"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Thursday, December 24, 2009

Hiring Eunuchs to Recover Loans?

For the Pakistani legal system, India seems to be a system to be emulated.

In the recent NRO case (where a 17 judges Bench heard the matter) the Petitioner relied on the Indira Gandhi v. Raj Narain to argue one of this contentions.

Today's Daily Times of Pakistan reports that a suggestion was made by the Pakistani Supreme Court to the Pakistani Government to hire eunuchs for loan recovery. The court, it seems, stated that the said practice was followed in India and it gave "respectable status" to the eunuchs. A petition was filed before the  Pakistani Supreme Court concerning the plight and suffering of the eunuchs, who were denied fundamental rights and the right to inherit.

Monday, December 14, 2009

Excessive Citation

I remember reading in Justice MC Chagla's autobiography, Roses in December, his contempt for excessive citation of cases. To enable the judge decide, a counsel needs to cite an authority to merely communicate to the judge that the judge is bound to decide that issue in his favour because the authority he has cited is binding on the judge. However, we see that excessive citation has become a rule, and limited but apt citation, an exception. (I have observed this trend in cases relating to arbitration where judges tend to cite several cases, including those irrelevant decisions rendered under the 1940 Act, wholly ignoring the object for which and the context in which the 1996 Act was enacted). Recently the English Court of Appeal (Civil Division) has censured a counsel for being guilty of excessive citation.The case can be found here. For simplicity of the reader, the relevant paragraph 19 is quoted below:

"It seems to me a matter of considerable importance to the conduct of international arbitration in London that the law should be simple and clear. Where it is set out in a statute, a court should be very reluctant to construe that statute in a manner that does not follow the clear language of the statute. In his detailed argument to us, Mr Gee QC, on behalf of the respondent charters, felt compelled to commence his citation of authority with the Civil Procedure Act 1833 (and other succeeding Limitation Acts), the Arbitration Act 1889 (and other succeeding Arbitration Acts), legal textbooks commencing with the First Edition of Preston and Newsom on Limitation of Actions and cases commencing with Ex Parte Caucasian Trading Corporation: Bankruptcy Petition [1896] 1 QB 368. The bundle of authorities encompassing the materials which he considered necessary to have available for the court contained 25 separate authorities. Although Mr Gee QC plainly placed all this before us out of abundance of caution, it is a good illustration of what can happen if statutory provisions relating to arbitration (and limitation periods associated with it) are not simply set out in statute and the words of the statute carefully followed by the court. It would have been no credit to the law of arbitration of England and Wales if it had been necessary to rely on all this authority on what is a simple point. The Court of Appeal Criminal Division has recently in Erskine [2009] EWCA Crim 1425 at paragraphs 66 and following pointed to the problems that arise out of the excessive citation of authority in the administration of the criminal law. It cannot be said that the great learning displayed by Mr Gee QC in putting before us so many authorities is an example of excessive citation, but it demonstrates a similar danger to the law of arbitration."

As can be discerned from the above quote, the court refers to another case R.v. Erskine [2009] EWCA Crim 1425, wherein the English Court of Appeal (Criminal Division) has considered the problem and has stated that it is not necessary to cite a case which illustrates or restates a principle. What is necessarily to be cited is the case which "establishes the principle".I quote the relevant paragraphs  64- 76 (without the paragraph numbers) for the convenience of the readers:

". Although each of the cases referred to in this present judgment was included in the bundles of authorities with which we were provided in one or other or both of these appeals, yet, as we have seen, some of them were unreported, and others were reported because they threw light on issues other than diminished responsibility. Time and time again the court has endeavoured to summarise the guidance given by the earlier decisions yet each of these cases has emphasised the fact specific nature of the decision whether to admit evidence under section 23 of the 1968 Act, and somehow or other, notwithstanding the repeated attempts to provide comprehensive guidance, time and time again the court has been invited to and has traversed many, and sometimes all of the previous decisions. This process can no longer be justified.
    The problem is not new: it is just getting worse.
      In 1863, WTS Daniel QC, who led the movement which resulted in the founding of the official Law Reports, set out in a letter to the Solicitor General, the problems of expense, prolixity, delay and imperfection in the then system of law reporting that then existed. He continued:
        "To these I would add a further evil…. That of reporting cases indiscriminately without reference to their fitness or usefulness as precedents, merely because, having been reported by rivals, the omission of them might prejudice circulation and consequently diminish profit."
        Nathaniel Lindley (later Master of the Rolls) in a supporting paper expressing the view of the Chancery Bar suggested that the cases to be reported were:
        "1. All cases which introduce, or appear, to introduce a new principle or a new rule.
        2 All cases which materially modify an existing principle or rule
        3 All cases which settle or materially tend to settle a question upon which the law is doubtful.
        4 All cases which for any reason are peculiarly instructive".
        He urged that there should be excluded:
        "Those cases which are substantially repetitions of what is reported already"
      These guidelines were those which the official Law Reports published by the Incorporated Council of Law Reporting have endeavoured to follow.
        In 1939, concern expressed as to the increase in the number of law reports led to the establishment of a Committee under Simonds J which reported to the Lord Chancellor in 1940. Among the topics it considered was the suggestion that too many cases were reported. It referred to the difficulty in deciding what should be reported, but rejected a suggestion that cases which had not been reported in the official reports should not be cited. Professor Goodhart's dissenting report recommended that all judgments should be transcribed, indexed and held centrally.
          In 1977, Lord Diplock spoke of the "superfluity of citation" and followed up his concerns in Lambert v Lewis [1982] AC 225 at 274 where he observed :
            "…the respect which under the common law is paid to precedent makes it tempting to the appellate advocate to cite a plethora of authorities which do no more than illustrate the application to particular facts of a well-established principle of law that has been clearly stated …in those cases that are no more than illustrative, however, there are likely to be found judicial statements of principle that do not follow the precise language in which the principle is expressed…, but use some paraphrase of it that the judge thinks is specially apt to explain its application to the facts of a particular case. The citation of a plethora or illustrative authorities, apart from being time and cost-consuming, present the danger of so blinding the court with case law that it has difficulty in seeing the wood of legal principle for the trees of paraphrase".
            Lord Roskill made the same point in Pioneer Shipping v B.T.P. Trioxide [1982] AC 724 at 751, where he stated:
            "I hope I shall not be thought discourteous or unappreciative of the industry involved in the preparation of counsel's arguments if I say that today massive citation of authority in cases where the relevant legal principles have been clearly and authoritatively determined is of little or no assistance, and should be firmly discouraged."
            The consequence was lengthened hearings and increased costs "without in any way leading to the avoidance of judicial error".
          In Roberts Petroleum Limited v Bernard Kenny Limited (In liquidation) [1983] 2 AC 192 at 201, and with the enthusiastic support of each member of the House, Lord Diplock identified the nature of the problem in yet greater detail, and imposed significant limits on the deployment of unreported judgments of the Court of Appeal (Civil Division) before the House of Lords. There was some criticism of this approach. Alternative suggestions, such as allowing a case to be citable only if the court directed that it was citable were made. There was no consensus. Nevertheless in 1996, the Court of Appeal Civil Division laid down a similar rule to that in Roberts Petroleum in its Practice Direction (Court of Appeal: Authorities) [1996] 1 WLR 854.
            Undoubtedly the problem of excessive citation of authority grew with the ready availability on the internet of most High Court and all Court of Appeal decisions. In Michaels and another v Taylor Woodrow Development Limited and others [2001] Ch 493, Laddie J pointed out that
              "…the recent growth of computerised databases has made it an even more frequent and extensive occurrence. There are now significantly more judges, more cases and more databases than there were even two decades ago. Until comparatively recently, this was not a substantial problem…now there is no pre-selection. Large numbers of decisions, good and bad, reserved and unreserved, can be accessed…it seems to me that the common law system, which places such reliance on judicial authority, stands the risk of being swamped by a torrent of material…"
            After consideration of the issue and consultation, a further Practice Direction was issued in relation to all civil courts: Practice Direction (Citation of Authority) [2001] 1 WLR 1001. It did not appear to have solved the problem. Moreover, in any event, it did not apply to criminal courts.
              Speaking extra judicially at the First Symposium on Law Reporting, Legal Information and Electronic Media in the New Millennium in March 2000, Lord Bingham, then Lord Chief Justice, observed
                "The quick, effortless and relatively inexpensive availability of vast new swathes of material hitherto inaccessible, unorganised, unfiltered, unedited, presents a very real risk to the system which may…simply succumb to the weight of the materials presented. "
              There is no doubting the problem. It is not confined to this particular type of case, but is a feature of all types of appeal against conviction and sentence. Repeating that we imply no criticism of counsel in either case, these appeals illustrate it. The question is whether this judgment will merely be one more plaintive lament against what has become an irreversible process, or whether action should be taken to avoid the impending crisis identified by Lord Bingham. If that is the choice, the answer is self-evident. We must do more than complain. Even if, long term, this issue must be examined again and the various differing views considered, there can be little doubt that firm measures are immediately required, at least in this court, to ensure that appeals can be heard without an excessive citation of or reference to many of its earlier, largely factual decisions.
                The essential starting point, relevant to any appeal against conviction or sentence, is that, adapting the well known aphorism of Viscount Falkland in 1641: if it is not necessary to refer to a previous decision of the court, it is necessary not to refer to it. Similarly, if it is not necessary to include a previous decision in the bundle of authorities, it is necessary to exclude it. That approach will be rigidly enforced.
                  It follows that when the advocate is considering what authority, if any, to cite for a proposition, only an authority which establishes the principle should be cited. Reference should not be made to authorities which do no more than either (a) illustrate the principle or (b) restate it..."

