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Sports & commercial arbitration: How both the ends meet

Ranojoy Midya

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The worldwide practice of resorting to arbitration in terms of dealing with sports-related disputes did not really transpire instantaneously; It rather emanated from the general consensus among the sports sectors’ stakeholders who used to dwell upon the fact that arbitration was preferable over ordinary litigation before State courts. Given the context, sporting communities of recent times are also aligned with the same perception, that the sporting sector embodies several peculiarities that can be better understood by a specialized hearing body than by ordinary judges. Such preferential importance of sports arbitration forms its basis emphasizing the fact that sports sectors have always been favoring a “result-oriented” approach over a “truth-oriented” one as speed and finality are the two fundamental needs of organized sports competition and of related disputes. Within the said ambit, arbitration appears to be the only resolution mechanism that can provide both the sports competition as well as the disputes related to such competition with the proper resolution than that of ordinary litigation.

In order to exemplify the above-mentioned preference of result-oriented approach in sports competition and in disputes related to it, the Court of Arbitration for Sports (CAS) and its awards emphasizing the so-called “field of play” doctrine, stating that sports referees or judges can make their own decisions on the field and these decisions cannot be reviewed by CAS arbitrators unless these decisions are influenced by arbitrariness or bad faith – must be referred.

Judicial Dictums

1. In Mendy v. AIBA (CAS OG 96/06), a referee’s decision to disqualify a boxer for a low blow had been challenged, and the CAS ad-hoc Panel even after accepting the jurisdiction over a game rule, considered it inappropriate to exercise the same. Given the context, the ad hoc Panel was of the opinion that the referee’s decision, being purely technical and pertaining to the rules of the concerned federation, could not be reviewed regarding the application of these rules. The restraint was way more complicated because, from the perspective of the area where the action took place, the ad hoc Panel was not as suitably positioned as the referee in the ring or ring judges who decided the matter. The Panel, at the same time, also enunciated that such restraint must be limited to technical decisions or standards; it doesn’t apply when an official’s field of play decision seems to be tainted by fraud or arbitrariness or corruption.

2. In Segura v. IAAF (CAS OG 00/13), the CAS arbitrators had shown their incapability to review the decision taken on the playing field by judges, referees, umpires, or other officials if any, who are empowered with applying what is sometimes called “rules of the game” or “field of play” whereas the exception lies on the circumstances when such rules have been applied in bad faith, e.g. as a consequence of corruption. And since the aforementioned did happen at the relevant event, CAS arbitrators were mere spectators with no official role.

3. In addition, the award ordered in Swedish National Olympic Committee & Swedish Triathlon Federation v. International Triathlon Union (CAS OG 12/10) had been pursuant of the same line of CAS jurisprudence which delineated that, the CAS would only review a field of-play decision in case the circumstances related to that decision is taken arbitrarily or in bad faith.

Understanding the basis of field of-play principle within the CAS jurisprudence, the following opinion of the Hon. Michel Beloff QC in Yang Tae Young v. FIG (CAS 2004/A/704) seems to be of utmost importance.

“Finality is in this area allimportant: rough justice may be all that sport can tolerate”.

Arbitration & Sports: Where the connection lies

From the perspective of common socio-cultural background, the profound reasons existed in the said context are self-explanatory to the sports sector’s extensive resort to arbitration. Given the prospect, reference must be made in relation to the transition of how the following six features of both, commercial arbitration and modern competitive sports, within or without the Olympic movement were meant to meet and marry.

I. Tracing the Origin: Given the context, both modern commercial arbitration and modern organized sports trace their origins to the nineteenth century. It was the time when the Industrial Revolution sparked the development of economic liberty and caused an exponential growth of technology, manufacture, and commerce. This revolutionary era apart from the above developments and growth also brought into realization the following two prospects which, in recent times, were served as the stepping stones for both the commercial arbitration and organized sporting sectors.

 i. The merchants of that time felt the need for a quick and specialized response to disputes which was why the concept of arbitration could come to the surface.

ii.The need for increasing the leisure time allowing individuals of the rising middle class to engage in sports, either as performers or as spectators, was felt. As a result, the first sporting clubs and sports associations were established back then.

II. Contractual Autonomy & Associational Freedom: When it relates to international arbitration and organized sports, both of them share the expression of contractual autonomy and associational freedom. In order to make this terminology more explicit with the given subject matter, it is to be considered that the parties often agree to submit their disputes to arbitration while selecting a private mechanism for dispute resolution that tends to minimize the role of sovereign States. With proper observance, it seems to be no coincidence that arbitration traces many of its roots to the trade association, commercial guilds, and religious associations. Given each of these arrangements, the members of a community most often get into disputes with each other but their ways to resolve such disputes tend to revolve around a mechanism of their own choice and design. Parties given the context prefers such because they desire to minimize the effects of their disputes on their underlying and shared community. At its fundamental context, parties agree to arbitrate at times of disputes because it guarantees them maximum autonomy and control over the resolution of their disputes and at the same time the parties can be assured that the resolution of these disputes would not disrupt or damage their underlying relationship, out of which the disputes arose in the first place.

 On a similar token, modern organized sports also trace its roots to sporting clubs and associations which believed in setting out their own private rules in order to minimize the role of the State. Not very coincidentally, the entire sports system also dwells upon the same quote – contractual autonomy and associational freedom – as the participation of athletes and teams in the competition are subjected to their own consent for registering themselves with sports associations and entering the competitions. In the said context, athletes and teams fall under the contractual obligations to comply with the rules of the game and to abide by all decisions imposed on behalf of the sport’s governing bodies, such as those issued by referees on the field or by disciplinary judges off the field. Considering the recent practice of the widespread acceptance by people within the sporting community of rules and decisions issued by such private authorities – it is now well evident that such sports authorities in relation to their legislative and judicial mechanism dwell strongly upon their own choice and design.

 III. Resentments towards Intervention of State Judges: In line with the above-discussed point, both the commercial arbitration community, as well as the sports community, oppose the intervention of State judges into their own disputed matters. Given the context, such resentments towards the intervention of State judges have its relevance in the light of maintaining privacy, expertise, and finality in their dispute settlement process. Further, the State judges are not very enthusiastic about such a dispute resolution mechanism which is why these judges have often been hostile towards the private process of settling disputes within both, the commercial and sports domains.

IV. Transnational System of Justice: Arbitration and Sports have respectively developed set of rules that, while interacting in many respects with States’ legal system, tend to form complex private law system within the ambit of its own transnational levels. Having said that, international arbitration doesn’t only belong to a transnational system of justice but has also been characterized as expressing a transnational autonomous legal system that is often known as “Ordre Juridique Arbitral” or “Arbitral Legal Order”. On the other, organized sports have also been famous for its peculiar transnational branch of law as sports law, which has developed “under its own impetus, without any legislative underpinning to speak of” and is “inherently international in character”. Sports law, given its coherent transnational system of law, has also been characterized as “Ordre Juridique Sportif” or “Sports Legal Order” by State courts, legislators, and many scholars who with the help of some Italian jurists applied the notion of ‘legal pluralism’ to sports many decades ago.

V. Lex Mercatoria & Lex Sportiva: In relation to the above-discussed point, international arbitration and organized sports have both yielded the application of substantive transnational principles, standards, and rules which are respectively known as “Lex Mercatoria” and “Lex Sportiva”. As per Oxford Public International Law, the term “lex mercatoria” or law merchant is used to designate the concept of a national body of legal rules and principles, which are developed primarily by the international business community itself on the basis of their custom, industry practice, and general principles of law that are applied in commercial arbitrations as well as international in order to govern transactions between private parties and States, in transborder trade, commerce, and finance. Given the context, if there is no express choice of law in the arbitration agreement allowing the parties to act as amiable compositors, arbitrators may apply the source of “lex mercatoria.” In Sapphire International Petroleum Ltd. v. National Iranian Oil Company, the tribunal while considering the conflict of law rules, concluded that Iranian law should be followed to solve the dispute. Nevertheless, the parties’ intention and the fact that the contract had no governing law helped the tribunal reconsider that the use of Iranian law was not contemplated by the parties. As a result, the arbitrators determined those general principles of law accepted by civilized nations which are also known as the principle of “lex marcatoria” should be employed to decide the dispute.

