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Unfair appointment of arbitrator: A big fraud on natural justice

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INTRODUCTION

Arbitration is a concept under the umbrella of Alternative Dispute Resolution (ADR). To understand Arbitration and appreciating the point which this paper moots, it would be very necessary to go into the roots of why there exists an arbitration agreement in most of the contracts. It is common knowledge that civil cases move at a snail’s pace and are costly in terms of court fees and the charges of the counsel representing parties in the court. Therefore, in such a situation it would be lucrative to have an alternative dispute resolution process that can adjudicate upon the dispute between two or more parties who have submitted themselves to the jurisdiction of the arbitral tribunal in a time-bound and cost-effective manner.

Arbitration in Black’s Law Dictionary is defined as:

‘A method of dispute resolution involving one or more neutral third parties who are usu. agreed to by the disputing parties and whose decision is binding.’

Whereas Arbitrator is defined as:

‘A neutral person who resolves disputes between parties, esp. by means of formal arbitration.’

To my understanding, the most important keyword in both definitions is ‘neutral’.

Arbitrator effectively plays the role of the adjudicator which has traditionally been the responsibility of the Judge in the Court who was appointed in the exercise of the sovereign power. When arbitration seeks to move the adjudicating authority from the Judge to the Arbitrator, it is only proper that some of the attributes of the Judge must also find a place in the Arbitrator.

One of such attributes is being neutral to all parties in a dispute, having no interest in the subject-matter of the dispute or any relation with parties that can have a bearing on the final decision of the dispute.

In my humble opinion, it becomes more important in arbitration than in traditional Courts as there lies no appeal against an award of the arbitral tribunal while judgements and decrees of trial courts can be challenged in the appellate courts.

In India, arbitration proceedings are governed by The Arbitration and Conciliation Act, 1996 (hereinafter also referred to as A&C Act). It recognises an arbitration clause/agreement as a separate legal agreement apart from the main contract from which substantial rights and liabilities of parties arise.

A contract creates a private law between parties, and when there is any dispute arising out of that contract, it would be totally against all sense of fairness, if by the virtue of an unfair arbitration clause, an interested party is allowed to unilaterally appoint a sole arbitrator. It would be the biggest travesty of justice, and would amount to deny a fair hearing to the party who had no or an insignificant say in the appointment of a sole arbitrator.

Unfair arbitration clauses more commonly are found in adhesion contracts often known as ‘standard form contracts’ or ‘boilerplate contracts’.

These types of contracts are usually between parties of unequal bargaining strength, they do not allow for any kind of negotiation and are commonly known as ‘take it or leave it’ form of contracts. It is understood from this feature of these types of contracts that one party has major strength and bargaining power, and therefore, the clauses would be highly skewed in their favour. Few relatable examples can be the terms & conditions of social media platforms which we agree to before creating an account, government contracts, loan agreements etc. Of course, what I have just mentioned is a general non-exhaustive list; there can be some exceptions to them. When a party who already has much advantage in these types of contracts wants to avoid the Courts, they put in an unfair arbitration clause.

In this paper, I will be shedding light on how unfair arbitration clauses in such contracts can potentially result in a violation of natural justice and can potentially lead to biased awards and unfair hearings.

For an easy understanding of my point, we can take an example of criminal law, if an accused is allowed to appoint Judge; or of civil law, if a party interested in the subject matter of the suit, is allowed to appoint Judge, there would be little chance of justice being done. In a similar fashion, it would be a little difficult to say that a sole arbitrator unliterally appointed by a party would act fairly and without any bias.

In the A&C Act, § 8(1) makes it obligatory upon courts to send the dispute to arbitration unless they find prima facie no valid arbitration agreement exists. This obligation imposed upon the courts makes it impossible for them to adjudicate the dispute for which a valid arbitration agreement exists.

§ 11 deals with the appointment of arbitrators; § 11(2) allows the parties to agree on a procedure of appointment of arbitrator(s). § 11(5) says that failing any agreement referred to in sub-section (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made, upon request of a party, by the Supreme Court or, as the case may be, the High Court or any person or institution designated by such Court.

§ 12(3)(a) gives a ground for challenge appointment of an Arbitrator, it should be read with Fifth Schedule. § 12(5) prohibits the appointment of an Arbitrator whose relationship, with the parties or counsel or the subject-matter of the dispute, falls under any of the categories specified in the Seventh Schedule.

The aforementioned sections are pertinent for an understanding of the Questions of Law which are discussed as follows:

Questions of Law

This paper will be focusing on the following scenarios where doubts on the impartiality and unbiasedness of arbitrators are bound to arise.

Can an arbitration proceeding be said to be fair and just-

When someone interested in the outcome of the arbitration is appointed as an arbitrator or is given the right to appoint a sole arbitrator?

When there is a named arbitrator in the contract?

When arbitrator has to be selected by one party from the panel created by the other party?

In this paper, as you move ahead, all these three scenarios have been dealt with in detail along with the judicial interpretation, leading case laws, and the author’s opinion.

When someone interested in the outcome of the arbitration is appointed as an arbitrator or is given the right to appoint a sole arbitrator

In an ideal situation, assuming a dispute has arisen between two parties, there should be a panel of an odd number of adjudicators at least three in number; one being appointed by both parties and the third one unanimously appointed by those two, it goes without saying that the third one will be the presiding arbitrator. However, this will not be very economical – every arbitrator will charge his fees and it would ultimately put financial pressure on the parties which they wanted to avoid in the first place by opting for ADR.

For this reason, many contracts contain an arbitration clause that provides for an unliteral appointment of a sole arbitrator by a single party. This is especially the case where the contract is between parties of significantly different bargaining strengths. In adhesion contracts, a clause is often found in relation to the unilateral appointment of a sole arbitrator or named arbitrator who is beforehand appointed to hear the disputes should any arise out of the contract. The former type of clause is being discussed in this scenario while the latter type of clause will be discussed in the next scenario.

Nemo Judex in Causa Sua read with qui facit per alium facit per se, clearly implies that if an interested party is allowed to himself act as an arbitrator or unilaterally appoint a sole arbitrator, it would amount to a violation of principles of Natural Justice. Therefore, in the present scenario, the unilateral appointment of a sole arbitrator would result in a violation of the most basic principles of justice.

Coming to judicial interpretation, an important case where the Hon’ble Supreme Court of India held that unilateral appointment of arbitrator impermissible in law as against principles of natural justice is Perkins Eastman Architects DPC and Anr v. HSCC (India) Ltd., 2019 SCC OnLine SC 1517, this case is the corollary to the judgement of the Hon’ble Supreme Court of India in TRF Limited v. Energo Engineering Projects Limited, (2017) 8 SCC 377 and Bharat Broadband Network Limited v. United Telecoms Limited, (2019) 5 SCC 755.

In TRF Limited (Supra), Managing Director was himself named arbitrator and was given the additional power to appoint any other person as an arbitrator. The Managing Director was held incompetent to act as the arbitrator and such incompetency stems from the inevitable interest he will have in the outcome of Arbitration.