                  Hope the Bar and the Bench in India take cognizance of the developments in the English Law and do something about it here in India.
                  [See also, Sir Rupert Cross, J. W. Harris, in their book Precedent in English law (4th ed.) at page 207] 

                  Friday, November 27, 2009

                  Review of Basic Structure - A foiled attempt

                  T R Andhyarujina has written an article in (2009) 9 SCC (J) 34 ,brining into the light the probable causes of the foiled attempt to review the Basic Structure doctrine. Find here a piece written by Justice Krishna Iyer on the same issue in 2005 as a response to a demand to reveal the green room setting of the review. Andhyarujina's article is a reiteraton of Justice Iyer's narrative.

                  Wednesday, November 25, 2009

                  Questions concerning "Judicial Legislation" referred to Constitutional Bench

                  Recently, in the case of University of Kerala v. Council, Principals', Colleges, Kerala and Ors., a Supreme Court Bench consisting of Markandey Katju and Asok Kumar Ganguly, JJ. has, on 11th November 2009 referred the following questions to a Constitution Bench :

                  1. Whether the Court by an interim order dated 22.09.2006 can validly direct implementation of the Lyngdoh Committee's Report;
                  2. Whether the order dated 22nd September, 2006 really amounts to judicial legislation;
                  3. Whether under our Constitution the judiciary can legislate, and if so, what is the permissible limits of judicial legislation. Will judicial legislation not violate the principle of separation of powers broadly envisaged by our Constitution;
                  4. Whether the judiciary can legislate when in its opinion there is a pressing social problem of public interest or it can only make a recommendation to the legislature or concerned authority in this connection; and
                  5. Whether Article 19(1)(c) and other fundamental rights are being violated when restrictions are being placed by the implementation of the Lyngdoh Committee report without authority of law.
                  6. What is the scope of Articles 141 and 142 of the Constitution? Do they permit the judiciary to legislate and/or perform functions of the executive wing of the State."

                  These questions primarily deal with the power of the Supreme Court to interfere into the domain of the Legislature and the Executive.

                  Sunday, October 25, 2009

                  A Primer on Election Laws - Contd...

                  Legislations and Orders – Election – Part II

                  2. The Representation of the People Act, 1951

                  The basic legislation that (1) detail the conduct of elections to Parliament and House/s of Legislative Assemblies, (2) prescribe qualifications and disqualifications for membership in the legislative bodies, (3) define and entail consequences for corrupt practices, and (4) provide framework for determination of election disputes.

                  The Act touches every aspect of the conduct of the elections from prescribing the electoral system to the process. It starts from the issuance of notification of elections to declaration of the returned candidates with meticulous precision.

                  The legislation has undergone multiplicity of amendments to keep the law relevant to the changing political and technological scenario. For example introduction of Electronic Voting Machine for polls. (Section 61 A)

                  This legislation covers the administrative machinery of elections (Sections 19 - 29) and the registration of political parties (Sections 29 A to 29 C). A vacuum here is the lack of any provision for deregistration of political parties.

                  This Act also mandates the declaration of assets and liabilities of returned candidates. (Section 75 A)

                  Some of the Important Issues

                  · Disqualification for membership is one of the most contested areas

                  o Section 8 deals with disqualification due to conviction on certain offences
                  o One of the most debated issues in election and related laws – criminalisation of politics – is anchored in this provision. (Vohra Committee Report, Law Commission’s 170th Report, Report of the NCRWC, Election Commission’s recommendations on electoral reform)
                  o The provision disqualifies a person from contesting election on conviction of certain specified offences. The questions here are:
                  § Should the disqualification run from the date of FIR/ charge sheeting? The present provision allows one to contest election even from prison
                  § Section 8 (4) is also under the line of fire for the exemption it provides for the sitting member of the Legislative Houses. It gives a window period of three months or if a revision or appeal is brought within that period, till the disposal of it by the court
                  o Section 8 (3) offers another area of debate. It provides that if a person is convicted of an offence other than the prescribed offences (Section 8 (1) (a) to (n) and Section 8 (2), and the period of punishment is more than two years, the disqualification takes effect. One of the issues in Jayalaitha’s case was whether the punishment of two years shall be for an offence/case or is it two years cumulatively in offences/cases. The SC determined the matter holding that it is cumulative years of imprisonment that need to be considered.

