"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.

Wednesday, August 28, 2013

Marrying the victim is not a cover for lesser punishment for rape

Marrying a rape victim by the assailant seems to be a phenomenon in India to ensure mitigated punishment where the accused work-around the traditional values of Judges. How could a judge send a husband to jail for having sexual intercourse with his wife, though premarital, and leave the wife desolate. 

The SC came out with a clear no to such policy in sentencing as not supported by law and counseled the lower court not to be soft on sentencing in rape cases. CJI speaking for the court said that the discretion to award appropriate sentence is given with the judiciary and the same has only general standards to follow not any clearcut formulas. (See para 9)

In the offence gang rape, minimum punishment is 10 years and the court may award lesser punishment by giving 'special and adequate reasons.' In para 2, the court explains that "the law on the issue can be summarized to the effect that punishment should always be proportionate/commensurate to the gravity of offence. Religion, race, caste, economic or social status of the accused or victim or the long pendency of the criminal trial or offer of the rapist to marry the victim or the victim is married and settled in life cannot be construed as special factors for reducing the sentence prescribed by the statute."A compromise entered between parties also cannot be a ground for reduced punishment as rape is a non-compoundable offence and is no a matter left for the parties to settle among themselves.

Now let us see how many offers are extended to rape victims of marriage by the assailants and how many judges can keep their prejudices and biases at bay. 

Friday, August 23, 2013

Two New Bills to be Introduced

The Hindu reports today that two Bills are due to be tabled shortly. One, to amend the Representation of People Act, 1951 to nullify the SC judgement barring adjudged criminals from contesting elections. SC had withdrawn the concession law had granted to sitting representatives, if found guilty by lower court, not to be disqualified provided an appeal is filed within 90days. 

Second Bill is also with far reaching impact, for better or worse time will tell, abolishing the collegium system of judges appointment. The system is sought to be replaced with a Judicial Appointment Commission. See here for a paper on Judicial Appointment Commission prepared for NAC by a member. The document is sourced form PRS India. 

Monday, August 19, 2013

How Transparent Political Parties Can Afford to Be!

The debate has been on for sometime now and the government with the blessings of all political parties have moved the Right to Information (Amendment) Bill 2013. Ironically, it is the same parties who came together to hide behind the veil of secrecy form public eye who otherwise in second breath declare that 'we came clean at people's court' and 'we have people's mandate, which is above all'. After all, who doesn't know, people is a convenient abstraction anyone can use without answerability but for once in five years and there also formulas work than holding one responsible for deeds and misdeeds. In any case it is but logical to expect that the amendment may be challenged for its constitutional validity.

There are three major reasons proffered for keeping political parties out of the gaze of public in the Bill;
  • political parties are not public authorities, which the Act intends to cover, 
  • transparency in the functioning of political parties are already taken care by the existing laws like the Representation of the People Act, 1951 and the Income Tax Act, 1961 
  • opening up political parties to RTI will hamper the smooth internal working and political rivals will adversely affect the functioning of the parties 
The third reason raises the question how transparent political parties can afford to. In the age of social communication, information highways and public debates of public issues there seems to be a lot political parties wants to keep to themselves. 

I am tempted to refer a news item from a German online newsletter (accessible here). Story of a political party that claimed to deviate from its traditional counterparts in transparency norm. From press receiving only official press releases and interviews, this party streamed committee meetings via internet and no screening between what happened and what reached the public ears. Soon they realised "..., with our calls for 'Transparency! Transparency!' we in the Pirate Party have created expectations that are difficult for us to meet," going back to the established party ways it is now felt that the character of the party is lost. This story but has to be read in the context of Germany where transparency norms are ingrained in the law and public disclosure of party finances to the legislature a mandate. Therefore the bar of transparency they were trying to push was already set much high. 

This has to be juxtaposed with the Government of India's stand in Ashok Chavan case (Paid News Case) pending in Supreme Court of India. It has shamelessly declared there that the EC has no jurisdiction to look into the accuracy of the statement of election expenditure filed but need only to verify the timely filing. Moreover, the Income Tax Act requirement is not a foolproof method to regulate party finances nor are the provisions of the Representation of the People Act, 1951. In summary, the norms of transparency and accountability in India is far below the desired as it stands.

Now the remaining question is, can political parties be considered as public authorities? The subsidies, freebees and benefits enjoyed by the political parties which is coughed up by the tax payer makes them definitely accountable to them. The role played by them in the political process makes them an integral part of the public institution though it may not conform to the structural construct of a public authority, rather will suit a free association of people.

It goes without question the action of political parties needs to be transparent. The disclosure norms to begin with should be on the financial side. The decision making side is bit too tricky and needs further thought and evaluation to make it under information dispensation norms. 

There still is an issue whether this amendment stand the test of judicial scrutiny if and when challenged.

