"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, August 29, 2019

Section 15 of the Arbitration Amendment Act 2019 is in Force?

As on date, that is, 29.08.2019, the Arbitration and Conciliation (Amendment) Act, 2019 (2019 Act) has not yet been brought into force although the 2019 Act has been notified in the Official Gazette on 09.08.2019

Title of the notification states: "The following Act of Parliament received the assent of the President on the 9th August, 2019, and is hereby published for general information..." This notification does not bring into force the 2019 Act but was only published in the Official Gazette for general information.

Section 1(2) of the 2019 Act provides: "(2) Save as otherwise provided in this Act, it shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision."

This sub-section can be analysed in two parts. The first part provides, among other things, that the Act shall come into force when the Central Government notifies the appointed date in the Official Gazette. The second part implies that this Act shall come into force immediately when it provided so in the 2019 Act. 

The prevailing opinion seems to be that the 2019 Act is yet to come into force. See, for instance, this post. However, some are of the view that Section 15 of the 2019 Act, which reads as below, has been brought into force immediately: "Section 26 of the Arbitration and Conciliation (Amendment) Act, 2015 shall be omitted and shall be deemed to have been omitted with effect from the 23rd October, 2015."

We are of the view that the entire Act, including Section 15 are yet to be brought into force. Section 15 creates a legal fiction ("shall be deemed") whereby Section 26 is omitted retrospectively, with effect from 23.10.2015. However, it does not talk about when the provision would be brought into force. Both are entirely different. Section 1(2) speaks of bringing into force and Section 15 talks about retrospectivity. Given, Section 1(2), even Section 15 will begin to apply, prospectively or retrospectively, only after Section 15 is notified, either separately or along with some or all the provisions of the 2019 Act.

Whenever the statute provides that a provision will be brought into force immediately, the statute is unequivocal. For instance, Section 1(3) the Companies Act, 2013 states: "(3) This section shall come into force at once and the remaining provisions of this Act shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint...It is apparent from the emphasised portion that the Companies Act, 2013 clearly shows when Section 1 is brought into force: "come into force at once". Other examples  are given below:

  • Section 1(2) of the Institute of Trans-Disciplinary Health Sciences and Technology (Amendment) Act, 2017 (Karnataka): "It shall come into force at once."
  • Section 1(2) of the the Constitution (Application to Jammu and Kashmir) Order, 2019. "(2) It shall come into force at once."
  • Section 1(3) of the Additional Emoluments Compulsory Deposit Act, 1974: "(3) It shall be deemed to have come into force on the 6th day of July, 1974, except section 14 which shall come into force at once."

No such phraseology is found in Section 15. It is pertinent to note that about six laws that recently received presidential assent such as the Motor Vehicles (Amendment) Act, 2019, the Consumer Protection Act, 2019, etc. were published for general information, along with the 2019 Act, on 09.08.2019. Therefore, there is nothing special in the notification except to the extent provided in the notification's title: it was "published for general information". 

For all these reasons, Section 15 of the 2019 Act has not been brought into force as on 29.08.2019. 

No comments: