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Every Voter Has A Fundamental Right To Know The Educational Qualification Of A Candidate

Modern states creates among its citizens a sense of involvement and participation in public affairs through a device called Election. There was an era when the elites came into power despite the resistance of the weaker sections of the society. Except to weep and bear the atrocities, they did not have any choice of selecting their ruler. To a large extent, such status quo does not prevail today. Now, voters opt for rulers of their choice after verifying full details thereof. Is there any necessity of keeping the voters in dark about the details of candidates? In a vibrant democracy, a voter is required to know bio-data of his would be Rulers. In Union of India v. Association for democratic reforms, Supreme Court has directed that the candidates has to furnish information regarding their educational qualifications, involvement in criminal cases, assets and liabilities. Similarly, under Article 324 of the Constitution of India, the Election Commission is directed to call for information on affidavit from each candidate seeking election to Parliament or State legislature to furnish about his educational qualification, involvement in criminal cases, assets and liabilities as a part of his nomination paper. Any false concealment of the information regarding the educational qualification shall invoke Section 125A and Section 75A (5) of the Act, which creates an offence punishable by imprisonment for six months or fine for failure to furnish affidavit in accordance with S.33A, as well as for falsity or concealment in affidavit or nomination paper as well as willful contravention of Rules regarding asset disclosure may be treated as breach of privilege of the House. It was also observed by the Supreme Court that the disclosure of information regarding educational qualifications of a candidate is not an essential component of the right to information flowing from Article 19(1) (a). By not providing for disclosure of educational qualifications, it cannot be said it is a violation of Article 19(1) (a). In an ultimate analysis the information regarding educational qualification is not a vital and useful piece of information to the voter.

The Supreme Court has taken a paradigm shift with regard to the educational qualification of the Candidates with its recent judgement, where it casts duty upon the Candidates to furnish correct information about their educational qualification. It is also evident from Rule and Form 26 of the Act that every voter has a fundamental right to know the educational qualification of the Candidate. Even if it is found in later stage that a candidate has concealed his educations details, the election can be declared as void. There is a compulsion on the candidates that all information about a candidate, who contest in election must be available in public domain as exposure to public scrutiny was one of the means to cleanse the democratic governing system and have competent legislators. This could ensure transparency and better way of governance.

Rini Mathew

Student, School of Law, SASTRA University

Compensation Claims by Investors for Moral Damages in State Arbitration Disputes

Investor State Arbitration and disputes between States and investors relating to the use of the States’ natural resources go back to the first half of the 20th century . Investor-state arbitration provisions in a treaty, permit a private investor from a state that is a party to the treaty to seek compensation for injuries that the investor suffers as a result of measures of another party state that are not consistent with the substantive obligations in the treaty. Concerns about the investor-state process are multiple and varied, however one of the most frequently raised question is ” Whether monetary compensation for moral damages should be paid? The answer to this question is, though moral damage is an elusive concept and is “difficult to measure or estimate by money standards” it nevertheless remains that it is “real” and must therefore be compensated. Moral damage is not a new concept in international law. It has long been recognized by international tribunals. The well-known basic principle of reparation in International law is stated in Article 31 of the ILC’s Articles on State Responsibility which provides that a state must make full reparation for any “injury” caused to another state by an internationally wrongful act. The same provision further states that the concept of “injury” includes “any damage, whether material or moral, caused by the internationally wrongful act of a State.”

Investors have claimed compensation for moral damages in several disputes. Arbitral tribunals established under investment treaties have also awarded monetary compensation for moral damages suffered by foreign investors as a result of treaty breaches committed by the host state of the investment. However, until now the issue of moral damages had arisen only in a handful of investor–state disputes. In 2008 and 2009 five arbitration awards discussed the issue. In Desert Line Projects LLC v. Yemen, the arbitral tribunal awarded an amount of U.S.$1 million in compensation to the claimant. The tribunal further held that Yemen should provide compensation to a corporation for its officers’ psychological suffering which resulted directly resulting physical actions, i.e. physical duress and measures of coercion, interference conducted by the army.