On the other, the term “lex sportiva” has been defined to be constituted by a set of unwritten legal principles of sports law, having been derived from the interaction between the sports rules and general principles of law, developed and consolidated along the years through the arbitral settlement of sports disputes, both at the CAS and the at other dispute settlement institutions specialized in sports. In consideration of the above prospect, the existence and nature of such sets of rules despite being hotly debated, and often doubted, by scholars and practitioners, forms the entire basis through which disputes are regularly adjudicated both in commerce and sports. Having said that, adjudication of this kind doesn’t only depend on State laws but also on the basis of principles, standards, and rules derived from usages, practice, and the never-ending spirit of trade and competition. Apart from that, the idea of fairness given the context must be an essential asset as it doesn’t refer to the sports competition, rather it refers to the commercial status of sports entity. In Club Rangers de Talca v. Fédération Internationale de Football Association (FIFA), the dispute comprised of payment to a football player while the Chilean football club, Club Ranger was going through insolvency procedures. Once the club had been declared bankrupt in 2009, FIFA Dispute Resolution Chamber ordered Rangers de Talca to pay the amount of USD 21,000 to one of its former football players. Since the payment wasn’t made, the Player initiated disciplinary proceedings against the Rangers in FIFA. Consequently, assets of the Rangers were acquired by Piduco S.A.D.P. Knowing about the debt owed by Rangers, Piduco informed FIFA that it had no liability towards the prior debt corresponding to the Club. FIFA pondering upon the fact considered Chilean Insolvency Law on the basis of which employees have a privileged credit and they get paid first. The court, therefore, opined that the player failed to join the creditor’s list of the bankrupt club while he was well aware of such procedure. The court, considering the said aspect, concluded that the player was responsible for the sanction imposed by FIFA DRC in 2009. While analyzing the cases of bankruptcy, the FIFA DRC Panel was of the opinion that the declaration bankruptcy of different legal system disables the bankrupt entity to make further payments until there is a decision of insolvency proceedings. This gave birth to inequities as all clubs play at the same competition but the clubs in bankruptcy stay under the protection of bankruptcy laws, whereas the other clubs must make their payments when they are due. In the opinion of CAS ‘such inequity of treatment and opportunities is contradictory towards the essence of the so-called principles of “lex sportiva”’.

VI. Institutional Framework: Keeping in mind the discussed situation, both arbitration and organized sports have now given rise to important and influential non-governmental organizations which further led to the establishment of an institutional framework within their respective domains. On the one hand, disputes related to commercial contracts are nowadays commonly arbitrated under the administration of several private arbitration institutions such as the International Chambers of Commerce (ICC), The London Court of International Arbitration (LCIA), American Arbitration Association (AAA), etc; On the other hand, international sports institutions likewise International Olympic Committee (IOC), Fédération Internationale de Football Association (FIFA), The Union of European Football Associations (UEFA), etc. over the years have also emerged as a prominent aspect in the context of international relations. Also, in the eyes of the public opinion, it has gained emergence with respect to the fact that they often deal on equal footing with sovereign States in relation to the bids for organizing the major sports events.

Conclusive Analysis

Given the premise of such interweaving relationship mentioned above between arbitration and modernized sports sectors, a specialized or to some extent simplified model of arbitration known as Sports Arbitration with peculiar features of its own, got introduced in the sports fraternity in order to amicably resolve the dispute arises in the field of sports. Talking about disputes in conformity with the above principle of contractual party autonomy in both commercial arbitration and modern sports, it seems indispensable to construe whether “lex sportiva” being the transnational source of sports law, can become the governing law to sports’ contracts in the same manner that today, “lex mercatoria” being the transnational source of arbitration has become the preferred choice of law in a contract for the parties in disputes.

Lex Sportiva: A governing law for Sports’ Contracts Given the terminology of “lex sportiva”, it usually speaks of two of its major viewpoints that really define its true perspectives in the world of sports. The first perspective having been emanated from a narrow viewpoint, emphasizes the concept of “lex sportiva” to be made of reiterated decisions in awards issued by CAS, and the second one, based on a broader viewpoint, entitles that the said concept doesn’t only depend on to the CAS decision but also belongs to Sports Governing Body (SGB) regulation. In consideration with the broader perspective mentioned above, “lex sportiva” being the SGB regulation higher the possibilities to become the governing law for sports contracts. The only clarification needed in this regard to make the viewpoint prevalent in the world of sports is to ensure that the contractual party rather than having a clause in the contract expressly stating that “lex sportiva” is the governing law and a specific set of SGB regulations is the contractual choice of law, must, on the other, imply “lex sportiva” as their governing law. Having said that, the aforementioned concept of “lex sportiva” under the realm of its narrow viewpoint seems to be emanated from the CAS decisions that eventually enforce the SGB regulations. The scrutiny in this regard appears to be a bit challenging as “lex sportiva” doesn’t only belong to SGB regulation but also refers to CAS decisions on how to interpret such regulations. However, the SGB regulations being not so self-sufficient in the given aspects, the principle of “lex sportiva” usually complements such regulation with respect to the feasible grey areas in the law.

However, the principle of party autonomy, to a larger extent, favors the party itself in empowering them to select their preferred law whose nature-given certain situations, may not always have to be the domestic law, in order to rule their agreement. Having said that, parties while drafting their arbitration clause selecting CAS as the institution to host their upcoming arbitral disputes arising out of contract, must keep in mind that CAS already has its own models of standard clauses for facilitating the said procedure. According to such clause, it only specifies that disputes will be ‘resolved definitively in accordance with the Code of sportsrelated arbitration’. The said Code, unlike other model clauses available in other arbitral institutions, comprises the CAS rules as well as the regulations of the federation, association, or sports-related body in order to ensure resolution according to the clause of such Code. Therefore, parties referring to their applicable laws would not be considered enough for CAS to offer them such a possibility in return. Considering all if parties still willing to have “lex sportiva” as their rules of law, should perhaps draft an arbitration clause based on the standard provided by CAS with an inclusion of a text stating that the governing law of the contract will be “lex sportiva”.

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Legally Speaking

Obligation of a father to maintain his son will not come to an end when he attains majority: Delhi High Court on Section 125 of CrPC

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In a brilliant, balanced, bold and brief judgment titled Urvashi Aggarwal & Ors vs Inderpaul Aggarwal in CRL.REV.P. 549/2018 & CRL.M.A. 11791/2018 (Stay) delivered on June 14, 2021, the Delhi High Court has minced no words to make it clear that the obligation of a father to maintain his son under Section 125 of CrPC would not come to an end when the son attains the age of majority after reasoning that the entire burden of his education including other expenses would fall entirely upon the mother. A single Judge Bench comprising of Justice Subramonium Prasad who delivered this extremely learned, laudable and landmark judgment directed that a sum of Rs 15,000 per month is to be given as interim maintenance to the mother from the date of the son attaining majority till completion of his graduation or starts earning, whichever is earlier. The Court observed that, “It cannot be said that the obligation of a father would come to an end when his son reaches 18 years of age and the entire burden of his education and other expenses would fall only on the mother. The amount earned by the mother has to be spent on her and on her children without any contribution by the father because the son has attained majority.” It also did not shy away from observing that, “The Court cannot shut its eyes to the rising cost of living. It is not reasonable to expect that the mother alone would bear the entire burden for herself and for the son with the small amount of maintenance given by the respondent herein towards the maintenance of his daughter.”

To start with, Justice Subramonium Prasad of Delhi High Court who authored this notable judgment first and foremost sets the ball rolling by observing in para 1 that, “The present revision petition is directed against the order dated 21.04.2018, passed by the Additional Principal Judge, Family court, Tis Hazari, Delhi, declining maintenance to the petitioner No.1/wife and granting maintenance only to the petitioner Nos.2 and 3 herein.”

While elaborating on the facts of the case, the Bench then puts forth in para 2 that, “The facts leading to the present petition are as under:

a) The petitioner No.1 got married to the respondent herein on 11.11.1997. Out of the wed-lock two children i.e. the petitioner Nos. 2 and 3 were born on 14.8.2000 and 14.8.2002 respectively.

b) Disputes arose between petitioner No.1 and the respondent herein. Petitioner No.1/wife filed a petition under Section 125 Cr.P.C for grant of maintenance.

c) The respondent/husband instituted a suit for divorce. d) During the pendency of the divorce petition, the petitioner No.1 filed a petition under Section 24 of the Hindu Marriage Act, 1955 seeking maintenance. The Family Court declined maintenance to the petitioner No.1 and granted maintenance of Rs.7,000/- per month to the two children which was later enhanced to Rs.13,000/- per month.

e) A decree of divorce was granted on 28.11.2011.

f) The petitioner No.1 filed MAT. APP. No.6/2012 challenging the decree of divorce, which is pending before this Court. This Court vide order dated 25.03.2015 directed the respondent to pay maintenance of Rs. 15,000/- each to the respondent Nos.2 and 3.

g) The respondent has married again and has got a child from the second marriage.

h) A perusal of the material on record shows that the petitioner No.1 and the respondent are both Government employees. The petitioner No.1, at the time when the impugned order was passed, was working as an Upper Divisional Clerk in Delhi Municipal Corporation and the respondent is working as a Joint General Manager (HR) with the Airports Authority of India. The monthly income of the petitioner No.1, in the affidavit filed by her in the year 2016, is shown as Rs.43,792/- per month and she has stated that her monthly expenditure is Rs.75,000/-. She also stated that her net income is Rs.37,762/- per month. On the other hand, according to the affidavit dated 06.02.2016, filed by the respondent, he was earning a gross salary of Rs.96,089/- per month.