In Bharat Broadband (Supra), it was held that the person who is de jure ineligible to arbitrate cannot appoint a sole arbitrator and if appointed, his appointment shall be void ab initio as held in TRF Limited (Supra). It was also held that if the arbitrator is struck by Schedule V, the ‘express agreement’ required under the proviso of § 12(5) is compulsory and cannot be overridden by any earlier agreement nor by conduct. It was further held that §12(4) cannot be a defence to § 14(2) as the appointed is barred under § 12(5).

In Perkins (Supra), the Managing Director was not to act as an arbitrator but was given the right to appoint a sole arbitrator. Following the ratio of TRF Limited (Supra), the Hon’ble Supreme Court of India held that when Managing Director was himself incompetent to act as an arbitrator, and such incompetency results from his interest in the outcome of the arbitration. If his interest in the outcome is the basis of his incompetency, it will remain in the present case as well. Thus, the Managing Director was held incompetent not only to act as an arbitrator but also to unilaterally appoint a sole arbitrator.

Perkins’ (Supra) ratio has been followed in multiple decisions, a few of them are BVSR-KVR v. Rail Vikas Nigam Ltd, 2020 SCC OnLine Del 456; Proddatur Cable TV Digi Services v. Siti Cable Network Limited, 2020 SCC OnLine Del 350 : (2020) 267 DLT 51 and Pave Infrastructure Pvt. Ltd. v. WAPCOS Ltd. 2020 SCC OnLine Del 1489.

Accordingly, the present line of judgements and interpretation lays down a good law that unilateral appointment of a sole arbitrator is impermissible in law as violative of principles of natural justice.

When there is a named arbitrator in the contract

In the previous scenario, we discussed about the unilateral appointment of a sole arbitrator, and as discussed before, another type of arbitration clause may be found in adhesion contracts wherein there is a named arbitrator who will hear the disputes, should any, arise out of the contract.

It is pertinent to mention that the Arbitration Law in India expressly allows for naming an arbitrator in the contract. It goes without saying that at the time of dispute arising between parties, if such arbitrator conflicts with Schedule V and/or Schedule VII, he will not be eligible to act as an arbitrator as the same is prohibited by the law. Therefore, by the action of law, such arbitrator will lose his mandate and if any arbitral proceedings are being held under him, they would be equivalent to coram non judice and therefore, non-est in the eyes of law. But in case, such arbitrator is not stuck by the aforesaid schedules, he would be eligible to act as an arbitrator and the arbitral proceedings would be valid in the eyes of law.

Perkins (Supra) does not deal with the problem which comes up in adhesion contracts wherein the party who is in the dominant position can put a named arbitrator of their choice in the contract.

The argument of the dominant party that such arbitrator as not directly hit by Schedule V or Schedule VII would not be biased towards the dominant party seems a little difficult to accept.

As the said arbitrator has received ‘work’ from the dominant party who had the sway over the drafting of the contract; he will in most probability at least be gullible to succumb to the pressure from such party for rendering an award in their favour. If that be the case, it would be a violation of the sanctity of the judicial process.

After the verdict of Perkins (Supra), it is only a matter of time that such clauses in adhesion contracts come up for consideration before Courts. While adjudicating, Courts may not have any assistance of the appointment process as generally there isn’t any for named arbitrator(s), thereby meaning they may have to conduct an analysis into the bargaining power of parties at the time of drafting and signing of contract naming such arbitrator. Apart from this, Courts may also have to see the contract in toto as to ascertain how skewed the clauses are in the favour of the dominant party, it may further help to understand to what extent the dominant party has abused his position to gain an unfair advantage in the contract. Courts may also go into the question of fact whether there was any ‘fair’ discussion in relation to the named arbitrator or strictly adhesion contract was there, it may have a significant impact on the decision. Though, the chances of a ‘fair’ discussion are thin when the difference in the bargaining power of parties is much.

In my humble opinion, it would not be appropriate to allow a named arbitrator in an adhesion contract to hold arbitration proceedings when the party with inferior bargaining power has raised their doubts as to the impartiality and fairness of such arbitrator.

When arbitrator has to be selected by one party from the panel created by the other party

The possibility of bias of arbitrator(s) may also arise when a party has to choose an arbitrator from a panel prepared by the dominant party. This is another type of clause which is used in contracts between parties of unequal bargaining strength.

In this type of clause, the contract designates a party who will constitute a panel and designates the other party to choose arbitrators from that panel. The pivotal part to ensure unbiasedness and fairness in the panel is to make it broad and diverse i.e. having technical members from private sectors and government, judicial members, etc. If the panel is large and having members from diverse backgrounds, it would instil an idea in the other party that the first party is acting fairly. However, if the panel is very small and consists of homogenous members who in one way or the other are interested in the outcome of arbitration, it would be a violation of natural justice and would create an impression in the mind of the other party that first party is acting unfairly and trying to hijack the arbitration.

This issue has come up for consideration before Courts on multiple occasions.

In Voestalpine Schienen GmbH v. Delhi Metro Rail Corporation Ltd., (2017) 4 SCC 665, the contract provided that respondent had to create a panel from which they themselves will make a list of five engineers from which they and appellant had to choose one arbitrator each, and then those two will choose the third arbitrator from that list. It was held that the appellant had no real choice to choose the arbitrator from the entire panel, and choosing an arbitrator from the list of five arbitrators prepared by the respondent from the panel that too was prepared by respondent would instil an idea of bias in the mind of appellant. The Court also insisted upon the need of creating a broad-based panel, preferably having some experienced and eminent professionals from the private sector as well as to reduce the possibility of bias.

Hon’ble Supreme Court of India in Central Organisation for Railway Electrification v. ECI-SPIC-SMO-MCML (JV), 2020 (1) ALT 70 : 2020 (1) ARBLR 19 (SC), upheld the method of the constitution of arbitral tribunal wherein the appellant has constituted a panel of its four retired officers and respondents were to select two arbitrators from that panel. By the application of this judgement, a party can offer a small panel to the other party for choosing an arbitrator amongst them.

Hon’ble High Court of Delhi in SMS Ltd. v. Rail Vikas Nigam Limited, 2020 SCC OnLine Del 77 followed the ratio of Voestalpine (Supra) and held that as the panel created by the party was not broad-based and many members of that panel were either retired or serving employees of the party, there is a scope of biasedness and it does not satisfy the concept of neutrality.

Hon’ble High Court of Delhi in BVSR-KVR v. Rail Vikas Nigam Ltd. (Supra) followed the ratio of Voestalpine (Supra) and SMS (Supra) and held, “From the above narration it is clear that this Court in SMS Limited (supra) has held that the panel of 37 names (in this case only five names) given by the respondent Company does not satisfy the concept of neutrality of Arbitrators as it is not broad based as contemplated by the Supreme Court in the case of Voestalpine Schienen GMBH (supra). The said conclusion is squarely applicable in this case as the respondent Company has not even shown that they have broad based the panel keeping in view the mandate of the Supreme Court in Voestalpine Schienen GMBH (supra).”

The line of judicial precedents is clear that the panel prepared must be broad and diverse, however, the judgement in Central Organisation for Railway Electrification (Supra) has deviated a little from the line of judgements and may require a review or a reference to the larger Bench.