The concept of “moral” damage is a vague and uncertain concept. In its most broadest sense, it means the opposite of “material” damages, i.e. damages that entail a financial or an economic loss. Claims have been submitted for moral damages suffered by both natural persons and legal entities. However more recently, respondent states have also submitted counterclaims requesting compensation for moral damages alleging having suffered an injury to their reputation as a result of “fraudulent” arbitral proceedings commenced by foreign investors. There are a number of cases where the tribunal decided not to address the allegation raised by the claimant, tribunal dismissed a claim for moral damages because of its late filing, while two others rejected claims because they lacked jurisdiction over the disputes. Moreover in six cases, tribunals dismissed moral damages claims based on lack of evidence while in two of them they did so without discussing the issue. Thus, we can conclude that the question of compensation for moral damages is necessarily fact driven and will always depend on the specific circumstances of a case.

Revamping Criminal Justice System- A Journey Towards Inquisitorial Approach

Law should not sit limply, while those who defy it go free and those who seek its protection lose hope”. Jennison v. Baker

India is a country which holds a rich history of criminal jurisprudence. Dating back to the time of Manu, till advent of western jurisprudence, India has witnessed tremendous changes in methods of administration of justice. As a gift of common law, India adopted an adversarial approach to deliver justice which continues even today. But with change of time, the criminal justice system in India has lost its charm, the lacunae have erupted, people have started to lose their confidence on it and thus arises a need to revive the true spirit of criminal justice system.

A country’s criminal justice system is a system of law enforcement which directly involves in apprehending, prosecuting, defending, sentencing and punishing those who are guilty of criminal offences. A state’s primary duty is to maintain law and order in the society and to protect the life and liberty of citizens. In India, we have an adversarial approach of criminal justice system which has its roots in common law. In such system, the burden of proof lies totally on the prosecution and unless it is proved there is always a presumption of innocence of the accused. Not only this, the accused holds right to remain silent. Any decision would be concluded on the basis of facts established and evidences produced, and judge can make no additional inferences. Thus in such a system there is no positive duty on judge to find the truth and he plays a passive role. As a matter of fact, the judge in his anxiety to be neutral takes no initiative of his own to discover the truth and even if there are aberrations and lacunae in investigation, he doesn’t correct them. This method of justice delivery has several loopholes. Mostly the accused escapes the conviction because of faulty investigation, failure of prosecution to prove guilt beyond reasonable doubt or inordinate delay and the plight of the victims remains unnoticed. Because of several maladies the confidence of people on the Indian justice system has eroded tremendously.

The other form of criminal justice administration is inquisitorial approach which prevails in France, Germany, Italy, etc. Such system gives power to the judge to deliver a fair decision. Here the evidence against the accused is gathered in a neutral manner. The judicial police officers investigate and draw documents. An important feature of the Inquisitorial System is that in respect of serious and complex offences investigation is done under the supervision of an independent judicial officer and the Judge of Instructions who for the purpose of discovering truth collects evidence for and against the accused. They properly investigate the case, issue warrants, direct search, examine witness, arrest accused etc. The trial judges are inquisitors who actively take part in fact finding inquiry. They question the defence, prosecution and witnesses. They even order the examination of evidences. This system has been widely appreciated throughout the world because unlike adversarial form, there are higher conviction rates. There is a provision in the Criminal procedure code under section 311 which provides that judge of trial court is empowered to summon any person, at any stage, in any proceeding, if his evidence appears to be essential for just decision of case. Though just like in inquisitorial system, it gives power to judge to initiate an action on his own but in true spirit this provision remains a dead letter.  Rarely any judge or magistrate summons on his own and ultimately it depends on the prosecution to prove the guilt of accused. If he fails, the accused is acquitted regardless of his guilt.

