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The European origins of cultural coloniality

To use a pop culture reference, a form of inception was performed on the minds of the hitherto colonised so that colonialism and colonisation were no more external to their consciousness, but had become a part of it.

J. Sai Deepak



In his essay titled “Coloniality and Modernity/Rationality”, Anibal Quijano, a renowned Peruvian sociologist, examined the continuing impact of Western/European conquest on the societies and cultures of what is known as Latin America today. In particular, the subject of his attention was the “relationship of direct, political, social and cultural domination” that was established between the Western/European conquerors/colonizers (Quijano used Western and European interchangeably) and the colonized societies of Latin America, which he termed as Eurocentered colonialism. He observed that the colonial power structure in Latin America had created specific forms of discrimination to classify the societies on racial, ethnic and national lines, which remained in such societies even after political decolonization. This situation was exacerbated by the assumption that such discrimination was “objective” or “scientific”. Therefore, what was clearly the product of the colonial power structure was assumed to be based on natural phenomena and criteria, thereby lending it the façade of an unquestionable fact of nature. This brings out another layer, namely the use of sciencism by the colonizer to perpetuate, normalize and legitimize stereotypes about the colonized.

Critically, according to Quijano, while political colonialism had long been done away with, it had been replaced with Western/European imperialism, whose relationship with other cultures was the same as that of the erstwhile colonizers, namely “colonization of the imagination of the dominated”. To use a pop culture reference, a form of inception was performed on the minds of the hitherto colonized so that colonialism and colonization were no more external to their consciousness, but had become a part of it.

Quijano acknowledged that while colonialism primarily saw the colonized society as an economic resource to feed on, it also indulged in systematic repression of ideas, beliefs, images, faith and knowledge, including systems of production of knowledge, which deprived the colonized society of its ability to respond culturally even if it did not have the wherewithal to talk back politically. He diagnosed acutely that the genius of the European colonizer lay not in his brutal economic and political repression of the native, but in successfully converting his way of life as the aspirational ideal. This led to a deep embedding in the consciousness of the colonized society that it had been defeated because of its cultural moorings, and the only way for it to regain its dignity was by adopting European culture and thought processes in order to achieve economic prosperity the European way i.e. by conquering and subduing nature. Apart from the larger disruption of the relationship between indigenous societies and nature, this effectively led to universalisation of European culture, the benchmark against which all other cultures had to test themselves and pass muster, thereby giving birth to “cultural coloniality”.

As part of the process of cultural colonization, the dominant groups or the elites from the colonized society were subtly co-opted into the colonial power structure by teaching them the ways of European culture and gradually weaning them away from the rest of the colonized society. Assuming there was a fault line in the colonized society prior to the arrival of the European colonizer, which is bound to exist in every society, the active co-option of the elites and their participation in the dominating power structure only served to deepen the fault line, and if did not exist hitherto, it was consciously created, and remained even after the exit of the colonizer.

Quijano noted that the centralization/universalisation of European culture in the colonized societies of Latin America was accelerated and cemented by the fact that the European colonizer actively wielded both the stick and the carrot i.e. a once thriving and vibrant society with its own centres of production of culture and knowledge, was physically and culturally exterminated and reduced to a colonized human mass of illiterate peasants on the one hand, and on the other hand the yawning void so created was being filled by offering European culture as a way to climb the social ladder. In other words, the demand for European culture was created and met by the European colonizer, not just for the present but for all time to come. Given the utter destruction and cultural domination the colonized society had been subjected to, it was human on the part of the dominated to latch onto the closest living culture available to them, namely that of the colonizer and wear it as a badge of honour with the zeal of a new convert. In other words, adoption of the colonizer’s culture was not a matter of choice but was a sheer human reaction and necessity thanks to the conditions created by the colonizer. It was only a matter of time before the new convert to European culture not only disowned his erstwhile identity but also spewed venom against it because he associated his past and heritage with weakness, superstition and defeatism, which completed the process of severing his ties to his roots.

The one sensitive layer of this discussion which sometimes gets lost in the catch-all use of culture in the literature relating to coloniality is the impact of European colonization on native ontological and theological systems, simply put, spirituality and faith. After all, in most societies, there is a strong nexus between faith, culture and civilization, which is perhaps an understatement. Therefore, there is no reason to assume that native faith systems somehow remained untouched by the all-consuming deluge of colonization which affected every aspect of the colonized society, or that the European colonizer was conscientious enough to keep indigenous faith systems outside the reach and scheme of his grand colonizing mission. Such an assumption or the reluctance to speak about it only betrays the deep-seated nature of coloniality which posits that it is not polite or civilised to speak of the replacement of native faith systems by the colonizer’s religion. In fact, at the very least the relationship between the European colonizer’s religion and the evangelical nature of his colonization warrant examination

In the next piece, this author will continue building on these thoughts.

