The art of taxation consists of so plucking the goose to obtain the largest amount of feathers with the smallest amount of hissing.
—Jean Baptiste Colbert
In India, arbitration is always criticised due to Court interferences. However, recent judicial decisions show that Indian Courts are adopting a minimal interference model. This would help India globally to make a mark in the field of arbitration. In this never-ending process of court trials, challenging the awards in tribunals is a trend now here we can take the example of the same from the landmark case of Vodafone International Holdings B.V. v. Union of India & Anr. The enforcement of foreign awards is always being hard in India due to the regressive approach of the judiciary, which can be seen in judgments like NAFED v. Alimenta S.A. and Venture Global Eng. L.L.C. v. Tech Mahindra. These judgments are undoubtedly acting as a huge stumbling block in the enforcement of foreign awards.
VODAFONE JUDGMENT AT GLANCE
In the landmark judgment of Vodafone, where the Indian income tax authorities passed an order for payment of $2.2 billion by claiming that this is a case of transferring the Indian assets and therefore, such transfer was taxable in India. But later the Supreme Court held that this is not covered within the meaning of Section 2(14) of the Income Tax Act, 1961 and quashed the demand of INR 120 billion by way of capital gains tax and also directed a refund of INR 25 billion just after that Income Tax Act (2012 Amendment) was brought in introducing two explanations in Section 9(1)(i) of the Income Tax Act, 1961 in this way virtually amending the law to ensure that cross-border transactions such as the $11.08 billion Vodafone-Hutchison deal are taxable. This amendment was challenged in the Permanent Court of Arbitration at Hague under India – Netherlands Bilateral Investment Treaty.
This retrospective amendment was widely criticized across the globe and made India an unpopular destination for investments. The Permanent Court of Arbitration (PCA) quashed the income tax department’s demand on the ground of violation of the fair and equitable treatment standard. It is also observed that India violated the bilateral investment treaty with the Netherlands by retrospectively amending the law and directed India to reimburse legal costs of approximately INR 850 million to Vodafone. The Vodafone award stimulates critical issues for foreign investors investing in India. This award negates India’s position on investment treaties that tax disputes do not come under the ambit of investment treaties. The discrepancy arises from the Vodafone case in which the Solicitor General of India has recommended the government of India to challenge the arbitral award and declared parliamentary legislation of a competent Parliament of a sovereign nation to be non-est and unenforceable. On the contrary, the Attorney General clearly expressed his inability to be involved in the case and he is in favour of accepting all well-reasoned awards instead of challenging every award.
The Indian Government has not decided their move yet but as each coin has two sides so each direction towards challenging the award will lead to the question of law regarding the power of the arbitration tribunal to declare parliamentary legislation to be non-est and unenforceable. India has sovereign powers to amend its laws with a prospective effect and in the present case; the transaction was between two non-resident entities through a contract executed outside India which has no nexus with the underlying assets in India.
JUDICIAL & LEGAL DICTUM IN THIS REGARD
The Indian legislature has the power to make prospective laws, but Article 20 of The Indian Constitution, 1950 provides certain parameters for the same. Article 20(1) imposes a limitation on the law-making power of the legislature regarding retrospective criminal liability. There is anarchy in the imposition of retrospective civil liability too.
As article 20(1) of the Indian Constitution provides that;
“no person shall be convicted of any offense except for violation of a law in force at the time of the commission of the act charged as an offense, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offense.”
The American Constitution also constitutes a similar provision prohibiting ex-post-facto laws both by Central and State Legislatures. It’s been more than 70 years since India became a democracy still there is debate regarding the retrospective legislation in taxation laws.
India has a long term judicial approach regarding retrospective legislation and the landmark case is CIT v. Vatika Township Private Limited, in this case, the Constitutional Bench of Apex Court provided clarity on prospective versus retrospective operation of tax amendments. Moreover, a piece of legislation is presumed not to be intended to have a retrospective operation here the ratio is that the current laws should govern current activities (Principle of lex prospicit non respicit: The Law looks forward and not backward). This case also considered the principle of fairness and leads to the principle of lex non-cogit ad impossibilia – the law does not compel a man to perform what he cannot possibly perform. The ruling concluded that in determining whether a provision is applicable prospectively or retrospectively, attention would be required to be paid to the language of the amending statute, the legislature’s intent, the memorandum to the relevant Finance Act, and the hardship the amendment would cause to the taxpayer. Similarly in the case of CIT v. NGC Networks (India) Pvt. Ltd. held that in the case of retrospective amendment the payer could not have contemplated TDS. Along with that regarding enforcement of arbitral awards, in the case of Govt. of India v. Vedanta Ltd, the court held that-
“enforcement might be rejected just on the off chance that it disregards the State’s most essential thoughts of profound quality and equity, which has been deciphered to imply that, there ought to be incredibly faltering in the declining requirement, except if it is gotten through dishonour or fraud, or unjustifiable methods”
By way of this judgment, the Court reduces the decline of enforcement of foreign arbitral awards and minimizes judicial intervention. The court also observes that the government must change its approach regarding challenging every arbitral award and should adopt an approach that encourages foreign companies to invest in India. It will help India in achieving status as a global arbitration hub.
WAY FORWARD TOWARD ARBITRATION
Today tax uncertainty is a growing cause of concern for foreign investors. Now India is facing criticism owing to the Vodafone award, the question arises whether India would lead to ensuring tax certainty and a stable environment to boost investment hand in hand or not. The scope of investment treaty arbitrations is very bleak and now we have two directions firstly that the Supreme Court of India overturns the decision of the Indian courts regarding non-applicability of the Arbitration and Conciliation Act, 1996 to investment treaty arbitrations, Secondly the legislature can either amend the Arbitration and Conciliation Act, 1996 to include enforcement of Bilateral Treaty Awards within its scope or to establish an entire regime for investment protection. In today’s time, the correlation between Bilateral Investment Treaties and foreign investment is required and we can adopt any approach given upwards to achieve this goal. Bilateral Investment Treaties have a positive role in promoting foreign investment and Investor-State dispute settlement provisions are important factors too in contributing to foreign investment inflows. India is planning a new law to safeguard foreign investment. It also helps us to speed up dispute resolution and to boost stuttering domestic growth.
The scope of investment treaty arbitrations is very bleak and now we have two directions: First, that the Supreme Court of India overturns the decision of the Indian courts regarding non-applicability of the Arbitration and Conciliation Act, 1996 to investment treaty arbitrations; Second, the legislature can either amend the Arbitration and Conciliation Act, 1996 to include enforcement of Bilateral Treaty Awards within its scope or to establish an entire regime for investment protection. In today’s time, the correlation between Bilateral Investment Treaties and foreign investment is required and we can adopt any approach given upwards to achieve this goal.
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REGULATING THE UNREGULATED INTERMEDIARIES
The question of regulating Twitter and other tech giants has been discussed in the India for years, and experts often argue over what should be subject to regulation. Should guidelines look at content moderation? Should parliament push for more security and data transparency? It seems that over the years there are several complexities that have emerged in the regulatory debate. With users being heavily dependent these tech giants have gained a clout in determining almost all the quarters of our life which explains our hesitance in letting tech firms do whatever they like and regulate themselves.