                  · Right to vote

                  o It has been argued that the right to vote is a statutory right and the right flows from Section 62.

                  § Interestingly it is only in the marginal note that the word ‘right’ figures
                  § The section is all about the management of the casting of votes. The section is couched in negative language prescribing who shall not vote. One needs to read that all others without the prescribed disqualifications have the right

                  · Disputes regarding elections

                  o To be read with Art. 329 (b)
                  o Jurisdiction with the High Court – through an election petition
                  o Sections 86 to 99 details out the conduct of the trial of election petitions
                  o Appeals lie to SC – Section 116 A

                  · Corrupt practices in election – another contested area, especially in the wake of the hate speech and appeals on the ground of religion

                  o Section 123
                  o Bribery, undue influence, appeal on the ground of his religion, promotion of feelings of enmity, propagation or practice of sati, publication of false statements, use of vehicles to transport voters, incurring unauthorised expenditure are the corrupt practices

                  · Right to information and elections (Sections 33A and B)

                  o The trajectory
                  § The ADR – Election Commission’s Directive to furnish separate affidavits by the candidate – Amendment, bringing in Section 33B – Challenge of constitutionality in PUCL – found unconstitutional

                  Friday, October 23, 2009

                  A Primer on Election Laws

                  This is an effort to chart the major legislations and important judicial decisions of a period in a series for the benefits of the students of Election Laws.
                  Legislations and Orders – Election – Part I
                  1. The Representation of the People Act, 1950

                  This Act deals with:

                  a. Allocation of seats and delimitation of constituencies (Sections 3 to 13)
                  b. Establishes posts - election officers (Sections 13A to 13 CC)
                  c. Provides for the maintenance of the Electoral Rolls (Sections 13D to 27)
                  d. Deals with the design of filling of seats of Council of States by the representatives of Union Territories (Sections 27 A to 27 K)

                  One of the basic legislative bulwarks of the conduct of elections to both Parliament and Legislative Assemblies, along with the Representation of the People Act, 1951

                  Some of the Important Issues

                  1. The very issue of delimitation and the potential of gerrymandering.

                  The legislative framework in India – The Delimitation Commission Acts
                  So far, there have been four Commissions 1952, 1963, 1973 and 2002. The 2002 Commission was established after the 2001 census under the Chairmanship of Justice Kuldip Singh (Delimitation Act, 2002). The recommendations of the Commission were not acted upon till a notice from the SC in 2007 in pursuance of a petition. Later, on 19 Feb 2008, the President approved the recommendations. The conduct of the 2009 general elections was done on the basis of the redrawn constituencies.

                  2. The issue relating to the conditions to be registered as a voter

                  a. Qualifications

                  -Not less than 18 years
                  -Ordinarily resident (This was one of the issue in Election Commission of India v. Manmohan Singh (2000) 1 SCC 591. This case prompted the 2003 Amendment to Section 3 of the Representation of People Act, 1951, which later gave rise to the Kuldip Nayar decision)

                  b. Disqualifications

                  -Not a citizen of India
                  -Unsoundness of mind – (There is a debate in the disability law circle that this provision amounts to disenfranchisement of a group)
                  -Disqualified from voting due to corrupt practices or offences in connection with elections

                  Friday, October 16, 2009

                  Article in SSRN

                  I have written a paper titled "Negotiating Procedural Rules in Arbitration Clauses: Beware What You Ask For". The paper can be found here. The abstract is as below:

                  "Often parties negotiating agreements are wholly unaware of the significance of choice of the seat of arbitration, substantive law of contract or procedural rules they agree to. When disputes arise, the party complaining breach is often taken by surprise at the way in which the poorly-negotiated/ drafted arbitration clause acts as a hurdle in enforcing its rights under the contract. In this essay, two cases are discussed in which the parties seem to have negotiated the arbitration clause without understanding the implications of the arbitral procedures they have agreed to."

                  Comments on the paper are welcome.

                  Friday, August 28, 2009

                  Indian Oil Corporation Limited v Raja Transport Pvt Ltd

                  Indian Oil Corporation Limited v Raja Transport Pvt Ltd
                  Case No: Civil Appeal No. 5760 of 2009 (SLP (C) No. 26906 of 2008)
                  Court: Supreme Court of India
                  Decided on: 24.08.2009
                  Decided by: R.V. Raveendran and D.K. Jain, JJ.
                  Provision of Law: Arbitration and Conciliation Act, 1996 (Act) - Section 11, 12 etc..
                  Prayer: appeal against the order of the Uttaranchal High Court appointing a sole arbitrator under S 11(6) of the Act
                  Arbitration Clause:
                  "69. Any dispute or a difference of any nature whatsoever or regarding any right, liability, act, omission or account of any of the parties hereto arising out of or in relation to this Agreement shall be referred to the sole arbitration of the Director, Marketing of the Corporation or of some officer of the Corporation who may be nominated by the Director Marketing. The dealer will not be entitled to raise any objection to any such arbitrator on the ground that the arbitrator is an officer of the contract relates or that in the course of his duties or differences. In the event of the arbitrator to whom the matter is originally referred being transferred or vacating his office or being unable to act for any reason the Director Marketing as aforesaid at the time of such transfer, vacation of office or inability to act, shall designate another person to act as arbitrator in accordance with the terms of the agreement. Such person shall be entitled to proceed with the reference from the point at which it was left by his predecessor. It is also a term of this contract that no person other than the Director, Marketing or a person nominated by such Director, Marketing of the Corporation as aforesaid shall act as arbitrator hereunder. The award of the arbitrator so appointed shall be final, conclusive and binding on all parties to the Agreement, subject to the provisions of the Arbitration Act, 1940 or any statutory modification of re-enactment thereof and the rules made thereunder and for the time being in force shall apply to the arbitration proceedings under this clause."
                  One of the questions that arose was whether appointing IOC’s Director as arbitrator would make the take away independence and impartiality of the arbitral tribunal. On this point, the Court held as below:

                  1. It is now well settled by a series of decisions of this Court that arbitration agreements in government contracts providing that an employee of the Department (usually a high official unconnected with the work or the contract) will be the Arbitrator, are neither void nor unenforceable

                  2. If a party, with open eyes and full knowledge and comprehension of the said provision enters into a contract with a government/statutory corporation/public sector undertaking containing an arbitration agreement providing that one of its Secretaries/Directors shall be the arbitrator, he can not subsequently turn around and contend that he is agreeable for settlement of disputes by arbitration, but not by the named arbitrator who is an employee of the other party. No party can say he will be bound by only one part of the agreement and not the other part, unless such other part is impossible of performance or is void being contrary to the provisions of the Act, and such part is severable from the remaining part of the agreement. The arbitration clause is a package which may provide for what disputes are arbitrable, at what stage the disputes are arbitrable, who should be the arbitrator, what should be the venue, what law would govern the parties etc. A party to the contract cannot claim the benefit of arbitration under the arbitration clause, but ignore the appointment procedure relating to the named Arbitrator contained in the arbitration clause.