i) The petitioner No.1 moved an application for grant of interim maintenance claiming a sum of Rs.40,000/- per month. The learned Family Court after considering various factors came to the conclusion that since the petitioner No.1 is earning sufficiently for herself, she is not entitled to any maintenance. As far as petitioner Nos. 2 and 3 are concerned, the learned Family Court apportioned the income of the respondent into 4 shares, out of which two shares have been given to the respondent and one share each i.e. 25% has been given to the two children. Out of 25% for each children, as directed by the Family Court, the respondent had to pay 12.5% to each of the child out of his gross income less minimum statutory deductions which were to be computed by the employer of the respondent. The learned Family Court has said that the petitioner No.2 i.e. the son of the parties would be entitled for maintenance till he attains the age of majority and the petitioner No.3 i.e. the daughter would be entitled for the maintenance till she gets employment or gets married whichever is earlier. The learned Family Court further said that since the respondent has to maintain his son, born from his second marriage, it was directed that from the date of birth of his son from the second marriage, the share of the respondent shall be 10% each for 2 kids, from the wedlock with the petitioner No.1, as his entire salary was apportioned to five shares (two for the respondent, one each for the three kids). It has been held that since the second wife of the respondent herein is also working, she has the liability to bear 50% of the cost of her son, thereby making the share of the respondent herein as 10% towards the child from the second marriage. The order dated 21.04.2018, reads as under:

“8. Interim maintenance to petitioner no. 1 is declined at this stage as she is able bodied and earning sufficiently for herself and as regards the standard of living behoving with the status of the respondent, the same are questions of fact and triable issues and would be looked into when it would be decided finally after trial whether petitioner no. 1 is entitled for maintenance or not.

9. As regards petitioner no. 2&3 are concerned, the income of the respondent has to be apportioned in four shares @25% i.e. two for himself and one each for the children and from that 25% share for each kid 50% thereof has to be contributed by the respondent for each kid. So the respondent is liable to pay 12.5% each to both the children as his share out of his gross income minus minimum statutory deductions which would be computed by the employer of the respondent However, amount of reimbursement obtained by the respondent for which he has spent from his own pocket will not be calculated for the purposes of apportionment of the share in favour of the children. The petitioner no. 2 and 3 would be entitled to 12.5 % each per month as share of the respondent in the aforesaid manner from the date of application till the pendency of the case. The son of the parties shall be entitled for the maintenance till he attains the age of majority and the daughter till she gets employment or gets married whichever is earlier. The respondent has no liability to maintain his mother-in-law and sister-in- law being under no such legal obligation. The mother of the respondent being pensioner as father of the respondent was a government employee, the respondent has no obligation to maintain her financially. 10. Since the respondent in this case has the liability to maintain his son born from his present wedlock it is ordered that from the date of birth of his son from second wedlock the share of the respondent shall be 10% each for 2 kids from the wedlock with the petitioner as his entire salary in the above terms needs to be apportioned to five shares (two for the respondent, one each for the three kids). Each shares comes to 20%. The second wife of the respondent being also working has the liability to bear 50% for son thereby making the share of the respondent as 10% for the son from second wedlock.”

j) It is this order which is under challenge in the instant revision petition.

k) It is pertinent to mention here that a number of petitions have been filed by the parties against each other. This Court is not dwelling into the details of those petitions since they are not relevant for the present proceedings.”

On the one hand, the Bench then points out in para 3 that, “The learned counsel for the respondent has taken the primary objection stating that the present application is not maintainable and is barred under Section 397(2) Cr.P.C inasmuch as the order granting interim maintenance is an interlocutory order. The said argument has been rebutted by the learned counsel for the petitioners.”

On the other hand, the Bench then brings out in para 4 that, “The learned counsel for the petitioners places reliance on the judgment of this Court in Manish Aggarwal v. Seema Aggarwal, 2012 SCC OnLine Del 4816, which reads as under:

“17. Interim maintenance had been granted under Section 125 Cr. P.C. and the issue arose whether a revision petition could be preferred against that order, as it was alleged to be interlocutory in nature. It was held that the order of interim maintenance was an intermediate or quasi final order. Analogy was drawn from Section 397(2) of the Cr. P.C. and the pronouncement of the Supreme Court in Amarnath v. State of Haryana, (1977) 4 SCC 137 : AIR 1977 SC 2185 qua the said provision was relied upon. Thus, an order which substantially affects the rights of an accused and decides certain rights of the parties was held not to be an interlocutory order so as to bar revision. However, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in the aid of pending proceedings would amount to interlocutory orders against which no revision would be maintainable under Section 397(2) of the Cr. P.C. On the contrary, those orders which decide matters of moment and which affect or adjudicate the rights of the accused, or a particular aspect of trial could not be labeled as interlocutory orders. The Madhya Pradesh High Court held that an application for interim maintenance is a separate proceeding, to be disposed of much earlier than the final order in the main case. Qua the said issue the matter is finally decided by the order passed by reference to the second proviso to Section 125(1) of the Cr. P.C. Such orders were, thus, intermediate or quasi final orders. Thus, if an order does not put an end to the main dispute, but conclusively decides the point in issue it can certainly not be said to be an interlocutory order. The judgement drew strength also from the observations of the Supreme Court in Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 : AIR 1978 SC 47, where the Supreme Court held that ordinarily and generally the expression “interlocutory order” has been understood and taken to mean as a converse of the term final order. But the interpretation, and the universal application of the principle that what is not a “final order” must be an “interlocutory order” is neither warranted nor justified. In V.C. Shukla v. State, 1980 (2) SCR 380 the Supreme Court held that the term “interlocutory order” used in the Cr. P.C. has to be given very liberal construction in favour of the accused in order to ensure complete fairness of trial, and revisional power could be attracted if the order was not purely interlocutory but intermediate or quasi final.

26. We, thus, conclude as under:

(i) In respect of orders passed under Sections 24 to 27 of the HM Act appeals would lie under Section 19(1) of the said Act to the Division Bench of this Court in view of the provisions of sub-section (6) of Section 19 of the said Act, such orders being in the nature of intermediate orders. It must be noted that sub-section (6) of Section 19 of the said Act is applicable only in respect of sub-section (1) and not sub-section (4) of Section 19 of the said Act.

(ii). No appeal would lie under Section 19(1) of the said Act qua proceedings under Chapter 9 of the Cr. P.C. (Sections 125 to 128) in view of the mandate of sub-section (2) of Section 19 of the said Act.

(iii). The remedy of criminal revision would be available qua both the interim and final order under Sections 125 to 128 of the Cr. P.C. under sub-section (4) of Section 19 of the said Act. (iv). As a measure of abundant caution we clarify that all orders as may be passed by the Family Court in exercise of its jurisdiction under Section 7 of the said Act, which have a character of an intermediate order, and are not merely interlocutory orders, would be amenable to the appellate jurisdiction under sub-section (1) of Section 19 of the said Act.” (emphasis supplied)

In view of the above, this issue is no longer Res Integra and stands covered fully in favour of the petitioners and the revision petition is maintainable.”

To put things in perspective, the Bench then puts forth in para 5 that, “It is contended by the learned counsel for the petitioners that after holding that each of the child is entitled to 25% of the amount of the income of the respondent, the learned Family Court ought not to have further apportioned the amount and limited the liability of the respondent only to 12.5% of the amount of the salary earned by the respondent. It is contended by the learned counsel for the petitioners that each of the child is entitled to full 25% of the amount of the salary earned by the respondent. It is further contended by the learned counsel for the petitioners that the learned Family Court has also erred in limiting the maintenance to be given to the petitioner No.2/son till he attains the age of the majority. It is contended by the learned counsel for the petitioners that Section 125 Cr.P.C has to be interpreted in such a manner that the object of Section 125 Cr.P.C is achieved. It is further contended by the learned counsel for the petitioners that the responsibility of a father to take care of his child does not cease after the child attains majority if the child is not able to sustain himself.”

As against what is stated above, the Bench then also points out in para 6 that, “Per contra, the learned counsel for the respondent contends that there is no infirmity in the order of the learned Family Court and that it is a well reasoned order. It is contended by the learned counsel for the respondent that the total amount paid by the respondent to the petitioner Nos.2 and 3 till date is about Rs. 29,25,825/- which is much more than the amount which has been directed by the learned Family Court. It is also submitted by the learned counsel for the respondent that apart from the salary, the petitioner No.1 has got several properties and has got income from other sources and is not only confined to her salary.”

Be it noted, after hearing the counsel of both the parties and perusing the material on record as stated in para 7, the Bench then envisages in para 8 that, “The purpose of Section 125 Cr.P.C has been laid down by the Supreme Court in several judgments. The object of Section 125 Cr.P.C is to prevent vagrancy and destitution of a deserted wife by providing her for the food, clothing and shelter by a speedy remedy. The object of Section 125 Cr.P.C is to bring down the agony and financial suffering of a women who left her matrimonial home so that some arrangements could be made to enable her to sustain herself and her child (refer: Chaturbhuj v. Sita Bai, (2008) 2 SCC 316, and Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353).”

Simply put, the Bench then states in para 9 that, “Since the purpose of granting interim maintenance is to ensure that the wife and the children are not put to starvation, the Courts while fixing interim maintenance are not expected to dwell into minute and excruciating details and facts which have to be proved by the parties.”