The Information and Technology Act, 2000 under section 2(w) defines Intermediary as
2(w). “with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes”
The definition under 2(w) is vaguely drafted as it limits the role of intermediary as someone who merely receives, store or transmit data. The act further gives immunity to the Intermediary under Section 79 only in the event where the Intermediary does not (i) initiate the transmission, (ii) select the receiver of the transmission, and (iii) select or modify the information contained in the transmission;
79. Exemption from liability of intermediary in certain cases. – (1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third-party information, data, or communication link made available or hosted by him. (2) The provisions of sub-section (1) shall apply if– (a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or (b) the intermediary does not– (i) initiate the transmission, (ii) select the receiver of the transmission, and (iii) select or modify the information contained in the transmission; (c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf. (3) The provisions of sub-section (1) shall not apply if– (a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act; (b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.
However, twitter more than often end up amplifying inflammatory political rhetoric, misinformation, conspiracy theories, and flat out lies to its users by routinely using data algorithms by studying user preferences. The Act further where does not gives any leeway to intermediaries to block or suspend users and censor their freedom of speech and expression without government over sight as provided under section 69A of the Act.
69A. Power to issue directions for blocking for public access of any information through any computer resource.–(1) Where the Central Government or any of its officers specially authorised by it in this behalf is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above, it may subject to the provisions of sub-section (2), for reasons to be recorded in writing, by order, direct any agency of the Government or intermediary to block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource. (2) The procedure and safeguards subject to which such blocking for access by the public may be carried out, shall be such as may be prescribed. (3) The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished with an imprisonment for a term which may extend to seven years and also be liable to fine.
Twitter guidelines to block or permanently suspend the user ultra- vires the Constitution and IT Act. There guidelines have unbridled power to censor or suspend the contents merely on their own whims and fancies thereby infringing the fundamental rights of free speech and expression as guaranteed by the Constitution of India. It becomes important to remind the tech giants that the Universal Declaration of Human Rights provides for the right to free speech and expression under Article 19. It provides that each and every person has a fundamental right to hold opinions and views without any intervention. The International Covenant on Civil and Political Rights also safeguards the right to express freely under Article 19 of it. It states that “everyone shall have the right to freedom of expressions; this right shall include freedom to seek, receive and impart information’s and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”
Traditionally, social media platforms have enjoyed immunity. The prevailing argument is that social media firms cannot be held accountable as they do not publish content, nor do they have editorial control over the content that they host. Big Tech platforms do not play a completely neutral role. Twitter and other tech giants design algorithms that define the order in which search results are served by selecting the receiver of the transmission. Complete legal exemption from responsibility is therefore no longer sustainable. Social media platforms should be treated as publishers. This would involve the kind of regulatory approaches that are used for legacy media, such as print, radio or television. In addition, social media platforms would be expected to comply with the standards for ethics in journalism.
It may be argued that the Twitter is a private entity; which is true; what is also true is that they have become a primary platform for communication both for citizens and government functionaries including heads of the states thereby effectively performing public function and broadly comes under the definition of ‘Other Authorities’ under Article 12 of the constitution which will make it subject to the constitutional discipline of the fundamental rights.
Unregulated social media pose a threat to Indian democracy. These challenges can be addressed by issuing new guidelines for the Intermediaries or to define the term ‘social media’ under the IT Act in order to regulate the policies of tech giants efficiently.
Author is Advocate- Lucknow Bench of Allahabad High Court
Why life imprisonment must be abolished
“Supreme Court has said that life imprisonment meant behind bars for life. It is worse than death to keep a person confined for his entire life in jail rather than taking his life.”
— Justice V.R. Krishna Iyer
Most tragic that why no one barring a few exceptions like the eminent jurist and former Supreme Court Justice late V.R. Krishna Iyer ever demands the permanent abolition of life imprisonment from our lapidated legal system while we keep hearing every now and then repeated demands for abolition of death penalty? Why should life imprisonment not be abolished permanently now itself? Why should the life term punishment exist at all in our penal laws when it is worse than death penalty about which there can be no two opinions as Justice VR Krishna Iyer has very rightly pointed out? It is high time and now Centre and our law makers must seriously deliberate on this to arrive at the right conclusion.
Let me state this most upfront that India is no longer a slave of Britain that the laws made by them in 1860 cannot be adequately amended in 2021 to meet the present circumstances 161 years later. Laws should be retired precisely as they are made – routinely and continuously as our PM Narendra Modi keeps reiterating also! What I find most disturbing is that now the life imprisonment has been made most worst and we have left even the punishment given during British rule behind! During British rule, life imprisonment meant 14 years and after independence even though in some cases they approved it but of late it has been meant to mean whole life without any remission as the Supreme Court recently held also unless the Governments prefers to do so under the relevant provisions of the CrPC. This is most concerning to note! I am sure that in coming time Supreme Court too will realize this when a Judge of the wisdom of Justice VR Krishna Iyer will sit there. To be brutally honest, I see in Justice Dr DY Chandrachud that wisdom and I am sure that my unflinching faith in him shall stand vindicated in the years to come!
Let me ask few soul searching questions: Why can’t criminals be reformed? Why can’t they be rehabilitated? Why can’t they be taught in jail the values of humanity, tolerance and pardon? Why can’t they contribute to the betterment of society? Why can’t we shed off our age-old mental block and false prejudice that, “Once a criminal is always a criminal”? Why do we forget that one of the killers of late Rajiv Gandhi, our former PM scored more than 95% in an exam which he gave while in jail which most of us never have been able to score despite getting best facilities? Why can’t he be rehabilitated? Why do we forget that even many terrorists who are brainwashed on how best to destroy India in foreign hostile nations like Pakistan have been reformed and rehabilitated after they realize their utter folliness and after they are admonished by their own parents and relatives and have even later joined forces and sacrificed their lives fighting terrorists themselves?
Needless to say: Life imprisonment is the worst crime that can ever be committed by anyone and even State cannot be given the licence to commit the most heinous crime on earth! But what we see on ground is completely astounding and life imprisonment keeps getting conferred at the drop of a hat which is most unfortunate, to say the least! Our law makers must pay some attention to this punishment of life imprisonment being vested in so many Sections of IPC more than 40 and being conferred so liberally and so also must human right activists and others raise this issue forcefully in each and every forum!
Yet, alas, we never hear even a whimper of protest from any human right or social activist or any eminent legal luminary barring certain notable exceptions and that too not very vociferously which is most regrettable, to say the least! I am yet to read a single article in my life on life imprisonment even though I have read endless number of articles on death penalty! I have myself written many times on death penalty but this is the first time that I am attempting to write on life imprisonment! This itself proves that this burning topic which is the worst form of human rights violations has never received any attention of any kind from anywhere in the world and even our Law Commission has never given it a food of thought even though it keeps on reviewing death penalty from time to time!
It goes without saying that the Sections in IPC or any other penal law which mandate death penalty can be counted in finger tips in one hand alone but life imprisonment is inundated in so many Sections and in so many penal laws that a lot of unremitting hard work has to be done to count the exact number of Sections which prescribe life imprisonment! Yet all the time we hear all the brouhaha over death penalty by not only human rights activists and eminent legal luminaries but also by our Central government, Law Commission, academicians etc! Isn’t it a supreme irony over which no one not even our Law Commission bothers to even brood over? You tell me if I am wrong on this score!
Let me be very direct in saying this from the innermost core or bottom of my heart – As a great civilization who has always followed the non-violent, love and tolerant ideas of Buddha, Nanak and Mahatma Gandhi, India must put the punishment of life imprisonment to where it truly belongs – in the museum and in the past pages of history. It is rightly said that, “Two wrongs cannot make a right”. The earlier we realize this, the better it shall be in the interest of humanity and justice!