                  3. There can however be a justifiable apprehension about the independence or impartiality of an Employee-Arbitrator, if such person was the controlling or dealing authority in regard to the subject contract or if he is a direct subordinate (as contrasted from an officer of an inferior rank in some other department) to the officer whose decision is the subject matter of the dispute. Where however the named arbitrator though a senior officer of the government/statutory body/government company, had nothing to do with execution of the subject contract, there can be no justification for anyone doubting his independence or impartiality, in the absence of any specific evidence. Therefore, senior officer/s (usually heads of department or equivalent) of a government/statutory corporation/ public sector undertaking, not associated with the contract, are considered to be independent and impartial and are not barred from functioning as Arbitrators merely because their employer is a party to the contract

                  4. The position may be different where the person named as the Arbitrator is an employee of a company or body or individual other than the state and its instrumentalities.

                  The Court also recommended that the public sector undertaking/ state and central authorities to change their practice of nominating its employee as the arbitrator in view of the avowed objectives of independence and impartiality of the arbitral process. But the court does not seem to be clear in treating government departments/ PSUs differently from private entities in the appointment of its own employees as arbitrators.

                  Thursday, August 27, 2009

                  National Highways Authority of India Vs. Sheladia Associates, Inc.

                  Court: HIGH COURT OF DELHI
                  Case No.:
                  OMP No. 176/2009
                  Date of Judgement:

                  Judge: Rajiv Sahai Endlaw, J.
                  Provision of Law: Petition under S 20 r/w Section 2(6) of the Indian Arbitration and Conciliation Act, 1996

                  S 20 (1) The parties are free to agree on the place of arbitration.

                  (2) Failing any agreement referred to in sub-section (1), the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties.

                  (3) Notwithstanding sub-section (1) or sub-section (2), the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of documents, goods or other property.

                  S 2(6) Where this Part, except section 28, leaves the parties free to determine a certain issue, that freedom shall include the right of the parties to authorize any person including an institution, to determine that issue.

                  The Contract:

                  • Contract between NHAI and Sheladia is for the Sheladia to provide the construction supervision services to the petitioner for development of certain portions of the Golden Quadrilateral Project.
                  • Failure of the parties to agree upon the arbitral tribunal would mean that the sole arbitrator or, in case of a three arbitrator tribunal, the third arbitrator would be appointed by the Secretary, Indian Council of Arbitration, New Delhi (ICA).
                  • Venue of arbitration was to be New Delhi

                  Post-dispute facts:

                  • Certain disputes arose and Sheladia appointed an arbitrator but NHAI did not. Hence Sheladia approached ICA for the appointment of an arbitrator. The ICA appointed Mr. B.C. Tripathi, retired Chief Engineer-cum-Member (Technical) based at Bhubaneshwar on 10th September, 2008
                  • The arbitrator issued notice dated 18th October, 2008 for holding the first sitting at Bhubaneswar on 4th November, 2008. In spite of the notice being given, the petitioners did not turn up for the sitting, prompting the arbitrator to adjourn the proceedings. The arbitrator in his order also stated: "till further decision, the place of arbitration will continue to remain at the Conference Hall of Radhika Tower, Tankapani Road, Bhubaneswar".
                  • In the next sitting NHAI brought to the notice of the arbitrator that the contracted venue of arbitration was New Delhi and the arbitrator was requested to hold the arbitration proceedings at New Delhi, which the arbitrator failed to consider
                  • NHAI failed to attend subsequent proceedings before the arbitrator.
                  • NHAI approached the Delhi High Court asking for the change of venue


                  It is thus found that the Arbitral Tribunal by refusing to hold the arbitration proceedings at Delhi, in spite of attention having been invited to the agreement providing so, has become de facto unable to perform his functions and/or has failed to act without undue delay. The mandate of the arbitrator thus has to be declared to have stood terminated.

                  Observations by the Delhi High Court:

                  Apart from deciding in favour of NHAI, the Single Judge made certain comments on the way in which arbitration is conducted in India. The said comments are indicative of the corruption involved in arbitration and why developments in Indian arbitartion such as ONGC v SAW Pipes were not anti-arbitration. Relevant portions of the comments are reproduced herebelow:

                  "48. Before parting with the case, I must record that the chain of events as happened herein is what brings bad name to arbitration. In spite of the arbitrator having been appointed nearly one year ago, nothing has been achieved till date and now the mandate of the arbitrator has to be held to have terminated. I find the Indian Council of Arbitration, the arbitrator as well as the respondent to be blamed for the same. The Indian Council for Arbitration being the appointing authority, in spite of clause in the agreement for the place of arbitration to be at Delhi, appointed the arbitrator based at Bhubaneswar. The arbitrator so appointed also in contravention of the agreement insisted upon holding the arbitration proceedings at Bhubaneswar and the respondent in contravention of its agreement in writing supported such stand of the Arbitrator… When the respondent is aware of the agreement of the place of arbitration being Delhi and further when Section 34 (2) (a) (v) permits the award to be set aside on this ground, such action is not understandable. In the face of the written agreement as to the place of the arbitration and the same being supreme under Section 20 (1), it can reasonably be said that even in the event of the petitioner losing in the arbitration, notice of a petition under Section 34 on this ground alone is likely to be issued and the arbitral award even, if any, in favour of respondent would remain in abeyance. It was with this motive only that on one of the earlier dates it was suggested to the counsel for the respondent to, for the sake of expediency agree to the arbitration proceedings at Delhi in accordance with the agreement. However, the counsel has expressed inability and the matter was fully argued. It is in these circumstances that finding that the case can be said to be covered under Section 14 of the Act, I was loath to allow the respondent and the Arbitral Tribunal to continue proceedings in contravention of the agreement and to allow the proceedings to be multiplied in such manner.

                  49. Arbitration as a mode of settlement of disputes was evolved to lessen the load on the court and to provide for expeditious resolution of disputes. However, stand of the parties such as has emerged in these proceedings is not allowing the same to happen. Though, undoubtedly the jurisdiction of the courts is limited but wherever permissible and wherever needed to be exercised for achieving the said purposes, the courts ought not to fail from exercising their jurisdiction to serve the said objectives."

                  PS: The Single Judge also imposed costs to the tune of Rs 50,000 on Sheladia.

                  Tuesday, August 11, 2009

                  Law Commission on Judicial Reforms

                  The law Commission of India in its 230th report has called for judicial reforms. See the report here.

                  Law Commission on the need for division of the Supreme Court into a Constitution Bench at Delhi and Cassation Benches in four regions at Delhi, Chennai/Hyderabad, Kolkata and Mumbai. See the report here.

                  Law Commission's recommendation for law on surrogacy. See the report here.


