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RECENT DEVELOPMENTS IN PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

Kashish Gupta & Lipika Dhingra

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INTRODUCTION

As per WHO (World Health Organisation) a child is defined as – “a child is a person 19 years or younger unless national law defines a person to be an adult at an earlier age. However, in these guidelines when a person falls into the 10 to 19 age category they are referred to as an adolescent[ ]”. It means that any person who is below the age of 19 years or below is termed as a child. But the person whose age is between 10-19 years is termed as an “adolescent” whereas a child whose age is below 1 year is termed as an “infant”. But in POCSO Act, 2012 a child defined as – “any person below the age of eighteen years[ ]”.

Before the POCSO Act, 2012, there was no specific statue for protection of children from sexual offences in our country and prior to it the child abuse was prosecuted under the Indian Penal Code, 1860, like section 375 for rape; section 354 for outraging the modesty of women; Section 377 for unnatural offences; etc. There was only drawback that it does not provide for absolute protection of children. But the Goa was the only state who had a specific act named as “Goa Children’s Act, 2003” to protect the children of Goa from child abuse before the POCSO came into force.

On the fourteenth day of November of 2012, which is usually read as 14th November, 2012, the Protection of Children from Sexual Offences Act came into force. It is formerly known as POCSO Act, 2012. It emerged as the specific act which deals with the protection of children from sexual offences like sexual assault, pornography, sexual harassment, etc. It provides the provision for special and speedy trial courts where the child victims of any such offence is brought up to file the complaint. It also has the provision for child-friendly court where investigation, evidence, cross-examination, etc. is done to ensure the justice. The child-friendly court can be understood as the court room is an informal room with colourful walls, stickers, small toys and informal attire. It is done so as the child shouldn’t have the fear in mind that where is he or she been taken?, what will happen? why these witness boxes are kept and all such questions.

POCSO ACT OF 2012 – ESSENTIAL FEATURES AND SCOPE

The POCSO Act of the year 2012 is a multidimensional act as it provides various reliefs to victims of children who have suffered from the various sexual offences like sexual assault, rape, child harassment, child pornography, etc. It has a very wide scope as it covers a great number of offences under the one act. Following are the aspects which are covered under the POCSO Act, 2012 –

• It recognizes the various types of penetration apart from penile-vaginal penetration like penetrative sexual assault[ ], sexual assault[ ], sexual harassment, child pornography, aggravated penetrative sexual assault/aggravated sexual assault which means that when some officer rank personnel like police officer, member of armed forces or any civil servant commits sexual assault upon children.

• A Child Welfare Committee (CWC) is established under POCSO.

• Under Juvenile Justice (Care and Protection of Children) Act of 2015 a child after being the victim of such offence is called as “child in need of care and protection”.

• It is mandatory for the police to report to CWC about any such offence committed with 24 hours.

• It has made the provision for the hospitals and doctors also to safeguard the interest of the child while getting the statement recorded. It also provides for a provision under section 27 (2) and (3)[ ], that if a victim is girl child then it is mandatory that her examination shall be done by a female doctor only in presence of her parents or any person on which she shows here trust or confidence respectively.

• CWC also helps to arrange the psychologist or counseling sessions for the child to remove her from the stress and fear, and helps to get the statement recorded which helps to file the complaint.

• It has also made the regulative provisions for media to control the spread of news and fake news so that the image of the child won’t get defamed in the future.

• Under this act the helpline number to report such offences are also established which is called as CHILDLINE and its number is 1089.

• It ensures that child won’t feel embarrassed, shy or afraid while getting the complaint registered. So, it provides the special provisions for child-friendly courts. Section 28(3)[ ] of the act deals with these special courts.

• This act is unbiased in the sense that it is for the protection of girl and boy child. It can also be termed as “gender-neutral”.

• This act also declared the abetment of sexual offences as punishable. It means that if someone insists or promotes a child to do some offence will be punished.

NEED OF AMENDMENT

As per the report of year 2016 of National Crime Record Bureau 2016, a great number of cases where crime against women, crime again children and juvenile in conflict with law were observed[ ]. Later the Union Women and Child Development Minister gave a report stating that the number of crimes against women and children are increasing which is a need to worry. So, it suggested making amendments in the POCSO Act, 2012, and making the punishments stricter, so, that no person can cause any type of a sexual abuse to the children of our country.

CHANGES MADE TO THE ACT

Under the amendment, it has increased the punishment for each offence mentioned. They have also increased the punishment for aggravated sexual penetration assault; it could also be death penalty. They have also screwed up the provisions to control child pornography. The act has also deleted the words “communal or sectarian violence” for which earlier there was a punishment[ ]. It basically means causing sexual abuse to a child in respect to his religion or community. But in the words “communal or sectarian violence” were replaced with violence during any natural calamity or in similar situations.

PROTECTION OF CHILDREN FROM SEXUAL OFFENCES RULES, 2020

[ ]Under the light of powers mentioned in the Section 45 of the Protection of Children from Sexual Offences Act, 2012 (formerly known as POCSO Act, 2012) the government has made a new set of rules vide notification number G.S.R. 165(E) dated March 09th, 2020, in the official gazette and it will be called as “Protection of Children from Sexual Offences Rules, 2020”.

Under these new rules the government has made more stringent (strict) punishments to the accused so that they won’t repeat it in the future. Some noticeable additions in the new rules can be observed as :

• the mandatory police verification of each and every person and place where children come like schools, academies, sports centers, care homes or day care centers, etc is required after regular intervals.

• various vocational courses and training programs should be made available for the police officials and forensic experts, so, that they become more expertise in their respective fields.

• making age-appropriate educational material the part of their curriculum, to teach them safety measures, control emotions, etc.

• the governments have also been asked to formulate “zero-tolerance” protection principle in case of child sexual abuse.

• procedure to report for material used for sexual abuse like pornography.

• spreading the knowledge of age-appropriate child rights among other people.

To trace the child pornography the rules laid that any person who has received, sent, stored or distributed or is about to send, forward, circulate or viral it, the information of such person shall be reported to the Special Juvenile Police Unit (SJPU) or on cybercrime portal. The link to cybercrime portal is https://cybercrime.gov.in/. It was also mentioned that the details of the device where such content is stored, or forwarded or is being received shall be available to trace the person easily.

RELEVANT CASE LAWS

• Independent Thought v/s Union of India & Anr.[ ]

It is one of the leading NGO which deals with the child rights & had a PIL before the Supreme Court of India, challenging the constitutional validity of exception 2 to Section 375 of the Indian Penal Code which reads as “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”. The Supreme Court through its verdict held that it criminalized the sexual intercourse with a minor wife whose age lies between 15 and 18 years. The Court also added that the exception 2 in section 375 is violation of Articles 14, 15 and 21 of the Indian Constitution which allows intrusive sexual intercourse with a girl who is below 18 and above 15 years on the ground of marriage. Such exception clause in Indian rape laws negates the very purpose of Prohibition of Child Marriage Act, it violates the provisions mentioned in the Protection of Children from Sexual Offences Act (POCSO) in context of the age of consent and some other international conventions to which India is a signatory. In this landmark verdict, Supreme Court has struck down section 375, exception 2 of the Indian Penal Code. Now, the law cannot protect a man who is engaged in sexual relations with his wife where she is between 15 and 18 years because irrespective of the status of a child whether married or not, she will always remain a child[ ].

