ONE CONTRACT, TWO ARBITRATIONS: RES JUDICATA IN INTERNATIONAL ARBITRATION CONTRADICTING PUBLIC POLICY - The Daily Guardian
Connect with us

Legally Speaking

ONE CONTRACT, TWO ARBITRATIONS: RES JUDICATA IN INTERNATIONAL ARBITRATION CONTRADICTING PUBLIC POLICY

Published

on

PROLOGUE

Speed is the essence of arbitration. Parties opt for arbitration believing that it is a timelier dispute resolution cog. Unfortunately, however, this is often not the case. Complex, commercial arbitrations take momentous time to finish off and prosperous parties would then have to corroborate with challenges to the tangibility as well as enforcement of the arbitral awardArbitrations are an increasingly civil element of long-term commercial relationships. However, the confidentiality of arbitral proceedings means there is a little publicly available aisle in the contour of awards to work for us to understand the complex legal and practical issues that arise in subsequent proceedings when an earlier tribunal has rendered a decision on a particular matter.

So, in general words resolution of the disputes emanating under the international commercial contract via the rotation of arbitration is known as International Commercial Arbitration. In addition, the 1996 Arbitration & Conciliation Act discerns ICA specifically as arbitration of a legitimate linkage which shall be contemplated commercially if either of the bands is a foreign national or an inhabitant or a foreign person in a commercial context, in accordance with section 2(1) (f) for International Commercial Arbitration. It is used as a better alternative to litigation, and the complete process is controlled primarily by the parties themselves instead of following the national legislation or an established procedure rules. Most of the international commercial contracts contain a dispute resolution clause that specifies that if any dispute arises under the contract, it could be resolved through arbitration, rather than litigation.

The rule of res judicata is the enormous regulation which is solidified in all refined countries by the authorised structures. The precepts of the res judicata should be blended to arbitral tribunals since arbitral courts are an alternative to courts and when an award is required to be included in the country’s lawful order.

OVERVIEW: COMMON LAW STILL (SOMEWHAT) MUDDIED WATERS OF COURT

That’s an interest that is in principle, Common to all disputes whether common law, civil law, or even international or any other system form whether in litigation or arbitration. However, an international arbitration difficulty arises when you try to drill down in any given case on precisely what has been decided, and what can be revisited the multiplicity of governing laws that have a bearing on rescue gives rise to complexities that tribunals need to resolve as part of their mandate. Questions of rescue as they commonly arise in long term legal relationships can take many forms, including international projects, a natural resource can check concessions partnerships shareholder agreements and various other long-term investments. Unfortunately, the private and confidential nature of arbitration means that judicial guidance is in the way of the waters.

OBLIGATORY LAWS APPLICABLE TO ARBITRATION: A STANDPOINT

Indian laws procure for dispute resolution of any international commercial disputes through arbitration and conciliation act 1996 arbitration involving a foreign party, and with its seat in India will be considered as an ICA. In this case, the first part of the 1996 act of arbitration and conciliation will apply. If the seat is outside India, however, part two of the Act would apply rather than part one. This mechanism aims to nail the commercial disputes between the foreign and Indian entities within the framework of the Indian arbitration laws. Now being an international or domestic arbitration, the arbitration is of two types, number one, institutional arbitration. Secondly, in ad hoc arbitration, the parties agree to have an arbitral institution, administer the dispute. These institutions establish their own arbitration rules which would apply to their arbitration procedures. These rules supplement the existing provisions of the Arbitration Act in matters of procedure, and the other details, as the legislation permits the dispute dealt by There may also be general and specific in nature, the arbitration Institute’s have fixed the arbitrators fees, administrative expenses, qualified arbitration panels rules governing the arbitration proceedings, etc, which exalted in smooth and orderly conduct of arbitration in India.

FINAL AWARD: INITIATING ARBITRATIONS UNDER MULTIPLE ARBITRATION AGREEMENTS

The filing of arbitrations established in multiple arbitration agreements, incorporated in two (or more) diverse agreements, in a single arbitration proceeding may be conceivable, but must be accomplished with caution.

ADR is an undertaking to ad lib machinery which ought to be competent of rendering substitute to the conventional outlines of untangling confrontations. The genealogy of the alternative resolution of disputes may be described in India. Corpses like the Panchayat, a group of people in a geriatric or persuasive hamlet who agree on a quarrel among locals, are still not exceptional today. The appointed judicial agent was the Kazi, which adjudicated disagreement between persons under the Principles of Muslim Law in Indian culture. There are several instances documented where the Kazi decided on a matter outside the law by getting the parties to approve a solution reached through conciliation without really adding that colour to the judgement. The 1996 Arbitration and Conciliation Act is a Parliament attempt to adopt an overall strategy to the settlement of alternatives to disputes in India. It is an act that enables conflict settlement either through arbitration or conciliation. In connection with international arbitration, the doctrine of res judicata might be combined. Res judicata fits in with the symposia on “post-award issues” solely to the extent that it concerns the repercussions of arbitrative awards. In this context, questions are arising as to whether a given arbitral award is res judicata in the same arbitrage (whereas the question arises of the effects in the subsequent phases of the same arbitrations of partial or interim awards), other arbitrations (whether or not based on the same arbitration agreement) and proceedings before domestic courts. Additional aspects of the doctrine which do not involve awards and which are therefore beyond the scope of this discussion are the res judicata effects of domestic judgments (for example findings of nullity or ineffectiveness of an Arbitrative Agreement) in arbitral or domestic courts and the res judicata effects in Arbitration Process.

The Final Award is the climactic ruling in an arbitration that has significant sequels, in the perception that it is the climax of an animosity, or a dispute shelved to an arbitral tribunal or a sole arbitrator, and it will concuss the contracts between the parties and may not chiefly be played against. In addition to stapling the legal or factual antagonisms between the parties, the Final Award may also speculate upon the version of contract stints or distinguish the respective liberties and obligations of the parties to a contract.

