yet and has been postponed to 15th May, 2021, hence, the CCI taking up the matter is premature. The CCI observed that the conduct has already taken place and the deadline of 15th May 2021 is just for acceptance to the updated terms. Sec 33 of the Competition Act also empowers the commission to intervene in the acts which are in contravention of Sec 3,4, or 6 of the Competition Act, if such acts are about to be committed. The CCI in its interim order In Re: Federation of Hotel & Restaurant Associations of India (FHRAI) v. Make My Trip India Pvt. Ltd. (MMT) and others, Case No. 14 of 2019 and Case No. 01 of 2020, had observed, that in digital markets which have a winner takes all potential, the likely outcome of any impugned conduct cannot be ignored till the conduct takes place in actual. Early redressal of such conduct and eliminating the same at its earliest is of utmost importance. The CCI also observed that, “Network effects coupled with even small actions by the platforms may exclude and marginalize rivals, and further strengthen these effects that may be difficult to dilute at a later stage. Any remedy at that stage will be too little and too late as the suppliers’ side of the market, i.e. the franchisee service providers, can be potentially eliminated due to the alleged anticompetitive conduct.” Hence, in digital markets, a slightly different approach than traditional markets is required and the conduct should be analyzed on its merits and its potential harm to the competition.

ANALYSIS

The CCI in this order has touched upon many aspects of abuse of dominance in the digital markets. Digital markets involve structural risks such as network effects, walled gardens, locked-in effects, increased switching costs to alternate platforms, etc. CCI held WhatsApp to be dominant in the relevant market for OTT messaging apps through smartphones in India, which was arrived on the basis of its previous orders in the Harshita Chawla and Vinod Sharma Case. This new privacy policy of WhatsApp removed the option of “opt-out” to the users which it provided in the Vinod Sharma Case and hence, this approach of “take it or leave” leaves no option for the users but to mandatorily accept the new policy to continue using the services of WhatsApp. WhatsApp is in the position to mandate such policies due to the network effects it has acquired. A communication network/platform gets more valuable as more users join it, thereby benefiting from network effects. Hence, the popularity or the value of WhatsApp for a user increases even more as his/her friends, family, and relatives register on the network. This has helped WhatsApp to strengthen its position and limit its substitutability with other similar platforms. The users tend to get locked-in in the ecosystem with less incentive to switch to any alternate network.

According to the Working Paper of the University of Cambridge on Big data for Big Business (March, 2014), the lock-in effect refers to a situation where consumers become dependent on a single manufacturer or supplier for a specific service and cannot move to another without substantial costs. Lock-in trends impact the level of competition in an industry, especially those in which network effects exist. If products are incompatible, switching costs, and network effects bind customers to vendors, locking-in not only customers but also markets to early choices. Even when efficient options are available, customers find themselves hindered by lock-in, giving vendors lucrative ex-post market power over the same buyer.

The CCI also analyzed the presence of such network effects from the fact that despite downloads of the rival apps like Signal and Telegram increased after WhatsApp announced its privacy policy, the user base of WhatsApp did not suffer any significant impact. Hence, on these lines and aspects, the CCI ordered a DG investigation against WhatsApp and Facebook for the alleged abuse of dominance under Sec 4 of the Competition Act.

CONCLUSION

As it was recently said by the CCI Chairperson Ashok Kumar Gupta that, “one-size-fits-all” approach does not work for digital markets and a nuanced assessment of cases based on facts is the need of the hour”. This order of the CCI opens up a new dimension for adjudication the matters that involve big data and the big data companies. Today, though the users might feel that they are able to use the tech services for free, but in this era of digital markets, nothing comes for free. These tech giants are able to access the data of the users and adapt their policies in consonance with such user data. The user data acts like one of the most crucial asset of these tech giant companies. In the words of one former Amazon employee who worked on the Prime team, “It was never about the US$ 79, it was really about changing people’s mentality so they wouldn’t shop anywhere else. (CCI Report on Market Study on the Telecom Sector in India, 20.01.2021). Hence, it becomes evident that the tech giant companies are constantly involved in capturing the user’s time, attention, and data and leaves them with almost no incentive to leave the platform. For example, once a user registers himself/herself on Amazon, the user can access Amazon Prime for visual entertainment, Amazon Kindle for reading, Amazon Music for music, Online Shopping, etc. and finally, there remains no incentive for the user to go anywhere else for availing these services.