• Tuka Ram & Anr v/s State of Maharashtra[ ]

It is commonly known as Mathura Case. In this case, a young tribal girl whose name was Mathura was allegedly raped by two policemen while she was in custody at Desai Gunj Police Station in Maharashtra. It was the incident of custodial rape that took place on March 26th, 1972. Sessions Court passed the judgment in favor of defendants saying that Mathura gave her consent voluntary as she was habitual to sexual intercourse and held them not guilty. The Sessions Judge conveyed that there was a major difference between “sexual intercourse” and “rape”. The court added that it was a case of sexual intercourse in which she had consent and is not rape. Later the appeal was filed in the Bombay High Court had a look at all the findings analysed during the trial in Sessions Court. On the ground of such observations, the court held that the defendants were guilty of rape and the consent given was not voluntary and it was due to serious threats by policemen. Later, the case went to the Supreme Court, where court acquitted the accused and set aside the judgment passed by the Bombay High Court. The Court stated that no marks of injury were found on the person of the girl, there were no signs of any struggle, any resistance, also from the shreds of evidence it can be shown that the girl had not been put in fear of death or hurt so the consent would be considered as free or voluntary. Also, the girl was habituated to sex so, it may be possible that she might have incited the cops. So, it was concluded and held by the Supreme Court of India that the sexual intercourse which was in question in the given case is not proved to amount to rape[ ].

CONCLUSION

The POCSO Act, 2012, provides a very wide scope for protection of children from various sexual abuse offences like rape, child pornography, child harassment, etc. This act is gender neutral which is one of its key features that it is not meant only girls or boys. It does not care whether you are a normal citizen or civil servant; it has same punishment for all. Its only aim is to provide justice nothing else. And with the time it is being getting evolved which is making it better. Like each and everything needs evolution to become better, same is with the law as well. In our country we use to worship girls as goddess at one side and at other side are commencing sexual offences. It can be like – “how we are seeing others daughters, the same way they might also be seeing our daughters in the same way”.

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Legally Speaking

Constitutional validity of marital rape in India with respect to Section 375 of IPC, 1860

The rationale of marital rape is assumed on marital unity for some kind of estoppel, retracting wives
from unwanted sexual advances made by their husbands. The major implication of Section 375 of Indian Penal Code, 1860 is that it is narrowed down to rape of female not falling under the ambit of marital relationship. If loosely translated, in the institution of marriage, the entity of husband and
wife is treated as one and this marital status acts as a licence for husbands to rape their wife with full freedom, thus, reflecting the notions of patriarchy existing till date.

Jaya Jha

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‘I say nothing, not one word, from beginning to end, and neither does he. If it were lawful for a woman to hate her husband, I would hate him as a rapist”.

– Philippa Gregory, The Red Queen

INTRODUCTION

The history of rape dates back to the term when term Raptus was used to denote the theft of property and person. The act of violating the body of the women, ironically, was a harm inflicted upon the father or husband as women were wholly owned subsidiaries. Rape is a sex crime expressed in terms of stuprum by asserting violence or cum vi or per vim, outraging the women by all means.

The institution of marriage in India is related to great sanctity and the act of performing it is celebrated with great pomp and show. India assumes the role of husbands as an incarnation of God and women to showcase a submissive and docile nature to nurture the family carrying a misleading notion of belief to exercise sexual supremacy in lieu of the sacred bond of marriage between them. Marital ties in India reflect old archaic notions of sex as an obligation. The fundamental design of marital institutions is flawed due to interference of misogyny which presumes the marital status of a woman as a sine quo non to consent into the act of forced sex, leaving her into a state of emotional turmoil and reducing into a living corpse. Women are themselves taught by other women to be a good wife and that is achieved by promoting misogynist ideas and one of them happens to be non-refusal of sex to their husbands. The society appreciated these ideas of sexual violence to scare women into thinking that their male partner is stronger than them and refusing them for sex would do no good to them other than attracting their rage in form of sexual violence.

MARITAL RAPE:UNDERSTANDING

Marital rape can be described as the unwanted intercourse committed by the husband through the act of sexual violence, traumatizing woman to the very core. Marital rape is the most common form of masochism and has existed as long as the institution of marriage. Marital rape does not take place in vacuum and family is considered as the safe heaven but in reality it is just a myth. Family itself cradles violence against women by laying foundations for a sexist society. Marital rape is well prevalent into the roots of the society and hides behind the iron curtain of marriage. Family as an institution which should protect the aggrieved rather immunizing the perpetuator of sexual violence and restraining women from seeking help from outside in the guise of protecting family integrity.

The rationale of marital rape is assumed on marital unity for some kind of estoppel, retracting wives from unwanted sexual advances made by their husbands. The major implication of section 375 of Indian Penal Code, 1860 (herein afterwards called as IPC) is that is narrowed down to rape of female not falling under the ambit of marital relationship. If loosely translated, in the institution of marriage, the entity of husband and wife is treated as one and this marital status acts as a license for husbands to rape their wife with full freedom, thus, reflecting the notions of patriarchy existing till date. The prejudice behind the idea of husbands being the protector roots for promoting these flawed notions of male dominance helping them secure a safe haven even after violating the privacy of women to her own body. Patriarchy is inbuilt in the DNA of Indians which very well explains the social and economical structure of arrangements of bestowing men with the title of breadwinner for the family and exercising major control over the family whereas for the women, they are educated to fit into the shoes of homemaker, depending on the breadwinner. This scenario is utilized at its best by the husbands knowing the fact of dependence of women on their income, thus, leaving them no window open other than to suffer at their hands and continue being in an abusive relationship.

CONSTITUTION OF INDIA TETE-A-TETE MARITAL EXEMPTION TO RAPE

Constitution of a country maps the soul of the country. The Indian Constitution is carefully designed to ensure power control, conformity with human rights, checking upon social and individual interests of conflicts and smoothing the vehicle of national progress and unity. The Constitution of India ensures that every law passed is in confirmation with the ideas and principles as enshrined and any subsequent failure to meet with the standard will be awarded with the status of ultra vires, thus rendering them unconstitutional.

1. RIGHT TO EQUALITY

Article 14 guarantees a fundamental right to its citizen, equality before laws and equal protection of laws. However, this article does not call for equal treatment of every individual and the S.C laid down essentials for a valid classification and they are as follows:-

The classification has to be found on an intelligible differentia distinguishing the grouped ones from others

The differentia must derive a rationale related to the object which is to be achieved by the legislation.

However, the test of equality is to be applied in a certain way which does not stereotype a particular gender curtailing gender biased differential treatment. Section 375 of IPC does have loop hole which prevents married women to seek justice for rape committed within the sphere of marital status. The classification and differential treatment of married women is deemed to have been consented within the institution of marriage which is prima facie a wrong assumption and does not comply with intelligible differentia. The Mrs. Status of women deprives her of her own bodily autonomy and personhood, thus, vitiating the test of Article 14 under the ambit of our Constitution

2. RIGHT TO LIFE AND PERSONAL LIBERTY

Article 21 guarantees for life and personal liberty as enshrined the Indian Constitution. The meaning of ‘life’ was first defined in the famous case of Bandhua Mukti Morcha v. Union of India whose foundation was built on one of the most celebrated judgments of Munn v. Illions according to which ‘ life was something more than mere existence’.