EPILOGUE

In other words, the arbitrator’s judgement on the application of the concept should also be respected by the court. But while analysing circumstances of res judicata and restricting their powers accordingly, Arbitrators should meticulously do the analyses, since the wrong conclusion in relation to a prior award or judgement would likewise contradict public policy.

The Daily Guardian is now on Telegram. Click here to join our channel (@thedailyguardian) and stay updated with the latest headlines.

For the latest news Download The Daily Guardian App.

Legally Speaking

Learning from present challenges: Time to adopt a human rights based approach to data

Published

on

data security

The recent spike in data breach cases around the world certainly makes us ponder its impact on the important aspect concerning human rights. Data being the new currency of the modern world is deeply integrated with Sustainable Development Goals (SDGs) which seek to realize the human rights of all. It is an affirmative fact that humans are experiencing a phase of triple transition from the resource economy to the digital economy, from centralized governance to multi-governance, and from industrial civilization to the phase of digital civilization. This significant transformation in the journey of Human Rights essentially paves the way for the reconstruction of the system of rights and interests. 

Since 2020, high profile cyberattacks and state sponsored attempts at security breaches have been steadily increasing which puts at stake the protection of human rights because the personal data collected or sensitive personal data collected should only be handled with the express consent of the concerned individual according to Art 6 (1) (a) of GDPR. In the recent case of the United States, the Federal Communications Commission affirmed an investigation for the data breach as disclosed by T-Mobile U.S. Inc. which impacted more than 47 million customers.  This incident witnessed a breach of personal data, including social security numbers and license information of approximately more than 40 million users. This T-Mobile’s data breach is the latest high profile cyber-attack in the current times because the digital thieves took the advantage of weak security because of work-from-home policies triggered due to COVID-19 Pandemic. No sector is immune against the increasing cases of cyber theft as it has engulfed the airline industry like in the case of Indigo’s servers were hacked and the company contemplated that the stolen information can be sold by hackers on public websites. Within a span of six months, India witnessed a massive data breach in Air India. The attack compromised personal data (such as Name of the passenger, contact information, passport information) of millions of its customers. To prevent such incidents, comprehensive data protection laws are imperative for the protection of human rights predominately the right to privacy, and also many other related freedoms that depend on one’s ability to make choices about how and with whom information is to be shared. As a robust measure to this problem, there was an enactment of the EU General Data Protection Regulation is one of the comprehensive attempts globally to regulate the collection as well as the use of personal data by both the government and the private sphere. The new safeguard for the regulations is particularly focused on the importance of human rights in the digital age. Recent scandals involving Facebook and Cambridge Analytica and the incidents which were discussed in the light of data breaches have driven calls for greater control over how personal data is collected and how it should be used further. The objective of GDPR is to avert abusive intrusions in the digital age through data, it is the personal data which is intrinsically connected to people’s private lives which in turn preserves a range of other human rights. However, there are certain conundrums associated with the GDPR, one of them is the broad ambit of ‘legitimate interests’ wherein the organisations are permitted to use the data collected without the consent provided legitimate interest of the entity outweighs person’s rights and freedoms. Therefore, such ambiguous terms of GDPR can invite a stream of court cases against enforcement actions. There is essentially a need for all the countries to adopt a comprehensive data protection law that place human rights at the central point. Though the GDPR is imperfect in some places, but it is certainly one of the fundamental data protection regimes in force. The private sector’s treatment of personal data should be regulated by the Governments with transparent laws, and restricting the collection and use of people’s data to protect their rights. There should be data collection for accountability and accountability in data collection, once this particular factor is established and implemented on the part of the State then most of the cases can get reduced. To make this data for accountability more concrete in nature there was a recommendation put forward by OHCHR suggesting that a framework of structural process and outcome indicators are beneficial to progress towards Human Rights standards and this particular framework can be developed by striking a collaborative work between human rights experts and the statisticians.

The digital space should be construed differently than the physical space attributed to its borderless nature. Therefore, there should be a separate body for adjudicating all the data breach and allied matters at the international forum by constituting Experts (Human rights specialists, data professionals, statisticians) to expedite such massive data theft cases. Though it will invite some administrative expenses and inconveniences but as the saying goes no pain, no gain.

Continue Reading

Legally Speaking

Special Marriage Act, 1954: A panacea for Indian society?

Published

on

“The course of true love did never run smooth” is one of the finest quotes by Shakespeare which has not only described the turmoil one has to face in a love story but also in order to get married while not honoring the society’s morals, customs and boundaries in India. Even in the present day when the Indian tricolour flag stands with immense pride on distant planets light years away, two consenting individuals still undergo a huge amount of turmoil in order to solemnize and register their marriage.

INTRODUCTION

In India, marriage has always had a sacrosanct value in the society where people place the union of two people as a couple on a very high pedestal. Throughout the history, the process of marriage has gathered a huge number of customs and ethos that it has led to becoming a union of two families than two individuals. Very often, there is a high quantum of social involvement in marriage while choosing partners for a marriage. For instance, in many parts of India, marriage between the same social class or caste has become the norm where inter – caste marriages are highly discouraged.

Inter – religious marriages, on the other hand is a taboo where individuals are even outcasted or socially boycotted just for marrying someone of their choice who does not have the same set of religious beliefs and practices as them. Various vigilante groups have also added to the problems of the couples where they even have to undergo a huge struggle in order to ensure that their life and safety is not violated.

The religious laws in India, for instance The Hindu Marriage Act, 1955 or the registration of marriage under Muslim personal laws has not been able to accommodate and regulate the marriages between inter – faith or inter caste couples who do not want to associate and solemnize their marriage according to any particular religious laws since the colonial era. Thus, taking cognizance of this stumbling block which prohibited two consenting eligible adults from entering into a wedlock and upholding the hallowed value of secularism in the society, the British Government in India enacted The Special Marriage Act, 1872. The present Special Marriage Act, 1955 was thus formulated and enacted on the lines of the colonial statute in the newly independent India which was highly necessary to ensure that the secular fabric of the country remained closely knit after it had been substantially torn due to the after effects of the partition of 1947.