                  Law Commission moots sweeping reforms

                  Legislation to control surrogacy favoured

                  Supreme Court says no to Kolkata

                  “Tinkering with NREGA will hit poor”

                  Friday, July 31, 2009


                  Professional politicians are the next genus

                  We have heard about politicians who are self made, dynastic and nurtured. Here is a new genus in the offing - professional politicians. An advertisement in the front page of today's The Hindu introduces "Asia's only Professional Training Program designed to motivate and activate Indian youth's entry into Politics and Government". The programme include courses on political processes, political communication, election management, campaign management, constituency management studies etc. Intership will be with 'renowned political leaders, political parties ... culminating into good career opportunities.' The degree awarded is Master's Program in Government.

                  Want a career in politics for your kids? Here is an institution that will train them for one of most lucrative positions,insulated even from economic recession. Did I hear somebody say that they only contribute to it...

                  Thursday, July 16, 2009

                  Recent Judgments

                  Culpable Homicide or Murder?

                  Raj Kumar v. State of Maharashtra. CRIMINAL APPEAL NO. 1233 OF 2009. date of Judgment 15-07-09

                  To decide whether an act is murder or culpable homicide, courts could take a three step approach.

                  Step 1

                  Ask the question whether the accused has done an act by doing which he has caused the death of another.

                  Proof of such causal connection between the act of the accused and the death leads to the second stage.

                  Step 2

                  Whether that act of the accused amounts to culpable homicide as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 IPC is reached.

                  This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of murder contained in Section 300 IPC.

                  Step 3

                  If the answer to this question is in the negative, the offence would be culpable homicide not amounting to murder punishable under Part I or Part II of Section 304 IPC, depending, respectively, on whether second or third clause of Section 299 IPC is applicable.

                  If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300 IPC, the offence would still be culpable homicide not amounting to murder punishable under the First Part Section 304 IPC.

                  The above are only broad guidelines and not cast-iron imperatives.

                  Tuesday, July 14, 2009

                  Recent Judgments

                  Power of the HC to transfer a case to itself from Administrative Tribunal and Decide

                  State of West Bengal v. Samar Kumar Sarkar. CIVIL APPEAL NO. 4350 OF 2009. Date of Judgment 14.07.09

                  The court held that though the power of the HC under Art. 227 is wide enough to cover Tribunals, the power of interference is limited to seeing that the Tribunal functions within the limits of its authority.

                  The appeal is allowed observing that "the High Court could not, under the powers conferred by this Article, withdraw a case to itself from a Tribunal and dispose of the same, or determine merely the question of law as to the interpretation of the Constitution arising before the Tribunal."

                  Territorial Jurisdiction of the Magistrate's Court to take congnizance of an offence

                  Rajiv Modi v. Sanjay Jain. CRIMINAL APPEAL NO. 1214 OF 2009. Date of Judgment 14.07.09

                  1. To constitute the territorial jurisdiction, the whole or a part of the "cause of action" must have arisen within the territorial jurisdiction of the court.

                  2. The Court on basis of the averments made in the complaint, if it is prima facie of the opinion that the whole or a part of cause of action has arisen in its jurisdiction, can certainly take cognizance of the complaint.

                  3. There is no need to ascertain that the allegations made are true in fact.

                  Monday, July 13, 2009

                  Recent Judgments

                  Legality of an Amendment Act allegedly brought to nullify a judicial decision

                  State of Himachal Pradesh v. Narain Singh. CIVIL APPEAL NO. 1678 OF 2002. Date of Judgment 08-07-09

                  "Where there is a competent legislative provision which retrospectively removes the substratum of foundation of a judgment, the said exercise is a valid legislative exercise provided it does not transgress any other constitutional limitation."

                  Besides this there were other issues raised but left unanswered as found unnecessary by the court;

                  1. Unconstitutionality of the Act for being arbitrary, malafide and being colourable legislation

                  2. The Amendment Act as violative of the basic structure of the prinicipal legislation

                  Reference No. 1/2006 U/A 317 (I) of the Constitution of India, CPSC

                  Date of Judgment 08-07-09

                  Under Clause (1) of Article 317, the President of India referred the matter to the Supreme Court of India for an inquiry and report as to whether Shri. Ashok Darbari, Chairman of the Chattisgarh Public Service Commission ought to be removed from the office of Chairman of the Commission on the grounds of misbehaviour.

                  Article 317 do not define 'misbehaviour'. The court construes misbehaviour in the context as "[t]he Chairman of the Public Service Commission is expected to show absolute integrity and impartiality in exercising the powers and duties as Chairman. His actions shall be transparent and he shall discharge his functions with utmost sincerity and integrity. If there is any failure on his part, or he commits any act which is not befitting the honour and prestige as a Chairman of the Public Service Commission, it would amount to misbehaviour as contemplated under the Constitution.

                  Four charges were levelled and the court found none. The reference is answered in the negative.

                  Rule of secrecy v. Purity of election in an election petition

                  SMT. REKHA RANA v. JAIPAL SHARMA
                  . CIVIL APPEAL NO. 5891 OF 2008. Date of Judgment 10.07.09

                  The repsondent was successfull getting an order from the election tribunal to de-seal the marked electoral roll of 2005 Legislative Assembly election. The election petitioner (respondent herein) sought to prove that there has been malpractice in the line of (i) 96 voters had cast their votes twice during the process of polling; (ii) 29 votes had been cast in favour of the appellant by way of impersonation, on behalf of the persons who were not available in the constituency on the date of polling; (iii) 53 votes had been cast in favour of the appellant by way of impersonation on behalf of the persons who had died prior to the date of polling; and (iv) 10 votes had been cast in favour of the appellant by way of impersonation on behalf of two persons who were serving sentences in jail and on behalf of eight persons who were abroad on the date of polling. The election petitioner incidentally lost the election by a margin of 25 votes.

                  Against the order of de-sealing of the electoral roll this civil Appeal is preferred contending that de-sealing will affect the principle of secrecy

                  Court held that when two principles compete, the "purity of election" principle must have its way and that the "rule of secrecy", as contemplated in Section 94 of the R. P Act, cannot be pressed into service to suppress a wrong coming to light and to protect a fraud on the election process.

                  Sunday, July 12, 2009

                  Recent Judgments

                  Breach of contract of an agreement for sale would not attract Sections 406 or 420 of the Indian Penal Code

                  Dalip Kaur v. Jagnar Singh CRIMINAL APPEAL NO. 1135 of 2009. Date of Judgment 07.07.09

                  If the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants by non-refunding the amount of advance the same would not constitute an offence of cheating.

                  Another appointment of Addl. Judge to HC under Challenge

                  Mahesh Chandra Gupta v. Union of India. TRANSFERRED CASE (C) NO. 6 OF 2009. Date of Judgment 06.07.09

                  SC found the appointment of the Additional Judge of Allahabad High Court under challenge not an infraction of Article 217(2) and Article 217(1) of the Constitution of India.