The jurisprudence of Article 21 is the storehouse of all forms of rights, thus, attracting a wide definition of life to protect all forms of human life and liberty. However, there is a blatant violation of Article 21 in terms of marital rape.

RIGHT TO LIVE WITH HUMAN DIGNITY

Right to life is inclusive of the right to live with human dignity which includes the bare minimum necessities of life like mingling and mixing with other fellow human beings and expressing in diverse forms. Rape, other than being a sexual offence is an act of aggression projected with humility towards the victim. The exception of marital rape is violative of the very essence of right to life enshrined under Article 21 rendering it unconstitutional.

RIGHT TO PRIVACY

Right to privacy finds its place under the wide interpretation of Article 21 as recognized by judiciary. The right to be left alone also forms a part of this right which includes the free will to sexual intercourse as well and the marital status of woman can also not retract the fundamental right to sexual privacy from her. Every woman is entitled to sexual privacy and no man can force their sexual desire on any woman according to their whims and fancies. By decriminalizing marital rape, the perpetuators get immunity from their very own heinous act, thus invading on the rights of sexual privacy of women within the institution of marriage and vitiating the very principle of Article 21 under the Constitution of India.

RIGHT TO BODILY SELF-DETERMINATION

This right owes its inception to the wide interpretation of Article 21 of the Indian Constitution. The consent and will to have sex is regarded as one of the most personal and private choice of an individual irrespective of the marital status. So, any law interfering or meddling with the right of bodily self-determination is regarded as Unconstitutional.

RIGHT TO GOOD HEALTH UNDER ARTICLE14 AND ARTICLE 21

Article 21 of the Indian Constitution ensures right to good health. The exemption to marital rape is prima facie violating the right to good health doing no good to wives and harming their psychological and physical well being. There is also a very good possibility of women losing themselves to sexually transmitted diseases (STD). The marital exemption to rape is a loophole which inbreeds the future criminals of society and is unconstitutional.

The S.C has declared that the laws which are subject to under the scrutiny of Article 14 and Article 21 must qualify the test of reasonability to operate within the framework of Constitution. Even if the doctrine of marital rape surpasses the test of ‘reasonability’ it still has to pass the muster of ‘just, fair and reasonable’ law in order to recognized as constitutional.

The Apex Court has laid down that Article 21 of the Constitution delivers the citizen, the right of not being deprived of personal life and liberty except by the procedure established by law, hence, this procedure carries the burden of being just, fair and reasonable and not arbitrary, whimsical or fanciful in nature.

CONCLUSION

Society conceived these sexist values and beliefs from the outset of civilization and projected these practices of perverseness as something very usual and normal phenomenon. In fact, the multi mosaic model of India advocates for this sexual violence against women and treats it as something obligatory on the part of women to continue being a prey of such sexual violence. Since, the inception of marital rapes, rapes were quite common in almost every part of world and every civilization is a witness of such heinous practice but the unfortunate part was women themselves were blamed for such incidents and instead of people checking on men for the perverseness, women were made a toy at the hands of religion and culture. Women were chained with different codes of conduct to comply by, dress being the most important ones. All these practices are demonstrative of the prevalence of patriarchal notions from the very beginning of societal setup, all summing up to ex parte sufferings of women alone.

Societal disobedience is the major cause of the enforcement of existing laws. The laws are made to regulate the code of conduct of people deviating from the usual social norms and to curtail from engaging into such practices again, the element of punishment was introduced but unfortunately marital rapes never saw the day of light as a matter of wrong. Hence, we see the liberal nature of laws towards the sexual predators in the sanctity of marriage, taking advantage of the intimacy of the private affair.

The fundamental design of marital institutions is flawed due to interference of misogyny which presumes the marital status of a woman as a sine quo non to consent into the act of forced sex, leaving her into a state of emotional turmoil and reducing into a living corpse. Women are themselves taught by other women to be a good wife and that is achieved by promoting misogynist ideas and one of them happens to be non-refusal of sex to their husbands.

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Legally Speaking

Long-term battle of arbitral awards with reference to the Vodafone case

The American Constitution 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.

Bahvuk Narula & Rachi Gupta

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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

PREFACE

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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Ensuring Fairness in the Appointment of Arbitrators

Kumar Rishabh Parth

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INTRODUCTION

It is very crucial to ensure that the proceedings are impartial and fair, the appointment of arbitrators should be independent and impartial, and this is a sine qua non for a dispute resolution process to be effective. It is imperative for an arbitral proceeding to be effective, and for that, the parties should hold confidence in the arbitrators who are adjudicating the dispute. The questions of independence and impartiality assume particular importance in the context of the arbitrations, where parties appoint their arbitrators. However, to preserve the “binding essence of contracts” and “party autonomy,” the Indian arbitral tribunal for the longest time neglected the implicit prejudice and procedural discrimination in the appointment procedures, especially as a result of contracts in a boilerplate format between parties with unequal bargaining power. The Arbitration and Conciliation (Amendment) Act, 2015 have brought various reforms to the Arbitration and Conciliation Act 1996 (hereinafter referred to as ‘the Act’) which include the amendment in Part III of the Act, which deals with the “appointment of arbitrators.” Via this r, we aim to track the legislative journey and change of judicial patterns in the appointment of arbitrators and to determine whether the legal situation as it stands today is adequate to ensure consistency in the appointment process.

PARTY AUTONOMY VS PROCEDURAL FAIRNESS: POSITION PRE-2015 AMENDMENTS

There is a legal maxim, “Nemo judex in causa sua” (No one should be a judge in their cause), and it will be highly immoral and partial if one of the parties own employee could act as an arbitrator. It will be against the principle of the said legal maxim. The irony is that the Indian Arbitration space is well stocked with such cases where such clauses were held valid and was upheld by the tribunal, until the Arbitration and conciliation (Amendment) Act, 2015 came into force. Boilerplate agreements leave no room for negotiation, such as the contracts with the State entities, which routinely provided for arbitration by a retired or serving employee of that entity in case of a dispute. Pre 2015, there was no normative framework to explicitly disqualify or any criteria to judge the independence or impartiality of the arbitrators. Most parties exploited the lacuna in the law for their benefits in superseding the bargaining power over the other party to thrust their choice of arbitrators on the other party.

Such clauses were upheld continuously by the judiciary in the garb of “Party Autonomy”, without factoring the unequal bargaining power of the parties and boilerplate nature of the contracts. The only exception to such clauses was only if the arbitrator was controlling or dealing authority concerning the subject contract, or a direct subordinate to the officer whose decision is the subject matter of the dispute, such an appointment was held invalid as per Section 12 of the Act by virtue of the decision by Hon’ble Supreme Court in Indian Oil Corp. Ltd. v. Raja Transport (P) Ltd. However, as correctly pointed out in the 246th Law Commission of India’s Report: this exception was clearly “not enough”

246TH LAW COMMISSION REPORT

There was dissatisfaction expressed with the judiciary by the 246th Law Commission Report vis-à-vis appointment of arbitrators stood then. In the garb of “party autonomy” or the “binding nature of the contracts” the aspect of “procedural fairness” was lost.