It would be worthwhile to mention here that the Bench then without mincing any words states in para 10 that, “The contention of the learned counsel for the petitioners that after recording that both the children are entitled to 25% each of the amount of the salary earned by the respondent, the learned Family Court ought not to have further apportioned the amount and limited the liability of the respondent only to 12.5% of the amount of the salary earned by the respondent, cannot be accepted. The balance has to be taken care of by the wife i.e. the petitioner No.1 herein, who is also earning and is equally responsible for the child. The respondent has married again and has a child from the second marriage. This Court cannot shut its eyes to the fact that the respondent has equal responsibility towards the child from the second marriage. The further reduction of the amount after the birth of the child from the second marriage of the respondent also cannot be found fault with and the reasoning given by the Family Court does not warrant any interference at this juncture.”

As it turned out, the Bench then holds in para 11 that, “The learned Family Court refused to grant maintenance to the petitioner No.1 herein on the ground that the petitioner No.1 is working as an Upper Division Clerk in Delhi Municipal Corporation and is earning sufficiently for herself. The learned Family Court further held that as regards the standard of living which was being enjoyed by the petitioners when the marriage subsided is a question of fact and would be looked into when the case is decided finally after both the parties lead evidence.”

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Finally and far most crucially, the Bench then holds in para 12 that, “The petitioner No.1 is working as an Upper Division Clerk in Delhi Municipal Corporation, earning about Rs.60,000/- per month. The records indicate that the respondent has filed his salary certificate which shows that his gross monthly income, as on November, 2020, is Rs.1,67,920/-. The two children are living with the mother. After attaining the age of majority, the entire expenditure of the petitioner No.2 is now being borne by the petitioner No.1. The petitioner No.1 has to take care of the entire expenditure of the Petitioner No.2 who has now attained majority but is not earning because he is still studying. The learned Family Court, therefore, failed to appreciate the fact that since no contribution is being made by the respondent herein towards the petitioner No.2, the salary earned by the petitioner No.1 would not be sufficient for the petitioner No.1 to maintain herself. This Court cannot shut its eyes to the fact that at the age of 18 the education of petitioner No.2 is not yet over and the petitioner No.2 cannot sustain himself. The petitioner No.2 would have barely passed his 12th Standard on completing 18 years of age and therefore the petitioner No.1 has to look after the petitioner No.2 and bear his entire expenses. It cannot be said that the obligation of a father would come to an end when his son reaches 18 years of age and the entire burden of his education and other expenses would fall only on the mother. The amount earned by the mother has to be spent on her and on her children without any contribution by the father because the son has attained majority. The Court cannot shut its eyes to the rising cost of living. It is not reasonable to expect that the mother alone would bear the entire burden for herself and for the son with the small amount of maintenance given by the respondent herein towards the maintenance of his daughter. The amount earned by the petitioner No.1 will not be sufficient for the family of three, i.e. the mother and two children to sustain themselves. The amount spent on the petitioner No.2 will not be available for the petitioner No.1. This Court is therefore inclined to grant a sum of Rs.15,000/- per month as interim maintenance to the petitioner No.1 from the date of petitioner No.2 attaining the age of majority till he completes his graduation or starts earning whichever is earlier. The instant petition was filed in the year 2008. The learned Family is directed to dispose of the petition as expeditiously as possible, preferably within 12 months of the receipt of a copy of this order.” It is then held in the last para 13 that, “Accordingly, the revision petition is allowed in part and disposed of along with the pending application.”

In essence, the crux of this notable judgment delivered by Justice Subramonium Prasad of the Delhi High Court is that the obligation of a father to maintain his son will not come to an end when he attains majority and only the mother alone would not maintain her without any contribution by the father just because the son has attained majority! The Court very rightly took into account the rising cost of living and obligated the father to maintain his son till he completes his graduation or starts earning whichever is earlier as this is what is in the best interest of the child and of the family! It is the bounden duty of all the lower courts to abide by this notable judgment in all such similar cases without fail.

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Judicial reforms in India need to go beyond informal calls for inclusivity

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On 7 June 2021, it was reported that the Chief Justice of India, in a virtually closed-door meeting with the Chief Justices of all the High Courts, emphasised that the High Court collegiums must recommend Dalit, tribal, OBC, minorities and women for elevation as judges so that the High Court would truly reflect the vast social diversity of the country.

This move is revolutionary because several adverse remarks had been made in the past regarding the demography of the higher judiciary but little had changed. Mr George F. Gadbois’ (a political scientist) in his book titled ‘Judges of the Supreme Court of India’, stated that 92.2% of the Supreme Court comprised male Brahmins and other forward castes based on empirical data between 1950-1989; fast forward to the present-day scenario, Supreme Court now has only 1 woman judge, 1 judge from the Dalit community and 3 judges from the Parsi, Christian and Muslim minority communities collectively. Further, the Ministry of Law & Justice’s 2020 report on ‘Judges of the High Courts’ stated that only 12% of the judges in the High Courts were women; and, Vidhi Centre for Legal Policy’s 2018 report stated that there were only 27.6% of women judges in the lower judiciary. In 2016, even the former director of the National Judicial Academy had remarked that “The typical Indian judge is Hindu, upper-class, upper-caste and male.”

For an institution which according to the aforesaid data has been a bastion of few select privileged classes of the society; the decision by the CJI to diversify the higher judiciary comes as a move that warrants acceptance with arms wide open. However, in spite of the substantive part of the inclusivity policy being in tune with the ethos of a representative democracy, the existing practises concerning the elevation of judges to the higher judiciary based on inclusivity grounds, does not facilitate its smooth and sociologically legitimate implementation.

A glimpse of the collegium resolution dated 08.05.2019

This was a time when there was no representation from the Scheduled Caste community in the Supreme Court for a decade. Thus, the Supreme Court Collegium elevated a judge belonging to the Scheduled Caste community from the Bombay High Court. While doing so the Collegium resolution stated that “His (the judge from the SC community’s) recommendation, in no way, is to be misconstrued to mean that three senior-most Judges from Bombay High Court (two of whom are serving as Chief Justices) are less suitable than him”. Now, there are several challenges attached to such ad-hoc elevations. Firstly, the aforesaid statement made by the Collegium makes it look like the only reason why none of the three other senior-most judges of the High Court were elevated is because they were at the right place at the wrong time; secondly, it still does not ensure that representation of judges with non-traditional background in the judiciary would continue in a sustained manner because after all, it took a decades’ time for the Collegium to realise the lack of representation of the SC community in the Supreme Court; and lastly, the lack of a well-defined policy for selection of the candidates belonging to the SC/ST/women/minority communities could exacerbate the allegations of nepotism and favouritism, a charge that the higher judiciary already has been saddled with time and again.

In light of the same, it is natural that the call for diversification by the CJI must be supplemented with procedural policies that both sustain as well as accelerate the prospect of constituting a diverse, democratic and representative judiciary.

JUDICIAL PERFORMANCE EVALUATION

Judicial Performance Evaluation Programmes conduct periodic assessment of the performances of the judges. It dates back to the year 1978 when the government of Alaska conducted the first judicial performance evaluation programme. However, over the years the judicial performance evaluation programmes have evolved across varied array of jurisdictions to meet their own unique needs; some are also meant for enhancing the accountability of the judges apart from determining the career paths of the judges. The 2017 Vidhi Centre for Legal Policy’s report stated that despite the differences among the practice of judicial performance evaluation; there are few commonalities that remain axiomatic across jurisdictions i.e., they are official state-run programmes, data and information on several parameters is collected from a wide audience through survey mechanisms, and the survey results and recommendations are widely circulated.

Further, the 2017 report after wide consultation with eminent jurists, judges, academicians and advocates recommended that India’s judicial performance evaluation programmes must be run by a statutory body or commission that would carry out the surveys annually to evaluate the performances of the judges for the elevation to the higher judiciary. The programme would be conducted in three phases – the first stage would entail the survey which would be filled by peers on the bench, court staff, eminent advocates to name a few; the second stage would carry out the collation of data, and the third and last stage would be the publication of the data in a public domain along with the recommendations made by the body/commission.

The induction of the judicial performance evaluation programmes is not only desirable but even the need of the hour because the aforementioned statistics evinced that the lower judiciary comparatively enjoyed a greater diversity of judges; it gives a fair, if not ideal, pool of candidates whose performances can be evaluated in order to be elevated to the higher judiciary. This would also prove to be a game-changer because not only would it provide for a rational and uniform basis for the elevation/non-elevation of a particular judge to the higher judiciary but also inhibits the scope for favouritism/nepotism, and its annual reports would ensure that the diversification policy is not compromised or ignored over time. Lastly, since the aim of such programmes is also to ensure that merit is rewarded, it would also cause only the meritorious candidates from non-traditional backgrounds to be elevated to the highest echelons of the judiciary; which is in tune with the vision of the drafters of the constitution who envisaged merit as the sole ground for appointment to the judiciary.