                  Friday, July 10, 2009


                  An enriching lunch at NUJS

                  It was a happenstance that we met in the canteen for lunch, but the discussion was inevitable, the Naz Foundation judgment. Either all were convinced about the end result of the judgment or none found it necessary to mention in the backdrop of a challenging technical legal issue that needed resolve, the territorial effect of the Delhi HC judgment.

                  This is not the first instance that a HC has held certain Central enactment as unconstitutional or has given an interpretation of this magnitude to a central statute. There have also been occasions when two different HC's have given conflicting interpretation of law. An impromptu case that comes to my mind is Entertainment Network (India) Ltd. v. Super Cassettes.(Date of Judgment 16-05-08), where the conflicting judgments of the Delhi and Bombay HCs got resolved in the SC. Yes this has been the practice, affected parties move the SC for a final resolution of the problem.

                  We were contemplating a situation where today if Karnataka police arrest two adults of the same sex from Cubbon Park and slap a charge under S.377, will it stand? Does the judgment of the Delhi HC have the reach to stop the Karnataka police?

                  With the conflicting views expressed by the SC itself on the territorial extent of the HC decision, the answer is difficult to come by. It seemed we were all in agreement on that too.

                  The Indian judicial system works on the principles of hierarchy wherein it is clear that HC have territorial jurisdiction and one HCs decision have only persuasive value over other HC's and not binding. Article 226 is clear as to the territorial limits of the operation of a judgment of HCs.

                  There were two interesting issues Pritam brought up. In the Naz foundation case, Union of India is a party. The interpretation given is that of a central law, wont it be then logical that it should be applicable to the whole of the nation. On the other hand, the effect of the judgment is that the state police is to refrain from certain actions. Incidentally, law and order is a matter in state list. Can the judgment of the HC of one state direct the actions of police of another state. He was quick to add that these are just thoughts not arguments.

                  Sandeep thought aloud about a previous such case, which incidentally has not caught media attention of the present magnitude for obvious reasons. The declaration of unconstitutionality of S. 309 by the Bombay HC. Conflicting opinions were rendered by certain others, which ultimately got settled by the judgment of SC.

                  My musings were at a fundamental level. This involves a technical issue of how there could be a unified law for the nation in matters relating to central law when judiciary intervens. Different rights in different states will definitely charge an action on equality. Are we going to face the same predicament repeatedly in similar situations till SC acts on each individual cases? In future too HCs definitely will create different sets of rights and interpretations in different states. Then wont it be good if we have a principle to untie such Gordian knots.

                  Pritam was very quick to put it in perspective, as a question of judicial federalism. He was apprehensive of loosing an opportunity to create a sound principle of law by the SC. This matter is also likely to be resolved by an SC judgment deciding whether S. 377 is constitutional or not. It is unlikely that the SC will declare the principle to be followed in future such issues unless attention is drawn.

                  The discussions continued, making us forget the unimaginative menu of Mrityunjay at the canteen (for no fault of his), as to what shall be the possible principles that could find an answer to this issue. Two solutions were on the table.

                  One, whenever a HC decides on the constitutional validity or renders an interpretation of a central enactment it shall be held good for the whole of the nation. Practical the solution seemed to be but it will cut at the root of jurisdiction of the HCs.

                  Daniel had alternatives; bring back Article 226A or enact a similar provision, create a dedicated constitutional court that shall have the sole jurisdiction to deal with the constitutional validity of central enactments.

                  The problems with the second suggestion are logistical, limitation of jurisdiction of the HC's and loosing one rung of appeal.

                  I am waiting for more lunches at NUJS canteen. You are invited.


                  Territoriality of a HC judgment

                  The recently decided Naz Foundation Case has raised an interesting debate about the terriorial limits of a HC judgment. See here, for an interesting dbate. Today's Indian Express carry an interesting read by Shivprasad Swaminathan. He has posted his views in Law and Other Things blogspace also.

                  Wednesday, July 8, 2009

                  Recent Judgments

                  The absence of injuries on the person of the prosecutrix does not lead to an inference that she consented for sexual intercourse with the accused.

                  Rajinder v. State of H.P. CRIMINAL APPEAL NO.670 OF 2003. Date of Judgment 7.7.09

                  Tuesday, June 23, 2009

                  For the Professors of Law Schools

                  Ezra Rosser, On Becoming “Professor”: A Semi-Serious Look In The Mirror, available at http://ssrn.com/abstract=1423138. Ezra (he hates it when students calls him professor) ruminate on the baggage of professorship in law schools. His attack ranges from the pseudo-intellectual academic writing which is obsessed with form and class structure within authors to the much hierarchical structure of academia in which one may eventually lose self.

                  Andrew Tettenborn, Consequential Damages in Contract- The Poor Relation 42 Loy. L.A. L. Rev 177

                  In this Article, Andrew Tettenborn discusses the ways in which law treats direct and consequential damages differently. An interesting read.

                  The term "consequential damages" seems to be a misnomer as even direct damages are "consequential". Consequential damages are synonymous to indirect damages. Initially contracting parties used the term "direct and consequential" damages to refer to damages that arose as a natural consequence of the breach or which could be supposed to have been in contemplation of the parties at the time of signing of contract. contracting parties usually excluded "indirect and consequential damages". Drafting errors ("indirect or consequential damages") probably made the courts to construe "consequential" to mean indirect. Thus, the term "consequential damages" has come to refer to those categories of loss that were not in contemplation of the parties or that could not be supposed to have been in contemplation of the parties at the time of entering into the contract.


                  Monday, June 22, 2009

                  Digest of Recent SC Decisions - May 20th to June 20th

                  Observation of Natural Justice in Departmental Enquiry

                  Union of India v. Bishamber Das Dogra. CIVIL APPEAL NO. 7087 OF 2002. Date of Judgment 26-05-09

                  Two interesting questions dealt were

                  1. Whether non furnishing of the copy of the enquiry report was not furnished and the respondent employee and not giving opportunity to file objections is violation of natural justice
                  2. Whether taking into consideration the past conduct while imposing the punishment vitiate the departmental proceedings
                  The court answered both questions in the negative. The reasons are given below

                  • Principles of natural justice cannot be put into a strait-jacket formulate and its observance would depend upon the fact situation of each case. Therefore, the application of the principles of natural justice has to be understood with reference to the relevant facts and circumstances of a particular case.
                  • natural justice is not an unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of.
                  • To sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him for non-observance of principles of natural justice.
                  • It is also clear that non-supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non- supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside
                  • It is desirable that delinquent employee may be informed by the disciplinary authority that his past conduct would be taken into consideration while imposing the punishment. But in case of misconduct of grave nature or indiscipline, even in absence of statutory rules, the authority may take into consideration the indisputable past conduct/service record of the employee for adding the weight to the decision of imposing the punishment if the facts of the case so require.

                  Testing the constitutionality of a statute

                  COMMISSION. CIVIL APPEAL NOS. 3457-3458 OF 2009. Date of Judgment 11-05-09.