CONCLUSION

Lord Hewart, the then Lord Chief Justice of England in Rex v. Sussex Justices, [1924] 1 KB 256 said,

“Justice must not only be done, but must also be seen to be done”

Independence and Impartiality are indispensable qualities of an Arbitrator if a fair hearing is to be expected in Arbitration. If they are dispensed with, it would not only be a fraud on Natural Justice but also a mockery of judicial process and laws.

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This paper discussed in detail the Questions of Law of how much arbitration proceedings can be said to be fair and just in various scenarios, and based on the discussion, the Questions of Law are answered as follows:

Can an arbitration proceeding be said to be fair and just when someone interested in the outcome of the arbitration is appointed as an arbitrator or is given the right to appoint a sole arbitrator?

If this is allowed it would be violative of natural justice, and would lead to erosion of fairness and justice from the arbitration proceedings. After the judgement in Perkins (Supra), it is abundantly clear that any unilateral appointment of a sole arbitrator is untenable in the eyes of law and Courts will have complete power to terminate the mandate of such arbitrator as void ab initio and appoint a new one.

Can an arbitration proceeding be said to be fair and just when there is a named arbitrator in the contract?

There is no authoritative judicial pronouncement on this, however, when there is a named arbitrator in the contract and he is challenged by a party in the Court. The Court may have to go into various factors as discussed above. Following those tests, if there exists a reasonable doubt to his impartiality, fairness or unbiasedness, his mandate should be terminated by Court as coram non judice as if he is allowed to conduct arbitration proceedings it would be a violation of natural justice.

Can an arbitration proceeding be said to be fair and just when the arbitrator has to be selected by one party from the panel created by the other party?

The line of judicial precedents on this question is clear with one exception that the panel must be broad and diverse to minimise the possibility of bias and instil the confidence of fairness of arbitration in the mind of the party who has to choose one from the panel. It is important that the panel must consist of eminent professionals from private sectors and persons having the judicial background to keep the diversity of the panel and the fairness of arbitration proceedings intact.

When a party in the above scenarios petitions the Hon’ble Court with the doubts in relation to fairness and unbiasedness of the arbitrator, it would only be justified for the Hon’ble Courts to intervene for saving natural justice from being ‘legally’ frustrated by the sole arbitrator. It must not be lost sight of that there is no appeal against an arbitration award and grounds for its challenge are very limited.

It would only be fair and just, if the responsibility of naming a sole arbitrator when there is a conflict between parties concerning fairness or unbiasedness of the sole arbitrator unilaterally appointed or named, falls upon the able shoulders of the Court.

The Constitutional Courts have an inherent duty to act as sentinel on the qui vive to protect Natural Justice, as it must not be forgotten that they are de facto custodians of the Constitution and Rule of Law, this makes them duty-bound to interfere in the cases where the most basic principles of justice are blatantly violated.

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Legally Speaking

Non-communication of right to make representation against detention order violates constitutional right: MP HC

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While fully, firmly and finally endorsing the Constitutional right to make representation against the detention order, the Indore Bench of Madhya Pradesh High Court has in a learned, latest, laudable and landmark judgment titled Lokendra Singh v/s The State of Madhya Pradesh & Others in Writ Petition No. 12166/2021 delivered just recently on September 6, 2021 has quashed a detention order on the ground that it did not contain a stipulation informing the detenue about his right to prefer a representation against his detention by the detaining authority. It must be mentioned here that a Division Bench comprising of Justice Sujoy Paul and Anil Verma relied on a catena of judicial precedent to support their observations which they drew and they shall be discussed later on. It must also be apprised here that it was the petitioner’s case that the detention order did not mention that a representation can be sought before the same authority, thereby violating a valuable right of the petitioner under Article 22 of the Constitution of India.

To start with, the Division Bench comprising of Justice Sujoy Paul and Anil Verma of Indore Bench of Madhya Pradesh High Court who authored this brief, brilliant, balanced and bold judgment sets the ball rolling by first and foremost observing in the opening para that, “The singular point raised by the petitioner is that in the detention order dated 07.06.2021, the learned District Magistrate has not mentioned that detenue – Narendra Thakur can prefer representation against the detention order before the same authority namely District magistrate thereby violating a valuable right of the petitioner flowing from Article 22 of the Constitution of India. This point is squarely covered by a recent Full Bench Judgment of this Court passed in W.P. No.22290/2019 (Kamal Khare v/s The State of Madhya Pradesh) which is followed in W.P. No.9630/2021 (Gurubachan Singh Saluja v/s The State of Madhya Pradesh & Others) by this Court.”

It certainly cannot be just glossed over that the Division Bench then very rightly points out in the next para that, “Shri Vivek Dalal, learned Additional Advocate General for the respondents / State fairly admitted that the detention order does not contain any such stipulation that petitioner can prefer representation against the detention order before the same authority. He further agreed that on this ground, Full Bench in Kamal Khare (supra) has held that the detention order stands vitiated because of infringement of said right.”

Quite significantly, the Bench then observed in the next para that, “This Court in Gurubachan Singh Saluja (supra) followed the Full Bench decision and opined as under:-

“6) In one of the aforesaid matters (WP No.9792/2021), this Court held as under:-

31) Indisputably, the detention order does not contain any stipulation that the detenu has right to prefer representation before the same authority namely, District Magistrate. The reliance is placed on the recent Full Bench judgment of this Court passed in the case of Kamal Khare (supra). To counter this argument, the bone of contention of learned AAG was that the said Full Bench decision is distinguishable. Full Bench judgment is based on a constitution bench judgment in the case of Kamleshkumar Ishwardas Patel v. Union of India, (1995) 4 SCC 51. In Kamleshkumar (supra), the Apex Court was dealing with the provisions of COFEPOSA Act and the PIT NDPS Act and not with NSA Act. Hence, the said constitution Bench judgment could not have been relied upon.

32) We do not see much merit in this argument because similar argument was advanced by the Govt. before Full Bench in the case of Kamal Khare (supra) which is reproduced in extenso in para-14 of the said judgment. The similar argument could not find favour by the Full Bench.

33) In Kamleshkumar (supra), Apex Court opined as under:-

“6. This provision has the same force and sanctity as any other provision relating to fundamental rights. (See: State of Bombay v. Atma Ram Shridhar Vaidya [1951 SCR 167, 186 : AIR 1951 SC 157] .) Article 22(5) imposes a dual obligation on the authority making the order of preventive detention: (i) to communicate to the person detained as soon as may be the grounds on which the order of detention has been made; and (ii) to afford the person detained the earliest opportunity of making a representation against the order of detention. Article 22(5) thus proceeds on the basis that the person detained has a right to make a representation against the order of detention and the aforementioned two obligations are imposed on the authority making the order of detention with a view to ensure that right of the person detained to make a representation is a real right and he is able to take steps for redress of a wrong which he thinks has been committed. Article 22(5) does not, however, indicate the authority to whom the representation is to be made. Since the object and purpose of the representation that is to be made by the person detained is to enable him to obtain relief at the earliest opportunity, the said representation has to be made to the authority which can grant such relief, i.e., the authority which can revoke the order of detention and set him at liberty. The authority that has made the order of detention can also revoke it. This right is inherent in the power to make the order. It is recognised by Section 21 of the General Clauses Act, 1897 though it does not flow from it. It can, therefore, be said that Article 22(5) postulates that the person detained has a right to make a representation against the order of detention to the authority making the order. In addition, such a representation can be made to any other authority which is empowered by law to revoke the order of detention.