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

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Legally Speaking

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

The American Constitution constitutes a similar provision prohibiting ex-post-facto laws both by Central and state legislatures. It’s been more than 70 years since India became a democracy, still there is debate regarding the retrospective legislation in taxation laws.

Bahvuk Narula & Rachi Gupta



The art of taxation consists of so plucking the goose to obtain the largest amount of feathers with the smallest amount of hissing.

—Jean Baptiste Colbert


In India, arbitration is always criticised due to Court interferences. However, recent judicial decisions show that Indian Courts are adopting a minimal interference model. This would help India globally to make a mark in the field of arbitration. In this never-ending process of court trials, challenging the awards in tribunals is a trend now here we can take the example of the same from the landmark case of Vodafone International Holdings B.V. v. Union of India & Anr. The enforcement of foreign awards is always being hard in India due to the regressive approach of the judiciary, which can be seen in judgments like NAFED v. Alimenta S.A. and Venture Global Eng. L.L.C. v. Tech Mahindra. These judgments are undoubtedly acting as a huge stumbling block in the enforcement of foreign awards.


In the landmark judgment of Vodafone, where the Indian income tax authorities passed an order for payment of $2.2 billion by claiming that this is a case of transferring the Indian assets and therefore, such transfer was taxable in India. But later the Supreme Court held that this is not covered within the meaning of Section 2(14) of the Income Tax Act, 1961 and quashed the demand of INR 120 billion by way of capital gains tax and also directed a refund of INR 25 billion just after that Income Tax Act (2012 Amendment) was brought in introducing two explanations in Section 9(1)(i) of the Income Tax Act, 1961 in this way virtually amending the law to ensure that cross-border transactions such as the $11.08 billion Vodafone-Hutchison deal are taxable. This amendment was challenged in the Permanent Court of Arbitration at Hague under India – Netherlands Bilateral Investment Treaty.

This retrospective amendment was widely criticized across the globe and made India an unpopular destination for investments. The Permanent Court of Arbitration (PCA) quashed the income tax department’s demand on the ground of violation of the fair and equitable treatment standard. It is also observed that India violated the bilateral investment treaty with the Netherlands by retrospectively amending the law and directed India to reimburse legal costs of approximately INR 850 million to Vodafone. The Vodafone award stimulates critical issues for foreign investors investing in India. This award negates India’s position on investment treaties that tax disputes do not come under the ambit of investment treaties. The discrepancy arises from the Vodafone case in which the Solicitor General of India has recommended the government of India to challenge the arbitral award and declared parliamentary legislation of a competent Parliament of a sovereign nation to be non-est and unenforceable. On the contrary, the Attorney General clearly expressed his inability to be involved in the case and he is in favour of accepting all well-reasoned awards instead of challenging every award.

The Indian Government has not decided their move yet but as each coin has two sides so each direction towards challenging the award will lead to the question of law regarding the power of the arbitration tribunal to declare parliamentary legislation to be non-est and unenforceable. India has sovereign powers to amend its laws with a prospective effect and in the present case; the transaction was between two non-resident entities through a contract executed outside India which has no nexus with the underlying assets in India.


The Indian legislature has the power to make prospective laws, but Article 20 of The Indian Constitution, 1950 provides certain parameters for the same. Article 20(1) imposes a limitation on the law-making power of the legislature regarding retrospective criminal liability. There is anarchy in the imposition of retrospective civil liability too.

As article 20(1) of the Indian Constitution provides that;

“no person shall be convicted of any offense except for violation of a law in force at the time of the commission of the act charged as an offense, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offense.”

The American Constitution also constitutes a similar provision prohibiting ex-post-facto laws both by Central and State Legislatures. It’s been more than 70 years since India became a democracy still there is debate regarding the retrospective legislation in taxation laws.

India has a long term judicial approach regarding retrospective legislation and the landmark case is CIT v. Vatika Township Private Limited, in this case, the Constitutional Bench of Apex Court provided clarity on prospective versus retrospective operation of tax amendments. Moreover, a piece of legislation is presumed not to be intended to have a retrospective operation here the ratio is that the current laws should govern current activities (Principle of lex prospicit non respicit: The Law looks forward and not backward). This case also considered the principle of fairness and leads to the principle of lex non-cogit ad impossibilia – the law does not compel a man to perform what he cannot possibly perform. The ruling concluded that in determining whether a provision is applicable prospectively or retrospectively, attention would be required to be paid to the language of the amending statute, the legislature’s intent, the memorandum to the relevant Finance Act, and the hardship the amendment would cause to the taxpayer. Similarly in the case of CIT v. NGC Networks (India) Pvt. Ltd. held that in the case of retrospective amendment the payer could not have contemplated TDS. Along with that regarding enforcement of arbitral awards, in the case of Govt. of India v. Vedanta Ltd, the court held that-

“enforcement might be rejected just on the off chance that it disregards the State’s most essential thoughts of profound quality and equity, which has been deciphered to imply that, there ought to be incredibly faltering in the declining requirement, except if it is gotten through dishonour or fraud, or unjustifiable methods”

By way of this judgment, the Court reduces the decline of enforcement of foreign arbitral awards and minimizes judicial intervention. The court also observes that the government must change its approach regarding challenging every arbitral award and should adopt an approach that encourages foreign companies to invest in India. It will help India in achieving status as a global arbitration hub.