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How Madras High Court judge broke his preconceived notions for LGBTQIA+ community

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‘There are many branches on the tree of life. There is no one way to be, and there is room for everyone to be who they are.” ~ Justice A. Venkatesh

The Tale of two brave girls

This movement for change began when two girls named S. Sushma and U. Seema Agarval who were in a romantic relationship with each other faced harassment and mental pressure from their family due to their sexual orientation and therefore decided to run away from their respective homes and shift to Chennai.

S. Sushma had pursued a bachelor’s degree in Mathematics from Madurai and Seema was pursuing a bachelor’s degree in the Tamil language at that time. They both knew each other from the past two years and their friendship in the sue course of time blossomed into a unique, romantic relationship and both of them see each other as their partner for life time. When the parents of the couple received the knowledge of their relationship, they strongly opposed it and started pressuring them, and that’s when they decided to leave Madurai and shift to Chennai to start their new life.

The girls belong to the LGBTQIA+ community. The NGO’s and other members of the community supported the girls and arranged for accommodation for ensuring their protection. Meanwhile, their parents filed different missing FIR’s for each girl and the police began their search. The Petitioners in the apprehension of threat and danger to their life approached the Hon’ble Court of Madras to issue direction to the Police to protect them from any kind of threat and danger.

Justice Anand Venkatesh took note of the facts of the case and arranged for a meeting in the mediation centre for the couple and their parents, he also sat with the parents to understand their viewpoint on the notice of same-sex relationship.

Counselling session were arranged for the parents to understand the same-sex relationship in today’s world and also, to understand their daughter’s emotional state and feelings toward the relationship but nothing good came out of it. No change was recorded in the attitude and thinking of the parents.

For the very first time, the Indian Judiciary has given a helping hand to the LGBTQIA+ community not just by issuing the guildlines for their protection and safety, but also actively took part understand their feelings and emotions, and to break the pre-conceived notion which exists in our society concerning the LGBTQIA+ community.

How did the Judge overcome his Prejudice?

The Hon’ble Judge of the Madras High Court, Justice Anand Venkatesh passed an order while deciding on the Writ Petition no. 7284 of 2021, S. Sushama and another v Commissioner of Police and others, in favour of the Lesbian couple who were continuously subjected to harassment by the police officials after their respective parents filed a missing report against them.

The Judgment is itself is a step towards creating a safe environment for the LGBTQIA+ community in our Country, but it was not easy for him to break this pre-conceived notion about the Gay and Lesbian community which exists in our society.

Justice A. Venkatesh agreed that it was not easy for him to understand the mindset and the situation of the petitioners as he has never encountered anybody belonging to the LGBTQIA+ Community and therefore never had a chance to understand in depth about their emotions and mindset.

For better understanding and the analysis of the situation in hand Hon’ble Justice of the Madras High Court underwent psycho-educative session with various counsellors and professionals who deal with the LGBTQ+ community to understand their issues better.

In a report submitted by the clinical Phycologist Dr Vidya Dinkaran, she stated that the Hon’ble Judge participated in a session with her and broke his flawed notions about the LGBTQ+ community. The Hon’ble Judge after interacting with the Petitioners and the parents realised that “There has been a misconception that went to the cutting edge was how homosexuality is all the time saw distinctly with a sexual undertone (i.e.), a relationship restricted uniquely to sex.

The report stated that how Justice Venkatesh communicated on paying attention to the lesbian couple was the point at which he understood the imperfect notion about the community he had and how two ladies came to be viewed as a couple before the finish of that conversation for him. He came in with the consciousness of the bias he holds. This was developed by seeing how no two heterosexuals in a relationship will be judged promptly as being together just to participate in sex and it shouldn’t be different for any two individuals with different sexual Orientations.

After realising his bias toward this community, Justice Venkatesh interacted with different people belonging to the LGBTQ+ community to deepen his knowledge and understanding of the diversity amongst people of his own country. Also to gain insights on their living situations and the discrimination being faced by them in the society. Therefore, an interaction was scheduled with Dr Trinetra Haldar Gummaraju, MBBS Intern and an influencer from Kasturba Medical College and her mother Ms Haima Haldar. Dr Trinetra, a transwoman herself shared her journey and lived experiences with the judge and Dr L.Ramakrishnan, Vice President, SAATHII.

All these interactions finally broke all his notions about the LGBTQ+ Community and he started looking at them as a normal human being and in the judgement, he confessed that, Dr Vidya Dinakaran and Dr Trinetra and his Guru’s who helped him to break his pre-conceived notion and pulled him out of the darkness.

Justice Anand Venkatesh noticed that a cultural change is required in the approach towards LGBTQIA+ connections. The threats they face are because of the way that their relationship loath cultural authorization. He quoted in his Judgement, S. Sushama and another v Commissioner of Police and others that, 2021:-

“…the actual problem is not the fact that the law does not recognise a relationship but that the sanction that is accorded by the society is not available. It is only for this reason, I strongly feel that the change must take place at a societal level and when it is complemented by law there will be a remarkable change in the outlook of the society by recognising same-sex relationships”,

And therefore, in the light of the above-made observations this court feels that there should be stringent laws made by the Legislative Authorities for the LGBTQ+ community to protect them from the harassment, social and mental torture and from prohibiting any kind of activities to change their sexual orientation through means such as black magic or undergoing medical operations.

GUIDELINES ISSUED BY COURT FOR PROTECTION OF THE LGBTQIA+ COMMUNITY

The Hon’ble High Court of Madras issued notice to the Union and the Central Government to make laws that protect them and till the time, the laws do not come into force the following guidelines shall be followed to protect the LGBTQIA+ community who are living in the most vulnerable environment and there is no law for their safety and protection. The guidelines are as follows:

On receipt of a missing complaint of any adult who after the investigation is found to belong to the LGBTQ+ community, the Police officials, in that case, shall shut the complaint without any further actions and harassment to the persons.

The Ministry of Social Justice and Empowerment (MSJE), needs to enrol Non-Governmental Organizations (NGOs) which have the adequate ability and experience in dealing with the issues looked at by the LGBTQIA+ people group. The rundown of such NGOs alongside the location, contact subtleties, and administrations gave will be published on the official website which will be updated regularly.

Anyone belonging to the LGBTQIA+ community, who is facing harassment of any kind can approach the listed NGOs for the protection of their interests.

The Service provider NGOs shall maintain a record of the person in private who seeks help from them and share such data with the Ministry regularly to keep a check on the atrocities faced by them and take measure accordingly.

The offences faced by the person belonging to the LGBTQIA+ community shall be dealt with adequately with the help of the Counsellors and the State Legal Service Authority and in certain cases, law enforcement agencies shall also provide help.

With particularity of issue of convenience, reasonable changes are to be made in existing short stay homes, Anganwadi covers, and “Gramin greh” (a haven home for transsexual people, the motivation behind which is to give asylum to transsexual people, with fundamental conveniences like a safe house, food, clinical consideration and sporting offices. Plus, it will offer help for limit building/expertise improvement of people locally, which will empower them to lead an existence of nobility and regard) to oblige any and each individual from the LGBTQIA+ people group, who require covers or potentially homes. The MSJE will make sufficient infrastructural courses of action in such a manner, inside a time of 12 weeks from the date of receipt of a duplicate of this request.

Any such measures need to be taken for safeguarding the interest of the LGBTQIA+ community and help them to lead a normal life like any other person. The Central Government is also requested to frame such policies to protect the LGTQIA+ community from being harassed by their family members and society.

Awareness programmes to break the prejudices against the LGBTQIA+ community shall be carried out by the concerned department of the Union and State Ministries to spread awareness amongst the people.

LGBTQIA+ RIGHTS IN INDIA: CURRENT SCENARIO

The present scenario in India is that the Apex Court in their Judgement of Navtej Singh Johar v. Union of India (2018) SCC 1, decriminalised Homosexuality between the consenting adults. But there are no laws for the protection of the LQBTQIA+ community in India, they can get married but there are no laws for the legalisation of their marriage which deprives them of many rights which a heterosexual couple have like, buying life insurance for your partner and adopting children etc. Adoption by a single person belonging to the community is recognised but not by same-sex couples. Despite strong political movement in support of Pride Month and the guidelines still today the LGBTQIA+ community continue to suffer on daily basis.

CONCLUSION

The current situation is grim for lesbian, gay, sexually open, and transsexual youth in India. Many faces provocation and tormenting, and to stay away from embarrassment and savagery they regularly skip classes or exit school out and out.

In the past year’s Court decisions has laid down a better guideline for their safety and protection from harassment based on their sexual choices and sexual character, and the Indian government’s position on LGBT rights has developed impressively. Yet, substantially more is expected to ensure individuals based on sexual and sex character in India.