Truth be told, there are many including me who also feel that terrorist too can be brainwashed not in the manner Pakistan or our other hostile nation does but in a real positive sense and they too once reformed should be allowed to come back to the mainstream and live a normal life like others. My best friend Sageer Khan once said to me way back in 1994 that, “Defend a rapist or a dacoit or a robber or a murderer or any other criminal but never ever in life defend a terrorist. I say so because a rapist or a dacoit or a robber or a murderer never goes to Pakistan or any other foreign nation to get training on how best to destroy India. Moreover, a rapist or a dacoit or any other criminal adversely affects one or a few individuals but terrorists are a potent threat not to just one or few individuals to the very existence of our whole nation.” I immediately asked him : “Does a country which has rapists or dacoits or corrupt or murderers or any other criminals really need Pakistan’s ISI or Pakistan’s Army trained terrorist to destroy India? Who trains our politicians to hold talks and dialogues with terrorists and swindle away unlimited money for their own pocket and allow millions of poor to die hungry?” Sageer Khan then endorsed my stand and admitted that, “Yes, you are right that criminals are criminals.” We have seen for ourselves how so many terrorists after being reformed have got absorbed in the mainstream. I do, however, agree that terrorists should be allowed to join the mainstream after it is thoroughly confirmed that he/she has reformed and shown genuine interest in leading a normal life again and still it should be made ensured that he/she again does not go back to the same old dirty path of terrorism which is the biggest threat to the very existence of our nation.
It merits no reiteration that life term under no circumstances can ever be justified. No matter how heinous any crime any criminal may have committed, there is always a possibility of reforming but life term forever closes that option which I strongly disapprove. We need to change our mental level of thinking and learn to be more tolerant even towards those who have gone on the wrong track! Of course, I don’t say that they should not be punished but simultaneously we must make sure that they too are given an opportunity of returning to the mainstream so that their whole family benefits especially those who are totally dependent on them like aged parents, wife, children etc!
Let me be direct in asking: What sense does it make to lock a person inside jail for whole life? Why should instead such person not be made to do service which can benefit the society at large without paying him/her anything in return and yes, if someone is dependent on him/her for survival then directly giving to the concerned dependent some money? Will this not benefit the whole society as also his/her family who were not partner in the crime while punishing him/her at the same time? Our lawmakers and Centre must seriously dwell on this!
Why should life imprisonment exist at all even for the most heinous crimes? Why can’t the criminals be punished and then allowed to contribute their bit to society by releasing them after few years? Why can’t we come out of our medieval slavish mindset which firmly believes in “Once a criminal always a criminal”? Why can’t such criminals who are guilty of committing the most heinous crimes be reformed and compulsorily made to contribute their service to the disabled, orphans, street dogs, other uncared animals and poorest of poor instead of just latching them behind bars for their whole life? Why don’t we realize that society gains nothing by just botching them inside Tihar jail or any other jail for the rest of their lives? It is high time that we at least now change our primitive mindset for the betterment of the whole society at large! The earlier we do this, the more better it shall be in the supreme interest of humanity!
What a supreme irony that according to the government itself, only 54 persons have been executed since independence as reported in ‘The Times Of India’ newspaper dated August 25, 2014 but yet so much of brouhaha is made of death penalty! On the contrary, endless number of persons have been sentenced to life imprisonment since independence and yet we hardly hear any voice of human rights activists to repeal it forever in the supreme interest of protection of humanity, life and personal liberty of not just common citizens but also criminals! Criminals too are like us, it is only that due to some circumstances and wrong company that they get involved in some wrong doing for which they certainly must be punished but condemning them to prison for life can in no way be the ideal solution!
It is high time and now not just Centre but even our Law Commission too must do a thorough introspection and deep research on it to get to the bottom of the matter. I am sure that they too will ultimately come to the logical conclusion that in a modern, civilised society, life imprisonment simply serves no relevant purpose other than satisfying few sadistic egos and must therefore be stamped off all our statutes and penal laws. Only then can we call ourselves tolerant, civilised and modern in the true sense! At least I feel in this manner. You or for that matter anyone else including Centre is fully entitled to differ with me on this count.
At least to the best of my knowledge, I have never heard even once of the Law Commission of India reviewing the abolition of life imprisonment even though it has reviewed death penalty in the past and now too has decided to embark on the same exercise with a fresh look and it needs no rocket science to conclude that it is only due to unremitting pressure of human rights activists, lawyers and other intellectuals! The Supreme Court earlier while rejecting the challenge to the death penalty had quoted the 1967 report of the Law Commission ( which was 35th Report ) which had said that, “Having regard, however, to the conditions in India, to the variety of social upbringing of its inhabitants to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment.”
The Law Commission of India in its 262nd report also rightly favoured abolition of death penalty for all offences except terror related offences and waging war against the state. But what about life imprisonment? Not a single word I have ever heard as the Law Commission has never reviewed its practical utility. But it is high time and now at least the Law Commission must review it and submit its enlightening recommendations in this regard so that this most inhuman form of punishment is very rightly thrown to the dustbin for the ultimate purpose of being consigned to the flames!
It is a no-brainer that the easiest way to die is by hanging. Don’t we know this simple basic fact which is a matter of common knowledge that how many people commit suicide every year by hanging alone? What to say about committing suicide by other means! Why did one of the accused in the Delhi Nirbhaya gang rape commit suicide? Even eminent lawyers, judges, senior army officers, police officers, doctors etc keep on committing suicide time and again because it is most difficult to stay alive and lead a frustrated life! We had seen how the ex DGP of Assam Shankar Baru committed suicide after his name figured in a scam! Such people cannot serve life term by staying alive even in open and opt for committing suicide! There are many more such instances!
For God sake, at least now think about those who have to spend their entire life in prison? It is the worst form of torture and I personally consider it the worst form of crime on earth, worse than even murder, rape, dacoity or even terrorism! It is the worst form of crime perpetrated by State! Terrorists are trained in Pakistan and other foreign countries but who trains State itself to inflict this worst punishment which is termed as “life term”?
Why do most of us fail to appreciate the basic fact that rigorous life imprisonment is much more than painful than capital punishment where a criminal is killed in just one fell stroke only? It should not be lost on us that even Mohammad Afzal Guru who has been hanged in Parliament attack case had rued when alive that,“I don’t think the UPA government can ever reach a decision. Congress has two mouths and is playing a double game. I really wish LK Advani becomes next PM as he is the only one who can take a decision and hang me. At least my pain and daily sufferings would ease then. Cumbersome legal procedures and prolonged periods of solitary confinement are inhuman and cruel. Life has become hell in jail. I don’t wish to be a part of the living dead.” This itself is adequate testimony to prove my basic point that life term is worse than capital punishment which under no circumstances can ever be justified!
Even a criminal can be reformed and absorbed in the mainstream! Moreover let us not forget that it is our society which prepares the crime itself and the criminals only commit it falling prey for which they alone cannot be blamed. Definitely their crime cannot be condoned at all but just awarding life imprisonment is no solution rather is worse than the disease or problem itself. We must think from a more broader angle of devising more ways and means to curb the increasing crime by striking at the very root of the problem due to which more and more persons are becoming criminals and this again is possible if their basic mindset is changed and they are made to believe that their best interest lies in reforming themselves!