There were several critical amendments proposed by the Law Commission to Section 11, 12 and 14 of the Act. The recommendations paved the way for the introduction of the “de jure” ineligibility of arbitrators in case the relationship of the arbitrator with any of the parties or counsel or subject matter of the dispute fell within categories specified in the schedule, as opposed to mere “de facto” disqualification as provided under Section 12 (3) of the unamended Act. In other words, the Law Commission recommended the introduction of specific categories of the relationship between the arbitrator and the party, counsel or subject matter, which would render such arbitrator ineligible by operation of law.

2015 AMENDMENT AND CURRENT NORMATIVE FRAMEWORK

The recommendations by the Law Commission was followed, and the Act was amended accordingly in 2015 through the Arbitration and Conciliation Act, 2015 and Sections 11, 12, and 14 were explicitly amended to ensure fairness in the appointment procedure of the arbitrator.

Now an Arbitrator must disclose when s/he is approached by the parties for the appointment, regarding existence relationship or interest of any kind which is likely to give rise to justifiable doubts regarding their independence or impartiality. Disclosure is required to be made in terms of the form provided in the Sixth Schedule of the Act.

The amendment introduced such requirements to assess whether there are justifiable doubts as to the competence or impartiality of the arbitrator based on the Red and Orange lists of the IBA Guidelines on Conflicts of Interest in International Arbitration (‘IBA Guidelines’).

The fifth schedule read with Section 12(1)(b) acts as a guideline to ascertain whether circumstances are giving rise to justifiable doubts as to the independence or impartiality of the arbitrator. The fifth schedule is based on the Orange List of the IBA guidelines, which lists down less severe circumstances constituting ‘De facto’ ineligibility.

The seventh schedule incorporates disqualification categories akin to the Red List of the IBA guidelines, which leads to ‘De jure’ inability to act as an arbitrator. If the case falls within any of the categories specified in the 7th schedule, such an appointment is invalid by operation of law, and the arbitrator’s mandate stands terminated. A proviso has been added to section 12 (5), which allows a waiver of applicability of section 12 (5). However, such a waiver can only be: after the disputes having being arisen; and by an express agreement in writing (as opposed to deemed waiver by conduct as stipulated under Section 4 of the Act).

On the other hand, if the appointed person is ineligible in terms of the seventh schedule: such a person would lack inherent jurisdiction to proceed any further and hence an application for termination of mandate may be filed under Section 14(2) of the Act, directly before the Court. If the appointment clause itself fulfils the conditions for de jure ineligibility, the parties may approach the Court under Section 11 of the Act, and seek an appointment by the Court.

THE SHIFT IN JUDICIAL TREND: THE CURIOUS CASE OF UNILATERAL APPOINTMENTS

Post the amendments of 2015; there was a shift in the judicial trend in contrast to what has been discussed earlier as Procedural Fairness. The amendments equipped the parties with effective recourse to challenge the unfair appointment procedures in arbitration agreements. Further, the specific disclosure requirements and the categories of grounds and disqualifications given under the fifth and seventh schedule enabled an objective test for independence and impartiality of potential arbitrators. As a result of the 2015 Amendment, the parties can no longer appoint their existing employees, consultants or advisors as arbitrators. However, the de jure disqualification does not cover former or retired employees who have retired beyond three years of their nomination, and they may still be appointed as arbitrators.

It is interesting to note that post-2015 amendments that the inquiry in judicial decisions has not been limited to “who may be appointed” and has extended to “who may appoint”. Under the notion of unilateral appointment of arbitrators, only one of the parties gets the power to nominate or appoint an arbitrator. This kind of appointments has been continuously under the judicial scanner post the 2015 amendment. Though, the Seventh schedule provides the criteria for ineligibility of the “appointed arbitrator”, the listed grounds do not apply to the “appointing authority”. So, there is no direct bar on unilateral appointments under the Act. In other words, if the appointed arbitrator does not otherwise fall under any of the disqualifications specified under the seventh schedule, a strict and narrow interpretation of the provisions of the Act would lead to the conclusion that such an appointment is valid even if the arbitrator is unilaterally appointed by one of the parties. Several High Courts even post the 2015 Amendment continued to hold this view, until the Supreme Court ruling in TRF Limited vs Energo Engineering Projects Limited (“TRF LtdCase”). in 2017, finally leading to the decision in Perkins Eastman Architects DPC and another v. HSCC (India) Limited (“Perkins Eastman Case”).

TRF Limited vs Energo Engineering Projects Limited (EEPL) was the first significant judgment which dealt with the issue of unilateral appointment of arbitrators. In this case, a three bench judge of the Supreme court relied upon the principle embedded in the maxim Qui Facit Per Alium Facit Per Se (what one does through another is done by oneself), and this was to hold that once the arbitrator (the MD in this case) becomes ineligible by operation of law under Section 12(5) of the Act as amended by the 2015 amendment, his power to nominate someone else is also lost.

The appointment clause in the Perkins Eastman case provided for arbitration by a person nominated by the Managing Director of one of the parties (the MD here had only one capacity: “appointing authority”). The Apex court, after examining the ratio in the TRF Case noted that the MD had an interest in the outcome of the dispute, hence he was found ineligible. The Court further noted that if the interest in the outcome of the dispute, is taken to be the basis for the possibility of bias, it will always be present if one of the parties is given a unilateral right of appointment of a sole arbitrator. The Supreme Court thus held that “the person who has an interest in the outcome or decision of the dispute must not have the power to appoint a sole arbitrator.”

Hence, it was conclusively ruled by the Supreme Court that the clauses that grant the right of “unilateral appointment of the sole arbitrator” to one of the parties are invalid.

CENTRAL ORGANISATION FOR RAILWAY ELECTRIFICATION: TWO STEPS BACK

Before delving into the facts and decision rendered in the Central Organization Case, it will be apposite to refer to the ruling by the Supreme Court in Voestalpine Schinen Gmbh v Delhi Metro Rail Corporation Ltd (“Voestalpine Case”). The arbitration clause in this case envisaged a three member tribunal, who were to be nominated from the panel of 31 arbitrators maintained by Delhi Metro Rail Corporation Ltd (“DMRC”) consisting of ex-Government and Railway employees. Under the appointment clause, DMRC was empowered to shortlist 5 names from the panel and the parties were to nominate one arbitrator each from such list, and such nominated arbitrators were to nominate the presiding arbitrator. Pertinently DMRC in this matter forwarded the entire list to the petitioner, excluding the serving and retired officers of DMRC for nomination. However, the petitioner challenged the clause as violative of section 12(5) of the Act. The Court opined that the discretion given to the DMRC to choose 5 persons from the panel gave very limited choice to the petitioner and further left room for suspicion that DMRC may pick its own favourites, and thus suggested deletion of the said clause. The Court, after noting that DMRC had given a wider list to the petitioner, which excluded the serving and retired employees of DMRC, upheld the procedure of selection from the wider list so provided. The Court in this case also emphasised on the need for “broad based panels”, consisting of people from various fields, both technical and legal.

In Central Organisation Case the arbitration clause contemplated appointment of sole arbitrator from a panel proposed by of one of the parties comprising of four of its retired employees. The other party was given an option to select two out those four names; and the Managing Director of the former was finally given the power to appoint one out of the two names as the arbitrator. The Court, after discussing the law laid down in both, Voestalpine Case and Perkins Eastman, upheld the validity of the appointment clause. The court expressed the opinion that the appellant had given a “wide option” to the respondent by proposing four retired employees as nominees. The court further held that the power of the General Manager to nominate the arbitrator is counter-balanced by the power of the Respondent to select any of the two nominees from out of the four names suggested from the panel of the retired officers .