Therefore, the only rationale for enactment of this special legislation by the government of the newly independent India was to find an effective alternative for the earlier colonial law and provide a straight – jacket remedy to the individuals who wanted separate provisions for solemnization and registration of marriages through a civil contract since the Right to Marry has also been included as a Fundamental Right under Right to Life and Personal Liberty under Art. 21 of the Indian Constitution.

However, the laws which were framed during the colonial era and hence were incorporated into a specific legislation later on do have a huge number of loopholes and do not perfectly fit into the constitutional setup of the present – day India and thus, lies in a dire need to be amended to fit into the present society and

REGISTRATION OF MARRIAGE – A PRIVACY MASSACRE

The much-needed Right to Privacy has been constitutionally recognized as a part of Right to Life under Article 21 of the Constitution of India by a nine-judge bench in the eminent judgment of K.S Puttaswamy V. Union of India. However, there are various provisions of the SMA, 1955 which have been completely inconsistent with the right to privacy of couples intending to marry under this act.

According to Section 5 and 6 of the SMA 1954, the couple who want to solemnize and register their marriage under this act need to give a public notice in writing to the Marriage Officer of the district in which they have been residing for not less than thirty days. The above-mentioned notice shall then be entered into the records of the Marriage Officer and shall be open for public display and inspection for any person who wants to scrutinize the records and raise objections. Another aspect of this provision is that the public notice includes nearly all the pertinent personal details of the individuals such as contact details, name, occupation and residence address which is left in open for any one who, on their whims and fancies can go through them. This is one of the most erroneous provisions of this act which affects the sacrosanct and fundamental right to life under Article 21 of the Indian Constitution in a two – fold manner.

First of all, due to the public display of the notice given by the couple intending to marry, the sensitive details of the individuals are left without any firewall which in – turn bestows a deep cut on their privacy. This can thus lead to making the inter – caste or inter – religious couple vulnerable to vigilante attacks, pressure of religious groups, family pressure, extremists etc. who may try to influence their decision of marriage during the course of thirty days. Hence this clearly goes against the precedent set down by the longest judgment in the history of Indian judiciary i.e., K.S Puttaswamy V. Union of India

Secondly, the non – adherence to the privacy norms makes the couple vulnerable as it exposes them to various anti – social elements of the society which may even try to harm their life and liberty in order to prevent the union and marriage of the couple. Thus, any orthodox and extremist individual with access to the records and details of the individuals can be a huge potential harm. The history has been a witness to many such incidents where a considerable number of couple faced corporeal harm including honour killings as seen in landmark cases of Lata Singh V. State of U.P where the couple had to undergo severe harassment just for marking someone of their choice.

On similar lines, in the case of Mayakaur Baldevsingh Sardar V. The State of Maharashtra, a whole family was devastated and the couple were stripped of their fundamental right to marry and spend their live together just for belonging to different castes. Such dire consequences for merely marrying not in accordance with the society – made norms is a very high price to pay in a democratic and liberty – worshipping country like India. Thus, such incidents show an utter failure on the part of the state and the legislature to act according to the need of the present – day society than being bound in the chains of the colonial era legislations which hardly hold any substance in the 21st century India.

Taking into cognizance the above provision in the SMA 1954, the Allahabad High Court has rightly noted that compromising with someone’s private data is a devil’s deal in the present-day scenario as data is the biggest weapon today. Hence, the court has rightly set down a precedent that publication of a 30 – day notice for registration of marriage is not an essential requirement of this act and couples can forego this practice in order to avoid the interference of state and non – state actors in their marriage. This judgment has thus shown a ray of light in acknowledging that the fundamental right to marry as established in “Hadiya Case” is upheld without any eclipse from other procedures or provisions of any statute. However, any directive or precedent from the apex court or the legislature itself is awaited till date.

RAISING OBJECTIONS – AN OBJECTION TO SECULARISM?

Section 7 of the act empowers any individual to raise an objection against the marriage of couple intending to marry under this special legislation on the grounds explicitly stated in this act. Any provision of such nature does not find any place in other laws and statutes regulating marriages under different religious laws and the above provision is unique to this act.

Technically, this provision has given a right to any individual, even completely unrelated to the couple to poke his/her nose in the business of the couple and question their autonomy to lead their life according to their wishes. Thus, this provision is completely inconsistent with Freedom of Choice and Expression guaranteed in the Indian Constitution under Article 19, Right to Equality under Article 14, Right to Privacy under Article 21 and the fundamentally core value of secularism which was deeply embedded into the Indian Constitution by the founding fathers of this sacred document.

The law does carry power to lay down provisions in order to regulate the solemnization and registration of marriage, but they too need to follow the due procedure of law along with the values of constitutionalism in order to avoid arbitrariness and become unreasonable. It is pertinent to note that freedom of choice and expression is one of the basic human right and thus is an obligation on the state to fulfill all the criteria required to ensure all citizens get this right fulfilled. The much-revered constitutional bench judgment of Common Cause V. Union of India has also acknowledged the pivotal role of this right in the life of every citizen.

RIGHT TO EQUALITY – ANOTHER FUNDAMENTAL RIGHT HAMPERED ?

As mentioned above, the act has given power to any person willing to inspect the notice book which contains the pertinent details of the couple intending to marry and raise objections if one feels like. Any such provision of this nature is completely absent in all the other laws governing marriage according to one’s religious faiths. Thus, the only difference between marrying under this act and marrying under any other religious law is the criteria of inter – religious or inter – caste and marrying outside one’s religion or caste. This cannot be considered as a valid basis of differentiating people and thus lies outside the category of “intelligible differentia”.

Thus, the basis of classification of couples just on the basis of their religion or caste and setting up a mandatory provision of public notice is unjust, unfair and not in accordance with the reasonable grounds of equality enshrined in the India Constitution and rests its basis merely on the colonial era norms which have become completely obsolete with the progress in society.