As rightly observed by the CCI, cross-linking and integration of user data can further strengthen data advantage besides safeguarding and reinforcing the market power of dominant firms. Finally, the CCI observed that, for Facebook, the processing of data collected from WhatsApp can be a means to supplement the consumer profiling that it does through direct data collection on its platform, by allowing it to track users and their communication behaviour across a vast number of locations and devices outside the Facebook platform. Therefore, the impugned data sharing provision may have exclusionary effects also in the display advertising market which has the potential to undermine the competitive process and creates further barriers to market entry besides leveraging, in violation of the provisions of Section 4(2)(c) and (e) of the Act.

Though this order does not conclude and hold WhatsApp and Facebook in contravention of abuse of dominance under Sec 4 of the Competition Act, it definitely sets the stage for an evolution in the competition analysis framework in India.

This updated privacy policy presented users with the option of either mandatorily accept the privacy policy of greater data sharing between WhatsApp and Facebook in its entirety or being unable to use the platform after 15th May 2021. This had arisen a huge debate throughout the world concerning protection of the privacy of individuals as well as the abuse of data sharing by the technologically giant companies.

While setting all the speculation to rest on whether an Additional District Judge has jurisdiction under Section 34 of the Arbitration and Conciliation Act, 1996 or not, the Kerala High Court has just recently on 9 April 2021 in a latest, learned, laudable and landmark judgment titled Kasim VK vs M Ashraf in Arb.A.No. 37 of 2020 held in no uncertain terms that an Additional District Judge has jurisdiction to entertain a petition filed under Section 34 of the Arbitration and Conciliation Act. The two Judge Bench of the Kerala High Court comprising of Justice CT Ravikumar and Justice K Haripal observed that, “Principal District Judge can only be considered first among equals and the Additional District Judge is in no way considered to be inferior to the Principal District Judge.” The Kerala High Court observed thus while dismissing an Arbitration Appeal.

To start with, Justice K Haripal who has authored this judgment for himself and Justice CT Ravikumar sets the ball rolling by first and foremost pointing out in para 1 that, “Whether an Additional District Court has jurisdiction to entertain a petition touching the matters falling under the Arbitration and Conciliation Act; Can a party to an arbitration dispute challenge the jurisdiction of the Arbitrator for the first time before the court in a petition filed under Section 34 of the Act, are the two questions posed for consideration in this appeal.”

As we see, the Bench then puts forth in para 2 that, “This is an appeal preferred under Section 37 of the Arbitration and Conciliation Act, 1996, hereinafter referred to as the Act, challenging the correctness of the order of the III Additional District Judge, Kozhikode in OP(Arbitration) No.270/2018. That was a petition filed by the appellant before the District Court, under Section 34 of the Act seeking to set aside the award of the Arbitrator, dated 29.09.2018.”

While elaborating on the facts of the case, the Bench then envisages in para 3 that, “It is the common case that the appellant and the respondent were partners in M/s.Shalimar Jewellery, a partnership concern dealing in the sale of gold. The partnership agreement was executed on 28.10.2013. Before the execution of that agreement, there were three partners in the firm, the appellant, the respondent and one V.K. Moidu. When Moidu chose to move out, the agreement dated 28.10.2013 was brought in existence. During the course of business the appellant and the respondent could not move on and thus, by a lawyer notice, the respondent notified the appellant his intention to dissolve the partnership. Thus he informed that the partnership stood dissolved with effect from 01.05.2015. In the matter of settlement of accounts the partners could not reach a consensus and that led to the appointment of two Arbitrators at the instance of the parties. The appellant nominated Sri. K. Aravindakshan as Arbitrator who dismissed the claim of the respondent. On the other hand, one Sri. Abdulla Manapurath was nominated by the respondent as Arbitrator who found that, at the time of dissolution of the partnership, 6481.580 grams of gold was the stockin-trade, the value of which was estimated to be Rs.1,91,85,476.80/- and thus the respondent was found entitled half of the said amount, i.e. Rs.95,92,738.40/-. In the light of divergent finding of the respective Arbitrators, both the Arbitrators jointly nominated Adv. Sri. A.K. Rajeev as the third Arbitrator, who, after taking evidence, passed an award to the effect that the respondent is entitled to claim Rs.1,13,77,405/- with interest at the rate of 11% on Rs.87,03,427/-. Aggrieved by the said award of the third umpire, the appellant moved the District Court with the above stated Original Petition under Section 34 of the Act. By the impugned order, on 02.03.2020, the learned III Additional District Judge dismissed the petition. Aggrieved by the same, the appellant has moved this Court under Section 37 of the Act.”