This observation by the Court appears to be in face of the rationale of Voestalpine Case, where the court invalidated the clause which restricted the choice of arbitrators from merely five names out of an entire panel of thirty one. Further, the court in Voestalpine Case had specifically noted that the proposed list did not have retired employees from DMRC, which was not the case in Central Organisation, where all the four names in the proposed list were retired employees of Central Organisation Railway.

More importantly, the court in Central Organisation, seems to have completely misread the rationale in TRF Ltd. and Perkins Eastman. The Court placed reliance on the following excerpt from TRF Ltd:

“50. …We are singularly concerned with the issue, whether the Managing Director, after becoming ineligible by operation of law, is he still eligible to nominate an arbitrator. At the cost of repetition, we may state that when there are two parties, one may nominate an arbitrator and the other may appoint another. That is altogether a different situation. If there is a Clause requiring the parties to nominate their respective arbitrator, their authority to nominate cannot be questioned…”

The court further reproduced the following excerpt from Perkins Eastman:

“21….The next sentences in the paragraph, further show that cases where both the parties could nominate respective arbitrators of their choice were found to be completely a different situation. The reason is clear that whatever advantage a party may derive by nominating an arbitrator of its choice would get counter balanced by equal power with the other party….”

A plain reading of the aforesaid excerpts makes it clear that the court in both, TRF Ltd. and Perkins Eastman was referring to a situation where parties could nominate respective arbitrators of their choice and that it would get counter-balanced by equal power with the other party; and not a situation where the nomination is controlled by only one of the two parties. In the latter situation, the advantage does not get counter balanced. Applying the TRF Ltd. and Perkins Eastman logic, if a party having interest in the outcome of the dispute or an ineligible person does not have the unilateral right to appoint the sole arbitrator, by the same logic, such a party should not have the right to unliterally decide on the panel out of which the arbitrator is finally appointed.

The decision in Central Organization is not merely contradictory to Perkins Eastman with respect to unilateral appointments, but has also diluted the principle of neutrality of panels given under the Voestalpine Case, which had ruled against giving limited options to the other party while making appointments from a panel, and had further recommended the parties, particularly PSU’s and government authorities to maintain “broad based” panels.

In context of appointments from panel maintained by one of the parties, the decision by a single bench of Delhi High Court in Larson & Turbo Ltd. vs. PWD is worth discussing. The arbitration clause in this case contemplated appointment of sole arbitrator from a panel of arbitrators maintained by PWD, and accordingly a retired director of PWD was appointed as the sole arbitrator. The judgement in this case seems to have been reserved before Perkins Eastman, and hence no reliance has been placed on it to strike down the unilateral appointment. The court in this case noted that the appointed arbitrator was otherwise qualified under the seventh schedule. However, the court looked into the procedure of empanelment of arbitrators by the PWC to ascertain his independence and impartiality.Under the empanelment procedure, certain conditions for empanelment were specified by the PWD, viz:

“That the applicant has not appeared for private party and against the government interest before any Arbitrator of PWD/CPWD or DDA.”

“ The Officer to be empanelled should not have taken any commercial employment and have not appeared before any Arbitrator for CPWD/PWD Delhi or DDA in favour of any party and against the Govt.”

The Court after taking note of the conditions observed that the persons who are empanelled, are required to display a certain kind of trait or be imbued with attributes that are antithetical to the appointment of an impartial and an independent arbitrator, and terminated the mandate under of the arbitrator under Section 14(1)(a) of the Act. This case is another example of purposive interpretation of the Act.

CONCLUSION

The Indian arbitration space has shown a great deal of progress in making the arbitration procedure fair as well as efficacious through legislative reforms. The objective criteria under the fifth and seventh schedule have brought in a fair amount of objectivity in judging the independence and impartiality of arbitrators. Most of the PSUs and government authorities have amended the dispute resolution clauses in their contracts to do away with clauses that prescribed appointment of existing employees, consultants or advisors as the arbitrators. In a country like India, where ad-hocism in arbitration is a norm, these reforms are a welcome step in ensuring confidence of parties in the arbitral process. To bring about long term and systematic changes, institutionalized arbitration in India needs to be encouraged and strengthened. Further, a perusal of the judicial decisions post the 2015 Amendment reveals that the there is a fair amount of subjectivity shown by courts in interpreting the rigor of section 12(5) of the Act read with the seventh schedule. The contradictory position arising out decisions in TRF Case, Perkins Eastman on one handand Central Organisation Case on the other, needs to be settled by a larger bench, or through a statutory amendment. In the meanwhile, the parties, especially PSUs and government authorities should maintain “broad based” panels, with people from diverse backgrounds acting as arbitrators, in line with the ratio of the Voestapaline Case.

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Arbitration Ordinance 2020: One step forward, several steps back

The Ordinance has reversed the effect of the 2015 amendments to the Act which had done away with the automatic stay on enforcement of arbitral awards upon a challenge being made under Section 34 of the Act. Most certainly, a regressive step, the Ordinance has inserted a further proviso to Section 36(3) of the Act, by which an award shall be ‘unconditionally’ stayed pending disposal of the challenge under Section 34.

Satvik Varma

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The Arbitration and Conciliation (Amendment) Ordinance, 2020, (“Ordinance”) promulgated recently is best described as bitter-sweet. On one hand, it has substituted section 43J of the Arbitration and Conciliation Act, 1996 (“Act”) by noting that the “qualifications, experience and norms for accreditation of arbitrators shall be such as may be specified by regulations.” Consequently, the Eighth Schedule of the Act has been omitted. While stipulations in the Schedule, as regards minimum qualifications and eligibility requirements for arbitrators, were perhaps necessary, this Schedule was subject to rigorous academic debate inter-alia for taking-away party autonomy in relation to appointment of foreign arbitrators in India-seated arbitrations. Notably, section 43J and the Eight Schedule had been introduced only in 2019 with a view to make India a hub of domestic and international arbitration and for the faster resolution of commercial disputes. The stipulations perhaps didn’t help.

On the other hand, the Ordinance has reversed the effect of the 2015 amendments to the Act which had done away with the automatic stay on enforcement of arbitral awards upon a challenge being made under section 34 of the Act. Most certainly, a regressive step, the Ordinance has inserted a further proviso to section 36(3) of the Act, by which an award shall be “unconditionally” stayed pending disposal of the challenge under section 34, “where the Court is satisfied that a prima facie case is made out, (a) that the arbitration agreement or contract which is the basis of the award, or (b) the making of the award, was induced or effected by fraud or corruption.” To avoid the flurry of litigation, that had followed the 2015 amendment, the Ordinance clarifies that the proviso shall be retrospective in nature and shall be applicable to “all court cases arising out of or in relation to arbitral proceedings, irrespective of whether the arbitral or court proceedings were commenced prior to or after the commencement of the Arbitration and Conciliation (Amendment) Act, 2015.”

The insertion of this proviso raises many legal questions foremost being that could not the relief which the proviso seeks to provide be achieved without the Ordinance?