                  The court was called to test the constitutionality of clauses (b) and (f) of Regulation 6A of the Central Electricity Regulatory Commission (Procedure, Terms and conditions for Grant of Trading License and other related matters) (Amendment), Regulation 2006 (hereinafter referred to and called for the sake of brevity as "Amended Regulation") is the question involved

                  • The standard for determining reasonableness of a statute so as to satisfy the constitutional scheme as adumbrated in Article 14 of the Constitution of India must receive a higher level of scrutiny than an ordinary statute. Such a higher level of scrutiny is necessary not for the purpose of determining the Constitutionality of the statute alone vis-`-vis the field of legislative power as envisaged under Article 245 of the Constitution of India but also having regard to the object and purpose, the statute seeks to achieve.
                  • For understanding the above, the appropriate doctrine would be that of purposive interpretation
                  • To evaluate the reasonableness of conditions, doctrine of proportionality may be employed

                  The grounds on which a subordinate legislation can be challenged

                  (a) Lack of legislative competence to make the subordinate legislation.

                  (b) Violation of fundamental rights guaranteed under the Constitution of India.

                  (c) Violation of any provision of the Constitution of India.

                  (d) Failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act.

                  (e) Repugnancy to the laws of the land, that is, any enactment.

                  (f) Manifest arbitrariness/unreasonableness (to an extent where the court might well say that the legislature never intended to give authority to make such rules)
                  • It is now a well settled principle of law that essential legislative functions cannot be delegated. The delegatee must be furnished with adequate guidelines so that arbitrariness is eschewed.

                  Clauses (b) and (f) of Regulation 6A are declared ultra vires the Constitution of India as also the Act.

                  Marriage is not a mere "reciprocal possession" of the sexual organs nor can it be romanticized as "made in Heaven"

                  Smruti Pahariya V. Sanjay Pahariya. CIVIL APPEAL NO. 3465 OF 2009. Date of Judgment 11-05-09

                  A good read on the developments in divorce law.

                  Tuesday, June 9, 2009

                  US SC on bias

                  Supreme Court of the United States has recently (Decided June 8, 2009) given a judgment on bias. The judgement can be found here. The issue involved in this case was whether a judge should have recused himself from deciding a case in which one of the parties had made substantial contribution to the election campaign of the judge. The US Supreme Court has held that the judge should have done so.

                  Monday, June 8, 2009

                  Wingsfield Knitwear Pvt. Ltd. v. Deepak Kumar and Ors

                  Parties: Wingsfield Knitwear Pvt. Ltd. v. Deepak Kumar and Ors
                  Case No: OMP 153/2009
                  Court: Delhi High Court
                  Decided on: 29.05.2009
                  Decided by: Shiv Narayan Dhingra, J.
                  Provision of Law: Arbitration and Conciliation Act, 1996 - Section 9
                  Prayer: Ex-parte injunction against Deepak Kumar and Ors from alienating, or dealing with the rented premises.
                  A three year lease deed was entered into between Wingsfield and Deepak Kumar in relation to certain premises. The lease deed also contained a provision for lock-in period of three years. However, it was alleged that Deepak Kumar and others were trying to forcibly dispossess the petitioner out of the premises. Deepak Kumar's contention was that Wingfield pressurised Deepak Kumar to decrease the rent agreed upon between them. Further, Deepak Kumar also contended that no possession was handed over to Wingield. In fact, no rent was claimed from Wingfield for certain duration when interior decoration was being done in the premises by Wingfield.

                  The judge decided that Deepak Kumar's possession of premises was prima facie illegal, and hence restrained Deepak Kumar from re-letting, alienating or creating any third party interest.

                  : The judge was right in pointing out that on the execution of the lease deed, possession had already gone to Wingfield. However, was he right in stating that Wingfield was at liberty not to pay any rent? Was the payment of rent during the period of forcible dispossession in issue, or was it argued by Wingfield? Was it one of the prayers of Wingfield?

                  Thursday, June 4, 2009

                  Article: Wittgenstein and Contract Precedents


                  While reading the above article, I was wondering why academicians are so obsessed by plain meaning rule, Ludwig Wittgenstein, HLA Hart, linguistic philosophy, Dworkin etc when they talk about contract interpretation when all they need to dois to think "pragmatically" (Posner?!!@%#$&^%) from the businessman's perspective for whom the contract was drafted...

                  Tuesday, June 2, 2009


                  • Constituent Assembly Debates, here
                  • Administrative Reform Commission, here
                  • Finance Commission, here
                  • Inter - State Council, here
                  • Law Commission of India, here

                  Monday, June 1, 2009

                  Recent Judgment

                  Hair-raising judgment: on both counts

                  M.K.Balakrishnan v. Union of India. WRIT PETITION(C) NO.230 OF 2001

                  Few sentences into judgment, it is amply clear who wrote it. The Katju touch is ubiquitous. Reading it complete, i am puzzled, isn't he the very same who rekindled the discourse on judicial activism with the 'Katju School of thought on judicial restraint.'

                  The judgment reiterate the right to water as a fundamental right, part of Art. 21, giving me goose bumps. The judgment also lays down policy to be followed by the government by illuminating us the need to be scientific - a true devout of the fundamental duty to follow 'scientific temper'. It not only suggest a committee, but lays down its structure, constitution and mandate, making the Executive all the more relaxed and comfy. It is also a clarion call for all patriotic Indians to act. The judgment do not stop there either, being insightful of the lethargy of the executive, the case will be posted on every alternate Tuesday for monitoring. A hair-raising experience ofcourse.

                  I am waiting for that day when Executive is going to take away judicial functions to make the backlog plagued judiciary more efficient.

                  Tuesday, May 19, 2009

                  Article Reference

                  Intention and Interpretation by Daniel Austin Green. At SSRN

                  Questions of interpretation for the author are questions of intention. A theory of interpretation should ideally start from a theory of intention. This essay, the author repeatedly suggests that, do not endorse one method of interpretation over other but discuss all theories of interpretation. Fundamental questions about the very nature of intention are important to discuss to understand arguments about legislative intent and thereby interpretation. The work draws attention to the performative issued involved in interpretation. It is argued that, 'law does not simply exist; law takes its very meaning through the verbal and actual rendition of it by human actors' and 'law relies on its human exposition for its continued existence and relevance'. Reference to interpretation of music and literature is made to garner support for intentionalist methodologies.


                  Wednesday, May 13, 2009

                  Law Commission of India Reports

                  1. Irretrievable Breakdown of Marriage – Another Ground for Divorce (217th Report)
                  2. Need for Justice-dispensation through ADR etc. (222nd Report)
                  3. Need for Ameliorating the lot of the Have-nots -Supreme Court’s Judgments (223rd Report)
                  4. Need for Speedy Justice – Some Suggestions (221st Report)
                  5. Need for Family Law Legislations for Non-resident Indians (219th Report)

                  Tuesday, May 12, 2009


                  Was it necessary for the SC?