Needless to say, the Bench then states in para 4 that, “We heard Adv. Sri. B. Krishnan for the appellant and Adv. Sri. Mohammed Nias for the respondent. The records leading to the award and the order passed by the learned Additional District Judge were also summoned and perused.”

To say the least, the Bench then notes in para 5 that, “The point arising for consideration is whether the appellant could make out valid reasons for interference under Section 37 of the Act.”

Be it noted, the Bench then observes in para 6 that, “As mentioned earlier, it is the common case that both the appellant and the respondent were partners of a partnership firm by name M/s.Shalimar Jewellery doing business in gold at Nadapuram in Kozhikode district. The partnership agreement was executed on 28.10.2013 in continuation of the earlier business run by the parties themselves along with one V.K. Moidu. Clause 17 of the partnership agreement reads thus:-

“17. Any dispute or difference of opinion that may arise between the partners or their heirs or their legal representatives with regard to this partnership agreement or any other matter relating to this firm shall be mutually discussed and settled. If not settled, the dispute shall be referred to two arbitrators by common agreement of the partners. Where these arbitrators are themselves divided in opinion, the matters may further be referred to an umpire chosen by the said arbitrators.”

It is on the strength of the above clause in the agreement that the appellant and the respondent had nominated their respective Arbitrators. But divergent awards were passed by the Arbitrators, which necessitated the appointment of a third umpire and that was how the impugned award had come into existence.”

Furthermore, the Bench then envisages in para 7 that, “The impugned order indicates that even though the appellant had challenged the award with numerous contentions, at the time of argument he confined to one ground only namely, that the dispute is not capable of settlement by arbitration. The learned Additional District Judge considered this aspect and basing on the decision of the Hon’ble Supreme Court in M/s. V.H. Patel & Company and others v. Hirubhai Himabhai Patel and others [(2000) 4 SCC 368] and also A. Ayyasami v. Parasasivam and others [(2016) 10 SCC 386] ruled against the appellant and held that a dispute on the dissolution of a partnership is capable of being adjudicated by the Arbitrator and ultimately the petition was dismissed.”

It is worthwhile to mention that para 12 then stipulates that, “The preamble of the Act makes it amply clear that the Parliament enacted the statute almost on the same lines as the Model Law which was drafted by United Nations Commission on International Trade Law, UNCITRAL. Under the 1940 Act, an Arbitrator had no power to decide on his own jurisdiction. But Section 16 of the Act of 1996 is a recognition of the doctrine of competence-competence meaning that the Arbitral Tribunal can rule on its own jurisdiction. The crux of the arbitration process is the autonomy of the disputing parties with minimum judicial intervention. Once the Arbitral Tribunal, after hearing parties, gives a decision that the arbitration agreement exists between the parties, then by virtue of sub-section (5) of Section 16, the tribunal is bound to proceed with the arbitration matter and make the award and the validity of the order can be assailed by the aggrieved party only by filing objections against the award under Section 34.”

To put things in perspective, the Bench then envisages in para 13 that, “It is the requirement of the law that respondent must state his objections with regard to the jurisdiction of the Arbitrator before filing the statement of defence. However, the respondent may be allowed to raise objection to the jurisdiction of the Arbitrator even subsequent to the filing of the defence statement provided he can show good reasons to the Arbitrator for raising such an objection at a belated stage. In this connection, it is apposite to extract the following paragraphs from the decision reported in Gas Authority of India Limited and another v. Keti Constructions (I) Ltd. and others [(2007) 5 SCC 38]:-

“24. The whole object and scheme of the Act is to secure an expeditious resolution of disputes. Therefore, where a party raises a plea that the Arbitral Tribunal has not been properly constituted or has no jurisdiction, it must do so at the threshold before the Arbitral Tribunal so that remedial measures may be immediately taken and time and expense involved in hearing of the matter before the Arbitral Tribunal which may ultimately be found to be either not properly constituted or lacking in jurisdiction, in proceedings for setting aside the award, may be avoided. The commentary on Model Law clearly illustrates the aforesaid legal position.

25. Where a party has received notice and he does not raise a plea of lack of jurisdiction before the Arbitral Tribunal, he must make out a strong case why he did not do so if he chooses to move a petition for setting aside the award under Section 34(2)(a)(v) of the Act on the ground that the composition of the Arbitral Tribunal was not in accordance with the agreement of the parties. If plea of jurisdiction is not taken before the Arbitrator as provided in Section 16 of the Act, such a plea cannot be permitted to be raised in proceedings under Section 34 of the Act for setting aside the award, unless good reasons are shown.”