Let us begin by examining fraud which is defined under section 17 of the Indian Contract Act, 1872 (“Contract Act”) and section 447 of the Companies Act, 2013. Both these sections provide an inclusive definition which encompasses acts of deception, concealment of facts, and inducement with the intent of wrongful gain or causing wrongful loss. Additionally, per section 19 of the Contract Act, any party whose consent to an agreement was caused by such fraud may, at such party’s option, deem such agreement to be void and thus, such party would not be obligated to perform its obligations under the said agreement. Similar protection is also afforded under section 18 of the Specific Relief Act which provides for exceptions to performance in cases of fraud, mistake of fact or misrepresentation.

In such case, if a dispute were to arise between the parties, and if such agreement were to include an arbitration clause, the parties would, likely, proceed to have the same resolved through arbitration. During the arbitral proceedings the party raising the issue of fraud simpliciter or corruption in inducement of the contract or the arbitration agreement could plead the same before the tribunal, which can adjudicate on the same.

At the same time, one shouldn’t lose sight that the Supreme Court in A. Ayyasamy v. A Paramasivam & Ors. held that a reference to arbitration may be refused by the Court if (i) the Court finds serious allegations of fraud which virtually make a case of a criminal offence, (ii) where the allegations of fraud are so complicated that it becomes essential that such complex issues can be decided only by civil court on appreciation of voluminous evidence, (iii) where serious allegations of forgery/fabrication of documents in support of the plea of fraud.

If, however, the tribunal determines the arbitration agreement or contract was not induced or effected by fraud or corruption, then the tribunal would adjudicate the dispute and eventually pass an award. In such instance, it is still open to the aggrieved party to challenge the award under section 34(2)(a)(ii) of the Act, and also under section 34(2)(b)(ii) as it would be open to such party to contend that the award is in conflict with the public policy of India. Thus, again, to this extent, the existing provisions covered such situations.

But where the plea of fraud or corruption has been refused by the arbitral tribunal after evaluating the material produced before it, then will not the Court hearing challenge to the award be reappreciating the evidence contrary to the law as enumerated by the Supreme Court in the celebrated decision of Associate Builders v. DDA which has stipulated that the Court cannot sit in appeal over the award by reassessing or reappreciating evidence? This principle now forms the bedrock of multiple subsequent decisions of the Supreme Court such as Ssangyong Engg & Construction Co. Ltd. v. NHAI and Parsa Kente Collieries Ltd. v. Rajasthan Rajya Vidyut Utpadan Nigam Ltd. In fact, post the 2015 amendment to the Act, section 34 has been amended to preclude a review on merits or reappreciation of evidence. It, therefore, begs the question- how is the Court to establish, even prima facie, that there was any fraud? Will this not, therefore create an anomalous situation for Courts who cannot look beyond the arbitral record or review the case on the merits of the dispute, including on the ground of an erroneous application of the law?

Even prior to the Ordinance, in every situation it would be open to a party to seek a stay, subject to such conditions as the Court may deem fit, under section 36(3) of the Act, subject to satisfying the Court that a prima facie case is made out. Therefore, would not the extent provisions, prior to the Ordinance, have adequately protected the party seeking a stay on an award’s enforcement? Interestingly enough, the Court whilst determining whether to grant such stay would of course need to take a prima facie decision.

The above analysis now takes us to the point reiterated by the Supreme Court that fraud itself is not always possible to establish by positive and tangible proof, as by its very nature it is secretive, and in most cases circumstantial evidence is the only way to establish the existence of fraud. In the Alva Aluminium Limited, Bangkok v. Gabriel India Limited, judgment the Supreme Court has held that a heavy duty lies upon a party who wishes to rescind a contract on the ground of fraud, and not just does the fraud need to be specifically pleaded, but the fraud shall also have to be established on the entire bundle of facts. In the context of arbitrations, the Supreme Court recently held in Avitel Post Studioz Limited v. HSBC PI Holdings (Mauritius) Limited, that serious allegations of fraud only arise if the following two test are satisfied: “The first test is satisfied only when it can be said that the arbitration clause or agreement itself cannot be said to exist in a clear case in which the court finds that the party against whom breach is alleged cannot be said to have entered into the agreement relating to arbitration at all. The second test can be said to have been met in cases in which allegations are made against the State or its instrumentalities of arbitrary, fraudulent, or malafide conduct, thus necessitating the hearing of the case by a writ court in which questions are raised which are not predominantly questions arising from the contract itself or breach thereof, but questions arising in the public law domain.”

More recently, in Deccan Paper Mills Co. Ltd. v. Regency Mahavir Properties & Ors., the Supreme Court clarified the question of arbitrability of disputes involving allegations of fraud and reiterated its previous view that if the dispute between parties fell within section 17 of the Contract Act, or involved fraud in the performance of the contract amounting to deceit, such would be a civil wrong and would be arbitrable. Furthermore, simply because a particular transaction may have certain criminal elements, it would not ipso-facto mean that the subject-matter thereof is non-arbitrable.

Regrettably, the Ordinance does not provide any checks and balances against unscrupulous litigants from repeatedly raising the plea of fraud or corruption with a view to escape their obligations. Of course, the burden of proof would always be on the party alleging fraud or corruption, and in the case of multi-member tribunals this burden would be more onerous. However where the tribunal consists of a sole arbitrator, false pleas of corruption are likely to be taken thereby tarnishing the very basis that arbitration rests upon- a voluntary, binding, speedy and cost effective dispute redressal mechanism. One way to ensure that such a situation is avoided is to devise a system of deterrence- primarily through a regimen of imposing heavy costs against those who take mischievous pleas. Section 31A of the Act empowers the arbitrators in this regard.

As detailed above, sufficient provisions existed for an award debtor to approach the Court under the pre-Ordinance regime for seeking stay of the arbitral award if it could be demonstrated that there existed a case of fraud or corruption. The Ordinance and the re-introduction of a provision of automatic stay, has once again taken the law of arbitration back to the pre-2015 Amendment scenario, where upon an automatic stay being granted, the award holder would continue to have to await the disposal of the challenge to the award before being able to enjoy the fruits of the award. Also, will not the stay of an award “unconditionally” create its own challenges especially in situations where the Court while disposing off a section 34 challenge holds that no fraud, as alleged, is made out?

As observed, “the dispute resolution process has a huge impact on the Indian economy and global perception on “doing business” in India.” The current government is keen to push our nation to achieve the goal of becoming a hub for international commercial arbitration. To achieve this, we need to move towards an approach of minimal judicial interference with arbitral awards and speedy resolution of challenges in Court to such awards. Of course this requires a strong pool of arbitrators and it would also be wise to move towards institutional arbitrations as opposed to the largely ad-hoc arbitrations which we currently follow. Hopefully, the soon to be established Arbitration Council of India will work towards accomplishing all of the above. Till then, legislation, in the form of the present Ordinance, need to be avoided as the cure cannot be worse than the problem itself.

Even prior to the Ordinance, in every situation it would be open to a party to seek a stay, subject to such conditions as the court may deem fit, under Section 36(3) of the Act, subject to satisfying the court that a prima facie case is made out. Therefore, would not the extent provisions, prior to the Ordinance, have adequately protected the party seeking a stay on an award’s enforcement? Interestingly enough, the court whilst determining whether to grant such stay would of course need to take a prima facie decision.