In Nellore v. Intna Ramana Reddy the court opined that ‘every Criminal trial is a voyage of discovery in which truth is the quest. It is the duty of a presiding Judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice. In India, truth is a cherished ethos since ages immemorial. It is that pillar of criminal justice system which must always stand high. For common man truth and justice are used synonymously and if truth fails then justice automatically fails. But can we say that truth is kept at highest pedestal in our criminal justice system? With this form of judicial administration, the answer cannot be assertive. Dr.R.Venkataraman, Former President of India had observed that, “the adversarial system is the opposite of our ancient ethos. In the Panchayat justice, they were seeking the truth, while in adversarial procedure, the judge does not seek the truth, but only decides whether the charge has been proved by the prosecution. The judge is not concerned with the truth; he is only concerned with the proof. Those who know that the acquitted accused was in fact the offender, lose faith in the system”. Adversarial system is a narrow view to the role of trial judges. Law should speak through judges. But if the judges themselves remain silent, can justice truly prevail? A law ministry paper on strengthening the criminal justice system says pending serious criminal cases have increased from 2.1million in 2009 to 2.8 million in 2014, and in 58% cases tried in 2014, the accused was either discharged or acquitted. The measure which may be taken to curb this includes assignment of “more pro-active role to the judges to give directions to the investigation officers and prosecution agencies and leading evidence with the object of seeking the truth and focusing on justice to victim”. The judicial officers must be trained to appreciate the nuances of the law.

Ascribing to our current system, judges must become active truth seekers. The quality of investigations will improve if there is someone to oversee its correctness. The judicial procedures shall be simplified further by bringing in a synergy between the vital units- the police, prosecution and judges/magistrates. With this our system would become more efficient, faster and people friendly. Our country needs a radical change in criminal justice system. The adversarial system cannot sustain individually and it’s not possible for India to make a complete transition into inquisitorial system, hence the features of both the systems can be clubbed together. This as a result would bring a sound, effective and efficient system. It is the duty of state to ensure that that the guilty is punished and innocent is protected and to uphold this golden rule, a reform in Indian criminal justice system is the need of the hour.

Jhankruti Badani

Student, LL.M., M.N.L.U.

20 Years Of Arbitration And Conciliation Act

The Arbitration and Conciliation Act was enacted in 1996 for the very first time with the objective to promote arbitration, particularly International Commercial Arbitration as a to resolve the disputes. On 25th January 2016, the Act completed its 20 years. The annunciation of Arbitration and Conciliation Ordinance 2015, amending certain provisions of the previous act was a step forward towards providing ease of dispute resolution in India. Some of the landmark judgments that have to shape the arbitration landscape in India are Gurunanak Foundation Case (1981) 4 SCC 634, ONGC V. Saw Pipes (2003) 5 SCC 703, Bhatia International v. Bulk Trading (2002) 4 SCC 105, National Insurance Company v. Boghara Polyfab (2009) 1 SCC 267, Chloro Controls P. Ltd v. Water Purification Inc.(2013) 1 SCC 641 ZA, Associate Builders v. Delhi Development Authority (2015) 3 SCC 49, State of West Bengal V. Associated Contractors (2015) 1 SCC 32. Thus the Act of 2015 will help in revamping the dispute resolution mechanism in India and making India a preferred seat of arbitration. Some of the Key amendment of the act are :

  • The word “Court” was redefined for the purpose of international commercial arbitration to mean only the High Court however for the purpose of domestic arbitration it shall remain the same.
  • Section 12 was amended to the affect that the person shall disclose about the existence of any relationship when he is approached in connection with the appointment of the arbitrator which is likely to give rise to justifiable rights .
  • Section 14 states that the court may substitute the arbitrator on termination of the mandate of the arbitrator.
  • A proviso to Section 2(2) has also been added which envisages that subject to the agreement to the contrary, Section 9, 27 and 37(1)(a), 37(3) shall also apply to international commercial arbitrations, even if the seat of arbitration is outside India.
  • Interim measures by Arbitral Tribunal: Under section 17 of the amended Act an arbitral tribunal shall have powers that are available to court under Section 9.
  • Apart from the above mentioned, amendments in Sections 2(1)(e) , 2(1)(f)(iii), 7(4)(b), 8(1) and (2), 9, 11, 14(1), 17, 23, 24, 25, 28(3),29A,29B, 31(7)(b), 34 (2A) 37, 48, 56 and in Section 57 are also proposed for making the arbitration process more effective.