Today tax uncertainty is a growing cause of concern for foreign investors. Now India is facing criticism owing to the Vodafone award, the question arises whether India would lead to ensuring tax certainty and a stable environment to boost investment hand in hand or not. The scope of investment treaty arbitrations is very bleak and now we have two directions firstly that the Supreme Court of India overturns the decision of the Indian courts regarding non-applicability of the Arbitration and Conciliation Act, 1996 to investment treaty arbitrations, Secondly the legislature can either amend the Arbitration and Conciliation Act, 1996 to include enforcement of Bilateral Treaty Awards within its scope or to establish an entire regime for investment protection. In today’s time, the correlation between Bilateral Investment Treaties and foreign investment is required and we can adopt any approach given upwards to achieve this goal. Bilateral Investment Treaties have a positive role in promoting foreign investment and Investor-State dispute settlement provisions are important factors too in contributing to foreign investment inflows. India is planning a new law to safeguard foreign investment. It also helps us to speed up dispute resolution and to boost stuttering domestic growth.

The scope of investment treaty arbitrations is very bleak and now we have two directions: First, that the Supreme Court of India overturns the decision of the Indian courts regarding non-applicability of the Arbitration and Conciliation Act, 1996 to investment treaty arbitrations; Second, the legislature can either amend the Arbitration and Conciliation Act, 1996 to include enforcement of Bilateral Treaty Awards within its scope or to establish an entire regime for investment protection. In today’s time, the correlation between Bilateral Investment Treaties and foreign investment is required and we can adopt any approach given upwards to achieve this goal.

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Legally Speaking

Ensuring Fairness in the Appointment of Arbitrators

Kumar Rishabh Parth




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


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

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


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

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


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

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

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

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

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

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


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

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

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

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

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


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

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

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

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

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

The court further reproduced the following excerpt from Perkins Eastman:

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

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

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

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

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

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

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


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

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Legally Speaking

Arbitration Ordinance 2020: One step forward, several steps back

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

Satvik Varma



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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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A feudal democracy?

J. Sai Deepak



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

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

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

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

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

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

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

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

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

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



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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Rajasthan High Court calls for action against magistrate who issued arrest warrants while HC’s anticipatory bail order was in existence



In a strict and swift action, the Rajasthan High Court just recently in a latest judgment titled Nanuram Sahni and Vinod Kumar vs. State of Rajasthan through PP in S.B. Criminal Miscellaneous (Petition) No. 4317/2020 delivered as recently as on 9 November 2020, has directed Registrar (Vigilance) to initiate against a Magistrate who issued arrest warrants against accused. This despite the irrefutable fact that the High Court had earlier granted them anticipatory bail. Without mincing any words, the Bench of Justice Sanjeev Prakash Sharma of Rajasthan High Court also observed that, “The action of the learned Magistrate is clearly wanting and shows scant respect to the High Court’s order as well as having little knowledge relating to criminal law.”  

To start with, the ball is set rolling in para 1 of this notable judgment authored by Justice Sanjeev Prakash Sharma wherein it is put forth that, “Learned counsel for the petitioners submits that the petitioners were granted anticipatory bail by this Court in the FIR registered against them bearing No.3/2003 at Police Station Khetri, District Jhunjhunu under Section(s) 418, 420, 465, 467, 468, 471, 406 & 120-B IPC. The police submitted a Final Report whereafter protest petition was filed, which was dismissed. Against the dismissal order of the protest petition, a revision petition was filed, which was allowed by the learned Additional Sessions Judge, Khetri and the matter was remanded back to the Court to pass a fresh order on 18.7.2018, whereafter the learned Magistrate has taken cognizance on 11.1.2019 and summoned the petitioners through arrest warrants. The said order of remand was challenged by the petitioners before the High Court and the High Court had stayed the said proceedings. Taking into consideration the order of taking cognizance, the petition was declared infructuous.”  