14. Article 22(5) must, therefore, be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the detaining authority, i.e., the authority that has made the order of detention or the order for continuance of such detention, which is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained. The right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation.

38. Having regard to the provisions of Article 22(5) of the Constitution and the provisions of the COFEPOSA Act and the PIT NDPS Act the question posed is thus answered: Where the detention order has been made under Section 3 of the COFEPOSA Act and the PIT NDPS Act by an officer specially empowered for that purpose either by the Central Government or the State Government the person detained has a right to make a representation to the said officer and the said officer is obliged to consider the said representation and the failure on his part to do so results in denial of the right conferred on the person detained to make a representation against the order of detention. This right of the detenu is in addition to his right to make the representation to the State Government and the Central Government where the detention order has been made by an officer specially authorised by a State Government and to the Central Government where the detention order has been made by an officer specially empowered by the Central Government, and to have the same duly considered. This right to make a representation necessarily implies that the person detained must be informed of his right to make a representation to the authority that has made the order of detention at the time when he is served with the grounds of detention so as to enable him to make such a representation and the failure to do so results in denial of the right of the person detained to make a representation.”

EMPHASIS SUPPLIED

34) The Full Bench after considering the constitution Bench judgment opined as under:-

“20. The Supreme Court in Life Insurance Corporation of India v. D.J. Bahadur and Others, (1981) 1 SCC 315 dealing with the aspect whether the Life Insurance Corporation Act, 1956 is a special statute qua the Industrial Disputes Act, 1947 when it came to a dispute regarding conditions of service of the employees of the Life Insurance Corporation of India held that the Industrial Disputes Act would prevail over the Life Insurance Corporation of India Act as the former relates specially and specifically to industrial disputes between the workmen and employers. Relevant discussion in paragraph No.52 of the report would be useful to reproduce hereunder:-

“52. In determining whether a statute is a special or a general one, the focus must be on the principal subject-matter plus the particular perspective. For certain purposes, an Act may be general and for certain other purposes it may be special and we cannot blur distinctions when dealing with finer points of law. In law, we have a cosmos of relativity, not absolutes – so too in life. The ID Act is a special statute devoted wholly to investigation and settlement of industrial disputes which provides definitionally for the nature of industrial disputes coming within its ambit. It creates an infrastructure for investigation into, solution of and adjudication upon industrial disputes. It also provides the necessary machinery for enforcement of awards and settlements. From alpha to omega the ID Act has one special mission – the resolution of industrial disputes through specialised agencies according to specialised procedures and with special reference to the weaker categories of employees coming within the definition of workmen. Therefore, with reference to industrial disputes between employers and workmen, the ID Act is a special statute, and the LIC Act does not speak at all with specific reference to workmen. On the other hand, its powers relate to the general aspects of nationalisation, or management when private businesses are nationalised and a plurality of problems which, incidentally, involve transfer of service of existing employees of insurers. The workmen qua workmen and industrial disputes between workmen and the employer as such, are beyond the orbit of and have no specific or special place in the scheme of the LIC Act. And whenever there was a dispute between workmen and management the ID Act mechanism was resorted to.”

30. Now coming to the question as to what would be the effect of not informing the detenu that he has a right of making representation, apart from the State Government and the Central Government, also to the detaining authority itself, the Constitution Bench of the Supreme Court in Kamlesh Kumar Ishwardas Patel (supra) even examined this aspect in paragraph No.14 of the report and categorically held as under:-

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“14. Article 22(5) must, therefore, be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the detaining authority, i.e., the authority that has made the order of detention or the order for continuance of such detention, who is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained. The right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation.”

33. In view of the above, the Constitution Bench of the Supreme Court in Kamlesh Kumar Ishwardas Patel (supra) analyzed the effect of not informing the detenu of his right to make a representation to the detaining authority itself in paragraph No.47 of the report and held that this results in denial of his right under Article 22(5) of the Constitution of India, which renders the detention illegal. The relevant paragraph No.47 is reproduced hereunder:-

“47. In both the appeals the orders of detention were made under Section 3 of the PIT NDPS Act by the officer specially empowered by the Central Government to make such an order. In the grounds of detention the detenu was only informed that he can make a representation to the Central Government or the Advisory Board. The detenu was not informed that he can make a representation to the officer who had made the order of detention. As a result the detenu could not make a representation to the officer who made the order of detention. The Madras High Court, by the judgments under appeal dated 18-11-1994 and 17.1.1994, allowed the writ petitions filed by the detenus and has set aside the order of detention on the view that the failure on the part of the detaining authority to inform the detenu that he has a right to make a representation to the detaining authority himself has resulted in denial of the constitutional right guaranteed under Article 22(5) of the Constitution. In view of our answer to the common question posed the said decisions of the Madras High Court setting aside the order of detention of the detenus must be upheld and these appeals are liable to be dismissed.”

Emphasis supplied

35) Another Division Bench in WP No.5866/2015 (Salma vs. State of MP) opined as under:-

“On the last date of hearing opportunity was granted to the learned counsel for the State to examine the law laid down b the Apex Court, which has been made applicable in the various cases by the Division Bench of this Court, in the matter of compliance of provisions of Article 22 (5) of the Constitution of India in the matter of detention itself, intimating the detenu that he/she is entitled to make a representation before the Detaining Authority himself against the order of detention. Such law was considered and made applicable in view of the law laid down by the Apex Court in the matter of State of Maharashtra and others Vs. Santosh Shankar Acharya (2000) 7 SCC 463, vary same law was made application by this Court in W.P. No.1830/2015, W. P. No.3491/2015, W .P. No.3677/2015 & W. P. No.3683/2015 in the following manner :

Notably, both these points have been considered by the Supreme Court in the case of State of Maharashtra and others vs. Santosh Shankar Acharya (2000) 7 SCC 463 in para 5 and 6 in particular. The Supreme Court following the dictum in the case of Kamleshkumar restated that noncommunication of the fact to the detenu that he could make a representation to the detaining Authority so long as order of detention has not been approved by the State Government in case the order of detention has been issued by the Officer other than the State Government, would constitute infringement of right guaranteed under Article 22(5) of the Constitution and this ratio of the Constitution Bench of the Supreme Court in Kamlesh kumar would apply notwithstanding the fact that same has been made in the context of provisions of COFEPOSA Act. In para 6 of the reported decision, the Supreme Court rejected the similar objection canvassed by the learned counsel for the State relying on Veeramanâ s™ case and noted that the said decision does not help the respondents in any manner. Inasmuch as, in that case the Court was called upon to consider the matter in the context of situation that emerged subsequent to the date of approval of the order of detention by the State Government and not prior thereto. In none of the cases on hand the observation in the case of Veeramani will have any application. Suffice it to observe that the detention order and the disclosure of the fact that detenu could make representation to the detaining Authority before the State Government considered the proposal for approval has abridged the right of detenu under Article 22(5) of the Constitution. As a result, the continued detention of the detenu on the basis of such infirm order cannot be countenanced.