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A feudal democracy?

J. Sai Deepak

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Over the past few days, a well-known and fairly accomplished Senior IPS Officer, who is currently the Home Secretary to the State Government of Karnataka, has been in the news for her public spat on Twitter with a widely followed and encyclopaedic anonymous commentator on history who prefers to go by the Twitter pseudonym, “True Indology” which is perhaps a nom de guerre. The spat was triggered by the IPS Officer’s tweet in support of the ban on the use of firecrackers on the occasion of Diwali. More than her support for the ban, a position she is perfectly entitled to take, what started the debate was her comment that bursting of firecrackers was not “essential” to the celebration of Diwali and that “non-essential religious practices” were mere dispensable “social practices”. This invited a response from other “tweetizens” including True Indology who dismantled her position brick by brick with reference after reference which clearly demonstrated that bursting of firecrackers had a specific religious significance, and was not merely an act of festivity and celebration. As someone who has presented the scriptural and documented evidence on the subject before the Supreme Court in Arjun Gopal v. Union of India in 2017 and 2018 in the context of the firecracker ban, I am in some position to endorse the views of True Indology.

That said, I am not on the IPS Officer’s uninformed views; after all, the fundamental right to hold a thought and express it is equally available to all hues of views, informed, not-so-informed, somewhat informed and utterly uninformed. However, after having taken a public position from her official handle, instead of engaging on merits with True Indology’s authority-backed counters, let alone disproving him, it appears that the IPS Officer demanded True Indology to divulge his personal details (privacy and due process, what are they?) and when he refused to do so, she is reported to have quipped “Your time is up”.

Within a matter of minutes of that ominous ultimatum, True Indology’s twitter handle is reported to have been suspended, which he confirmed on his Instagram account. Whether this was a coincidence or was there a correlation or a direct causality, I am not in a position to comment on with conviction. I wonder though, what would have happened if the user had not been anonymous and his details were publicly available? Another brave public arrest of a common citizen? Anyways, subsequently, the IPS Officer claimed that she was merely “disseminating” information about an order of the Government, “a decision taken at the highest level”, which was not her “personal opinion”. The irony was that she followed this up with a tweet about how she had a “real job” with “real responsibilities” i.e. after engaging in a public debate for at least two days from her official handle, thereby blurring the lines between dissemination of information and airing of opinions. So much for a real job with real responsibilities. The icing on the cake was the following tweet:

“And as a Govt official, I will first say follow Laws, Rules made by elected legislature, enforced by executive. U r free to question them in judiciary. Not twitter. Have respect for 3 pillars of State as envisaged by Constitution of this democratic country.”

The entire exchange and the above tweet in particular, in my opinion, is reflective of the feudal nature of Indian democracy and the top-down approach to rule of law, constitutional values and constitutional morality. Constitutional morality, as I have written elaborately on before quoting Dr. Ambedkar who in turn quoted Grote, is effectively a commitment to constitutional values, first, by the those in power and those who wield the law. In other words, constitutional morality is a check on untrammelled, unbridled, unrestrained and arrogant use of power by the State, especially its Police powers. Constitutional morality was not meant to be a stick to beat the public with or to indulge in a condescending “civilizing” mission which reeks and smacks of evangelical fervour. This applies to elected representatives and all the more to public servants who are appointees and do not have the direct endorsement of the electorate.

Public servants and elected representatives must remember that a dialogue in public is usually a dialogue with the public. And a dialogue, as embarrassingly obvious as it may be, is not a monologue. In a democracy, it is all the more a two-way street and if public officials wish to grandly hold forth on matters of civilization and religion from their official handles, they must have the maturity and the decency to accept civil reactions and responses from the public to their views. To weaponize their positions and to issue veiled threats merely because their ill-informed and unsolicited opinions have been called out in public is a textbook case of abuse of power. The power vested in them by or under the Constitution is to protect the law and the weak, not their fragile, bloated and weak egos.

Let me go a step further and explain my use of the word “feudal” in the context of our rich and vibrant democracy, encomiums we so love giving ourselves. I don’t believe that any form of political organization is permanent, and this equally applies to democracy. From a civilizational perspective or from the perspective of the vast canvas of human history, 500 years is nothing, I repeat nothing, let alone 70 years. Therefore, I don’t and won’t sit in judgement on any form of political organization which was in vogue before democracy became the mainstream. This is to say that I do not use “feudal” with contempt or disapproval. I am merely using it to highlight the convenient straddling of feudalism and democracy by those who wield power. My clear position is that if you wish to play by the rules of feudalism, the public too must be allowed to, and if you wish to play by the rules of democracy, they equally apply to you. You can’t hold forth on democracy and constitutional values when you pontificate to the public, and embarrassingly betray your feudal mindset when the public exercises its constitutionally guaranteed right of free speech to call out your colonial sanctimony and lack of depth. You can’t have it both ways, after all. You just can’t have the cake and eat it too.

Also, I use the word “colonial” with responsibility and with a sense of history because in most postcolonial societies, especially Bharat, it is an established and demonstrated fact that those who wield power have typically stepped into the shoes of the erstwhile colonizer, which explains their penchant for “civilizing” the native and talking down to her or him. Let me clarify that I don’t wish to paint everyone with the same brush, but I am certainly highlighting a systemic fault which is all-pervasive. We may have embraced the skeletal structure of democracy, but we are still uncomfortable with the republican spirit that comes with it. To a layperson, the attitude of the colonialised native wielder of power isn’t that different from the attitude of the erstwhile colonizer; in fact, it is even worse because the native wielder of power channels his own self-loathing tendencies and projects it on to the “plebs”, “the cattle class” or whatever other pejorative they may think of for the wretched commoner. What irks the public official even more is the empowerment of the common voice by the internet and social media, which has democratized gateways and channels of public communication which were hitherto the exclusive preserve of the select and Chosen few (the Gymkhana variety). And so, the old ways are back (remember Section 66A?). The age-old threats and gags are back and our time’s up. Long Live the Republic! And Long Live Constitutional Morality!

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

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Prenatal sex determination: Termination of female foeticide is destruction of woman of future, says Punjab and Haryana HC

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We all keep hearing the old adages like “Where woman is worshipped, God resides there” and “When you educate a man you educate an individual but when you educate a woman you educate the entire family” so on. But in actual practice we see the stark truth as to how woman has to face discrimination even before she is born. Many parents resort to prenatal sex determination and prefer to abort child if the child is a female. How on earth can this be justified?

How can it be lightly dismissed that none other than the Punjab and Haryana High Court in Hassan Mohd vs State of Haryana in CRM-M-34797 of 2020 delivered on October 30, 2020 has expressed its serious concern and fulminating anger over the reprehensible and retrograde practice of prenatal sex determination? It minced no words to say unequivocally that, “Considering the disdainful attitude of the society to a female child and use of diagnostic equipment for female foeticide Act was enacted to curb the pre-natal sex determination. Despite the specific legislation the menace of sex-based destruction of foetus continues to plague the society.” How can this be just glossed over?

To start with, the ball is set rolling by Justice Avneesh Jhingan of the Punjab and Haryana High Court in the opening para by first and foremost observing that, “The matter is taken up for hearing through video conference due to COVID-19 situation.” It is then observed in the next para that, “The petition is filed seeking anticipatory bail in FIR No. 226 dated 29.9.2020, under Sections 353, 186, 420 IPC and Sections 4, 5, 6, 23 and 29 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (for short, ‘the Act’).”