The above dictum is a complete answer to the argument raised by the appellant touching want of jurisdiction of the Arbitrator. At the risk of repetition, we may point out that the appellant has no dispute regarding the validity of the agreement, nor he had raised such a contention before the two Arbitrators chosen by the parties and also before the third umpire. In the circumstances, he is estopped from raising such a belated plea in a petition filed under Section 34 of the Act.”

While citing yet another relevant case law, the Bench then observes in para 14 that, “We have also come across the decision of a learned Single Judge of the Bombay High Court, reported in Yogendra N. Thakkar v. Vinay Balse and another [2018 KHC 5034], where the learned Judge has ruled, basing on the decision of the Hon’ble Apex Court in V.H. Patel & Company, quoted supra, that the power of dissolution of the partnership firm under Section 44(g) of the Indian Partnership Act on just and equitable grounds also is an action in personam and not in rem. We concur with the above view expressed by the learned Single Judge of the Bombay High Court.”

Of course, the Bench then hastens to add in para 15 that, “We have already referred to clause 17 of the agreement executed between the parties. It is quite patent that the said clause is very wide and the intention of the parties is to settle the dispute through arbitration, in the event it could be settled through mediation. Section 44 of the Partnership Act also does not impose any taboo or cause any restriction which prevents dissolution of partnership through arbitration. In other words, there is no inherent lack of jurisdiction in the matter of considering the question of dissolving the partnership through arbitration.”

To be sure, the Bench then points out in para 16 that, “During the course of argument, the learned counsel for the appellant also disputed the jurisdiction of the Additional District Judge in entertaining a petition under Section 34 of the Act. Referring to Section 2(e) of the Act, he said that ‘court’ means only principal civil court of original jurisdiction in a district and, therefore, the Additional District Judge has no jurisdiction to entertain the petition. In this connection, he placed strong reliance on Sree Gurudeva Charitable and Educational Trust, quoted supra. But we have no doubt in our mind that such an argument cannot be accepted in right earnest. Firstly, the decision in Sree Gurudeva Charitable and Educational Trust, was rendered in the context of Section 92 of the Civil Procedure Code and has turned up on its own facts. We are not called upon to make any opinion on the correctness of the said decision. Secondly, Section 2(1) (e) of the Act reads thus:

“2. Definitions.- (1) In this Part, unless the context otherwise requires,-

(e) “Court” means—(i) in the case of an arbitration other than international commercial arbitration, the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any Civil Court of a grade inferior to such principal Civil Court, or any Court of Small Causes;

(ii) in the case of international commercial arbitration, the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, and in other cases, a High Court having jurisdiction to hear appeals from decrees of Courts subordinate to that High Court.”

Most remarkably, the Bench then also points out in para 17 that, “A close reading of this provision will not impel us to adopt the argument raised by the learned counsel. The said provision enables the principal civil court of original jurisdiction in a district as the court having jurisdiction to decide the question forming the subject matter of arbitration; such a court does not include any civil court of a grade inferior to such a court or any Court of Small Causes. The latter limb of Section 2(1)(e) of the Act makes it abundantly clear that the definition of the ‘court’ does not include ‘any civil court of a grade inferior to such principal Civil Court, or any Court of Small Causes’. To put it in other words, legislature has not thought of excluding courts exercising identical or co-equal powers from the definition. In no stretch of imagination an Additional District Judge can be inferior to such principal civil court. A court is inferior to another court, when an appeal lies from the former to the latter. An inferior court must be construed to mean judicially inferior and has appellate jurisdiction. A court is an inferior court for the purpose of the prohibition in the provision whenever its jurisdiction is limited. The Additional District Judge enjoys an equal, concurrent jurisdiction with the District Judge. His powers are identical and co-equal with the Principal District Judge. Both are manned by officers in the category of District Judge. The Principal District Judge cannot revise an order passed by any Additional District Judge. District Court is the ‘court’ for the purposes of execution of the award and considering the matters under the Arbitration Act, it is important to note that the Principal District Judge has no appellate jurisdiction or revisional jurisdiction over the Additional District Judge. For all practical purposes, if there are more than one district court in a district, the Principal District Judge can only be considered first among equals and the Additional District Judge is in no way considered to be inferior to the Principal District Judge.”