Before winding up, let me clarify to my esteemed readers: I am not a spokesperson of criminals nor do I justify in any manner the heinous crimes committed by them! All that I am trying to say is: They too must be given a chance to reform, rehabilitate and resurrect as good citizens after cooling their heels for some years in prison! Why can’t they be given a chance to live a normal life? Let us not forget: Article 21 of the Constitution guarantees protection of right to life and personal liberty of all citizens which certainly includes criminals also! To be sure, when such an eminent jurist like Justice VR Krishna Iyer who is a former Judge of the Supreme Court can belive in “Operation Valmiki” then why can’t we and our society as a whole believe in the same? Justice Krishna Iyer had hit the nail on the head when he had said a long time back that,“I believe in Operation Valmiki because every saint has a past and every sinner has a future.” Most unfortunately, this is what our lawmakers and successive governments in the Centre have always ignored! Rules made by our former colonial rulers – Britishers who treated Indians like servants are still continuing more or less intact and hardly few changes have been made which is the real tragedy! Just mourning won’t do. Such outmoded and archaic colonial laws needs to be thrown out or at least amended to meet the present circumstances!
When Centre can be so large hearted to a Pakistani army invader like Gen Musharraf who even threatened to nuke India and heaped Kargil war on us which he masterminded in which we lost more than five hundred soldiers as per official figures even though the unofficial figure is quite high yet Centre welcomed him within three months in 1999 to accord him a grand reception and many big media houses welcomed him and honoured him grandly then why can’t we demonstrate an iota of kindness for our very own people who are Indians and give them an opportunity to reform, rehabilitate and return to the national mainstream by which not only they but their entire family especially those who are wholly dependent will benefit immensely? Centre must really ponder in right earnest!
It is my humble request to our law makers, law commission, government and policy makers to please dwell over it and take a decision appropriately as per their own wisdom after weighing in all the factors! The earlier this is done, the better it shall be for not only those languishing in jails but also their families as a whole! These days all newspapers are flooded with reports that the Law Commission is seriously reviewing the growing demand of abolition of death penalty in India permanently! If death penalty can be abolished then why can’t life imprisonment be also abolished? How I wish there were more of Justice Krishna Iyer who could raise emphatically their voice against life imprisonment which is the worst punishment!
To put things in perspective, Centre must learn something from Punjab government who worked out the premature release of Gurmeet Singh Pinky, a Babbar Khalsa militant-turned-inspector convicted of murder where life term was done in 7 years and seven and a half months and will spend the rest of his life as a free citizen as was reported in ‘The Indian Express’ newspaper dated August 21, 2014! There are many such unreported cases but what is most unfortunate is that only a few offenders having some push and pull have been able to avail of such exclusive benefit and majority still are compelled to languish in jail for the rest of their life!
It is in the supreme interest of humanity that life imprisonment must be abolished once and for all. The earlier this is done, the better it shall be in the interest of humanity! There is not even an iota of doubt about it. This alone explains why such a legendary jurist and former Supreme Court Judge – Justice Krishna Iyer was unequivocal in advocating for abolishing of life imprisonment as it is the worst form of crime! That’s all I have to say on this! I hope students, law researchers, human rights activists and lawyers and also Judges do more introspection on this and seriously analyse what I have said most humbly!
Circumstantial evidence: A Herculean task for prosecution
All the circumstances pressed by prosecution must be fully established and all the facts so established must be congruent and consistent with the hypothesis regarding guilt of the accused. These circumstances should lead to a singular conclusion about the commission of offence by the accused and rule out all other probabilities.
The objective of criminal proceedings is to protect the essential societal public interests as opposed to private interests in civil matters. The life, liberty and dignity of a person is often at stake in a criminal trial. Unlike civil trials, where damages and compensations can do good the loss, criminal trials have devastating effects that can’t be undone in most cases.
Let thousand culprits escape, but one innocent should not be punished is thereby cardinal principle of criminal justice system. The benefit of doubt is always extended in favour of accused. Criminal trials become much inferential when direct evidences, witnesses and circumstantial evidences all together are present.
It however becomes a herculean task for prosecution when the trial rests solely on circumstantial evidence. Inferences in most of such cases remain ambiguous and hence even courts are wary while awarding punishments. Life imprisonment instead of death sentence has been awarded in umpteen cases of circumstantial evidence as a rule of caution.
Cardinal principle of law of evidence is that- ‘evidences are weighed and not counted’ . It’s the quality and conclusive nature of evidences that are of paramount consideration in a trial. Harping on ocular evidences or where sensory receptiveness was express is a very assuring judicial conscience. In cases where only circumstances are left as trail, motive, post offence recoveries become important in absence of oral or documentary evidence.
The trials of circumstantial evidences are based on the rule of – Res ipsa loquiter (the thing or conditions speaks for itself). Men may tell a lie, women may tell a lie, but circumstances do not tell a lie. ‘A circumstantial evidence is an evidence that relies on an inference to connect it to a conclusion of fact’. It entails that the court should not only accept the evidence led, but also draw an inference from it.
Pursuant to Section 6 of Indian Evidence Act,1872- circumstantial evidence forms a part of the same transaction as facts which though not in issue, are so connected with a ‘fact in issue’ that they are intrinsic to same transaction, are relevant, whether they occurred at the same time and place or at different times and places.
Section 7 of the same Act also expounds about the facts which are the occasion, cause, or effect of the facts in issue, while Section 8 deals with motive, preparation and previous or subsequent conduct.
In trials depending entirely on circumstantial evidence, the prosecution should be capable of explaining with certainty the circumstances indicating the guilt of which the accused is charged, as held in State of Kerela v. Rasheed,2017 Cri LJ 3956(Ker).
Such circumstances must be conclusive, complete and not contrary to the law. While adjudicating upon sufficiency of circumstantial evidence for the purpose of conviction, the court shall harp upon the cumulative effect of all the proved facts. These circumstances must indicate guilt of the accused with certainty. They should not be based on surmises and conjectures. They should exclude any hypothesis of the innocence of the accused.
The facts established by prosecution should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved.
Prosecution has to lead an unimpeachable evidence to prove the facts and circumstances. A few minor missing links in chain are allowed, provided all these circumstances joined together form a chain so complete as to unerringly point to clouds of suspicion and doubt towards the accused.
All the circumstances pressed by prosecution must be fully established and all the facts so established must be congruent and consistent with the hypothesis regarding guilt of the accused. These circumstances should lead to a singular conclusion about the commission of offence by the accused and rule out all other probabilities.
In Hanumant v. State of M.P.1953 SCR 1091 , the Panchsheel or five golden principles of a case based on circumstantial evidence and in absence of corpus deliciti were established. The five conditions to be fulfilled are- 1. The circumstances from which conclusion of guilt is to be drawn should be fully established 2. The facts so established should be consistent with the hypothesis of the guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that accused is guilty 3. Circumstances should be of conclusive nature and tendency 4.They should exclude every possible hypothesis except the one to be proved and 5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused
The general legal burden of proof about fact in issue is fixed on prosecution in a criminal trial. It’s incumbent on them to prove the accusations as one who asserts, must prove that those facts exists. In cases of circumstantial evidence, however, possible involvement can be determined even by incriminating circumstances appearing against accused which are not satisfactorily brushed aside by him u/s 313 of Cr.P.C during examination in court.
In Rumi Bora Dutta v. State of Assam, 2013 Cri LJ 3260 :2013 (4) Supreme 488:AIR 2013 SC 2422 , it was held that a false answer offered by the accused when his attention is drawn to the incriminating facts and circumstances against him led by prosecution can be counted as providing “ a missing link” for completing the chain.
Its duty of court to see what circumstances were pressed and produced before court to incriminate the accused and how many of them are proved. The court can draw inference of guilt when all the incriminating facts and circumstances are found to be totally incompatible with innocence of the accused.
