Statutory Bar Precludes the Applicability of Arbitration and Conciliation Act, 1996

Under section 8 of the Arbitration and Conciliation Act, 1996 (“Arbitration Act”), the concerned judicial authority is obliged to refer the parties to arbitration, if the action brought before it is also the subject matter of an arbitration agreement.  Recently, Supreme Court of India (“Supreme Court”), while delivering the judgment in Ranjit Kumar Bose & Anr v. Anannya Chowdhury & Anr, has held that a statutory bar (in other legislation) would preclude the applicability of Arbitration Act. That is, if a legislation prohibits reference of a matter to arbitration, the Arbitration Act will not be applicable [see: sec. 2(3), Arbitration Act]. 

Facts: Through an unregistered tenancy agreement [“Tenancy Agreement”], the Appellants (Rajnit Kumar Bose & Anr.) had inducted the Respondents (Anannya Chowdhury & Anr) as tenants with respect to a shop room. Later, the Appellants terminated the Tenancy Agreement and sought the vacation of the shop premises. The Respondents did not vacate the premises; as a consequence, the Appellants filed a Title Suit against the Respondents (in a Civil Court) for eviction, arrears of rent etc. As there existed an arbitration clause in the tenancy agreement, the Respondents filed an application under section 8 of the Arbitration Act for referring the matter to arbitration. The Civil Judge dismissed the Respondent’s application; however, on filing an application against Civil Judge’s order, the High Court held in favour of the Respondents. The High Court further held that issue of arbitrability, if any, will be decided by the arbitral tribunal.

In reaching its conclusion, the High Court had relied on the decision(s) of the Supreme Court in, (i) Hindustan Petroleum Corporation Ltd. v. Pinkcity Midway Petroleums [(2003) 6 SCC 503]; (ii) Agri Gold Exims Ltd. v. Sri Lakshmi Knits & Wovens & Ors.[(2007) 3 SCC 686];  and (iii) Branch Manager, Magma Leasing & Finance Limited & Anr. v. Potluri Madhavilata & Anr. [(2009) 10 SCC 103]

Relevant Legislations: the West Bengal Premises Tenancy Act, 1997; Arbitration and Conciliation Act, 1996

Enercon Case: Pro-Arbitration Approach and Determination of Arbitration ‘Seat’

In what can termed as an important development in Arbitration Law, the Supreme Court of India (“Supreme Court”) has delivered a 129-page judgment wherein issues such as ‘factors determining seat of arbitration’, ‘concurrent jurisdiction of foreign court’ etc. have been discussed. In Enercon (India) Ltd. & Ors v. Enercon GMBH & Anr. , the Supreme Court had to decide appeal(s) against two judgments of Bombay High Court – one judgment which allowed the application of the respondent under section 45 of the Arbitration and Conciliation Act, 1996 (“Arbitration Act”) and other  judgment vacating the anti-suit injunction issued against the respondent.

Before going to and discussing underlying issues, it would first be important to understand the factual background.

Factual Background: In 1994, Appellants no. 2 and 3 (“Members of Mehra Family”) entered into a Joint Venture Agreement (“JVA”) with Respondent no. 1 (“Enercon GMBH”) to incorporate Appellant no.1 [“Enercon (India) Ltd.”]. The objective behind incorporating Appellant no.1 was to manufacture and sell Wind Turbine Generators (“WTG”). In furtherance of JVA, both the parties executed certain agreements which included Share Holding Agreement and Technical Know How Agreement (“TKHA”) (these agreements were later amended). 

After the expiry of TKHA, there were further negotiations between the parties. These negotiations, which were recorded in a document titled ‘Heads of Agreement’, sought to explore the possibility of agreement to transfer future technology developed by the Respondents. Following these negotiations, parties entered into ‘Agreed Principles’, which were meant to be the basis of all the final agreements. On the same day when ‘Agreed Principles’ were executed, parties also executed and signed Intellectual Property License Agreement (“IPLA”). IPLA contained an arbitration clause (Clause 18) which can be read as follows:

17 GOVERNING LAW

17.1  This  Agreement  and  any  dispute  of  claims arising out of or in connection with its subject matter are  governed  by  and  construed  in  accordance  with the Law of India.