                  J. Venkesan in today's The Hindu has reported about a judgment by SC titled; Joint ventures will ease housing shortage, says Supreme Court. The court seems to have recommended the Ministry of Urban Development to adopt joint ventures - public private partnership - to address the housing problem. I am yet to read the full judgment and wonder was it necessary for the court to give its opinion/recommendation on a policy matter, which stands in the domain of other branches of the government.

                  Monday, May 11, 2009

                  Article Reference


                  This article available at SSRN is a primer on India Constitution and gives in a nutshell the goals, spirit, provisions and the working of the constitution in turf. It argues that the Indian Constitution is native in spirit and that essentially is the reason for its survival. The article was written 2005 and the reader may have to update the changes thereafter.


                  Friday, May 8, 2009

                  Article Reference

                  The Real Case for Judicial Review: A Plea for Non-Instrumentalist Justification in Constitutional Theory

                  In this article, available at SSRN, the authors argue that an instrumentalist approach to justify judicial review is bound fail. The article serach for non-instrumental justification for judicial review

                  Thursday, May 7, 2009

                  Secrecy and Arbitration

                  Kluwer Arbitration Blog contains a post on public access to arbitration proceedings, especially in the Permanent Court of Arbitration and the WTO. The post refers to an article in The Economist on secrecy in arbitration, which can be found here. The reasons for the need for secrecy in arbitration are interesting. But are those reasons legitimate?


                  Tuesday, May 5, 2009

                  Gujarat Riots Case before the SC

                  The Supreme Court of India passed the following directions in National Human Rights Commission v.State of Gujarat and Ors. WRIT PETITON (CRL.) NO. 109 of 2003 (Dr. ARIJIT PASAYAT, P.SATHASIVAM, AFTAB ALAM, JJ.)

                  • Supplementary charge sheets shall be filed in each of these cases as the SIT has found further material and/or has identified other accused against whom charges are now to be brought.
                  • the conduct of the trials has to be resumed on a day-to-day basis keeping in view the fact that the incidents are of January, 2002 andthe trials already stand delayed by seven years. The need for earlycompletion of sensitive cases more particularly in cases involving communal disturbances cannot be overstated.
                  • the SIT has suggested that the six "Fast Track Courts" be designated by the High Court to conduct trial, on day-to-day basis, in the five districts as follows:
                  i) Ahmedabad (Naroda Patia, Naroda Gam); ii) Ahmedabad (Gulbarg); iii) Mehsana (for two cases); iv) Saabarkantha opened(British National case); v) Anand; vi) Godhra Train Case (at Sabarmati Jail, Ahmedabad);
                  • It is imperative, considering the nature and sensitivity of these nominated cases, and the history of the entire litigation, that senior judicial officers be appointed so that these trials can be concluded as soon as possible and in the most satisfactory manner. In order to ensure that all concerned have the highest degree of confidence in the system being put in place, it would be advisable if the Chief Justice of the High, Court of Gujarat selects the judicial officers to be so nominated. The State of Gujarat has, in its suggestions, stated that it has no objection to constitution of such "fast track courts", and has also suggested that this may be left to Hon'ble the Chief Justice of the High Court.
                  • Experienced lawyers familiar with the conduct of criminal trials are to be appointed as Public Prosecutors. In the facts and circumstances of the present case, such public prosecutors shall be appointed in consultation with the Chairman of the SIT. The suggestions of the State Government indicate acceptance of this proposal. It shall be open to the Chairman of SIT to seek change of any Public prosecutor so appointed if any deficiency in performance is noticed. If it appears that a trial is not proceeding as it should, and the Chairman of the SIT is satisfied that the situation calls for a change of the public prosecutor or the appointment of an additional public prosecutor, to either assist or lead the existing Public Prosecutor, he may make a request to this effect to the Advocate General of the State, who shall take appropriate action in light of the recommendation by the SIT.
                  • If necessary and so considered appropriate SIT may nominate officers of SIT to assist the public prosecutor in the course of the trial. Such officer shall act as the communication link between the SIT and the Public Prosecutor, to ensure that all the help and necessary assistance is made available to such Public Prosecutor.
                  • The Chairman of the SIT shall keep track of the progress of the trials in order to ensure that they are proceeding smoothly and shall submit quarterly reports to this court in regard to the smooth and satisfactory progress of the trials.
                  • The stay on the conduct of the trials are vacated in order to enable the trials to continue. In a number of cases bail had been granted by the High Court/Sessions Court principally on the ground that the trials had been stayed. Wherever considered necessary, the SIT can request the Public Prosecutor to seek cancellation of the bails already granted.
                  • For ensuring of a sense of confidence in the mind of the victims and their relatives, and to ensure that witnesses depose freely and fearlessly before the court: In case of witnesses following steps shall be taken:
                  (a) Ensuring safe passage for the witnesses to and from the court precincts.

                  (b) Providing security to the witnesses in their place of residence wherever considered necessary, and

                  (c) Relocation of witnesses to another state wherever such a step is necessary.

                  • As far as the first and the second is concerned, the SIT shall be the nodal agency to decide as to which witnesses require protection and the kind of witness protection that is to be made available to such witness.
                  • In the case of the first and the second kind of witness protection, the Chairman, SIT could, in appropriate cases, decide which witnesses require security of the paramilitary forces and upon his request same shall be made available by providing necessary security facilities.
                  • In the third kind of a situation, where the Chairman, SIT is satisfied that the witness requires to be relocated outside the State of Gujarat, it would be for the Union of India to make appropriate arrangements for the relocation of such witness. The Chairman, SIT shall send an appropriate request for this purpose to the Home Secretary, Union of India, who would take such steps as are necessary to relocate the witnesses.
                  • All the aforesaid directions are to be considered by SIT by looking into the threat perception if any.
                  • The SIT would continue to function and carry out any investigations that are yet to be completed, or any further investigation that may arise in the course of the trials. The SIT would also discharge such functions as have been cast upon them by the present order.
                  • If there are any matters on which directions are considered necessary (including by way of change of public prosecutors orwitness protection), the Chairman of the SIT may (either directly or through the Amicus Curiae) move this Court for appropriate directions.
                  • It was apprehension of some learned counsel that unruly situations may be created in court to terrorise witnesses. It needs no indication that the Court shall have to deal with such situations sternly and pass necessary orders. The SIT shall also look into this area.
                  • Periodic three monthly reports shall be submitted by the SIT to this Court in sealed covers.

                  Saturday, May 2, 2009

                  Judgments - SCI

                  Dr. C.P. Sreekumar, M.S. (Ortho) v. S. Ramanujam
                  • Nature of the case: Case concerning medical negligence
                  • Date: 01 May 2009
                  • Bench: DALVEER BHANDARI & HARJIT SINGH BEDI, JJ. )
                  • Highlights:"...too much suspicion about the negligence of attending Doctors and frequent interference by Courts would be a very dangerous proposition as it would prevent Doctors from taking decisions which could result in complications and in this situation the patient would be the ultimate sufferer."