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SC shocked as bail plea not listed for a year

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While according due respect, prime importance and high priority to even the rights of the accused, the Supreme Court has as recently as on June 15, 2021 in a latest, learned, laudable and landmark judgement titled Chunni Lal Gaba vs Assistant Director, Directorate of Enforcement in Special Leave Petition (Criminal) Diary No. 11581/2021 (Arising out of impugned final judgement and order dated 29-04-2021 in CRMM No. 8112/2020 passed by the High Court of Punjab & Haryana at Chandigarh) (FOR ADMISSION and I.R. and IA No.66481/2021-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT and IA No.66482/2021-EXEMPTION FROM FILING AFFIDAVIT and IA No.66476/2021-PERMISSION TO FILE SLP WITHOUT CERTIFIED/PLAIN COPY OF IMPUGNED ORDER) minced just no words to hold that non-listing of bail application impinges on liberty of accused. While expressing shock over a bail application filed before the Punjab and Haryana High Court not being listed for hearing for more than one year, the Supreme Court did not take time in observing that under the prevailing pandemic, at least half of the judges should sit on alternative days so that hearing is accorded to the person in distress. Very rightly so!

Without mincing any words, the top court while taking up the cudgels to protect the rights of he accused also and observed aptly that, “Non-listing of application for regular bail, irrespective of seriousness or lack thereof, of the offences attributed to the accused, impinges upon the liberty of the person in custody.” We all know how Mohammad Aamir Khan kept fighting for years and was wrongly kept in jail for 14 years before he was granted bail. Similarly we also saw how in another case an Army Officer named Lt Col Prasad Shrikant Purohit was kept in jail for more than 9 years even though the charge-sheet was not filed against him and he is still a serving Army Officer and this can only be labelled as worst “judicial murder and police murder”!

To put it mildly: Why was evidence not produced in court for nine years if there was any evidence? Under no circumstances can this be ever justified. Had it not been a legal super giant named Harish Salve who is the highest paid lawyer of India and who is also former Solicitor General of India who represented India even in the high profile Kulbhushan Jadhav case in ICJ against Pakistan perhaps Ly Col Purohit would have been rotting in jail even after 14 years just like Mohammad Aamir Khan for which the whole Indian Army must feel terribly ashamed that an honest and upright serving Army Officer was falsely implicated by Mumbai ATS and even former Defence Minister Manohar Parikar had conceded that wrong had been done with Col Purohit and asked Army to hand over documents and copies of court of inquiry to him so that he could come to know what all was there in it. Army must feel terribly ashamed over it that it did not hold the hand of an honest and upright officer like Lt Col Purohit and instead cooperated fully with Mumbai ATS which cannot be justified under any circumstances!

, coming back to the present case, it must be mentioned here that the vacation Bench of Justice Hemant Gupta and Justice V Ramasubramanian of the Apex Court was considering a Special Leave Petition (SLP) against an April order of the Punjab and Haryana High Court whereby the request for hearing of an application for bail under Section 439 of the CrPC pending since February 28, 2020 was declined. It must also be mentioned here that Justice Hemant Gupta who was earlier a Judge of the Punjab and Haryana High Court told the senior advocate who was arguing the case that, “I am aware of the situation of the Punjab and Haryana High Court.”

While elaborating on the facts of the present case, it must be stated here that the SLP petitioner, Chunni Lal Gaba is a former President of a Municipal Council in Punjab and is also an accused in a multi-crore synthetic drug racket. In addition to being charge-sheeted under the NDPS Act, the ED has charge-sheeted Gaba and nine members of his family associated with his 11 firms in connection with the infamous ‘Bhola drug case’ for the alleged violation of the Prevention of Money Laundering Act. Gaba was granted interim bail on March 28, 2020 which was further extended till June 20, 2020 and finally till July 3, 2020.

Furthermore, the ED had moved the High Court contending that the Department was not heard of granting interim bail at the initial stage and thereafter. It must also be noted that on July 2, 2020, the High Court directed the Trial Court to afford full opportunity to the Department to oppose the extension of interim bail, taking into consideration the gravity of the offence.

Truth be told, it may be recalled that the Punjab and Haryana High Court had said that, “We also make it clear that while hearing the matter, learned trial court shall take into consideration the clarificatory order dated 13.04.2020 passed by the Hon’ble Supreme Court as well as Section 45 of the Prevention of Money Laundering Act, 2002. We also make it clear that bail in cases involving heinous crimes like the offences under the Narcotics Drugs and Psychotropic Substances Act, 1985, the Protection of Children from Sexual Offences Act, 2012 and the Prevention of Money Laundering Act, 2002, may not be granted as a matter of right.” We saw subsequently how on July 4, 2020, the CBI court which is also a designated ED court had cancelled Gaba’s interim bail and sent him to judicial custody.

At the outset, the vacation Bench of Apex Court comprising of Justice Hemant Gupta and Justice V Ramasubramanian sets the ball rolling by observing in the introductory para that, “Permission to file SLP without certified/plain copy of impugned order granted.”

While laying the background and the purpose of the petition, the Bench then puts forth in the next para that, “The present special leave petition is directed against an order whereby the request for hearing of an application for bail under Section 439 of the Code of Criminal Procedure, 1973, pending since 28.02.2020, was declined.”

Most significantly, what forms the cornerstone of this extremely commendable judgment is then stated by observing that, “Normally, we do not interfere with an interim order passed by the High Court but we are constrained to pass the present order as we are shocked to see that the bail application under Section 439 CrPC is not being listed for hearing for more than one year. The accused has a right to hearing of his application for bail. In fact, the denial of hearing is an infringement of right and liberty assured to an accused.”

Adding more to it, the Bench then also sought to make it absolutely clear that, “Even during the pandemic, when all Courts are making attempts to hear and decide all matter, non-listing of such an application for bail defeats the administration of justice. Under the prevailing pandemic, at least half of the judges should sit on alternative days so that hearing is accorded to the person in distress. Non-listing of application for regular bail, irrespective of seriousness or lack thereof, of the offences attributed to the accused, impinges upon the liberty of the person in custody.”

While striking the right chord, the Bench then further adds in the next para that, “Therefore, we hope that the High Court will be able to take up the application for bail at an early date so that the right of the accused of hearing of application for bail is not taken away by not entertaining such application on the mentioning memo.”

In its concluding part, the Bench then finally observes that, “Let the Registrar General of the High Court bring this Order to the notice of the competent authority to take remedial steps at the earliest. The special leave petition stands disposed of accordingly. Pending applications stand disposed of.”

Before winding up, it has to be said in all fairness that this most commendable and noteworthy judgment which speaks out vociferously for the rights of the accused also and shows concern for their liberty too has to be applauded, emulated and implemented by all the courts, in all the states and in all the parts of the country without any exception whatsoever! To lock up a person in jail for years without giving him any opportunity to argue his/her case in court is the worst travesty of justice and is nothing but most horrible “judicial and police murder” for which both the judiciary and the police are culpable and cannot be exonerated under any circumstances! A law must be made in this effect that no person shall be kept in jail beyond few days without being produced before the court to face trial! This status quo of accused languishing in jail for years has to be wiped out and a new system where accused rights are taken care of also must be implemented now itself!

It goes without saying that if there is proof with the police, why it does not file chargesheet for nine years as we saw in Lt Col Shrikanth Purohit’s case and just keeps chanting “Swaha, Swaha, Swaha, Swaha” not for one year or two year or three years or five years or eight years but for full nine years and to rub to the wounds of the affected accused person, judiciary does virtually nothing but to inexplicably observe everything happening like a mute and most helpless spectator until some legal super giant like Harish Salve appears suddenly on the scene to speak up for the worst affected person for which judiciary has lots of explaining to do itself and it cannot be ever pardoned because judiciary has lots of power which it must exercise whenever and wherever it finds that the human rights of the accused person are being violated with impunity by the police in cahoots with an inactive judiciary failing which its own reputation will take the worst beating! It must be asked as to why in such cases should judiciary also not be held equally culpable just like police? All the courts, let me repeat, all the courts must always accord supreme importance to the personal liberty of the accused also because the accused also until proven guilty is innocent and has to be treated so!

Needless to say, the rampant misuse and abuse of draconian laws like UAPA, sedition, anti-dowry laws and several others has to be checked most strictly now itself as police too many times have been found to be on the extreme wrong side of law on grounds of extraneous considerations like money, personal enmity or political pressure and so on! We all know how recently three to four senior police officers were dismissed in Maharashtra for being on the wrong side of law!

Please read concluding on thedailyguardian.com

We also saw how senior IPS officers were making most serious corruption charges against top politicians and of demanding crores of rupees in extortion extorted from the people at large in Maharashtra and it is high time that police reforms too must be implemented and police freed from political control so that police can function independently without being adversely affected by politicians of any party no matter who it may be!

Last but not the least, no one is saying that stringent laws should be abolished but all that one is advocating is that an active judiciary must ensure that such stringent laws are not abused and promptly take action against the erring police or other men in uniform whenever they commit any such wrong which impinges on the personal liberty of the accused without any valid ground just like we see in this case which is why this most historic judgment even though is so short yet is being hailed all over most generously and which cannot be questioned also as there are valid reasons also for it! This can no longer be brushed aside now under carpet! It has to be addressed now itself and most effectively by holding police strictly accountable whenever they hold to ransom the personal liberty of the accused!

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Insolvency and Bankruptcy Code: Walking at snail’s pace with various speed humps

Stuti Tiwari

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While entering the fifth year of existence, before COVID-19 moratorium was imposed the Insolvency and Bankruptcy code was already walking at the snail pace with various speed humps but after the sudden blow of COVID-19 NCLT will be facing the bigger problem such as deluge of cases once the moratorium is lifted.