However the amended Act has missed out on some points. The arbitration process should be simple and less technical. The proceedings of arbitration must adhere to the principles of natural justice and must be in consonance with procedure and practice which may lead to proper dispute resolution. A pool of experienced professionals must be created who can be trained and certified as arbitrators instead of just appointed retired SC and HC judges as arbitrators. The Indian Arbitration Amendment Act 2015 has also missed out on incorporating the concept of emergency relief and joinder of parties as present under the Hong Kong International Arbitration Centre (HKIAC) Rules 2013. Further use of teleconferencing and video- conferencing should be encouraged to replace formal sittings of the arbitral proceedings as it would save time and aid in a more efficient conduct of the arbitration proceedings .

Geared in the same spirit, a three day conference on ‘National Initiative towards Strengthening Arbitration and Enforcement in India’ was organized by NITI Aayog in which critical and pertinent issues, experience of international arbitration and the future roadmap of strengthening arbitration in India were discussed. It was inaugurated by President Pranab Mukherjee and was supported by six international arbitration institutions, industry associations and legal fraternity of India. Several lacunae of arbitration in India and creative criticisms came through during the discussions. Thus, just as the amendment brought to 1996 Act has proved to be a step forward towards making arbitration expeditious, efficacious and a cost effective remedy, the suggestions and creative criticism received through the conference would also certainly travel an extra mile towards achieving the objectives of the Act and would thus help the country achieve the perfect solution or elixir imagined for arbitration in India.

Sneh Bhimta

Student, UPES, Dehradun

One Nation, One Law- Uniform Civil Code

The concept of Uniform Civil Code (hereinafter referred to as UCC) is being deliberated widely today. It has been envisaged in Article 44 of the Constitution of India in Part IV, which deals with Directive Principles of State Policies, which aren’t enforceable by any court, but they play a significant role in the governance of the country. The question that would ascend in the minds of readers is what exactly comprises civil code. Generally, it shall include all the civil laws of a specific community or nation. In legal terms, it shall include all personal laws of any religious or ethnic community, which would also include criminal laws and any other customs or more which are practiced by such a community. There exist an emerging need for the implementation of UCC and make uniform personal laws.

Since DPSP’s are not enforceable by Courts, in many occasions, the Supreme Court of India has directed the Parliament to frame UCC. In 1985, in the case of Mohammad Ahmed Khan v. Shah Bano Begum, popularly known as the Shah Bano case, a claim for maintenance had been initiated by a penniless Muslim woman from her husband under Section 125 of the Code of Criminal Procedure after she was given triple talaq from him. Invoking Section 125 of C.P.C, the Supreme Court held that the Muslim woman has a right to get maintenance from her husband. In addition, the Court also remarked that Article 44 of the Constitution has remained a dead letter. It was observed by the then Chief Justice of India Y.V. Chandrachud that, a common civil code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies. Shah Bano case decision was curtailed by way of enactment of Muslim Women (Right to Protection on Divorce) Act, 1986, which curbs the right of a Muslim woman for maintenance under Section 125 of the Code of Criminal Procedure.