These petitions, therefore, must succeed. The impugned detention orders in the respective petitions are quashed and set aside and respondents are directed to set the petitioners/detenu at liberty forthwith unless required in connection with any other criminal case.” Emphasis supplied

36) In view of these authoritative pronouncements, there is no manner of doubt that the detenu had a valuable right to make a representation to the detaining authority and denial of this opportunity vitiates the impugned order. Resultantly, impugned order of detention dated 10/05/2021 is set aside.

37) In view of foregoing analysis, the impugned order of detention cannot sustain judicial scrutiny.

38) Before parting with the matter, we deem it proper to observe that the main grievance of detenue/complainant was that the District Magistrate while passing the order of detention did not inform him about his valuable right to prefer a representation against the detention order before the same authority namely District Magistrate. Full Bench recognized the said right of the detenue in light of the constitutional bench judgment in the case of Kamleshkumar Ishwardas Patel (supra). Thus, in the fitness of things, it will be proper for the State to ensure that henceforth in the order of detention, it must be mentioned that the detenue has a right to prefer a representation before the same authority.” Emphasis Supplied

7) In view of the Full Bench decision in Kamal Khare (supra) which was followed by Indore Bench in aforesaid matter, we deem it proper to set aside the impugned orders of detention.” Emphasis Supplied.”

Finally, the Division Bench then holds that, “In view of dicta of Full Bench in Kamal Khare (supra), the impugned order dated 07.06.2021 has become vulnerable and is accordingly set aside. The Writ Petition stands allowed.”

In a nutshell, it can thus be said that the Indore Bench of Madhya Pradesh High Court comprising of Justice Sujoy Paul and Justice Anil Verma have made it absolutely clear that the non-communication of ‘right to make representation against detention order’ violates Constitutional right under Article 22 of the Constitution of India. It was rightly mentioned that the Constitutional Bench in Kamleshkumar Ishwardas Patel case noted that Article 22(5) must be construed to mean that the person detained has a right to make representation against the order of detention. This representation can be made not only to the Advisory Board but also to the detaining authority and any other authority that is competent under law to revoke the order for detention and thereby give relief to the person detained.

Sanjeev Sirohi, Advocate,

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One contract, two arbitrations: Res Judicata in international arbitration contradicting public policy

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

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

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

OVERVIEW: COMMON LAW STILL MUDDIED WATERS OF COURT, SOMEWHAT

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

OBLIGATORY LAWS APPLICABLE TO ARBITRATION: A STANDPOINT

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

FINAL AWARD: INITIATING ARBITRATIONS UNDER MULTIPLE ARBITRATION AGREEMENTS

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

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

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

EPILOGUE

In other words, the arbitrator’s judgement on the application of the concept should also be respected by the court.

But while analysing circumstances of res judicata and restricting their powers accordingly, Arbitrators should meticulously do their analyses, since their wrong conclusion in relation to a prior award or judgement would likewise contradict public policy.

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Obliviating the oral regime

‘Judgments cannot be treated as mere counters in the game of litigation.’

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The above excerpt from the judgment of Lord Atkinson in ‘Somasundaran vs. Subramanian; AIR 1926 PC 136’, encapsulating the sanctity and solemnity of the court orders and judgments, was quoted with approval by Justice Chinnappa Reddy in ‘State of Maharashtra vs. Ramdas Shrinivas Nayak; (1982) 2 SCC 463’, where the Supreme Court was seized of the questionwhether the State of Maharashtra could be allowed to resile from the concession made before the High Courtas recorded in the judgment. During the course of hearing before the Court, Shri A.K. Sen, who hadappeared for the State of Maharashtra before the High Court, protested that he never made any such concession and invited the Court to peruse the written submissions made by him in the High Court. However, the Supreme Court declined the request and categorically observed that, “we cannot and we will not embark upon an enquiry. We will go by the judges’ record.”. The Court mentioned that the “Matters of judicial record are unquestionable” and that it is restrained by judicial decorum and public policy from launching an inquiry as to what transpired in the High Court. It was further observed by the Court that, “We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject.”. The Supreme Court accorded utmost precedence to the judicial record; not allowing it to be contradicted by either the lawyer or the litigant, except the judge herself.

The recent judgment of the Hon’ble Supreme Courtdated 31st August 2021 in ‘Salimbhai HamidbhaiMenon vs. Niteshkumar Maganbhai Patel & Anr.; 2021 SCC OnLine SC 647’, embarks on the same spirit and principle enunciated in R.S. Nayak(supra), and observes that, “Judges speak through their judgments and orders. The written text is capable of being assailed. The element of judicial accountability is lost where oral regimes prevail. This would set a dangerous precedent and is unacceptable.”. This observation came to be made by the Court apropos the procedure followed by the High Court in issuing an oral direction restraining the arrest of the first respondent. While the text of the order of that particular date did not contain any such direction, however, the subsequent order passed by the High Court adverted to such oral direction and directed immediate release of the accused. The Supreme Court found it ‘irregular’ and observed that a specific judicial order was necessary for grant of an interim protection against arrest to the accused. It also observed that, “Oral observations in court are in the course of a judicial discourse. The text of a written order is what is binding and enforceable.”. The Supreme Court, in this matter, has gone even a step further from R.S. Nayak(supra) and said that even a Judge cannot contradict the judicial record and are accountable for their actions.

Albeit, the Supreme Court has confined itself to the shortcomings of issuing oral direction in a criminal proceeding and the concomitant necessity of a written order, and has distinguished a criminal proceeding from a civil proceeding based on the infusion of interests of State and society in prosecution of the former, the same yardstick has been consistently applied by the Supreme Court in civil cases also. The principle is well settled that statements of fact as to what transpired at the hearing recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there.

In ‘Associated Tubewells Ltd. v. R.B. GujarmalModi; AIR 1957 SC 742’, the Supreme Court had deprecated the practice of referring to a conversation which took place in Court but not found a place in the written order, stating that,

“3. We cannot, however, part from this matter without placing on record our very strong disapproval of the course that the advocate — a very Senior Counsel of this court — has adopted in making this application. In the review application he has referred in detail as to what, according to him, happened in court on the prior occasion and what each Judge said in the course of the arguments. The review application sets out at length what the presiding Judge said and expressed in the course of the arguments and what his views were and what the other Judges of the Bench said and expressed and what the view of each was. These statements are followed by a confident assertion how and why the application was dismissed.

5. Judges of this Court cannot be dragged into a controversy as to whether the statements ascribed to them are correct, or express correctly and fully what they had in view. …. ..It is not consistent with the dignity of the Court and the decorum of the Bar that any course should be permitted which may lead to controversy as to what a Judge stated in Court and what view he held. Such matters are to be determined only by what is stated in the record of the Court. That which is not so recorded cannot be allowed to be relied upon giving scope to controversy. To permit the atmosphere of the Court to be vitiated by such controversy would be detrimental to the very foundation of the administration of justice.”

The Supreme Court, with its earlier judgments, had set the tone for the course to be followed by the judges in abstaining from issuing oral directions. Now, with its latest pronouncement in Salimbhai(supra), the Supreme Court has decisively and succinctly laid down thereasons for eschewing such conduct, and observed that,“Oral directions of this nature by the High Court are liable to cause serious misgivings. Such a procedure is open to grave abuse. Most High Courts deal with high volumes of cases. Judicial assessments change with the roster. Absent a written record of what has transpired in the course of a judicial proceeding, it would set a dangerous precedent if the parties and the investigating officer were expected to rely on unrecorded oral observations.”.