As IBC was brought into existence with aim “to consolidate and amend the laws relating to reorganisation and insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner for maximisation of value of assets of such persons, to promote entrepreneurship, availability of credit and balance the interests of all the stakeholders including alteration in the order of priority of payment of Government dues ” but everything came to abrupt halt in the calendar year of 2020 .

Across the world, it has been observed that the corporate which was in the pink of financial conditions before the pandemic brought down the GDP reflecting sharp decline in the economy. Supply chains are still unstable, valuation of the stock decreased due to global fall and in total the valuation of business fell steeply.

Looking at such scenarios, through various viewpoints it was suggested that Insolvency and Bankruptcy Code (2016) also needs little bit of cushioning to keep up with the change.

Former RBI Governor, Mr. Raghuram Rajan quotes in one of his interviews that “ a key step India needs to take in the run of economic recovery is to clean up the financial sector of past stresses. He further says that NCLT should be working in overdrive to clear out previous cases and prepare for the deluge of new ones.”

Insolvency and Bankruptcy code being a new legislation has been facing the problem of winding up the case within stipulated time and lack of manpower in NCLT in comparison to the cases filed; with this storm of COVID-19 and reimposition of moratorium, the real challenge which India would be facing will be when there is lifting of suspension on filing of new cases under the Code and there will be deluge of cases pre and post COVID-19 on NCLT.

On January 5,2020 first NCLT President, former Chief Justice Shri M.M. Kumar retired and the IBC has been without a full-time president ever since. On December 9, the Supreme Court of India in an order stated that former Justice Shri BSV Prakash Kumar who was acting NCLT president since Justice Kumar retired would continue to function as an acting President until appointment of the regular one.  

Justice Shri. S.J. Mukhopadhaya who was the first chairperson of the NCLAT also completed his tenure in March. Justice Shri B.L.Bhat took over as an acting chairperson of NCLAT. Justice Shri AIS Cheema, Member (Judicial) has been designated as the officiating chairperson of National Company Law Appellate Tribunal with effect from 18th April’21.

The problem with manpower had hardly been resolved when a blow of COVID-19 shutdown happened in March in order to prevent the spread also led to shutdown of NCLT and NCLAT which affected the newly evolving legislation. However, other courts of law across the country eventually opted for online hearing of cases to lessen the burden of cases post lockdown, insolvency courts couldn’t do much with the same.

According to the report from official data, ‘63% of the more than 21,000 cases pending with NCLT benches as of end-January are IBC cases.’ Keeping in mind that IBC is an evolving legislation and with very limited NCLT benches, there is an urgent need to allow a simplified form of depot restructuring through different methods and look for alternate resolution for dispute settlement mechanisms under IBC rather than overburdening NCLT binding them with time and less manpower.

Another problem faced by NCLT is its infrastructure, since the establishment of the Code it has surpassed the capacity of the existing infrastructure and has resulted in an obstruction of cases even at the early stage of admission. A total of around 19,844 cases were pending before NCLT as of July 31, 2020 including 12,438 cases under IBC. During the FY 2020, almost 480 cases were admitted by the tribunal every quarter, if this existing pace continues it may take around six years to complete the backlog cases shaking the basic motive behind establishment of IBC i.e., resolution process in time bound manner.

Admission of cases under tribunal has been one of the major concerns in the current insolvency proceedings. It takes more than 14 days as envisaged in the code for the acceptance of the case. The performance of the tribunal has also differed from bench to bench with regard to resolution in a time bound manner. Places like Delhi and Mumbai with highest number of insolvency cases NCLT usually take for resolution more than 475 days in comparison to the national average of 440 days resolution process. On the other hand, places like Bangalore and Kolkata have better average of 352 and 339 days respectively.

History has been a great teacher. Those who ignore its lesson are ill fated. In order to meet the challenges in the ecosystem any implementation or legislation enactment needs to constantly evolve. Insolvency and Bankruptcy code is an evolving legislation and it was already struggling with the growing demand of the code.

Senior Adv. Mr. Ramji Srinivasan who has represented in major cases including IL&FS says “ The decision of the government keeping in mind the COVID-19 situation and providing a holiday against the defaults post lockdown and raising the threshold of the defaults will not only have positive but also negative impact.”

He further says that such rising of threshold will reflect a positive impact and will support and shield such businesses who are finding themselves in liquidity crises. On the other side, the negative impact will be on smaller businesses that owe smaller amounts by bigger businesses and are going through the difficulty of recovery of the amount.”

Another Senior Advocate Mr. Abhinav Vashisht said “There could be a tremendous rush post lockdown and the tribunal has to follow the process of prioritising the urgent matters for hearing given their present strength.”

Mr. Vashisht further adds “It’s important to take up urgent cases by the tribunal and some could be taken up later but until and unless there is no increase in the number all over the place, it would be extremely difficult to fill up the gap of more than an year of the non-filling and keeping in mind the current pandemic situation it would lead to further insolvencies”

When the case of Jet Airways Private limited knocked the door NCLT, the tribunal faced the requirement of actual, clear and elaborative provision on cross border insolvency not just two sections (Sections 234 and 235) which gives not a very clear idea as to how to deal with cross border insolvency. It is vital for the country to introduce the concept of cross border insolvency regime in the legal framework 

In order to reduce the deluge of cases NCLT requires new offices, before new cases it is important to wipe out the old one and prepare for an avalanche of new cases.

Restructuring the debts seems to be on top priority for many firms as access to finance moving forward is extremely important for few firms, there when the concept of cleaning up financial sector comes into picture keeping in mind that one can lend when that is required.

Another aspect which should be considered by IBC is if the basic motive behind establishment of the code is to provide time bond resolution, it would be difficult to achieve such motive if NCLT and NCLAT are the only bodies deluged with resolution cases. There can be ‘out of court’ settlement in the case of insolvency disputes , it was not only reduce the pressure over the tribunals but will also provide flexibility to creditors and companies as every time the default of the company doesn’t mark the death of the company,

As quoted by Former RBI Governor , Mr. Raghuram Rajan that when IBC has moved two steps forward and one step backward due to COVID-19 pandemic ,it is important to prepare for the next phase . It is important to revitalise our companies, and it is equally important to prepare a plan where companies not only come out from this and reopen and grow.”

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Legally Speaking

The raging Covid-19 pandemic: Environmental justice

Unlike popular notions and misconceptions, the Indian courts braved unimaginable odds to deliver speedy environmental justice during the pandemic when the entire country was battered with different Covid-19 waves. India’s ecological security has been superb with new priorities in the post-pandemic world. It has been rightly postulated by a scholar, ‘What is the use of a house if you haven’t got a tolerable planet to put it on?’

Sudhir Mishra Raghav Sethi and Simran Gupta

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The Prime Minister of India, in the 47th G7 summit held recently, clearly demarcated the national policy on climate change and gave the ‘One Earth, One Health’ mantra. The G7 summit is held annually among the group of seven wealthy nations that came together to discuss pressing climate issues; this year’s highlight being the ongoing battle with the global pandemic, while also deliberating on critical climate challenges. The UK, being the chair of the event, invited India too this time for G7 at Cornwall.

There is normally a growing criticism about India and China both not doing many international commitments and mandating carbon reductions. However, PM Modi clarified and assured the international community that India is doing a lot on carbon reductions, electric mobility, saving on electricity, promoting non-conventional energy sources on a very comprehensive level.

The reason is India has already created a move for carbon related technology and exemplary promotion of electric vehicles. India has marked ahead of other countries on the use of non-conventional energies. The country is making an ambitious push towards electric mobility to reduce smog. In March 2021, 25,640 electric vehicles were sold across the country, of which 90% were two and three-wheelers. The total 400,000 EVs registered in India in 2019 accounted for less than 0.2% of all vehicles. Committing to Net Zero India looks at emissions overall, allowing for the removal of any unavoidable emissions, such as those from aviation or manufacturing. Removing greenhouse gases could be via nature, as trees take carbon dioxide from the atmosphere, or through new technology or changing industrial processes.

While India was already crippling with many important environment issues, the COVID-19 pandemic came as a major jolt for the entire country. Where one could witness varied exotic species of animals on road in place of environment polluting vehicles, the courts judicial intervention did not cease to operate even during the harsh times of both waves of the COVID-19 pandemic of our nation.

Even though the COVID-19 pandemic shifted the focus from the environment to public health, the Indian judiciary has continued to play a significant role in addressing the environmental concerns that arose not only due to the pandemic but also the ones that have persisted since long and are somewhat man-made. The response of the PM in G7 was on behalf of a resilient resurgent India which has a renewed focus on its environmental and health commitments.

For example, it was evident that the Oxygen Bench of the Delhi High Court like many other High Courts of the country were persistent in administering with its judicial intervention catering emergency remedies for public health, the Supreme Court of India (“SC”) and even the Green Bench of the National Green Tribunal (“NGT”) were also steadfast in addressing the environmental concerns of the country at the same time.