Moreover, the couples of the same faith who intend to marry under this act and not under their own religious laws face an extra layer of procedural norms and guidelines which they need to follow.

This has led to not only defeating the purpose of a special legislation for societal and public interest but also becoming a burden on the intrinsic value of secularism in the country.

THE WAY FORWARD

The Special Marriage Act which was once set up with a noble premise to protect the couples who went on to exercise their fundamental rights of marrying, exercising their own choice and liberty now stands on shaky grounds and needs a huge revamp in its provisions.

First of all, there is a dire need to mold the act in such a way that it does not remain to be “too constitutional” and acts in line with the Right to Privacy. This means that the legislature needs to wake up to the sensitivity of the data being shared by the couple for the purpose of registration of marriage and its public display which is without any rhyme and rhythm.

Secondly, proper security needs to be provided to the couples from sources which can act as a threat to their union and marriage for the greater good of the society and proper following of the constitution in letter and spirit. Also, it would be an added advantage if certain provisions of penal nature are also added in this act in order to punish those individuals who violate any norm or guideline in this act to strengthen the enforcement of this statute and protect its sanctity and existence.

CONCLUSION

The Rule of Law which holds a prime importance in any law – abiding society needs to be protected and enforced in any cost. In order to accomplish that, we need proper mechanism of enforcement of fundamental rights, especially those closely relate to life and liberty of individuals in a democratic set – up like India.

Thus, the Special Marriage Act needs to be revamped to suit the demands of the modern-day couples and act in consonance to the present day 21st Century India. Moreover, the legislature by the way of amendment needs to induce certain reforms in this act to escape the colonial and archaic provisions and ensure that laws remain up – to date with the society of the present day.

The author is a law student residing in Delhi, India. Views are completely personal and factual and do not correspond to any political or ideological background.

Continue Reading

Legally Speaking

Identity politics, elections and the Representation of the People Act, 1951

J. Sai Deepak

Published

on

In 2017, a seven-Judge Bench of the Hon’ble Supreme Court of India in Abhiram Singh vs C.D. Commachen (Dead) By Lrs.& Ors delivered a judgement on Section 123(3) of the Representation of the People Act, 1951. The limited issue which the Supreme Court was called upon to decide was whether the language of Section 123(3) of the Representation of the People Act, 1951 allowed for an expansive reading of corrupt electoral practices proscribed by the provision so as to prohibit any and all reference to religion as part of an election campaign. To understand the issue better, let’s take a look at sub-Sections (3) and (3A) of Section 123, both of which are relevant to the discussion:

123. Corrupt practices—The following shall be deemed to be corrupt practices for the purposes of this Act:

(3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate

Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.

(3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.

In a nutshell, the discussion in the judgement revolved around the interpretation of the underscored pronoun “his” in sub-section (3). The minority view in the judgement was that “his” had to be given its due based on the plain and express language of the provision. In practice, this would mean that the bar under the provision is limited to an appeal made to voters in an election by a candidate (including his agent or any other person making the appeal with the candidate’s or the agent’s consent) on the ground of his (candidate’s) own religion or the religion of a rival candidate.

However, the majority view was that, apart from the candidate’s own religion or that of the rival candidate, “his” includes a reference to (a) the religion of the candidate’s agent or (b) the religion of any other person who makes a religious appeal with the consent of the candidate or the candidate’s agent or (c) the religion of the voters to whom the appeal was being made. In arriving at this view, four judges of the Supreme Court resorted to what is known as “purposive construction” of the language of sub-Section (3) by relying upon (i) the origins of the provision, (ii) the history of its amendments including the amendment in 1961, (iii) the contemporaneous amendment to Section 153A of the Indian Penal Code, and (iv) resorting to what the majority has called “social context adjudication”.

Thanks to this view, thenceforth there could be no references to religion, race, caste, community or language as part of electoral discourse in India. Frankly, one is astounded both by the reasoning and the conclusion because they went well beyond what was intended to be curbed by the Parliament through the amendment effected to Section 123 in 1961. This is because, in the process of purposively interpreting the 1961 amendment, the majority view had misconstrued the very purpose it claimed to further.

The limited Legislative intention behind the amendment in 1961 was only to curb even solitary attempts by candidates in an election to seek votes by appealing to their religion, caste, community or language, or by targeting the religion, caste, community or language of a rival candidate. The goal was to prevent anyone from being elected or from being boycotted in an election on grounds of her or his religious identity- no one should be elected or boycotted because she or he is a Hindu or a Muslim.

However, it was never nor could have been the intention of the Parliament to pixelate religion, caste, community or language altogether from electoral discourse because such an amendment would have been vulnerable to a constitutional challenge. Here’s why- according to the interpretation of the provision prior to the current decision of the Supreme Court, had Ambedkar been alive and had he contested elections post the 1961 amendment to Section 123, he could not have legally appealed to voters citing his caste, but he could have legitimately and constitutionally appealed to voters of a certain caste citing the caste-based discrimination they suffered (and still suffer). Not just that, Section 123(3A) read with Section 153A of the IPC would have acted as a safeguard by preventing Ambedkar from using a caste-based appeal under sub-Section (3) to sow seeds of hatred and enmity between people of different castes. Simply put, under the previous interpretation, while an appeal based on the caste of the voters was not barred, using that as a façade to promote enmity between castes was forbidden. This is an illustration of the balanced interplay between sub-Sections (3) and (3A) of Section 123, and Section 153A of the IPC, which was in vogue prior to the judgement under discussion. This balanced approach was rendered illegal by the majority view of the Supreme Court.