A couple of months ago, the author also has had the misfortune of being caught up in such an ugly spectacle. There was no written order/direction by the Ld. Judge, yet the Counsel for the other side insisted than an oral direction was indeed issued. To the great dismay and discomfiture of the author, the Ld. Judge observed that this is a long-standing practice of this (Delhi) High Court that, at times, the Court issues oral directions and the parties abide by such directions. Hopefully, with the latest pronouncement of the Supreme Court, such things would cease in all High Courts, including the Delhi High Court. It can be very embarrassing for the Court and the Counsel. Your humble author can only add that in this day and age of virtual hearings, the written orders assume even a greater significance. It requires no gainsaying that VC is prone to frequent disturbances and disconnections, and this could potentially and occasionally lead to oral directions of the Court or oral undertaking of the Counsels going unnoticed, unheard or unregistered by the parties concerned. And when such oral directions/undertakings are not recorded in the written order, it may lead to a myriad of consequences and complexities; one such we have already seen in Salimbhai(supra). This may well change with the live transcription or telecast of court proceedings, as is done in the Central and State legislature/s and jurisdiction of other democracies like Australia, Brazil, Canada, England, Germany and US. While web portals like Bar&Bench, LiveLaw etc. have been transcribing the court proceedings in a few matters, there has been no occasion for the Court/lawyers hitherto to rely upon or refer to such transcriptions as means of confirming the oral directions/observations made by the Court. It’s anybody’s guess whether the Courts would repose their faith and trust in these online transcripts, or introduce a Court approved transcription/recording of proceedings. But until then, Hon’ble Justice D.Y. Chandrachud has sounded a cautionary note for all Courts to follow, and rightly so.

The Court mentioned that the “Matters of judicial record are unquestionable” and that it is restrained by judicial decorum and public policy from launching an inquiry as to what transpired in the High Court. It was further observed by the Court that, “We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject.”. The Supreme Court accorded utmost precedence to the judicial record; not allowing it to be contradicted by either the lawyer or the litigant, except the judge herself.

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Sentencing on the same day as conviction denies an effective hearing: MP HC commutes death sentence to life imprisonment

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In a well-articulated, well-researched, well-analysed, well-reasoned, well-written, well-substantiated and well-concluded judgment titled In Reference (Suo Motu) vs Yogesh Nath @ Jogesh Nath in Criminal Reference Case No. 05/2020 & Criminal Appeal No. 4965/2020 that was reserved on 26 August, 2021 and then finally pronounced on September 8, 2021, the Gwalior Bench of Madhya Pradesh High Court made it absolutely clear that sentencing on the same day as conviction denies an effective hearing. This alone explains why the Gwalior Bench had just no inhibition in referring specifically to the most historic Bachan Singh’s case (Bachan Singh vs State of Punjab AIR 1980 SC 898) to observe clearly that the accused was denied an effective hearing. It must be mentioned here that a Division Bench of Justices GS Ahluwalia and Rajeev Kumar Srivastava made it a point to note that no sufficient opportunity was given to the accused-appellant for placing mitigating circumstances on record. It was further also pointed out that the trial court did not consider the grant of any alternative punishment or the possibility of reformation.

To start with, this brief, brilliant, bold and balanced judgment authored by Justice Rajeev Kumar Shrivastava for himself and Justice GS Ahluwalia of Gwalior Bench of Madhya Pradesh High Court sets the ball rolling by first and foremost observing in para 1 that, “This judgment shall govern the disposal of Criminal Reference Case No. 05/2020 as well as Criminal Appeal No. 4965/2020, as both arise out of judgment dated 16.09.2020 passed by Fifth Additional Sessions Judge & Special Judge (Protection of Children from Sexual Offences Act, 2012), Gwalior (MP) in Special Sessions Trial No. 122/2017.”

To put things in perspective, the Bench then puts forth in para 2 that, “As per Criminal Reference Case No.05/2020, Fifth Additional Sessions Judge & Special Judge (Protection of Children from Sexual Offences Act, 2012), Gwalior (MP) vide judgment dated 16.09.2020 in Special Sessions Trial No. 122/2017, having found the accused guilty under Sections 363, 377, 302, 201 (Part-1) of IPC and under Section 3/4 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the ‘POCSO Act’), has inflicted penalty of death sentence and has submitted the matter for confirmation under Section 366 of Cr.P.C.”

While elaborating on the facts of the case, the Bench then enunciates in para 4 that, “The short facts of the case are that on 28.04.2017, Ashok Adiwasi along with his family members, his wife Jasoda, daughters Pooja, Arti and sons Daulat & deceased ‘A’, attended the marriage ceremony of Varsha, who is the daughter of Dharmendra. Deceased ‘A’ was aged around 10 years. After attending the marriage function Ashok Aadiwasi returned back home with his family members excluding deceased ‘A’. As deceased ‘A’ was missing, hence Ashok Aadiwasi tried to search the deceased ‘A’ but his efforts left in vain. On the next day morning, he was informed that dead body of deceased ‘A’ is found in the dug of village Bara and the body of deceased ‘A’ is nude. This information was furnished to the Police Station Bahodapur. On account of that, Hemlata, Sub-Inspector of Police Station Bahodapur reached on the spot and recorded Dehati Nalishi. On the basis of Dehati Nalishi, thereafter FIR was set into motion at Crime No. 260/2017 and offence was registered under Sections 377, 302, 201 of IPC and under Section 3/4 of POCSO Act, on 29.04.2017, i.e., Ex.P/15.”

Needless to say, the Bench then states in para 7 that, “After completion of investigation, charge sheet was filed. The trial Court framed the charges under Sections 377, 302, 201 (Part-I), 363 of IPC and under Section 4 read with Section 3 of POCSO Act. The accused abjured his guilt and sought trial.”

Be it noted, the Division Bench then observes in para 109 that, “On perusal of trial Court’s judgment, it is apparent that the trial Court while passing the judgment on 16/09/2020, convicted the accused-appellant for offences as mentioned above. Thereafter, on the same day after hearing the counsel for the parties, awarded the accused appellant death punishment along with other punishments.”

Quite significantly, the Bench then observes in para 113 that, “On perusal of record, it is apparent that no sufficient opportunity was given to the accused-appellant for placing relevant mitigating circumstances supported with affidavit on record. The appellant-accused is aged around 25 years of age. The trial Court has not considered regarding alternative punishment to the appellant-accused and there is no any finding that in the absence of death sentence, the appellant accused would continue to be a threat to the Society. And also not answered that there is no possibility of reformation.”

Most significantly, what forms the cornerstone of this notable judgment is then elaborated upon in para 114 wherein it is postulated that, “For effective hearing under Section 235(2) of the Code of Criminal Procedure, the suggestion that the court intends to impose death penalty should specifically be made to the accused, to enable the accused to make an effective representation against death sentence, by placing mitigating circumstances before the Court. This has not been done. The trial court made no attempt to elicit relevant facts, nor did the trial court give any opportunity to the petitioner to file an affidavit placing on record mitigating factors. As such the accused has been denied an effective hearing.”