The circumstances from which an inference of guilt is to drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with ‘Factum Probandum’ or principal fact sought to be inferred from those circumstances, as held in Satish Rajanna Kartalla v. State of Maharashtra AIR 2008 SC 1184.
If evidence produced by prosecution pressing the circumstances do not have quality or credibility, it would be unsafe to rest conviction upon such evidence. Where the trial solely hinges upon circumstantial evidence , the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or guilt of any other person.(Venkatesan v. State of Tamil Nadu AIR 2008 SC 2369)
In cases harping upon ‘Last Seen Together’ theory in circumstantial evidence, the proximity of time and place play a vital role. In an offence of kidnapping and murder, the accused was alleged of forcibly taking deceased from his house. The victim’s body was discovered after few days from a river canal in decomposed manner. The investigating agencies could not establish the last seen together theory due to lack of proximity of time and place the duo were last seen together. Moreover, the FIR was lodged only after recovery of dead body and police failed to provide justified explanation of delay. The motive was also not proved beyond reasonable doubt. Many links in chain of circumstances were missing. Accused was acquitted in wake of ‘benefit of doubt’(Malleshappa v State of Karnataka(2008) ACR 75:2007(4)Crimes 112(SC):2007(8) SLT 383:2007(11) JT 235:2007(10)SCR 153.
‘Motive’ plays a crucial role as a circumstance in a case based on circumstantial evidence, but it cannot entirely replace a conclusive proof. If evidence on record suggest sufficient/necessary motive to commit crime, it may be conceived that accused has committed the same (Munish Mubar v.State of Haryana, AIR 2013 SC 912) . In cases of clear ocular evidence and role of accused in crime stands established, establishment of motive is not a sine qua non for proving the prosecution case (Yunis v. State of Madhya Pradesh, AIR 2003 SC 539)
It can be inferred that circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the ‘fact in issue’ that taken together they cumulatively form a chain of circumstances from which existence of principal fact can be legally infered or presumed. The judges have to ultimately ensure whether evidence proves a particular fact and if fact is proved, the question is whether that fact leads to an inference of guilt of the accused.
Indigeneity, land ontologies and ‘development’
It makes little sense to address deep-seated issues of coloniality with a Band-Aid when perhaps a ‘hit reset’ option is the better approach. Unfortunately, there is a long way to go in that direction given that awareness of the existence of coloniality is a relatively recent development on the global canvas and is certainly almost non-existent in Bharat’s national discourse.
I had ended the last piece on the note that one of the fundamental distinctions between the European colonizer and indigenous peoples who were colonized was the difference in their land ontologies. In the case of the former, his Christian Onto-epistemological and theological (OET) framework informed his land ontology whereas a spiritual land ethic, scholars believe, shaped the very OET of most indigenous societies. The nexus between the subject-object cartesian dualism of the colonizer’s OET and the Lockean position on ownership of land/creation of a proprietorial interest in land is not that difficult a connection to draw. In stark contrast, most indigenous societies, until afflicted by “modernity” owing to the European colonizer’s advent, shared a sacred and harmonious relationship with nature which was not seen merely as an object of conquest and possession. It is this distinction in attitudes that brings out in stark relief the devastating impact that universalizing Europeanism has had on nature across the world.
That the colonial attitude towards nature has a direct bearing on metrics of “development” is supported by several scholars of coloniality. A colonialized and hence homogenised approach to development has resulted in every society aspiring for the same way and quality of life regardless of its local conditions. Hypothetically speaking, it is as good or as bad as Uttarakhand, an eco-sensitive zone, aspiring for the same degree of road connectivity and “infrastructure” as Delhi notwithstanding the environmental impact of ceaseless “developmental” activity on its fragile ecological balance. Also, scholars have underscored the convenient categorization of former colonies as underdeveloped or developing countries while the former colonizers serve as benchmarks, the developed countries, whom the rest of the world, specifically the “Third World”, must catch up with. The ones who benefited from colonization became “donor countries” and the ones whose societies were destroyed became “recipient countries” with their arms outstretched for alms in the form of “development aid”.
Unfortunately, former colonies themselves are yet to wake up to the use of “development aid” by the West to coerce them into reshaping their consciousness to conform to “modernity” which has a bearing on political economy, culture, education and everything else that shapes the worldview of a people. In other words, “development” and “development aid” have been consciously employed as tools to further European coloniality in former colonies by keeping alive those colonial power structures and Statist institutions which prevent indigenous consciousness from being mainstreamed through the apparatus of the State. Unfortunately, a postcolonial approach, which is the conventional framework adopted in Bharat to dissect colonialism, has not enabled empowerment of indigeneity. Instead, it has reinforced coloniality through its selective approach to subalternity which has the effect of creating internal coloniality, instead of uprooting coloniality.
There is a decent chance that I might be told that two pieces ago I started this particular thread of discussion with a brief primer on the history of Section 295A of the IPC which penalizes “blasphemy”, and now I seem to be meandering in the direction of coloniality of development. I have a good reason for taking that discussion in this direction because the underlying object is to underscore the all-pervasive and omnipresent nature of coloniality. To use a pop culture reference, it’s like the Matrix. One just needs to become aware of it after which it is impossible to unsee it, especially in matters of political economy and law-making.
The larger point being made is that it makes very little sense to address such deep-seated issues of coloniality with a Band-Aid when perhaps a “hit reset” option is the better approach. Unfortunately, there is a long way to go in that direction given that awareness of the existence of coloniality is a relatively recent development on the global canvas and is certainly almost non-existent in Bharat’s national discourse. The Indian academia, in particular, continues to blithely and perhaps deliberately hug the outdated cactus called postcolonialism, and its cosy and equally colonial partner Marxism. One hopes that a dispensation which claims to fight for the indigenous perspective has the depth and vision needed to recognize the coloniality of existing structures, and has the will to go back to the drawing board to facilitate the re-emergence of the indigenous worldview starting with matters of political economy and law, which is bound to have a cascading effect on the society.
J. Sai Deepak is an Advocate practising as an arguing counsel before the Supreme Court of India and the High Court of Delhi.
Irretrievable breakdown of marriage: An uncodified provision for granting divorce
The historical development regarding the irretrievable breakdown of marriage can be traced from the year 1982 wherein the Supreme Court restricted itself to the statute while rejecting an application seeking divorce based on the ground that the marriage has been broken irretrievably. While rejecting the application, a three-judge Bench of the Supreme Court categorically held that no such ground has been engrafted under the then Indian Divorce Act, 1869 and in the absence of any such grounds, the court cannot step into the shoes of the legislature by adding a provision to the statute which was never enacted by the legislature.