The long and short of it is that the majority view stands in the way of political empowerment of communities. What is also anomalous and impractical about the reasoning is that it treats as permissible any reference to religion, caste, community or language in a non-electoral political context, but somehow expects an election campaign, the very festival of celebration of democracy, to be insulated and hermetically sealed from all such references. This approach is at loggerheads with constitutional secularism, which the majority view claimed to be religiously faithful to, since the Constitution itself is not indifferent or hostile or oblivious to religion, caste, language or community and the role they play in social mobilisation. This nuance has been captured brilliantly in the minority view authored on behalf of three Judges of the Court by Justice Chandrachud. Here are a few excerpts:

“The expression ‘his’ means belonging to or associated with a person previously mentioned. The expression “his” used in conjunction with religion, race, caste, community or language is in reference to the religion, race, caste, community or language of the candidate (in whose favour the appeal to cast a vote is made) or that of a rival candidate (when an appeal is made to refrain from voting for another). It is impossible to construe sub-section (3) as referring to the religion, race, caste, community or language of the voter. The provision, it is significant, adverts to “a candidate” or “his agent”, or “by any other person with the consent of a candidate or his election agent”. This is a reference to the person making the appeal….

While establishing that notion, the Constitution is not oblivious of history or to the real injustices which have been perpetrated against large segments of the population on grounds of religion, race, caste and language…. Electoral politics in a democratic polity is about mobilisation. Social mobilisation is an integral element of the search for authority and legitimacy. Hence, it would be far-fetched to assume that in legislating to adopt Section 123(3), Parliament intended to obliterate or outlaw references to religion, caste, race, community or language in the hurly burly of the great festival of democracy.”

From a legal standpoint as well, apart from having gone beyond the Legislature’s intent in amending Section 123, it is this author’s humble view that the very application of “purposive construction” was without basis. Here are the rules regarding application of purposive construction to a statutory provision, which demonstrate the problems with the reasoning of the majority:

Purposive construction, as a rule, is warranted only if a plain and literal reading of the provision (a) gives rise to multiple reasonable interpretations or (b) leads to patent absurdity. Simply put, if there are more than one plausible and reasonable interpretations of a provision or the construction leads to absurdity, reference to the context in which the provision was brought about becomes necessary, particularly if the language is the product of an amendment(s);

However, merely because a provision has been subjected to multiple amendments, it wouldn’t be permissible for the Court to invoke purposive construction if the language is otherwise clear and is not at loggerheads with the rest of the statute;

Critically, if a provision is meant to curb mischief or forbid conduct which it deems corrupt, and also has the consequence of disqualifying an individual from taking part in the electoral process altogether, the provision is not meant to be interpreted liberally and expansively no matter how noble intention of the Court may be.

Applying these principles to the language of Section 123(3), it becomes evident that the majority view came at the expense of the express content of the provision, besides turning the rules of grammar and syntax relating to the use of pronouns on their heads. It is as plain as day that “his” in Section 123(3) refers only to the candidate or his rival, and not to the voter because there is no reference to the voter which would have justified his inclusion in “his”. And yet, the majority resorted to purposive construction when the provision did not call for its application in the first place, besides getting the purpose wrong.

In light of this, one cannot help but wonder if the majority view is the result of putting the cart before the horse. It almost seems as though the provision was “purposively” interpreted to further a predetermined view. In doing so, the majority view of the Court had blurred the necessary lines between what the law is as enacted by the Parliament and what it ought to be according to the Court. This, as one understands it, is not the role of the Judiciary, especially the highest Court of the land.

By reading into the language of the provision more than it warranted, by ascribing more to the will of the Legislature than history permitted and by justifying it all in the name of “social context adjudication”, it appears that the Court sees itself as the sole and final arbiter of what is good for a secular pluralist democracy and what constitutes one. Clearly, separation of powers, which is equally an integral and critical part of the basic structure of the Constitution, is the casualty in the process and does not bode well for the health of the very democracy the majority view professes to protect.

J. Sai Deepak is an Advocate practising as an arguing counsel before the Supreme Court and the High Court of Delhi.

Continue Reading

Legally Speaking

Seat v Venue: Which one is the lex arbitri of an arbitration?

Kritika Sethi

Published

on

Arbitration was introduced as an alternative dispute resolution method to the court. Fundamentally, the concept’s foundation lies in ‘party autonomy’, ‘confidentiality’, and ‘speedy and efficient resolution’. Owing to this flexible and convenient nature, it has gained popularity among multinational companies and businesses in this globalised world and has become one of the preferred modes of dispute resolution. It provides autonomy to the parties to choose the law applicable on the contractual agreement, place where they want to conduct proceedings, or court to approach when any dispute arises. Parties agree on the substantive law (i.e. law applicable to the dispute between the parties), lex arbitri or the curial law (i.e. the law which governs the procedure to be followed in the arbitration etc. In essence, ‘lex arbitri’ refers to the law of the seat of the arbitration. In light of the significance of the same, as elucidated below, the distinction between seat and venue gains significance.

SEAT V VENUE: WHAT IS IT ALL ABOUT?

In any arbitration, be it domestic or international; parties may approach a court for, inter alia, an interim relief, taking directions to seek evidence, for appointment of arbitrator et al. The seat, all in all, determines “the law that governs the procedural aspect of arbitration” and “the court that would exercise supervisory jurisdiction over the arbitral proceedings”. Venue, however, is a place/location chosen by parties for conducting arbitration hearings. It may vary based on the convenience of the parties. To clarify, let’s say two companies A and B, incorporated in England and India respectively, entered into an agreement to construct hotels in China. They chose New Delhi as the seat of arbitration and Russia as the venue of arbitration in their agreement. It means that the Indian Arbitration and Conciliation Act, 1996 (“A&C Act”) will be applicable to procedural matters and Indian courts would have the supervisory jurisdiction when any dispute arises between them. Russia, herein, is merely a place chosen by the parties for the purpose of arbitration proceedings as per the convenience of the parties.