The second occurrence in which the Supreme Court again directed the government for implementation of UCC was in the case of Sarla Mudgal v. Union of India. The issue was whether a Hindu husband, married as per the norms of Hindu law, can solemnize second marriage by embracing Islam. The Court held that the first marriage can be dissolved under the Hindu Marriage Act, 1955. The first marriage would therefore, still be valid and under Hindu law. Under Section 494 of the Indian Penal Code, 1860 the second marriage, solemnized after his conversion, and would be illegal. The Court has reminded the government to have a re-look into Article 44 of Indian Constitution, which suggest Uniform civil code for the citizens. Court felt that there is need to retrieve the concept of UCC from cold-storage where it is lying since enactment of the Constitution.

In 2003, the Supreme Court has again made a cue to the government about the constitutional obligations to enact a UCC, in John Vallamatton v. Union of India when the doors of the Court was knocked by a Christian priest challenging the constitutional validity of Section 118 of the Indian Succession Act. A writ petition was filed by a Priest stating that Section 118 of the said Act was discriminatory against the Christians as it impose unreasonable restrictions on their donation of property for religious or charitable purpose by will. The Court struck down the Section declaring it to be unconstitutional, and also stated that – “Article 44 provides that the State shall endeavor to secure for all citizens a uniform civil code throughout the territory of India It is a great regret that Article 44 of the Constitution has not been given effect. Parliament should take step in for framing a common civil code in the country. A codification of common civil code will help the cause of national integration by removing the contradictions based on ideologies.”

Recently, the heroic battle put up by Muslim women against the practice of triple talaq has once again brought into focus the lack of a uniform civil code in India, where the Supreme Court has issued another reminder to the Government on having a uniform civil code in India after hearing a petition filed by a group of Muslim women claiming that the personal law superseded their fundamental rights.

Secularism v. Uniform Civil Code

The spine of controversy revolves around whether the codification of a civil code replacing the personal laws would end up in affecting the strong religious feeling. The preamble of the Constitution states that India is a secular democratic republic, which means that there is no State religion and no person shall be discriminated on the basis of religion. A State is only concerned with the relation between man and man, and not concerned with the relation of man with God. It was held in S.R.Bommai v. Union of India, religion is the matter of individual faith and cannot be mixed with secular activities. Secular activities can be regulated by the State by enacting a law.

UCC is not against the concept of secularism or will not be violation of Article 25 and 26, which deals with right to freedom of religion. In the words of Article 44, in a civilized society, there is no necessary connection between religion and personal law. Law can regulate those matters which are of secular nature, i.e., marriage, succession and like. The UCC will not and shall not result in interference of one’s religious beliefs relating, mainly to maintenance, succession and inheritance. UCC will not compel a Hindu to perform a nikah or force a Muslim to carry out saptapadi. But there will be a common law in the matters of inheritance, right to property, maintenance and succession.

Obstacles exist with regard to codification of UCC, it shouldn’t be again repackaging of existing personal laws. Rather, it shall sculpt a balance between protection of fundamental rights and religious dogmas of individuals.

To conclude, the intention behind the concept of UCC in the Constitution to effect an integration of India by bringing all communities on a common place on problems which are governed by personal laws. Despite the odds stacked against it, the uniform civil code will one day become a reality. The plea for a uniform civil code rests upon harassments and gender inequality rather than ecclesiastical considerations. Such new interpretation would broaden the scope of discussion and also helps to keep religious arguments and the resultant communal out of it.

 

Rini Mathew

Student, School of Law, SASTRA University

Prohibition of Benami Property Transactions Act, 2016

“If the country has to progress, the citizens must respect the system, institutions and rule of law. It is evident that efficiency and effectiveness in governance are not sustainable without probity, transparency and accountability.”

Prohibition of Benami Property Transactions Act is a step taken by government which will help to strengthen the legislation against accumulation and menace of black money empowering  the taxman to confiscate and hold ‘Benami’ property.

Benami literally means ‘nameless‘ or ‘without a name‘. Thus, a transaction is considered to be benami when the consideration for a property that is transferred to a person or held by that person is paid by another person and the property is held for the future benefit, direct or indirect. Person holding the benami transaction is termed as ‘benamidar’ and the person for whose benefit the property is held is called ‘beneficial ower’. To curb corruption and check  generation of domestic black money the government introduced new Benami Transaction (Prohibition) Bill which provides for stringent measures against violators.