Quite pertinently, the Bench then states in para 18 that, “When a similar contention, that an Additional District Judge has no jurisdiction to entertain an application under Section 9 of the Act, was raised, in Globsyn Technologies Ltd. v. Eskaaycee Infosys [2004 (2) ALT 174 : MANU/AP/0970/2003] the High Court of Andhra Pradesh ruled thus:-

“12. The short question that falls for consideration is as to whether the Court of the learned VI-Additional District Judge is a Civil Court of a grade inferior to the Principal Civil Court. The Court of the Principal District Judge and the Court of VI Additional District Judge are of equal grade. The Court of the learned VI-Additional District Judge is not a court of a grade inferior to the Court of the Principal District Judge. The expression “Court of a grade inferior” is required to be understood in its proper context.

13. The dictionary meaning of inferior is “lower in any respect, subordinate, a person who is lower in rank or station”. According to Black’s Law Dictionary, inferior means “one who, in relation to another, has less power and is below him; one who is bound to obey another. The term may denote any Court subordinate to the chief appellate Tribunal in the particular judicial system [eg. Trial Court]; but it is also commonly used as the designation of a Court special, limited or statutory jurisdiction”.

14. I find it difficult to accept the submission of the learned Additional Advocate General that the Court of the learned VI Additional District Judge at Visakhapatnam is a Court of a grade inferior to the Principal District Judge’s Court. ……..””

While continuing in a similar vein, the Bench then also states in para 19 that, “A Division Bench of the Madhya Pradesh High Court also considered the same question pointedly in Madhya Pradesh State Electricity Board and another v. ANSALDO Energia, S.P.A. and another [AIR 2008 M.P. 328]. After making an elaborate survey of authorities taken by various High Courts on the point, approving the dictum in Globsyn, mentioned supra, it was held that, the Additional District Judge has jurisdiction to entertain a petition filed under Section 34 of the Act. We are in respectful agreement with the above finding.”

Most significantly, the Bench then quite rightly points out in para 20 that, “In the context of the Kerala Civil Courts Act also such an argument of the learned counsel cannot hold good. Section 2 of the Civil Courts Act provides three category of positions namely, the court of a District Judge, the court of a Subordinate Judge and the court of a Munsiff. Section 3 provides for establishment of district court. Going by sub-section (2) of Section 3 of the Civil Courts Act, the Government shall establish a district court for each district and a Judge shall be appointed to such court. Section 4 provides for appointment of Additional District Judges. Under sub-section (1) of Section 4 when the state of business pending before a district court so requires, one or more Additional District Judges may be appointed to that court for such period as it deemed necessary. Sub-section (2) of Section 4 says that an Additional District Judge shall discharge all or any of the functions of the District Judge under this Act in respect of all matters which the District Judge may assign to him, or which under the provision of Section 7 may be instituted before him and in the discharge of those functions he shall exercise the same powers as the District Judge. When such additional district courts are established and Additional District Judges are appointed, sub-section (2) of Section 4 of the Civil Courts Act empowers the Additional District Judges so appointed with powers to discharge all the functions of the District Judges. It is very specific when it is provided that the Additional District Judge shall exercise the same powers as the District Judge. That is why it is stated that Principal District Judge is only first among equals among the District Judges in a district. In the circumstance, there is no jurisdictional error in Additional District Judges hearing petitions filed under the Act.”

Adding more to it, the Bench then states in para 21 that, “Arguments were also addressed stating that the award was given in total disregard of the time frame provided under Section 29-A of the Act. According to the learned counsel, the award is hit by subclause (4) of Section 29A of the Act. We are unable to subscribe this argument also. It is evident from the paper book produced by the learned counsel and also the records that, when two Arbitrators appointed by the parties had given divergent views, appointment of a third umpire became necessary. Accordingly, both the Arbitrators together, by letter dated 15.05.2017, nominated Sri.A.K. Rajeev, Advocate, Vadakara as the third umpire. The proceeding paper indicates that he had taken up the matter on 19.05.2017 and the impugned award was passed on 29.09.2018. No doubt such an award was not passed within a period of twelve months as provided under Section 29-A(1) of the Act. All the same, sub-clause (3) of Section 29-A provides that the parties may, by consent, extend the period specified in sub-section (1) for making award for a further period not exceeding six months. Referring to paragraph 8 of the impugned award, the learned counsel for the respondent submitted that the third umpire proceeded with the matter, as consented by the parties, under sub-section (3) of Section 29-A. Relevant portion of the award indicates that, ‘there was some delay in proceeding with the matter partly attributable to his personal inconvenience and also due to the delay and laches on the part of the parties in submitting their statements and documents before him’.