It is imperative to analyse the steps taken by the judicial forums in the past year to understand the ways in which environmental concerns were addressed in the country and what lies ahead in preserving the essential elements of our ecological security.

Few examples of great judicial interventions in the past one year for the cause of environment:

For the purposes of protection of the Great Indian Bustard and the Lesser Florican which are both at the verge of extinction, a public interest writ bearing Writ Petition (Civil) No. 838 of 2019 in the case of M.K. Ranjitsinh v. UOI on 19.04.2021, the SC inter-alia stroke a balance between the protection of the endangered birds as well as the importance of efficient transmission of power. The Court had set up a committee to assess whether an underground powerline is feasible or not in difficult cases and further directed to install diverters pending consideration of the conversion of the overhead cables into underground powerlines in regions with an excess of these birds and to install underground power cables wherever feasible. 

For the purposes of construction of a Road Over Bridge (ROB), it was contended by the Government of West Bengal that there was a need to cut down trees which were more than 150 years old. It was claimed that these are “historical trees” which have irreplaceable value, due to the reason of their non-transferability and that they cannot be transplanted elsewhere. The SC of India on 25.03.2021 took a stern view in the case of Association for Protection of Democratic Rights v. State of West Bengal in Special Leave Petition (Civil) No. 25047 of 2018; and inter-alia constituted a Committee of Experts in order to develop a set of scientific and policy guidelines that shall govern decision making with respect to cutting of trees for such developmental projects.

The Apex Court on 09.12.2020, in the case of Titty v. Range Forest Officer, (2021) 1 SCC 812 inter-alia clarified on the question as to when an offence of capture or possession of wildlife species under the Wildlife (Protection) Act, 1972, can be said to be made out. The Apex Court held that the capture or possession of species belonging to the same genus or otherwise related The issue pertaining to solid waste management on railway stations was highlighted in the case of Saloni Singh & Anr. v. Union of India & Ors., Original Application No. 141/2014; wherein the Principal Bench of NGT, also known as the ‘Green Bench’, on 18.08.2020 inter-alia looked into the matter of non-compliance with the Plastics Waste and Solid Waste Management Rules, as well as the prevention of effluent discharge, water management at railway stations, compartments, and tracks, and the elimination of encroachments that degrade the environment. It specifically instructed the CPCB to consider the process of implementing Railway Action Plans for all-important stations to species specified in the Schedules to the Wildlife Act is not sufficient to constitute an offence under the Wildlife Act. To constitute an offence under the Wildlife Act, it is necessary that the animal in possession or captivity must be the exact genus and species as specified in the Schedules to the Wildlife Act.

The issue pertaining to solid waste management on railway stations was highlighted in the case of Saloni Singh & Anr. v. Union of India & Ors., Original Application No. 141/2014; wherein the Principal Bench of NGT, also known as the ‘Green Bench’, on 18.08.2020 inter-alia looked into the matter of non-compliance with the Plastics Waste and Solid Waste Management Rules, as well as the prevention of effluent discharge, water management at railway stations, compartments, and tracks, and the elimination of encroachments that degrade the environment. It specifically instructed the CPCB to consider the process of implementing Railway Action Plans for all-important stations.

In the case of Shailesh Singh v. Hotel Holiday Regency, Moradabad & Ors., Original Application No. 176/ 2015; the NGT addressed the concern of illegal extraction and contamination of groundwater on 20.07.2020, especially, in regions designated by the Central Ground Water Authority (CGWA) as overexploited, critically exploited, or semi-critically exploited. The Tribunal formed an Expert Committee to look into the procedures that need to be taken to prevent groundwater depletion and to ensure that groundwater is not removed in an unauthorized and exploitative manner. The Tribunal ordered the Ministry of Jal Shakti and the State Government to ensure that the CGWA has the necessary manpower and is operating efficiently in order to ensure long-term groundwater management.

An environmental issue arising out of household use of RO released water was also brought to the fore in the case of Friends through its General Secretary v. Ministry of Water Resources, Original Application. No. 314/2015. The Tribunal aimed to place onus of being responsible on both the government and its citizens including the industrialists. The NGT on 13.07.2020 inter-alia addressed the issue of potable water conservation by preventing waste due to the improper usage of reverse osmosis by RO equipment. It directed the MoEFCC to produce an appropriate notification which must include a mechanism for raising public awareness about the negative effects of RO released water, as well as effective enforcement, such as requiring concerned local bodies to display water quality at regular intervals. ‘Extended Producer Responsibility’ was also imposed on manufacturers for the disposal of cartridges and membranes, requiring them to provide correct labelling on the purifier.

The NGT in the case of Rajiv Narayan & Anr. v. Union of India & Ors., Original Application no. 804/2017, on 01.07.2020 inter-alia dealt with the issue of Hazardous Waste Management. The Tribunal ordered various governmental and administrative bodies to follow the Expert Committees recommendations, which was established in one of its earlier rulings in the case. The Tribunal also directed to make sure that the hazardous waste inventory was updated and double- checked to ensure that it was accurate. In furtherance to this order, the Green Bench had passed a detailed order in the present case on 29.01.2021 by placing its reliance on the judgment passed by the SC in Research Foundation for Science Technology and Natural Resources Policy vs. Union of India (UOI) and Ors., (2005) 10 SCC 510, which inter-alia dealt with the same issue of the alarming situation created by generation and unscientific dumping of hazardous waste resulting in serious and irreversible damage to the environment and public health.

In Re: Scientific Disposal of Bio-Medical Waste arising out of COVID–19 treatment, the NGT on 23.04.2020 addressed the threat posed by COVID–19 waste disposal, and showed its concerns regarding the same for not being dealt with in a scientific manner. It directed the Chief Secretaries of States/ UTs, to monitor the treatment of COVID-19 waste by coordinating with multiple state departments. Further, a National Level Task Force was created, with representatives from multiple ministries, to ensure that the waste treatment is being done in accordance with the rules. The Tribunal had managed to keep a check on the functioning of every state and district level machinery even during the times of Covid.

It was emphatically emphasised by the SC in one its ruling that if the EC was to be ultimately refused, irreparable harm would have already been caused to the environment. Thus, the SC on 01.04.2020, in the case of Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & Ors., 2020 (5) SCJ 531, upheld the principles of environmental protection and held that an ex post facto environmental clearance or EC is adversative to key doctrines of environmental law such as the ‘Precautionary Principle’ and ‘Sustainable Development’. Emphasising on the relevance of such doctrines, it was observed that the power given to the Government by Section 3(1) of the Environment Protection Act 1986 to undertake measures it deems necessary or expedient must necessarily be only “for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution.” EC necessitates cautious application of the mind and a comprehensive study into the consequences to be suffered by the environment.

The SC made some positive measures in the case of M.C. Mehta (Stubble Burning & Air Quality) v. UOI, (2020) 7 SCC 530, concerning intense air pollution due to stubble burning in the Delhi-NCR region. The Court on 13.01.2020 noted that not being able to breathe good quality air is an affront to the right to life guaranteed by Article 21 of the Indian Constitution, 1950. It noted that the inadequacy of the state machinery to check air pollution, and inability to sufficiently lift garbage and waste has also majorly contributed to the pollution. It directed the Governments of NCT of Delhi-NCR, Haryana and UP to prepare a scheme to alleviate the need for stubble burning amongst small farmers, and if need be, to provide the necessary farming equipment to them free of cost or on a nominal rental basis. It also directed inter alia that smog towers and anti-smog guns be installed in the Delhi-NCR region and the same shall be updated by filing relevant status reports.

A noteworthy case titled “Sudhir Mishra vs. Ministry of Health and Family Welfare & Ors. in W.P. (C) 2115 of 2015” which has been filed by the Author, being an environmental activist and lawyer is being relentlessly litigated since 2015. During the peak of the first wave of the COVID-19 pandemic, the High Court of Delhi had taken cognizance on the same issue of stubble burning by farmers around Delhi-NCR region and had passed appropriate directions in the said case.  

While the Oxygen Bench was busy in procuring oxygen for its citizens, the Green Bench was busy in saving the environment through which we get the oxygen. India is a country endowed with rich environmental diversity and ecological resources. Even at the international level, India has led the efforts to develop the framework of international environmental law since the earlier times. In various judgments over the course of the last year, India has upheld principles of sustainable development balanced with the needs of a developing country’s economy.

Unlike common notions and misconceptions of varied nature, the Indian courts braved unimaginable odds to deliver speedy environmental justice during the pandemic when the entire country was battered with different covid waves. India’s ecological security has been superb with new priorities in post pandemic world. Trees, water, and disposal of plastics is a major priority for the Modi government and with pain of pandemic’s second wave easing the environmental safeguards will be on top of our national agenda all over again. We can always take pride that as a nation our forest cover has increased many folds since Independence. We have saved our flora and fauna. Our tigers and elephants remain highly protected and the remaining challenges of river pollution, plastics, and increased plantation will be the remaining priorities. It has been rightly postulated by a scholar, “What is the use of a house if you haven’t got a tolerable planet to put it on?” 

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