As a corollary, the Bench then finds no hesitation in observing in para 115 that, “Therefore, considering the aforesaid mitigating circumstances in the present case, we are of the considered view that in the case at hand verdict given by Hon’ble Apex Court in the case of Mulla & Anr. Vs. State of U.P. [AIR 2010 SC 942] followed for just decision of this case.”

As we see, the Bench then observes in para 116 that, “In the case of Mulla (supra), it is held that it is open to the Court to prescribe the length of incarceration. This is especially true in cases where death sentence has been replaced by the life imprisonment.

“85. … The court should be free to determine the length of imprisonment which will suffice the offence committed.” (emphasis supplied).”

It is worth noting that the Bench then observes in para 117 that, “Even though life imprisonment means imprisonment for entire life, convicts are often granted reprieve and/or remission of sentence after imprisonment of not less than 14 years. In this case, considering the heinous, revolting, abhorrent and despicable nature of the crime committed by the appellant, we feel that the appellant should undergo imprisonment for life, till his natural death and no remission of sentence be granted to him.”

In view of the aforesaid, the Division Bench then in para 118 comes to the rational conclusion that, “For the above reasons, we are of the view that the present appeal is one of such cases where we would be justified in holding that confinement till natural life of the appellant-accused shall fulfill the requisite criteria of punishment considering the peculiar facts and circumstances of the present case.”

Truth be told, the Bench then ostensibly observes in para 119 that, “Accordingly, the death sentence awarded by the trial court to the appellant-accused is commuted to “life imprisonment” till his natural death. The appellant-accused shall not be entitled for any remission.”

As a kind gesture, the Bench then graciously concedes in para 120 that, “Before parting with this judgment, this Court would like to record its appreciation for the assistance rendered by Shri Vivek Jain and Shri S.S. Kushwaha, Advocates, who tried their level best to point out each and every minor discrepancy in the evidence of the prosecution in order to effectively put forward the case of the appellant-accused.”

Furthermore, the Bench then holds in para 121 that, “With aforesaid modification in sentence, the judgment dated 16/09/2020 passed by Fifth Additional Sessions Judge & Special Judge (POCSO Act), Gwalior in Special Sessions Trial No.122/2017 is hereby affirmed.”

Adding more to it, the Bench then holds in para 122 that, “The appellant-accused in Cr.A. No.4965/2020, namely, Yogesh Nath @ Jogesh Nath, is in jail. He shall undergo the remaining jail sentence till his natural death.”

In the fitness of things, the Bench then directed in para 123 that, “A copy of this Judgment be immediately sent to the accused-appellant in Cr.A. No.4965/2020, Yogesh Nath @ Jogesh Nath, free of cost.”

In conclusion, the Division Bench of Gwalior Bench of Madhya Pradesh High Court thus stands fully justified in this leading judgment in commuting the death sentence to life imprisonment and it has accorded valid reasons also for doing so as already discussed hereinabove and the most prominent being that sentencing on the same day as conviction certainly culminated in denying an effective hearing to the accused so that the accused could place the mitigating circumstances before the court. Moreover, there was no direct evidence in this case and there were various material contradictions and omissions in the statements of prosecution witnesses. In addition, no witness has proved last seen evidence. As if this was not enough, it also could not be glossed over that public hairs of the accused were collected by cutting them with the help of a razor and therefore the prosecution could not rely upon the DNA report of accused-appellant. To top it all, the DNA samples were also not collected properly for forensic test and sent after delay. So it was therefore quite palpable that death penalty had to be reduced to life term and the same was done accordingly!

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Right to monetary compensation for victims of wrongful imprisonment: Time for Parliament to enact a law on this

Siddharth Sijoria

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The deprivation of human dignity due to wrongful imprisonment is a serious violation of right to life. To remedy this violation, many countries have developed laws recognizing right to monetary compensation as a legal right. However , no legal framework to compensate victims exists in India. The Courts in its discretion may or may not compensate the victims of wrongful imprisonment. Recently on 17.08.2021, the Gwalior Bench of Madhya Pradesh High Court consisting of Justice G.S Ahluwalia and Justice R K Shrivastava delivered an important judgment granting monetary compensation for miscarriage of justice that resulted in over 11 years of wrongful imprisonment of 3 innocent persons. However in past, the Courts have denied compensation for over 10 years of wrongful imprisonment as no law for compensating the victim has been enacted by the Parliament. These divergent views adopted by the Courts render the remedy of compensation arbitrary, episodic and indiscriminate and not so easily available to all similarly situated individuals. Thus, enactment of a legal framework for compensation of victims of wrongful imprisonment is a necessity to remove the arbitrariness involved in awarding compensation.

India’s obligation to award Compensation stems from Article 9(5) and 14 (6) of International Covenant on Civil , Political Rights(ICCPR) which obligates India to compensate victim of wrongful prosecution in accordance with law. The Supreme Court of India in Rudal Shah v State of Bihar being mindful of India’s obligation under ICCPR noted that the Court in exercise of its inherent powers can grant monetary compensation as a public law remedy to the victims of assault , battery and false imprisonment to prevent violation of right to life under the Constitution. Many Countries have translated their commitment under ICCPR into domestic law and enabled the victim of wrongful imprisonment a statutory right to compensation by conferring powers on Courts or administrative tribunals for determining of compensation amount in cases of miscarriage of justice. Among others, the UK Model is most developed and offers a comprehensive legal framework for enforcement of right of compensation as it enlists determinants for calculation of quantum of monetary damages. The Criminal Justice Act, 1988 of the UK contains a separate chapter on right of compensation and requires the Secretary General of the State to pay compensation to a victim of wrongful punishment. It assesses the amount of compensation by taking into consideration a.) harm done to reputation, b.) seriousness of the offence, c.) severity of punishment, d.) conduct of investigation and prosecution. The law limits the amount of overall compensation depending on the duration incarceration i.e less than 10 years or more. In UK, a Criminal Case Review Commission also exist to ascertain if a person has suffered miscarriage of justice. Any person who believes that they have been subjected to wrongful punishment can apply to the commission to have their case reviewed. Moreover, the UK Police Act, 1996 imputes the liability of wrongful Acts of the Constables on Chief of Police and holds him accountable for misconduct of the Constables under his control, and treat him as a joint tortfeasor and provides for payment of damages from the police fund. Thus , the Indian Government must fulfil its commitment under the ICCPR and the UK Code can serve as a model legislation to develop an exhaustive code.

WAY FORWARD

In 2018, the Delhi High expressed concern over the arbitrary and indeterminable manner in which right to compensation is seen by Courts in India. It had requested the Law Commission to undertake a comprehensive examination of the issue and make its recommendation to the Government. In light of the High Court’s order, the Law Commission in its Report No. 277 “Wrongful Prosecution (Miscarriage of Justice): legal Remedies” dated August 2018 had recommended for development of legal framework to pay monetary compensation for wrongful punishment that results in mental and social trauma. It further recommended adoption of a model bill it has prepared to amend Code of Criminal Procedure and insert a new chapter concerning right to compensation (Bill Annexed with the law commission report) . The Law Commission’s recommendations are in consonance with the ICCPR obligation and Judicial verdicts in India . The Commission’s recommendations must be accepted to allow victims of wrongful imprisonment an opportunity to enforce his/her right to compensation for wrongful imprisonment.