The seat and venue of the arbitration play a significant role in legal framework of any arbitration proceedings. Even though the A&C Act does not define the term ‘seat’ and ‘venue’ but its essence is evident in the principles laid down in precedents by the Hon’ble Supreme Court and Hon’ble High Courts. Several disputes concerning ‘seat’ and ‘venue’ have arisen before the Indian Courts. The main reason behind this confusion lies within Section 20 of the A&C Act. The provision refers to ‘place’ which is misinterpreted with ‘seat’ and ‘venue’. The said misinterpretation happens due to the manner in which dispute resolution clauses are drafted by parties in their agreements. Vague clauses create ambiguity in relation to interpretation of designated seat of arbitration, as intended by the parties. For instance, ‘the Arbitration shall be administered in New Delhi and the ‘place’ of arbitration is New Delhi while the disputes arising shall decide before the Bombay High Court’. This is a clear example of ‘vaguely drafted clause’ where there is no clarity between ‘seat’ and ‘venue’. When the courts are faced with an interpretation of such clauses, they have to interpret the agreement and determine the ‘seat’ by interpreting the intention of parties through other clauses and language used in the contract. However, in the process of interpreting such vague clauses, the courts have created conflicting precedents and interchangeably used seat and venue creating additional confusion.

PRECEDENTS INTERPRETING SEAT AND VENUE IN AN ARBITRATION

In the Bharat Aluminum Co. v. Kaiser Aluminum Technical Services Inc. (“BALCO Case”), the Court first time differentiated between ‘seat’ and ‘venue’ in Section 20 of the A&C Act. The Court approved the Shashoua principle as per which once the parties have selected the ‘place’ as the venue of the arbitration without mentioning about the seat, it can be inferred that the ‘venue’ is the seat of the arbitration provided that there exists no indication to the contrary and a certain supranational body of rules has been selected for arbitration.

However, the controversy began in 2018, in the case of Union of India v. Hardy Exploration and Production Inc. (“Hardy Case”) The Court deviating from the landmark BALCO Case and Shashoua principle stated that the “venue” can be “seat” only if there exists some other concomitant factor supporting it as seat. Herein, the “Kuala Lumpur” was designated as venue but there exists no indication substantiating it as the “seat”. Thus, Kuala Lumpur was not declared as the seat of the arbitration.

In 2019, another three-judge bench BGS SGS Soma Jv v. NHPC Ltd. (“BGS Soma Case”), diverged from the Hardy Case and upheld the Shashoua principle. It held that the Hardy Case was not good law. The Hon’ble court held that when the particular place has been expressly specified as “venue” of arbitration, then the same should be considered as the “seat” of the arbitration subject to any contrary indication that venue is not the seat of the arbitration.

Later, in 2020, the Supreme Court faced a similar issue in Mankashu Impex Pvt. Ltd. v. Airvisual Ltd. (“Mankanshu Case”)., i.e. whether the ‘venue’ of the arbitration is the ‘seat’ of the arbitration. In this case, the Agreement mentions that ‘the arbitration would be administered in Hong Kong and the place of the arbitration was Hong Kong’. It also stated that the courts of New Delhi shall have the jurisdiction over the matter. It took a different approach and declared Hong Kong as the seat of the arbitration because the agreement clearly states that the arbitration should be administered in Hong Kong. It was held that by only mentioning place of arbitration, one cannot presume it as the seat of the arbitration. Other factors like clauses of the agreement and the intention of the parties while entering into the contract are guiding factors which aid in ascertaining the seat of the arbitration.

Recently, in S.P. Singla Constructions Pvt. Ltd. v. Construction and Design Services, UPJL (“SP Singla Case”), the Hon’ble Delhi High Court followed the principle laid down in BGS SOMA Case. In this case, the agreement between the parties provided for “Lucknow” as the venue of the arbitration and the application of ICADR Rules, New Delhi to the dispute. It was held that the ICADR Rules would be applicable only after the constitution of arbitral tribunal. Hence, ‘Lucknow’ was declared as the seat of the arbitration and the courts therein were held to have the exclusive jurisdiction.

WHAT IS THE ISSUE?

While the decisions of the Hon’ble Supreme Court in the Hardy Case and Mankashu Case may have been held to not be good law, the same have not been overruled by a larger bench of the Hon’ble Supreme Court as all are three-judge bench rulings.

From the afore-mentioned precedents, it may be appreciated that a need for such interpretation arises from vague dispute resolution clause, terminological inconsistency et al. Arbitration is preferred over litigation because of its features including, inter alia, confidentiality, speedy dispute resolution, and minimum court interference. However, such vaguely drafted clauses have increased court interference and delayed the dispute resolution process, defeating the fundamental objectives of arbitration.

Further, in the SP Singla Case, the Hon’ble Delhi High Court interpreted the rules of ICADR, an arbitration institution, and held that the same provided for the seat of the dispute to be governed by the agreement between the parties. WeVaad, an online dispute resolution platform, strikes a balance between providing a seat of arbitration and allowing autonomy to the parties to govern the same. Firstly, it provides a draft dispute resolution clause to the parties to be incorporated in their agreement. The said dispute resolution clause clearly enlists the seat and venue of the arbitration and thereby, avoids any misinterpretation of the dispute resolution clause in the future. Secondly, the Rules provide for the seat of the arbitration, which may be distinguished, as per the agreement between the parties at the first hearing of the arbitration.

How to avoid such confusion after disputes have arisen between the parties

It will be beneficial for the parties to ensure that the dispute resolution clauses, specifically the arbitration agreements are drafted to clearly provide for substantive law and seat of the arbitration. The principles laid down by the Hon’ble Supreme Court are the guiding principles in how such clauses must be drafted to clearly enlist seat and venue/place of the arbitration.

A ruling by a larger bench of the Hon’ble Supreme Court/legislative amendment in this regard would be a welcome step. Until then, it is important that the aforementioned principles are kept in mind while drafting such clauses to avoid any ambiguity that may require court intervention for interpretation.

Continue Reading

Legally Speaking

Secularism and Constitution : An Analysis

Maseeh Syed Yazdani

Published

on

Indian culture is heavily influenced by religious practices, and the same impacts the law makers in our country. India is the home to so many diverse religions that the moral and fundamental core of this nation is often derived from the moral compass advocated by these religions. Religion is an over natural power system of faith and devotion, regulating and controlling the fate of the human race. India is yet a nation that has embarked on a new and daunting task of developing a democratic economy that would equal treatment for all its residents. India is in short, is a prism, you approach it, and a different mix of colours and patterns is present.

