"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.

Sunday, January 31, 2010

Paper in SSRN

I have written a paper titled "Arbitrability of Claims Relating to Fraud: Recent Developments in India". The paper can be found here.  

Abstract: This paper critically analyses the law on arbitrability of claims relating to fraud in India. Specifically, it comments on the case of N. Radhakrishnan v. Maestro Engineers and Ors. (MANU/SC/1758/2009) wherein the Supreme Court was of the opinion that where a dispute concerns serious allegations pertaining to fraud, such dispute cannot be referred to arbitration because of two reasons. One, proof of fraud and criminal misappropriation involved elaborate production of evidence and such a situation can not be properly gone into by the Arbitrator. Two, the party against whom allegations of fraud are made has the right to be cleared of the allegations in public, and not before a private arbitrator.

Comments on the paper are welcome.

Thursday, January 28, 2010

Recent Judgments

Ghosts of the past

P. Vijayan v. State of Kerala & Anr. CRIMINAL APPEAL NO. 192 OF 2010 (Arising out of S.L.P. (Crl.) No. 4708 of 2007). Date of Judgment 27-01-10

The appellant herein is an IPS officer, retired as the DGP of the state of Kerala, who claims to have had a decisive role in successfully (!) controlling the Naxalite militancy. Earned laurels and commendations for it, but never thought that ghosts of the past are going to haunt his retired life.

The whole incident started with the confession of Mr. Ramachandran Nair, a retired Constable of Kerala Police, where he busted the official narrative of the death of Mr. Varghese alias Naxalite Varghese as an encounter death. The incident happened on 18.02.70 and Mr. Nair revealed that it was he who fired the gun in a set up far from encounter, in the process implicating the appellant herein. A CBI inquiry was conducted and charge sheet was filed with the appellant as the third accused.

The present case is an appeal against the order of High Court which affirmed the lower courts decision to dismiss the petition under Section 227, Cr. P.C for discharge. The SC found no reason to interfere with the judgment of the High Court. The Court comprehended the legal principles to be followed while a discharge petition is entertained.

What intrigued me is the shift of status a hero of official records to a grave human rights violator. Official histories it is not said in vain that is of the winners and could be far from truth.

Monday, January 25, 2010

UNCITRAL Consolidated Bibliography (1968 - 2009)

UNCITRAL has published a consolidated bibliography of works in various subjects connected to UNCITRAL. You can find the link to the list here. A consolidated bibliography of works on all the subjects pertaining to it has also been published by UNCITRAL. You can find the link to this document here.

This practice would be immensely beneficial for researchers working in such areas. Continue the good work, UNCITRAL!

Recent Judgments

SC Directives to Preserve Sanctity of PIL

State of Uttaranchal v. Balwant Singh Chaufal CIVIL APPEAL NOS.1134-1135 OF 2002. Date of Judgment 18-01-10

(1) The courts must encourage genuine and bona fide
PIL and effectively discourage and curb the PIL
filed for extraneous considerations.

(2) Instead of every individual judge devising his
own procedure for dealing with the public
interest litigation, it would be appropriate for
each High Court to properly formulate rules for
encouraging the genuine PIL and discouraging the
PIL filed with oblique motives. Consequently,
we request that the High Courts who have not yet
framed the rules, should frame the rules within
three months. The Registrar General of each
High Court is directed to ensure that a copy of
the Rules prepared by the High Court is sent to
the Secretary General of this court immediately

(3) The courts should prima facie verify the
credentials of the petitioner before
entertaining a P.I.L.

(4) The court should be prima facie satisfied
regarding the correctness of the contents of the
petition before entertaining a PIL.

(5) The court should be fully satisfied that
substantial public interest is involved before
entertaining the petition.

(6) The court should ensure that the petition which
involves larger public interest, gravity and
urgency must be given priority over other

(7) The courts before entertaining the PIL should
ensure that the PIL is aimed at redressal of
genuine public harm or public injury. The
court should also ensure that there is no
personal gain, private motive or oblique motive
behind filing the public interest litigation.

(8) The court should also ensure that the petitions
filed by busybodies for extraneous and ulterior
motives must be discouraged by imposing
exemplary costs or by adopting similar novel
methods to curb frivolous petitions and the
petitions filed for extraneous considerations.