The holy institution of marriage is considered a foundation stone for family and also for society in the absence of which no civilization can exist. In India, the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’) regards marriage as a sacrament which is eternal in its being. Keeping the sacrosanct bond of marriage in mind, at times, due to some differences between the parties, it becomes necessary to break the wedlock. Although the law attempts to protect this sacred bond by providing ways for cohabitation between the parties and when nothing seems to be working out, law then provides ways through which marriage can be dissolved by the parties. The most common and prevalent way to dissolve a marriage is by obtaining a decree of divorce from the Court. Before the enactment of the Act, divorce was not even recognized as a means to end a marriage and it was only considered as an evil which leads to social disintegration. It is only after the introduction of the Act that Section 13 was inserted which provides for grounds on which divorce can be granted. As the law evolves with the society, the Supreme Court of India has expanded the grounds for divorce and started recognizing irretrievable breakdown of marriage as a ground for granting divorce, which has its origins in the English matrimonial law. Though irretrievable breakdown of the marriage is not recognized as a ground for divorce under the Act and Special Marriage Act, 1954, the Supreme Court in a catena of decisions has held that if a marriage is totally unworkable, emotionally dead and beyond salvage, divorce can be granted because the marriage has broken down irretrievably. When the marriage is broken down irretrievably and there is no scope of repair, then it is absolutely necessary in the societal as well as individual interest to let the matrimonial knot untie. The Supreme Court is exercising its inherent power enshrined under Article 142 of the Constitution of India (hereinafter referred to as ‘the Constitution’) to do complete justice between the parties while granting divorce on the said ground. But the position regarding irretrievable breakdown of marriage as a ground for divorce is still unclear since there are judgments to the contrary, to the effect that it is not well within the power of the Apex Court to grant divorce on the said ground while exercising its inherent power under Article 142 of the Constitution. Let’s now delve into the issue regarding power of the Supreme Court to grant divorce when the marriage is broken down irretrievably with the help of judicial pronouncements.
ARTICLE 142 OF THE CONSTITUTION
Before proceeding to the main issue, it is pivotal to have a brief discussion regarding power of the Supreme Court under Article 142 of the Constitution. The power under the said Article is a discretionary power that allows the Supreme Court, in the exercise of its jurisdiction, to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. This power is given to the Supreme Court to meet the contours of justice and it is unfettered or untrammelled by any other law in India. Although this power is extraordinary, which should be exercised sparingly under rare and extreme circumstances, the Supreme Court, over a period of time, to meet the ends of justice, has frequently resorted to Article 142 in order to do complete justice between the parties. Usually, the Supreme Court does not come for rescue while exercising the power under Article 142 when express statutory provisions dealing with the matter at hand exist. At the same time, being a constitutional provision, Article 142 can override any statutory provision, but the Supreme Court does not resort to it in direct confrontation with any express statuary provision unless it is the need of the hour. No other Court of justice in India has equivalent powers as that of the Supreme Court under Article 142 of the Constitution.
Judicial Approach towards Irretrievable Breakdown of Marriage
The historical development regarding the irretrievable breakdown of marriage can be traced from the year 1982 wherein the Supreme Court restricted itself to the statute while rejecting an application seeking divorce based on the ground that the marriage has been broken irretrievably. While rejecting the application, a three Judge Bench of the Supreme Court categorically held that no such ground has been engrafted under the then Indian Divorce Act, 1869 and in the absence of any such grounds, the Court cannot step into the shoes of the legislature by adding a provision to the statute which was never enacted by the legislature. (vide Reynold Rajamoni and Anr. v. Union of India and Anr., [(1982) 2 SCC 474]. The above stand of the Supreme Court was again reiterated in Vishnu Dutt Sharma v. Manju Sharma, [(2009) 6 SCC 379], wherein a division bench held that in absence of any such ground of irretrievable breakdown of marriage, the Court cannot grant divorce on its own since it will amount to violation of principle of separation of power. In Chetan Das v. Kamla Devi, [(2001) 4 SCC 250], a division bench the Supreme Court held that the power under Article 142 is to do complete justice between the parties and not to cause any prejudice. Thus, while invoking its power to do complete justice while granting divorce on the ground of irretrievable breakdown of marriage, the Court ought not to overlook the facts and circumstances of the case since it might not do complete justice to the parties.
At times, the Supreme Court deems it necessary and in the interest of justice to grant divorce after concluding that the marriage has broken down irretrievably and there is no scope for conciliation between the parties. But the Supreme Court in above-mentioned cases declined to grant divorce based on such ground majorly due to the lack of legislative recognition of irretrievable breakdown of marriage in the statutes. Absence of such ground often acts a shield which prevents the Supreme Court from granting divorce in certain cases.
However, in some cases, the Supreme Court went a step ahead and the judges took a more pragmatic approach in certain. In order to do complete justice between the parties, the Supreme Court exercised its inherent power under Article 142 of the Constitution to do what it was legally competent to do and granted divorce when the marriage had broken down irretrievably. In Chandralekha Trivedi v. S.P. Trivedi, [(1993) 4 SCC 232], after examining facts and circumstances of the case, a three Judge Bench of the Apex Court while granting divorce, held that the marriage between the parties had irretrievably broken down and the enforced continuity of marriage would result in the spouses spending more years in bitterness for each other. In V. Bhagat v. D. Bhagat, [(1994) 1 SCC 337], a division bench of the Supreme Court held that there must be some really extraordinary features to warrant grant of divorce on the basis of pleadings and irretrievable break-down of the marriage is not a ground by itself. But while scrutinising the evidence on record to determine whether the alleged grounds are indeed present, and in determining the relief to be granted, the said circumstances can certainly be borne in mind. The unusual step as the one taken by the Court herein can be resorted only to clear up an insoluble mess, and only when the Court finds it in the interest of both the parties. Further in Naveen Kohli v. Neelu Kohli, [(2006) 4 SSC 558], the parties had been living separately for more than 10 years. A three Judge Bench of the Supreme Court concluded that the marriage had been wrecked beyond hope of salvage and the instant matter was a fit case for granting divorce based on the ground of irretrievable breakdown of a marriage. Also in Swati Verma v. Rajan Verma, [(2004) 1 SCC 123], a division bench of the Supreme Court in the exercise of its constitutional power under Article 142 allowed the decree of divorce on the said ground. Recently in R. Srinivas Kumar v. R. Shametha, [(2019) 9 SCC 409], a division bench held that the Supreme Court can exercise its power under Article 142 of the Constitution where it finds that the marriage is totally unworkable, emotionally dead and has been broken down irretrievably, even if the facts of the case do not provide a ground in law on which divorce could be granted, it can dissolve the marriage.
CONCLUSION AND SUGGESTIONS
After a bare perusal of the discussion hitherto, it can be concluded that the stand of the judiciary in matters involving irretrievable breakdown of marriage is not uniform and the Court has time and again given contradictory opinions. Although the Supreme Court is not bound by its own judgments, judicial discipline ordains that the coordinate bench cannot take contrary views and the only legal option left is to refer the matter to a larger bench for obtaining a crystal clear legal position on the subject matter. The Supreme Court has taken contrary views as it can be seen in catena of cases, but the Court has neither overruled the judgments decided previously while taking different view nor it has referred the issue to a larger bench for consideration. Failure on part of the judiciary to have a definite stand will keep the position of law hanging and unsettled. It will not only make the legal position unclear but also create serious prejudice for the parties who are seeking divorce on the ground of irretrievable breakdown of marriage.
In April 1978, the Law Commission of India, under the Chairmanship of Shri Justice H.R. Khanna submitted a comprehensive report to amend the Act to include irretrievable breakdown of marriage as an additional ground of divorce under the Act. Despite the legal interventions, the legislature did not seem to be convinced for a long period. Meanwhile, the judiciary adopted an ambivalent approach towards the cases involving irretrievable breakdown of marriage in the absence of a clear legislative direction. The Supreme Court has reminded the Ministry of Law and Justice to amend the Act and include the said ground as a ground for divorce. In March, 2009, the Law Commission submitted the 217th report which elaborately dealt with the recommendation to take immediate action to amend the laws with regard to irretrievable breakdown where wedlock became a deadlock. Inserting a provision in the Act will have threefold benefits; firstly, it will give a clear legal position in the minds of judges and the citizens of this country; secondly, the lower judiciary will also get legal competency to grant divorce on this ground; and, thirdly, the burden upon the Supreme Court will be reduced and the parties will get speedy disposal of cases which in the present scenario, are at times, taking decades to get disposed of.