Secularism is an ideology that says that religion is not social, political, economic and cultural. Religion is available to everybody and presented without any other regard as a conscious issue to an individual. The juxtaposition of sensually-ascetics, irresponsibility and efficacy, kindness and aggression depict the complexity of India. Articles 25-28 of the Constitution on Fundamental Rights entrenched in Part III. Also, Articles 15 and 16 guarantee that religion is not discriminated against. Through its preamble, fundamental rights, and guiding principles, the Indian constitution established a secular country founded on the ideals of democracy and equality. Keeping in mind the idea of secularism in India, this article will seek to analyse how the Indian Constitution examines the idea of secularism. The article will then further seek to differentiate between essential and non-essential religious practices and how it affects the execution of secularism in India.

SECULARISM IN THE INDIAN CONSTITUTION

The term ‘secular’ was added to the Indian constitution in the 42nd amendment which came to force in 1976. The addition of the term ‘secular’ to the preamble of the constitution established secularism as a part of the basic structure which essentially means that because of its fundamental element, the secular nature of the Indian constitution cannot be altered by any act. The case of S. R. Bommai v. Union of India is a landmark case when it comes to establishing the basic definition of secularism in India. By emphasising that secularism is one of the fundamental characteristics of the Constitution, the Court reiterated the inclusion of the term secular in the Constitution. Some define this mindset as one of religious neutrality or one of caring neutrality. It was also stressed in the judgement that religion should have no position in state matters. It is imperative to note that even though the Supreme Court expanded on the concept of Secularism, it also highlighted that Secularism cannot be put into a specific definition by stating that,

“The term ‘Secular’ has advisedly not been defined presumably because it is a very elastic term not capable of a precise definition and perhaps best left undefined. By this amendment what was implicit was made explicit.”

This statement is one of the first aspects through which one can draw a distinction between the Merriam-Webster’s definition of Secularism and the idea of Secularism as incorporated in the Indian Constitution. The Marriam Webster’s definition of Secularism represents a negative notion of the concept which is a complete separation of the state from the religion whereas the Indian Constitution has inherited a positive notion of the concept which advocates the recognition of religious differences and equal treatment and protection of all religions.

Secularism has been integrated as a positive idea in the constitution which propagates that all religions are treated equally. The secularism of India does not separate religion from state in its entirety. In religious concerns as constitutional elimination of untouchability, the opening of all Hindu temples to women and the lower castes were widely approved by the Indian constitution and the Supreme Court. The essence can be found in the recent case of Sabrimala where the Supreme Court let women access the Sabrimala temple during menstruation. In the Indian context, according to R.A. Jahagirdar, secularism was construed as equitable treatment of all religions. The Indian Constitution also permits individuals in accordance with their religion to be subject to various personal legislation on a number of subjects, such as inheritance, marriage, divorce and so on. It does not build a separating wall between religion and the State. This enables the state to interfere in religions without the inclination to control or destruction, to assist or impede them. The Court, by extensively citing Indian scriptures, justified the idea of secularism in the case of Ram Janambhoomi. In order to explain its conception of secularism the court quoted from all the Veda’s the idea of Sarwa Dharma Sambava’ which translated to being the tolerance of all religions.

The above arguments clearly highlights the fact that our constitution doesn’t associate the idea of Secularism as complete separation of state and religion rather it is seen as a positive concept through which all religions can be given equal treatment. Further, the interference of the state in religious matters is limited to when the court finds that a positive amendment is required in the already existing religious rules.

7RIGHT TO FREEDOM OF RELIGION IN THE CONSTITUTION

The Indian Constitution ensures that not only people but also religious groups in India have a right to freedom of religion. Articles 25 through 28 stipulate this. Articles 25 to 28 in essence state that the State is not discriminating, patronisingor interfering in any religious profession. Firstly, Article 25 ensures freedom of conscience to all people and freedom of religion to profess, practise and spread. In Article 26, which follows, all denominations are entitled to regulate their own religious affairs. Article 27 of the Constitution provides that there may not be taxes whose earnings are directly used to promote and/or preserve a particular denomination of religion.Lastly, Article 28 allows religious organisations to provide religious instruction to educational institutions that are maintained by them.

ESSENTIAL V/S NON-ESSENTIAL RELIGIOUS PRACTICES AND HOW THIS AFFECTS THE IMPLEMENTATION OF SECUALRISM IN INDIA

The essential practice doctrine was laid down in the TheCommissioner, Hindu Religious Endowments, Madras vs. Shri Lakshmindar Tirtha Swamiyar of Shri Shirur Muttcase. There was a divide between what was and was not religious issues. The religious views and actions conducted according to these opinions were established as religious practises. The Supreme Court concluded that the fundamental portion of a religion should be determined first and foremost with reference to the doctrines of the same religion. The case also expanded on the scope of Article 26(b) by stating that,

“Under article 26(b), therefore, a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters.”

So fundamentally, it is necessary to decide what is essential by looking at the religion itself.

Please read concluding on thedailyguardian.com

A similar rationale was adopted by the Supreme Court in the case of DurgahCommittee v Syed Hussain Ali where the supreme court stated that even religious rituals could derive from purely superstitious ideas and thus be in that way foreign and unessential religion itself. In order to treat these practises as part of a religion, they must be considered as an essential and vital aspect of this religion. Now, the essential practice doctrine stands to determine three things, firstly, if the religion or religious practice is eligible for protection. Secondly, whether the religious institutions are being manged under a legitimate legislation and lastly, whether or not the religious denomination are independent.

It is evident from the Supreme court decisions that the essential practice doctrine aims to promote the positive concept of Secularism in India. As seen earlier the Indian Constitution has very clearly laid down that there can interference in the personal laws area, which is essentially what the doctrine represents. The practice of Secularism is not associated with the complete separation of the State and Religion but instead aims to give equal treatment and protection to all religions in formulating positive amendments.