While elaborating on the facts of the case, it is then envisaged that, “The facts in brief are that the police received a secret information about the illegal activities being carried out under the Act. A team of doctors was associated for raiding the location. A decoy customer was deployed to get an ultra sound done, for determining sex of foetus. Payment was made through marked currency notes. The petitioner dramatised conducting of ultra sound of decoy customer and played a prerecorded video on the LCD to show that ultra sound was being conducted. In the raid, LCD and the equipment for playing videos along with marked currency notes were seized.”

On the one hand, it is pointed out that, “Learned counsel for the petitioner submits that there was not even a single complaint by any one. Moreover as no ultra sound machine was recovered from the premises, the provisions of the Act will not apply.”

On the other hand, it is then pointed out that, “Learned counsel for the State opposes the grant of anticipatory bail and submits that custodial interrogation is necessary as number of people have been defrauded. He further submits that the allegations are serious, there is recovery of marked currency and the equipment being projected to the customers as ultra sound machine.”

Most significantly, what forms the cornerstone of this latest, landmark and laudable judgment is then stated without mincing any words as “Determination of sex of the foetus is a malaise which is affecting the society day in and day out. The desire to have a male child is an open secret. It has affected the gender ratio of the society. Considering disdainful attitude of the society to female child and use of diagnostic equipment for female foeticide Act was enacted to curb the pre-natal sex determination. Despite the specific legislation the menace of sex based destruction of foetus continues to plague the society. It is classic case of misuse of gift of development of technology. The Constitution guarantees equality to genders but pre natal sex determination deprives a female foetus to come to this world. In a civilized society, the sex of foetus cannot be a determining factor for having lease of life to see this world, if permitted the consequences would be devastating, the civilization itself would be endangered. To put in other words termination of female foeticide is destruction of woman of future. There cannot be a dispute on the fact that female has multi-facet role in society.”

No less significant is what is then stated that, “The Supreme Court in Voluntary Health Association of Punjab v. Union of India and others, 2016 (10) JT 570 held: “Before parting with the case, let it be stated with certitude and without allowing any room for any kind of equivocation or ambiguity, the perception of any individual or group or organization or system treating a woman with inequity, indignity, inequality or any kind of discrimination is constitutionally impermissible. The historical perception has to be given a prompt burial. Female foeticide is conceived by the society that definitely includes the parents because of unethical perception of life and nonchalant attitude towards law. The society that treats man and woman with equal dignity shows the reflections of a progressive and civilized society. To think that a woman should think what a man or a society wants her to think is tantamounts to slaughtering her choice, and definitely a humiliating act. When freedom of free choice is allowed within constitutional and statutory parameters, others cannot determine the norms as that would amount to acting in derogation of law. Decrease in the sex ratio is a sign of colossal calamity and it cannot be allowed to happen. Concrete steps have to be taken to increase the same so that invited social disasters do not befall on the society. The present generation is expected to be responsible to the posterity and not to take such steps to sterilize the birth rate in violation of law. The societal perception has to be metamorphosed having respect to legal postulates.”

While pooh-poohing the petitioner’s contention, it is then held that, “The contention of the petitioner that there was no complaint against him holds no water. The person who is in active participation against an enactment, in other words is a party to the illegal act, is not expected to come forward to make a police complaint. The persons who were being fleeced probably would not be aware that in the name of determination of sex they were shown pre-recorded video.”

Moving on, it is then also made clear that, “The next contention of learned counsel for the petitioner that the provisions of the Act will not apply as no ultra sound was conducted does not enhance the case of the petitioner. The fact remains that the assurance given and the picture projected was that her ultra sound is being carried out. Even of decoy customer, the ultra sound gel was applied, the probe was put on her abdomen and thereafter video recording was played on the LCD.”

To say the least, it is then observed that, “In the present case, albeit the petitioner was not conducting an ultra sound yet he had to give result of sex determination as he was charging for the same, his conduct would determine the fate of the foetus.”

Be it noted, it is then disclosed that, “At this stage, it would be relevant to quote Section 5 and 6 of the Act:

5. Written consent of pregnant woman and prohibition of communicating the sex of foetus.

(1) No person referred to in clause (2) of section 3 shall conduct the pre-natal diagnostic procedures unless-

(a) he has explained all known side and after effects of such procedures to the pregnant woman concerned;

(b) he has obtained in the prescribed form her written consent to undergo such procedures in the language which she understands; and

(c) a copy of her written consent obtained under clause (b) is given to the pregnant woman.

(2) No person including the person conducting pre-natal diagnostic procedures shall communicate to the pregnant woman concerned or her relatives or any other person the sex of the foetus by words, signs, or in any other manner.

6. Determination of sex prohibited. -On and from the commencement of this Act,–

(a) no Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall conduct or cause to be conducted in its Centre, Laboratory or Clinic, pre-natal diagnostic techniques including ultrasonography, for the purpose of determining the sex of a foetus;

(b) no person shall conduct or cause to be conducted any prenatal diagnostic techniques including ultrasonography for the purpose of determining the sex of a foetus;

(c) no person shall, by whatever means, cause or allow to be caused selection of sex before or after conception.”

Moving on, it is then observed that, “As per Section 5 (1), no pre-natal diagnostic procedure shall be carried without explaining the side effects to pregnant lady and without obtaining her consent. Section 5 (2) states that the sex of the foetus shall not be communicated to the pregnant woman or her relatives or any other person by words, signs or in any other manner. Section 6 prohibits various centres to use the diagnostic techniques for determining the sex of the foetus.”

Finally, it is then held that, “At the stage of grant of anticipatory bail, a prima facie case is to be seen and the matter is not to be decided finally. Considering the nature of allegations and the evidence collected, no case is made out for grant of anticipatory bail. The petition is dismissed.”

For the sake of clarification, it is then stated that, “It is clarified that observations made hereinabove are only for deciding the anticipatory bail.”

To conclude, the sum and substance of this latest, landmark and laudable judgment is that the termination of female foeticide is destruction of woman of future. At the cost of repetition, it must be again said that, “Determination of sex of the foetus is a malaise which is affecting the society day in and day out. The desire to have a male child is an open secret. It has affected the gender ratio of the society. Considering disdainful attitude of the society to female child and use of diagnostic equipment for female foeticide Act was enacted to curb the pre-natal sex determination. Despite the specific legislation the menace of sex based destruction of foetus continues to plague the society. It is classic case of misuse of gift of development of technology. The Constitution guarantees equality to genders but pre natal sex determination deprives a female foetus to come to this world. In a civilized society, the sex of foetus cannot be a determining factor for having lease of life to see this world, if permitted the consequences would be devastating, the civilization itself would be endangered. To put in other words termination of female foeticide is destruction of woman of future. There cannot be a dispute on the fact that female has multi-facet role in society.” Why then should female foeticide be tolerated? Why should there not be the most strictest punishment for female foeticide? Why can’t the laws be amended to ensure the same? What is needed is just a strong political will. But just enacting strict laws alone is not enough. Implementing them with alacrity and without any discrimination will ensure that it serves the purpose for which it is enacted! There can be no denying it!

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