Benami Transactions (Prohibition) Act was first passed in 1988 to put an end to such transactions, and to empower the government to recover such property. The Act of 1988, had several inherent loopholes, including the absence of an appellate mechanism and lack of provisions for vesting of the confiscated property with the Centre. Owing to these infirmities, the UPA  government introduced a Benami Transactions (Prohibition) Bill, 2011, to replace the 1988 Act, which however lapsed with the dissolution of the 15th Lok Sabha. The NDA government again introduced the Bill with the amendments to make it stronger and target benami transactions. The Bill seeks to ensure that if any person enters into a benami transaction in order to evade tax or avoid payment to creditors i.e. the ultimate beneficiary owner or persons abetting or inducing any person to undertake such a transaction shall suffer rigorous imprisonment.

The National Assembly’s Standing Committee on Finance approved the draft of Benami Transactions (Prohibition) Act, 2016 on August 16, 2016 and the Benami Transactions (Prohibition) Amendment Act, came into force on November 1, 2016, renaming the existing Benami Transactions (Prohibition) as the Prohibition of Benami Property Transactions Act (PBPT Act). The purpose of this legislation is to prohibit property in ‘Benami’ with the objective to restrict the right to transfer benami properties and provide mechanism to confiscate benami properties as these transactions are generally taken to fraud creditors, evade taxes and avoid social and political risk in holding property .The 2016 Act has also safeguarded mechanisms such as the adjudicating authority and the appellate mechanism for appeals. However, transactions and arrangements such as properties held by a person in fiduciary capacity, properties acquired out of the known sources of income by an individual in the name of spouse or children and properties acquired in the joint name of individuals and lineal ascendant or descendant acquired from the know sources of income of the individuals shall be excluded from the purview of benami transactions and arrangements.

Thus, 2016 portends to be a pertinent year with Prohibition of Benami Property Transactions Act (PBPT Act) coming into effect from November 1, 2016 which is one of the most important legislation introduced in the country which will have far reaching consequences inter alia in the fields of finance, tax and banking sectors.

Sneh Bhimta

Student, UPES, Dehradun

When the screen goes blank: An analysis of contemporary regulatory mechanism

The media plays an important role in the 21st century. In modern economies and societies, the availability of information is pertinent and central to better decision making by citizens and consumers. Citizens require information about candidates to make intelligent voting choices in political markets while investors and consumers require information to select their products in economic and  financial markets. The availability of information is a crucial determinant of the efficiency of political, financial and economic markets and media helps to provide the same. In most countries including India, citizens and consumers receive the information they need through the media, including newspapers, television, and radio. The media serve as the intermediaries and act as a link that collects information and makes it available to citizens and consumers.

The government’s 24-hour ban on NDTV India raise some crucial questions like: How the media is optimally organized?; Are newspapers or television channels state or privately owned?; Is the media industry organized as a monopoly or is it organized competitively? because the concerned channel is considered an eloquent critic of the government. NDTV has challenged the government’s one-day ban of its Hindi channel in the Supreme Court as it was ordered off-air on Wednesday with the government accusing it of broadcasting sensitive information about January’s terror attack on the air force base in Pathankot.  However NDTV refuted the allegations and the same has been condemned by several journalists and editors also. Drawing parallels to the Emergency of 1970s they further added that the freedom of press which is one of the basic constitutional rights has been blatantly violated as the centre appears to give itself the power to intervene in the functioning of the media and take punitive action when it does not agree with the coverage. Defending the same the Information and Broadcasting Minister Venkaiah Naidu said that it was “in the interest of the country’s security” and that the barrage of criticism confronted by the government appears to be “politically inspired.