Please read concluding on thedailyguardian.com

The claimant filed his statement along with the documents only on 02.04.2018 whereas the respondent filed his statement on 09.05.2018. It is further stated that on 09.05.2018, that is before the expiry of twelve months starting from 15.05.2017, both the parties were requested by him to extend their cooperation to complete the proceedings and make the award as early as possible and at any rate on or before 15.10.2018. According to him, they accepted and agreed for the same and cooperated with him for completing the arbitration proceedings. In other words, taking the date of commencement of the proceedings as 15.05.2017, before the expiry of twelve months both the parties consented to extend the period specified in sub-section (1) of Section 29-A for making the award and the award was passed on 29.09.2018 within a further period of six months from the date of giving the consent. Sitting in this jurisdiction, we do not find any reason to disbelieve the version of the Arbitrator and to strike off the proceedings under sub-section (4) of Section 29-A of the Act.”

For the sake of clarity, the Bench then states in para 22 that, “This is not a regular appeal as provided under Order XLI CPC or Section 5 of the High Court Act, but an appeal under Section 37 of the Act. While considering an application under Section 34 of the Act, the District Court has only supervisory jurisdiction. The jurisdiction of this Court under Section 37, at the tapering end of the proceedings, is still narrow and thin.”

Quite aptly, the Bench then observes in para 23 that, “It is the settled proposition of law that an Arbitrator is a Judge chosen by the parties and his decision is final. The court is not expected to appraise evidence as done by a regular court of appeal. In a case where the award contains reasons, interference would not be available within the jurisdiction of the court unless reasons are totally perverse or the award is based on wrong proposition of law. An error apparent on the face of the records would not imply closer scrutiny of the merits of documents and materials on record. Once it is found that the view of the Arbitrator is a plausible one, the court will refrain from interfering in the matter.”

It cannot be glossed over that the Bench then states in para 24 that, “In the decision reported in P.R. Shah, Shares & Stock Brokers (P) Ltd. v. B.H.H. Securities (P) Ltd. (2012 (1) SCC 594 the Apex Court held that a court under Section 34(2) of the Act does not sit in appeal over the award of an Arbitral Tribunal by re-assessing or re-appreciating the evidence. An award can be challenged only under the grounds mentioned in Section 34(2) of the Act. In the absence of any ground under Section 34(2) of the Act, it is not possible to re-examine the facts to find out whether any different decision can be arrived at. Similarly, in Sutlej Construction Ltd. v. Union Territory of Chandigarh [(2018) 1 SCC 718], while commenting against an order passed under Section 34 of the Act, the Hon’ble Supreme Court held that the Judge ought to have restrained himself from getting into the meanderings of evidence appreciation and acting like a second appellate court.”

No doubt, the Bench then seeks to point out in para 25 that, “Coming down to the jurisdiction under Section 37, it is clear that the court cannot travel beyond the restrictions laid down under Section 34 of the Act. The Hon’ble Supreme Court has held that the Court cannot undertake an independent assessment of the merits of the award and must only ascertain that the exercise of power under Section 34 has not exceeded the scope of the provisions; in case an arbitral award has been confirmed by the court under Section 34, in an appeal under Section 37 the appellate court must be extremely cautious and slow in disturbing such concurrent findings.”

Finally, the Bench then holds in para 26 that, “We have considered the contentions of the parties bearing in mind the restrictions imposed by the statute and also the caution sounded by the Apex Court. On an overall consideration of the entire circumstances, we are sure that the learned Additional District Judge has considered the award in proper perspective and reached a correct conclusion. We are of the definite view that overwhelming reasons are not made out warranting interference in appeal. Point is answered accordingly and the appeal is dismissed. No costs. Before parting with, we once again record our deep appreciation for the erudite and enlightening arguments raised before this Court by the learned counsel for the appellant as also the learned counsel for the respondent.”

In essence, the two Judge Bench of the Kerala High Court comprising of Justice K Haripal and Justice CT Ravikumar in their 26-page painstaking brilliant, brief and balanced judgment make the picture pretty clear on whether Additional District Judge has jurisdiction to entertain a petition filed under Section 34 of the Arbitration and Conciliation Act. The Additional District Judge has jurisdiction to entertain a petition filed under Section 34 of the Arbitration and Conciliation Act and there is nothing wrong in doing so as this is permitted in law. Para 17 and para 20 explains this quite elaborately, explicitly, eloquently and elegantly and form the real backbone of this judgment which is par excellence.