As we see, it is then noted in para 2 that, “Learned Magistrate thereafter again issued arrest warrants. Learned counsel for the petitioners submits that on coming to know about the arrest warrants, the petitioners moved an application informing that they are on anticipatory bail by the Court and also requested that the arrest warrants should be converted into bailable warrants in terms of Section 70(2) Cr.P.C., however, learned Additional Chief Judicial Magistrate, Khetri whereby its order dated 3.9.2020 has refused to convert the non-bailable warrants to bailable warrants on the premise that he does not have the power to convert the non-bailable warrants to bailable warrants as it would amount to refuse recalling its earlier order, which is barred in terms of Section 362 Cr.P.C. and has further issued arrest warrants on the same day. Learned counsel submits that issue has been finally decided and put it rest by the Larger Bench as to the tenure of the anticipatory bail in Sushila Agarwal & Others Versus State (NCT of Delhi) & Anr. ; Special Leave Petition (Criminal) No(s).7281-7282 of 2017 decided on 29.1.2020 by the Five Judges Bench and it has been held that the anticipatory bail granted by the Court shall continue till the end of the trial.”

To substantiate what is stated above, it is then pointed out in para 3 that, “Learned counsel also relies on the judgment passed in the case of Inder Mohan Goswami & Another Versus State of Uttaranchal & Others reported in AIR 2008 SC 251 to submit that in the ordinary course, non-bailable warrants ought not have been issued. It is not a case where the conditions laid down therein fall for the purpose of issuing non-bailable warrants. Learned counsel also submits that the petitioners are very old persons and taking into consideration the overall facts and the fact that the petitioners were already on anticipatory bail, the order passed is clearly illegal and without jurisdiction.”

Be it noted, it is then very rightly pointed out in para 7 that, “In the case of Inder Mohan Goswami & Another (supra), the Apex Court has laid down the condition that the non-bailable warrants should be issued observing thus:

“52. Non-bailable warrant should be issued to bring a person to court when summons of bailable warrants would be unlikely to have the desired result. This could be when:

 • it is reasonable to believe that the person will not voluntarily appear in court; or 

• the police authorities are unable to find the person to serve him with a summon; or

 • it is considered that the person could harm someone if not placed into custody immediately.

53. As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should be preferred. The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the Criminal Complaint or FIR has not been filed with an oblique motive.” 

Most significantly, it is then very rightly observed in para 8 that, “For the aforesaid backdrop, this Court notices that it is a case where on remand from the District Judge, the Court has taken cognizance of the offences relating to allegations under Sections 418, 420, 465, 467, 468, 471, 406 & 120-B IPC. The High Court vide its order dated 29.4.2003 had granted anticipatory bail to the petitioners with the condition that in the event of arresting the petitioners, they shall be released on bail. Keeping in view the conditions laid down in Sushila Agarwal & Others (supra), this Court is of the firm view that the action of the learned Magistrate from the date, it has taken cognizance and upto passing of the impugned order dated 3.9.2020 has acted in clear violation of the orders passed by the High Court after having granted anticipatory bail. There was no occasion for the learned Magistrate to have issued the arrest warrants and such course or power was not available with it in spite of having been given to it. Learned Magistrate has insisted on issuing of the arrest warrants and it is also seen that the provisions of Section 362 Cr.P.C. cannot come into operation while deciding the application under Section 70(2) Cr.P.C. The action of the learned Magistrate is clearly wanting and shows scant respect to the High Court’s order as well as having little knowledge relating to criminal law.”

Needless to say, it is then pointed out in para 9 that, “A copy of this order be sent to the Registrar (Vigilance) for placing it before the concerned Committee to decide what course of action is required to be done as against such Magistrate.”

Finally, it is then held in para 10 that, “In view of the aforesaid finding and the law laid down by the Supreme Court, I am inclined to allow this petition and quash the order dated 3.9.2020 so far as the issue of arrest warrant and rejecting the application under Section 70(2) Cr.P.C., the petitioners shall be treated as entitled to all the benefits as granted by this Court under the anticipatory bail and shall submit before the Court without submitting any final bail bonds.”

It goes without saying that the larger point that this latest judgment of the Rajasthan High Court seeks to send out clearly is: Magistrates must refrain from issuing arrest warrants while High Court’s anticipatory bail order is in existence. High Court’s order must be accorded due respect by the Magistrates. If they still refuse to follow the prescribed directions in this regard then they must be prepared to face strict action as we see has happened in this case also. 

At the cost of repetition, it must be certainly said in most simple and straight language that Justice Sanjeev Sharma has very rightly minced no words to state it upfront that, “The action of the learned Magistrate is clearly wanting and shows scant respect to the High Court’s order as well as having little knowledge relating to criminal law.” All the Magistrates from now onwards must always adhere to what the Rajasthan High Court has laid down so explicitly, elegantly and effectively in this notable case and which is the correct legal position also! Magistrates must stick to their limits and should desist from issuing arrest warrants in all such cases when the High Court’s anticipatory order is still in existence! There can certainly be no ever denying or disputing it!

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