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Consent for sexual act obtained by making false promise of reemployment isn’t free consent: MP HC

Most significantly and also most remarkably, what forms the cornerstone of this cogent, commendable, composed, clear and convincing judgment is that the Bench then very forthrightly observes that, “It is well established principle of law that the investigation or the charge sheet can be quashed only if uncontroverted allegations do not make out an offence.

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In a big slap on the face of all such sexual predators who as employers stoop to such a low level that they obtain the consent for sexual act from a woman employee by making false promise of reemployment, the Gwalior Bench of Madhya Pradesh High Court in a learned, laudable, landmark and latest judgment titled Rajkishore Shrivastava vs. State of MP and another in M.Cr.C. No.38456/2021 that was delivered on August 2, 2021 has held unequivocally that getting the consent of the prosecutrix to involve in a sexual act by making false promise of re-employment, can’t be called ‘free consent’ and it would amount to consent obtained under a misconception of fact (as per Section 90 of IPC). It must also be apprised here that the single Judge Bench of Justice GS Ahluwalia of Gwalior Bench of Madhya Pradesh High Court observed thus as it refused to quash an FIR registered for the offence of rape against the Director of a hospital by the receptionist of the hospital (victim). Very rightly so!

To start with, the single Judge Bench of Justice GS Ahluwalia of Gwalior Bench of the Madhya Pradesh High Court sets the ball rolling of this brief, brilliant, bold and balanced judgment heard through video conferencing by first and foremost observing in the opening para that, “This application under Section 482 of Cr.P.C. has been filed for quashing the FIR in Crime No.8/2021 registered at Police Station AJK, District Bhind for offence under Sections 376(2)(n), 323, 294, 506 of IPC and under Sections 3(2)(v), 3(2)(va), 3(1)(r), 3(1)(s), 3(1) (w) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act as well as the charge sheet and its all consequential proceedings.”

While elaborating on the applicant-prosecutrix version, the Bench then envisages in the next para that, “It is submitted by the counsel for the applicant that the prosecutrix has lodged an FIR on the allegations that in the month of June, 2020 she had started working in the hospital of the applicant on the post of Receptionist. Thereafter, the applicant went to Gwalior and Delhi and came back in the month of July, 2020. It is alleged that on the pretext of giving job, the applicant had violated her sexually on multiple occasions and also started pressurizing that the prosecutrix must indulge in sex with other persons. When the prosecutrix did not agree for indulging in sex with other persons, then her services were terminated. It is alleged that on the pretext of reinstatement, the applicant had sexually violated her on number of occasions till December, 2020, however, she was not given the job. When the prosecutrix threatened the applicant that she would inform his conduct to his wife, then the applicant gave an application against her in his defence. The prosecutrix was also beaten by the applicant and by humiliating her by her caste, a threat was extended.”

Simply put, the Bench then puts forth in the next para that, “It is submitted that four supplementary statements of the prosecutrix were also recorded. Further, from the statement of the prosecutrix, it is clear that she was a consenting party. Even after the termination of her service, if she continued to remain in sexual relationship with the applicant, then it cannot be said that her consent was obtained by misconception of fact.”

Be it noted, the Bench then observes in the next para that, “Heard learned counsel for the applicant. Section 90 of IPC reads as under:

“90. Consent known to be given under fear or misconception: A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or

Consent of insane person- If the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or

Consent of child- unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.” Thus, it is clear that if the consent is given in consequence of any misconception or fear, then it cannot be said to be a free consent.”

Quite significantly, the Bench then enunciates in the next para that, “In the present case, undisputedly the applicant is the Director of a hospital. It is the case of the prosecutrix that she was given appointment on the post of Receptionist and thereafter the applicant had violated her sexually on multiple occasions. If the prosecutrix did not make any complaint with regard to her sexual violation, then it cannot be said that the prosecutrix had indulged in sexual act voluntarily because she was an employee of the applicant and the applicant was in a position to dominate her wishes. Further, when the services were terminated, it is alleged that the applicant again allured her of giving her job and under the hope and belief that the prosecutrix would again get a job in the hospital, if she continued to have sexual relationship with the applicant, then it cannot be said that her consent was a free consent and there was no misconception of fact.”

Most significantly and also most remarkably, what forms the cornerstone of this cogent, commendable, composed, clear and convincing judgment is that the Bench then very forthrightly observes that, “It is well established principle of law that the investigation or the charge sheet can be quashed only if uncontroverted allegations do not make out an offence. In the present case, by giving her an assurance that she would be reemployed by the applicant in his hospital, if he succeeded in getting the consent of the prosecutrix to involve in sexual act, then such consent cannot be said to be a free consent and it was certainly obtained by making false promise of reemployment and thus, in the light of Section 90 of IPC, it can be said that the said consent was obtained under misconception of fact. Under these circumstances, no case is made out for quashment of FIR in Crime No.8/2021 registered at Police Station AJK, District Bhind or the charge sheet arising out of the aforesaid FIR.”

As an aside, the Bench then states in the next para that, “Before parting with this order, this Court would like to mention that certain observation have been made in order to consider the submissions of the counsel for the applicant.”

As it turned out, the Bench then points out clearly in the next para that, “The Trial Court is reminded that observations in this order have been made in the light of limited scope under Section 482 of Cr.P.C. The Trial Court must decide the Trial strictly in accordance with evidence which would come on record without getting prejudiced or influenced by any of the observations made in this order.”

Finally, the Bench then holds in the last para that, “Accordingly, the application fails and is hereby dismissed.”

In short, it is really most heartening to note that the single Judge Bench comprising of Justice GS Ahluwalia of Indore Bench of Madhya Pradesh High Court has made it crystal clear in its short, suave, straightforward and stimulating judgment that getting the consent of the prosecutrix to involve in a sexual act by making false promise of re-employment, can’t be called ‘free consent’ and it would certainly amount to consent obtained under a misconception of fact (as per Section 90 of IPC). So it must be underscored here that the employer cannot get away simply by just terming it as “sex with consent” and blaming women also for it! Of course, it definitely merits no reiteration that all the employers who dare to ever indulge in such type of serious misdemeanour must now always remember that they cannot get away easily by pleading the specious plea of “sex with consent”! It is a no brainer and it goes without saying that they (the employers) will have to face the serious devastating consequences that will rock their life if they dare to ever indulge in sex with women by resorting to such specious and shameless plea of “sex with consent”! The earlier they (the employers) realize this and refrain from indulging in such type of shameless conduct, the better it shall be for them in their own best interest!

Now the ball is in the court of the employers and it is entirely up to them that what do they want for themselves – peaceful life or life in jail with stigmas attached with their character? So, needless to say, this leading, learned, latest and laudable judgment has certainly served to send out a loud and clear message to all the employers in our country that, “Be you ever so high, the law is above you.”

In short, it is really most heartening to note that the single Judge Bench comprising of Justice GS Ahluwalia of Indore Bench of Madhya Pradesh High Court has made it crystal clear in its short, suave, straightforward and stimulating judgment that getting the consent of the prosecutrix to involve in a sexual act by making false promise of re-employment, can’t be called ‘free consent’ and it would certainly amount to consent obtained under a misconception of fact (as per Section 90 of IPC).

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