Insert- ing a provision in the Act will have threefold benefits; firstly, it will give a clear le- gal position in the minds of judges and the citizens of this country; secondly, the lower judiciary will also get legal competency to grant divorce on this ground; and, thirdly, the burden upon the Supreme Court will be reduced and the parties will get speedy disposal of cases which in the present sce- nario, are at times, taking decades to get disposed of.
2021 ICC Rules of Arbitration: A new focus on efficiencies and streamlined processes
Arbitration, a form of alternative dispute resolution, is a way to resolve disputes outside the courts. Rules of Arbitration are made to resolve the cross-border disputes questions by building a nonpartisan structure of activities. It is worked to control the advancement of the cases submitted to the International Court of Arbitration and the gathering is worked to help any individual, business endeavors and Governments in tackling significant debates at each level.
The International Chamber of Commerce (“ICC”) has concocted another arrangement of Arbitration Rules 2021 (“ICC Rules 2021”) which came into from effect on 01st January 2021. As noted by ICC Court President, Alexis Mourre, “the amendments to the Rules mark a further step towards greater efficiency, flexibility and transparency of the Rules, making ICC Arbitration even more attractive, both for large, complex arbitrations and for smaller cases.”
The 2021 ICC Arbitration Rules present new strategies, update key arrangements, and formalize the current acts of the ICC Secretariat and the Court to take into consideration more noteworthy adaptability, effectiveness and straightforwardness in the organization of ICC intervention cases. But, the previous version of the regulation – the 2017 ICC Rules – will continue to apply to all cases registered with the ICC Court before January 1, 2021.
In proposing alterations to the 2017 Rules, the ICC led an exhaustive modification measure including consulting with the significant partners and the relevant stakeholders. The ICC previously uncovered the proposed adjustments to the Commission on Arbitration and ADR at its fall meeting in Seoul on 21 September 2019 and requested remarks from the different National Committees and Commission individuals. The new draft proposition was talked about at the Commission’s gathering in July 2020. Altogether, the ICC got many composed remarks from different National Committees and individual Commission Members. Moving from this conference cycle, on 6 October 2020, the ICC Executive Board endorsed the amended ICC Rules of Arbitration as proposed by the International Court of Arbitration. Around the same time, the ICC delivered the 2021 ICC Rules in a draft form.
When contrasted with the previous Arbitration Rules of 2017 (“ICC Rules 2017”), it appears to be that ICC Rules 2021 is certainly not a total patch up of the procedural standards for directing the assertion. Or maybe, it safeguards a considerable segment of the ICC Rules 2017 while presenting arrangements that show towards guaranteeing more effective arbitrational questions. The ICC Rules 2021 lays more accentuation on receiving reasonable technique and have additionally expanded the skyline for the multi-party assertion. It has additionally made an endeavor to solidify certain arrangements with a thought of staying aware of the developing dependence on electronic correspondence just as to make arbitrational procedures more helpful for the members, particularly attributable to worldwide limitations set up because of the continuous pandemic.
THE SALIENT FEATURES OF THE 2021 ICC RULES
Joinder of Parties and Consolidation of Arbitration Proceedings
Changes have been made in Article 7(Joinder of Additional Parties) and Article 10 (Consolidation of Arbitrations)in the ICC Rules 2021. Article 7 accommodates adding further parties to the arbitrational intervention even after the arbitral court is comprised, which was absent in the ICC Rules 2017. This change in Article 7 is by all accounts a more huge change because of the consideration of a new paragraph 7(5) that includes allowing for requests for joinder to be made even after the appointment or affirmation of an arbitrator. This change further does empower the arbitral tribunal to settle on any solicitation made by a party for adding further parties to the arbitration. The new revamped Article 7(5) marks a move from the 2017 Rules, where no extra party could be joined to a discretion after the affirmation or appointment of a judge, except if there was an understanding among all the parties, including the extra party, with that impact. The 2021 Rules shed the requirement for an understanding from all parties and gives the dynamic capacity to the arbitral council to join a consenting extra/additional party.
While settling on its choice on a solicitation for joinder, the court is needed to consider every applicable condition, including the prima facie of the jurisdictional council over the extra party, the circumstance of the solicitation for joinder, possible irreconcilable situations and the effect of the joinder on the methodology of the discretion. The new paragraph further explains that a choice to take into account the joinder of an additional party is without bias to the council’s choice concerning its jurisdiction over that part.
Article 10 has additionally been updated in the 2021 Rules to now unequivocally consider union where the entirety of the cases made in the field of arbitration emerges from “same arbitration agreement or agreements”. This change explains any questions with respect to the utilization of Article 10(b) to more than one arbitrational arrangement when already it must be utilized when one arbitrational understanding was being depended upon. The refreshed Article 10(c) further explains that it applies to claims not settled on under a similar arbitration agreement.
Mandatory Reporting of Third-Party Funding
Article 11 of the ICC Rules 2021 accompanies an extra arrangement, for example, Article 11(7), which forces an obligation on the parties to the Arbitration to promptly educate about a non-party who is financing the cases or protections in the procedures (outsider funder) and has a personal stake in the result of the arbitrational procedures. Such data is to be given quickly on its reality, to the Arbitral Tribunal, Secretariat of the Court (“Secretariat”) and different parties to the arbitration procedures. Such an arrangement has been included request to guarantee very much educated revelations regarding fairness, which is needed to be finished by the proposed designated judges as per Article 11(2) and 11(3) of the ICC Rules 2021 and to preclude any irreconcilable situation issues.
ICC COURT: POWER TO APPOINT ARBITRATORS
Article 12 of both the Rules accommodate a methodology for the constitution of an arbitral council comprising of either a sole arbitrator or three authorities. Article 12(9) of the ICC Rules 2021 another extra temporary comparable to the constitution of the arbitral council has been embedded, which is missing in the ICC Rules 2017. Presently, Article 12(9) engages the Court to have a carefulness in designating every individual from the arbitral council in outstanding conditions of evading the critical danger of “inconsistent unequal treatment” and “unfairness” that may influence the validity of the award. Such an intensity of the Court is despite any arrangement between the parties as to the constitution of the arbitral council.
CHANGE IN PARTY REPRESENTATIVE PROCEDURE
The ICC Rules 2021 has seen a total change in Article 17 when contrasted with the ICC Rules 2017, which is corresponding to the adjustment in the portrayal of parties during the pendency of the arbitration procedures. The new Article 17 has another title as “Party Representation” which orders for a party to instantly advise the arbitral court about the adjustment in its portrayal. It likewise enables the arbitral court to take any gauge to dodge irreconcilable circumstance emerging out such change in portrayal and such measures incorporate the ability to limit the new agent from partaking to some degree or entire of the arbitrational procedures. This may be considered as an interruption on the gathering self-governance and the option to pick its direction, be that as it may, it is a route concocted by the ICC to counter the strategic advice arrangements generally done at a remiss stage in a procedure.
Digitalization of Arbitration- Virtual Hearings
Under the 2017 Rules, Article 25(2) gave that “the arbitral court will hear the parties together face to face” upon a parties solicitation or on its own movement. Since the beginning of the COVID-19 pandemic, parties having a problem with the lead of virtual hearings have utilized this provision to contend the need of actual participation, specifically where debates included an assessment of real witnesses and specialists. In its Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic delivered in April 2020 the ICC had affirmed that the principal motivation behind Article 25(2) was to guarantee “live antagonistic exchange”, which was viewed as fulfilled if the hearings were to be held “by virtual means.”