Thus, the premise of the virtual world is freedom and the government, journalists and others who have a stake in freedom of expression must work together more effectively ensuring that the virtual world stays ahead. Government ownership and interference of the media is detrimental to economic, political, and most strikingly to social outcomes. Freedom of expression is a fundamental freedom guaranteed under article 19. Everyone has the right to freely express their feelings, thoughts and emotions. Thus,” Everyone has the right to freedom of opinion and speech; the right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers“. However it must be subject to certain restrictions, i.e. the government should control such communications up to a certain limit. Thus we can conclude that, media interactions has to be controlled by government but such form of control must not interfere with the fundamental right i.e. the right to freedom of speech and expression and freedom of press.

Sneh Bhimta

Student, UPES, Dehradun

Is Fraud Open To Arbitration?

The most contentious issue in arbitration is the arbitrability of fraud. This involves the questions such as what can be and cannot be submitted to arbitration. The recent judgment of the Supreme Court, in A Ayyasamy vs A Paramasivam & Ors, has settled the law and provides much-needed guidance on this subject.

Earlier, it was held by the Supreme Court, in N Radhakrishnan v. Maestro Engineers, held that where fraud and serious malpractices are alleged, the matter can only be settled by the court and such a situation cannot be referred to an arbitrator. Generally, fraud, financial malpractice and collusion are allegations with criminal repercussions, and the arbitrator has only limited jurisdiction. On the other hand, courts are more armed to adjudicate complex allegations, and can offer a wider range of relief to the parties.

However, the view taken by Supreme Court in World Sport Group (Mauritius) Ltd vs MSM Satellite (Singapore) Pte Ltd. And Swiss Timing Ltd v. Organising Committee, Commonwealth Games 2010, Delhi. It was held in these cases that allegations of fraud cannot be considered as a bar to refer the parties to a foreign-seated arbitration, and Section 45 of the Arbitration and Conciliation Act, 1996 is the only bar to refer parties to a foreign-seated arbitrations. Generally, it would involve the cases where the arbitration agreement is either (i) null and void; or (ii) inoperative; or (iii) incapable of being performed.

The Supreme Court was dealing with an application under Section 45 of the Arbitration and Conciliation Act, 1996 in World Sports. According to Section 45, a party can be referred to  arbitration unless the arbitration agreement is null and void, inoperative or incapable of being performed, and is applicable only on foreign seated arbitration. Although the Supreme Court has clarified the position of law, it can only be applicable to foreign seated arbitration.

The Supreme Court dealt with an application under Section 11 of the Arbitration and Conciliation Act, 1996 in Swiss Timing, for appointment of an arbitrator in an international commercial arbitration. Though, there are many Supreme Court judgements which suggest that under Section 11 the limited scope of enquiry should be confined to existence of a valid arbitration agreement. Various criticsm raised by the Swiss Timing case is (a) decision on arbitrability in a Section 11 is a determination on the jurisdiction of the arbitral reference, which otherwise ought to be decided by the arbitral tribunal under the principle of competene-competence, (b) the ration of Radhakrishnan cannot be used here as the case was decided by a divisional bench whereas the Swiss Timing was held by the single bench, (c) the decisions made under Section 11 of the Act lacks precedentiary value, based on the view of Supreme Court in West Bengal v. Associated Contractors  held that the decision of the Chief Justice or his designate in a Section 11 application, not being the decision of the Supreme Court or the High Court, as the case may be, has no precedential value, being a decision of a judicial authority which is not a court of record.

The Supreme Court has settled the debated in Ayyasamy case, it has been held that: (a) allegations of fraud which are in serious and complex nature are not; (b) the fraud alleged should be against the arbitrable agreement, if not it cannot be arbitrated; (c) the decision of Swiss timing was not overruled by Radhakrishnan. The judgement merely differentiates he simplicitor fraud and serious fraud. It was concluded that serious fraud should be left to be determined by the court and the simplicitor fraud can be decided by the arbitral tribunal.