Would a Defence of Equitable Set-Off Lie Even if beyond Limitation? Peerless Upheld

Whether the plea of equitable set-off would lie as a defence to a claim even if such plea for equitable set-off would ordinarily be barred by limitation is a question that has invited discussions elsewhere. In a recent decision, the Supreme Court has held that such a plea would be available even if it was ordinarily barred by the law of limitation. In Jitendra Kumar Khan v. The Peerless General Finance and Investment Company Ltd. (CA 6784/2013 arising out of SLP 18324/2004)(07.08.2013), the plaint was filed before the trial court in August 1993 and the Written Statement was filed in August 1994. Subsequently, the Defendant-Respondent had filed an Application for Amendment of the Written Statement in April 1998 seeking equitable set-off of Rs. 4,19,509.43. The application was opposed as it was in effect, an indirect method of raising a counter-claim/ set-off by circumventing the law of limitation. The Single Judge of the Calcutta High Court accepted the said argument and rejected the application for amendment. On appeal, the Division Bench of the Calcutta High Court held that the law of limitation does not bar a plea of equitable set-off.

On appeal to the Supreme Court, it was held:

"it is quite clear that equitable set-off is different than the legal setoff; that it is independent of the provisions of the Code of Civil Procedure; that the mutual debts and credits or cross-demands must have arisen out of the same transaction or to be connected in the nature and circumstances; that such a plea is raised not as a matter of right; and that it is the discretion of the court to entertain and allow such a plea or not. The concept of equitable set-off is founded on the fundamental principles of equity, justice and good conscience. The discretion rests with the court to adjudicate upon it and the said discretion has to be exercised in an equitable manner. An equitable setoff is not to be allowed where protracted enquiry is needed for the determination of the sum due... Tested on the aforesaid principles we are disposed to think that the Division Bench has rightly allowed the amendment on the base that the claim put forth could be treated as a plea in the nature of equitable set-off, for it has treated the stand taken in the amendment petition to be a demand so connected in the nature and circumstances that they can be looked upon as a part of one transaction. The view expressed by the Division Bench has to be treated as a prima facie expression of opinion."

The decision of the Supreme Court can be accessed from here.

Thursday, August 1, 2013

Garanti Koza v. Turkmenistan: Has the ICSID Tribunal Usurped Jurisdiction?

Recently, the popular website, Investment Treaty Arbitration (www.italaw.com) has published the majority and the dissenting awards on objection to jurisdiction for lack of consent in the case of Garanti Koza v. Turkmenistan conducted under the aegis of the ICSID Rules. The facts in short are that Garanti Koza invoked arbitration under the aegis of the ICSID against Turkmenistan under the bilateral Investment Treaty between the United Kingdom and Turkmenistan. Turkmenistan objected to the jurisdiction of the ICSID Tribunal on the ground that Turkmenistan never consented to an ICSID Arbitration. The relevant provision in the Treaty dealing with dispute resolution reads: “1) Disputes between a national or company of one Contracting Party and the other Contracting Party concerning an obligation of the latter under this Agreement in relation to an investment of the former which have not been amicably settled shall, after a period of four [months] from written notification of a claim, be submitted to international arbitration if the national or company concerned so wishes. (2) Where the dispute is referred to international arbitration, the national or company and the Contracting Party concerned in the dispute may agree to refer the dispute either to: (a) the International Centre for the Settlement of Investment Disputes (having regard to the provisions, where applicable, of the Convention on the Settlement of Investment Disputes between States and Nationals of other States, opened for signature at Washington DC on 18 March 1965 and the Additional Facility for the Administration of Conciliation, Arbitration and Fact-Finding Proceedings); or (b) the Court of Arbitration of the International Chamber of Commerce; or (c) an international arbitrator or ad hoc arbitration tribunal to be appointed by a special agreement or established under the Arbitration Rules of the United Nations Commission on International Trade Law. If after a period of four months from written notification of the claim there is no agreement to one of the above alternative procedures, the dispute shall at the request in writing of the national or company concerned be submitted to arbitration under the Arbitration Rules of the United Nations Commission on International Trade Law as then in force.” 

Two members of the the Tribunal constituting the majority relied on Maffezini v. Spain and CSOB v. Slovakia and held that the MFN clause would apply to the dispute resolution provisions as well. Since Turkmenistan had entered in a Bilateral Investment Treaty with Switzerland wherein the investor had the right to submit the disputes to the ICSID or a Tribunal constituted under the UNCITRAL Arbtiration Rules. The tribunal held that since this clause in the said BIT was more favourable considering that the Investor had the option to choose between these two Tribunals/ Rules and that since the Turkmenistan-UK BIT did not provide for any option, consent to the ICSID is deemed to have been granted. The MFN provisions (Article 3) were made appliable to even the dispute resolution provisions. Considering this, the tribunal held that consent was given to ICSID. The dissenting member, an appointee of Turkmenistan, held otherwise. The majority and the dissenting opinions can be downloaded from the bracketed link (http://www.italaw.com/cases/2176). This case presents an important development in Investor-State arbitration wherein consent is deemed to have been granted through an indirect means. 

On the face of it, this blawgger is of the view that such a development does not bode well for the legitimacy of Investor-State arbitration and ICSID Arbitration. Access the below links for further readings on the issue.