The 2021 Rules eliminate any leftover uncertainty through their new Article 26, by engaging arbitral councils in explicit design to settle on leading hearings face to face and distantly. The choice is dependent upon two necessities: (I) as a starter step, the parties should be counselled, and (ii) “the significant realities and conditions of the case” should be considered. Notwithstanding video and phone meetings, a development in innovation is foreseen in this new article by the reference to “any proper methods for correspondence.” Prior under the ICC Rules 2017, the method of videoconference and telephonic interchanges had its significance simply restricted to directing case management meetings under Article 24 and assisted intervention procedures under Article 30. Presently, under the ICC Rules 2021, the aforementioned modes have been additionally perceived, to direct regular arbitrational hearings also.
Michael Cartier, Partner at Walder Wyss notes that “Even without the new wording of the 2021 ICC Rules, hearings have of course already been conducted by way of videoconference. However, previously remote hearings were often only considered as a second-best option if a witness could otherwise not participate. COVID-19 has led to a shift in perception due to the large-scale adoption of videoconferencing in business life going hand in hand with technical improvements (bandwidth, quality of sound and video) making hearings by videoconference currently the default rather than the exception. Post COVID-19, video conferences will remain an important tool in the arbitrator’s toolbox, and this is rightly reflected in the 2021 ICC Rules.”
Despite the COVID-19 pandemic, virtual hearings are turning into an expanding choice for parties, with the commendable point of lessening deferrals and expenses. Be that as it may, this organization may not be the most intelligent response to the conditions of each case, and, regardless of the 2021 Rules permitting thus, arbitral courts may not generally be qualified for request a full virtual hearing under the lex arbitral. The truth will surface eventually with respect to how this arrangement will happen in a post-COVID-19 world.
A PROVISION FOR ADDITIONAL AWARD
Under Article 36 of the ICC Rules 2021, an arrangement has been added for recording an application by involved with the Secretariat, for an extra award on the perspectives that were raised and were discarded by the arbitral court while choosing the issue. Article 36(3) of the ICC Rules 2021 accommodates documenting the previously mentioned application after the award has been delivered and properly conveyed to the parties as per Article 35(1). Article 36(3) further accommodates a strategy timetable to be clung to while choosing the application for an award concerning overlooked cases. Prior under ICC Rules 2017, Article 36 was simply restricted to remedying any computational, typographical, administrative or some other comparable kinds of blunder in the award delivered by the arbitral council. The modified provision tries to find some kind of harmony between the conclusion of awards and protecting awards from infra petita challenges under the watchful eye of state courts. New Article 36(3) likewise aligns the Rules with various other discretion administers previously managing this issue. This will additionally improve the enforceability of ICC arbitral awards.
ADDITION OF ARTICLE 43
ICC Rules 2021 have accompanied an extra Article 43, which was not there in the ICC Rules 2017. Article 43 of ICC Rules 2021 accommodates arbitration of cases emerging out of the organization of arbitral procedures. Such cases, as indicated by Article 43, will be represented by the French Law and will be settled by the Paris Judicial Tribunal of France.
FACILITATING INVESTMENT ARBITRATION
The ICC Rules 2021 have embedded two new provisions to improve straightforwardness and procedural reasonableness as for treaty-based arbitrations. Article 13(6) has been included the new ICC Rules 2021 to deny the arrangement of a judge having a similar ethnicity to that of any of the gathering, in a circumstance where the intervention procedures are emerging out of a settlement.
Another arrangement that has gone through change is Article 29(6)(c) which presently prohibits the materialness of the Emergency Arbitration Provisions where the assertion procedures emerge out of a treaty.
EDGE FOR EXPEDITED PROCEDURE
Under the ICC Rules 2017, the Expedited Rules that are sketched out in Appendix VI were material to just such situations where the contested sum doesn’t get over US$ 2,000,000/ – . Under the new ICC Rules 2021, such cutoff has been expanded from US$ 2,000,000/ – to US$ 3,000,000/ – expanding the number of cases to be managed quickly on a default premise.
SETTLEMENT OF DISPUTES
One of the cases the board strategies suggested by the 2021 Rules incorporates “urging the parties to think about the settlement of all or part of the question”, rather than just “illuminating” them about that choice according to the past cycle. An express reference to the ICC Mediation Rules supplements this arrangement in light of the developing number of settlements saw during the COVID-19 pandemic.
Call for Green Arbitration
Necessary to the battle against environmental change, allotment of printed versions has for various reasons generally expanded during the COVID-19 pandemic. In its Guidance Note, the ICC provoked all gatherings and arbitral courts to depend on electronic submissions.
Taking action accordingly with the 2020 LCIA Arbitration Rules, the 2021 Rules affirm this pattern by eliminating the assumption of paper filings. Article 3(1) presently gives that all entries, notices and interchanges “will be sent” electronically, rather than “provided in various duplicates.” Several arrangements affirm that the gatherings should explicitly demand transmission by printed version (Articles 3(2), 4(4)(b), 5(3)), and 1 of Appendix V).
ONLINE PUBLICATION OF ICC AWARDS AND PROCEDURAL ORDERS
While not explicitly gave in the 2021 Rules, another change booked for 2021 concerns the online distribution of all ICC grants and procedural requests as a default rule. For information protection concerns, the parties will be given notification ahead of time, with the chance to protest or choose the modalities of distribution, including anonymization.
Insight into the internal running of the ICC Court
The 2021 Rules give important extra data on the inward activities of the Court. The Statutes of the Court (Appendix I) presently incorporate a modified arrangement measure for the President of the Court (Article 3(1)), two back-to-back service time boundaries all individuals from the Court (Articles 3(5) and (6), an unmistakable work division between Committees, recently made Special Committees and Single-party Committees (Articles 4, 5, and 6). The Internal Rules of the ICC are likewise adjusted to give detail on the constitution, majority, and dynamic of the Court.
ACCESS TO THE REASONING OF THE ICC COURT
The new Article 5 of Appendix II affirms that, upon any gathering’s solicitation, the Court may convey its thinking behind its choices on the presence and extent of an at first sight intervention understanding (Article 6(4), solidification of mediations (Article 10), the arrangement of judges (Article 12), difficulties to referees (Article 14) and substitution of authorities on the Court’s own movement (Article 15(2). The solicitation should be settled on ahead of time of the choice in regard to which reasons are looked for. In “excellent conditions”, the Court holds the watchfulness to decrease revelation of its reasons.
The 2021 Rules oblige the ICC Court’s proceeded with endeavors to upgrade proficiency, increment straightforwardness and responsibility to the parties. As discretion keeps on developing from created to creating portions of the world, it is significant that all arbitral organizations proceed to endeavor and meet client expectations.
Reviewed in real-time to guarantee that arbitral procedures move flawlessly during the COVID-19 pandemic and past, the 2021 ICC Rules additionally augment the authority of arbitral councils and the Court to settle on procedural issues. As a subtlety, practice will tell if extra constraints on gathering self-sufficiency for proficiency will be invited by clients and followed by contending arbitral foundations.
But all in all, 2021 ICC Rules are a welcome update. The progressions to the arbitral council’s forces are exact, mirror the development of the ICC Court and the Secretariat’s practices and are predictable with the strategies and methodology that have become the standard in ICC arbitration further solidifying the ICC’s presence as the leading arbitral institution.
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