There are lots of divergent views in differentiating between simple and serious fraud. There are a lot of judicial pronouncements which dealt with simple and serious fraud but a strict definition has not been given by the Court. There is a need for clarity on the subject. The judges are left with the construction and interpretation of the terms based on the facts and circumstances of the case.

Rini Mathew

Student, School of Law, SASTRA University

The Navjote Ceremony Controversy

On the 2nd November, 2016, news broke out that the Navjote ceremony of  Dadi Mistry’s grandson was declared ‘Null and void’ by the members of the Parsi community. The issue raised was of that the father of the child in question was a non-Parsi. The members angered by this controversial initiation, wrote to Yazdi Desai, chairman of the Federation of Parsi Zoroastrian Anjumans of India, to consider this illegitimate inclusion.

In the Parsi community, children born out of a wedlock between a Parsi man and a Non-Parsi woman are welcomed into the Parsi community and are consequentially allowed to enter the Fire Temple. Sadly, this is not the case where a Parsi mother had opted to wed a Non-Parsi. Her children are not entitled to undergo a ‘valid’ Navjote.  Navjote, is a religious ceremony in the Zoroastrian community initiating Parsi children into the religion.

It is claimed by the protestors, that those who funded the Fire Temple would not have willed for such an illegitimate inclusion into the community, enraged by the fact that this practice has been in form since quite some time violating their customs. They brush off the contention of Prophet Zarasthura being a convert, by asserting the minimalistic presence of other religions at the time. They believe this faulty decision would haunt the members in approval of such a practice.

This discrimination is one among many in the Parsi sect. The women have now put their foot down and are contesting the existence of such norms. Apart from a violation of the Discrimination clause, it also assists in undermining the population of this minority community. It essentially limits the choice of male partners for the female Parsis, restricting them to their community. This has discouraged many a Parsi women from marriage, lest they get proposed by their cousins.

Relying upon how this initiation would be void, merely on the fact of historical precedence of customs would be ruinous. Customs must hold a dynamic characteristic. There have been a number of instances wherein customs have been altered or abolished with time. The practice of Dowry being a classic example in India. A static idea would result in the under development of the community at large, which is undesired.

The outcome of this controversy is yet to be declared.  Hopefully, this proves to be another stepping stone to the goal of securing equality between the sexes.

Citizenship Amendment Bill, 2016

The Citizenship Act, 1995 was proposed to an amendment on the 15th July, 2016. The Act has been altered to include the following-

 “Provided that persons belonging to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, who have been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any order made thereunder, shall not be treated as illegal migrants for the purposes of this Act.”

The recent outbursts in Assam, primarily led by the All Assam Students Union, on this issue has elevated to a large extent inviting focus of the Central Government to review its decision of recognizing the Hindu immigrants from Bangladesh for an Indian Citizenship. They have urged the Government to pay a visit to the state to analyze their decision further. They have also hinted at a possibility of the state witnessing a comeback of the ‘Anti-Foreigner Movement’ in the 1980s, if their demands are overlooked.

The Assamese have been suffering from an Identity Crisis, leading to the Assam Accord in 1985. The Accord provided the Assamese culture and language with a protective shield post the Anti-Foreigner Movement. There have been several discords of the definition of an ‘Assamese’ as well.

This series of historical conjunctures make this Amendment quite a sensitive issue to be dealt with, in the State. However, this move by the Central Government would terminate the requirement of valid travel documents or valid proof of Indian Citizenship since Citizenship could be availed by means of naturalization. This process requires the proof of an intention to reside within the territory of India for not less than six years*. Thus allowing the Hindus and other mentioned communities of Non- Indian origins to abandon their status of being ‘Illegal Immigrants’. In my opinion, this would merely increase the citizenship count thus requiring more resources to fund the increased demands, after, of course, stirring the public order situation in Assam. It must be the prerogative of the State to primarily protect the public interest and all decisions must be furthered from this notion. This move, would require contemplation on the lines of what would prove to be a greater good for the society.

 

 

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