CONCLUSION

Secularism in India can be explained by stating that it aims for the inclusion of all religions in India. Religion is so deeply rooted in our culture that it cannot be completely excluded from the state while forming laws. The presence of multiple religions in India is another aspect due to which a complete separation between religion and the state can’t take place. The court as well as the doctrine of essential practices aim to give structure to the Indian understanding of Secularism by giving all religions and their religious considerations equal preference, therefore, highlighting the positive notion through which Secularism has been embodied in the Indian Constitution.

Continue Reading

Legally Speaking

Decluttering India’s rationale for not ratifying the Convention on Freedom of Association and Protection of The Right to Organise

Published

on

All nations do not ratify all the conventions. This article will just zero in on the specific nation profile of India. The Centre of Indian Trade Unions [‘CITU’] had approached the International Labour Organization [‘ILO’] and to rescind the Essential Defence Services Act, 2021, claiming breach of the fundamental convention of ILO.

INTRODUCTION

In 1919 the Allied forces, exhibited “ recognition on the principle of freedom of association” in part XII(labour) of the Treaty of Versailles, which turned into the Constitution of the International Labour Organisation(ILO). Almost after thirty years, in 1948, the ILO embraced the milestone Convention Concerning Freedom of Association and Protection of the Rights to Organize (No.87). Article 2 of C.87 includes workers and empowers the right to permit potent participation of non-state actors in economic and social policy, lying at the core of democracy and rule of law. Clinching those employers and workers have a voice and are represented is, therefore, crucial for the effective working of work showcases as well as of general administration structures in a country.

The right of employers and workers to form and join associations fitting their very own preference is an essential element of a free and open society. By and large, these associations have assumed a critical part in their nations’ majority rule change. The ILO is regularly occupied with advancing freedom of association from encouraging governments on work enactment to facilitating education and training for trade unions and employer groups.

INDIA’S APPROACH TOWARDS ILO

India one of the founding member countries of the ILO, has also been a permanent member of the ILO Governing Body since 1922. In India, the main ILO Office was operationalized in 1928. The decades of fruitful organization between the ILO and its constituents have mutual faith and trust as hidden standards and is grounded in building supported institutional limits and fortifying limits of accomplices. India has only ratified six out of the eight-core/fundamental ILO conventions and has not ratified the two core/fundamental conventions, namely Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

Analysing through the Government’s Stance

The basic assessment of the fundamental reasoning is perhaps the best method to pass judgment/survey the public authority’s choice/reservation. Article-2 of the Convention 87 presents to all labourers and businesses, without qualification, a right to affiliation, a right to organize themselves. There could be no greater method to comprehend the contrast between International Standards and local laws than by real contentions. In cases where complaints are filed before the International Labour Organization for the suggestion of international norms, the distinction of laws could be perceived. The bone of conflict for not signing this Convention 87 has been this obliteration of a distinction between a government worker and other workers, all things considered, and the principal justification for non-ratification of ILO Conventions No.87 and 98 is because of some limitations imposed on the government workers.

The ratification of these conventions would include giving of specific rights that are prohibited under the statutory rules, for the government workers, in particular, to openly criticize government strategies, the right to strike, to freely join foreign associations, to openly acknowledge a monetary commitment, and so forth. The government firmly contends that such right to association can’t be ensured to public servants basically to ensure authoritative control/discipline and empowering legitimate recognition of public duties. Nonetheless, it has neglected to build up a general/direct/sensible nexus between perceiving such right of the employees and the discipline among, and the proficiency of, the members from the said association in their particular working domain. Indian judiciary has been striking down the government conduct rules requiring government workers to join or continue to be a member of a recognized association or imposing some other restriction in violation. This depicts the government’s stand as a delusion.

ANALYSING THROUGH CONSTITUTIONAL LENS

Freedom of Association is guaranteed under Article 19 (1)(c) of the Constitution of India to “all citizens” including civil servants as well. It becomes pertinent to note here that fundamental rights are placed on a higher pedestal than the constitutional rights. However, these fundamental rights are subjected to restrictions like sovereignty, public order and morality. The contours of and scope of exercise of such freedoms enshrined under Article 19 of the Constitution is inevitable.

All India Bank Employees’ Association v National Industrial Tribunal & Ors, laid down that certain rights are embedded and covered under the ambit of Article 19(1)(c) of the Indian Constitution which is available to all the members of trade unions. These are as follows:

RIGHT TO MEET

Right to discuss and debate the issues and further put forward different views and opinions.

Right to hold property

Government servants devoid of the right of association are unable to avail the above stated rights.

Jurisprudential Analysis

Prof. Hohfeld’s in Theory of Jural Relations had rightly opined that rights and duties are jural correlatives. Correlatives essentially mean legal interests which can be employed to two separate legal entities tied by a legal relationship. It reads that if a person has the right, there exists a corresponding duty upon the other individual, so that right can be legally mandated at the expense of the person who owes the duty. Now, putting this in the perspective of the current debate, the right to associate and meet public, government servants is to be assured by the Government. Corresponding to the fundamental right, it is the duty of the government to ensure that fundamental rights are accessible to all citizens.

Conclusion

Convention 87 is known for its authoritative power and law on freedom of association. Additionally, the International Covenant on Civil and Political Rights explicitly states the right to freedom of association. The grievance redressal mechanism and matrix of ILO instruments are more robust than the ICCPR. Hence, it is more rational to ratify the Convention as India is already a party to ICCPR and will be bound by related provisions.

An age- old proverb goes like “ Union is Strength”. The manifestation of this strength must not dominate the formation of unions which is a matter of civil right and should be accessible to every employee.

India one of the founding member countries of the ILO, has also been a permanent member of the ILO Governing Body since 1922. In India, the main ILO Office was operationalized in 1928. The decades of fruitful organization between the ILO and its constituents have mutual faith and trust as hidden standards and is grounded in building supported institutional limits and fortifying limits of accomplices.

Continue Reading

Trending