18. DISPUTES AND ARBITRATION

18.1 All disputes.....................any  Party  may refer  dispute(s), controversy(ies) or difference(s) for resolution  to  an  arbitral  tribunal  to  consist  of  three (3) arbitrators, of who one will be appointed by each of  the  Licensor  and  the  Licensee  and  the  arbitrator appointed by Licensor shall also act as the presiding arbitrator.

18.2 ....................

18.3  A  proceedings  in  such  arbitration  shall  be conducted  in  English.  The venue of the arbitration proceedings shall be in London. The arbitrators may (but  shall  not  be  obliged  to)  award  costs  and reasonable  expenses  (including  reasonable-fees  of counsel)  to  the  Party  (ies)  that  substantially  prevail on  merit.  The provisions of Indian Arbitration and Conciliation Act, 1996 shall apply........”

As disputes arose between the parties, Respondent(s) sought to initiate arbitration proceedings thereby nominating an arbitrator. Respondents further sought to file an ‘Arbitration Claim Form’ before the English High Court. This initiation of arbitration was resisted by the Appellants on the ground that there was no ‘concluded contract (IPLA)’ and hence there was no question of arbitration. While Appellants claimed that IPLA was not a concluded contract because of its non-conformity with ‘Agreed Principles’, Respondents claimed it to be a binding contract.

Earlier "Adverse Remarks" can be considered for Compulsory Retirement

Even if the adverse remarks/record were made in the past, it can be taken into account for determining the 'overall performance' of an employee. This view has been taken by the Supreme Court of India (“Supreme Court”) in the case of Rajasthan State Road Transport Corp. & Ors. v. Babu Lal Jangir, decided on 16^th September, 2013. In this case, the pertinent question which arose for consideration was – whether the adverse entries/record of an employee, being not made in ‘immediate paste’, can be taken into consideration for ordering a premature/compulsory retirement? Answering the question in affirmative, the Supreme Court noted that while considering the premature retirement of an employee, it is the entire service record which is taken into consideration.

(Image Source: Thomas Carroll Group Website)

Facts: The respondent, Babu Lal Jangir, joined the services of the appellant, Rajasthan State Road Transport Corporation (“Corporation”), on the post of driver. On the recommendation of Screening Committee and Review Committee, an order was passed against the respondent thereby ‘compulsory retiring’ him from the service. Against this order, respondent filed a writ petition before the High Court of Judicature for Rajasthan (“High Court”). Through counter-affidavit, it was submitted by the appellant (appellant before the Supreme Court, i.e., Corporation) that the service record of the respondent showed a dismal performance, and hence, the order of compulsory retirement was justified. However, The single judge of the High Court held the order of compulsory retirement arbitrary on the ground that the impugned acts of misconduct, which showed dismal picture of performance, pertained the period 12 years prior to the order of retirement. This view of the single judge was upheld by the division bench of the High Court. Hence, the matter came before the Supreme Court.

Counsel must exhibit circumspection in the number of cases they cite: Supreme Court

Today, a division bench of the Supreme Court of India (“Supreme Court”) has made an important observation (Rashmi Metalinks Ltd. & Ors v.Kolkata Metropolitan Development Authority & Ors.) regarding the plethora of cases cited by the counsels. The Court observed that:

                                       “This Court, and even more so the High Court as well as the subordinate courts have to face lengthy arguments in each case because of the practice of citing innumerable decisions on a particular point of law. The correct approach is to predicate arguments on the decision which holds the field......”

(Image Source: Wikipedia)

The problem, according to the bench of Justice T.S. Thakur and Justice Vikramajit Sen, is not with the cases which deal with different questions of law. But, the main problem arises when each of the cited cases deals with the same question of law in the same manner. Senior Advocates K.V. Vishwanathan and A.M. Singhvi had appeared for the appellants and the respondents respectively. Both of them relied heavily on numbers on judgments of the Supreme Court which, in the opinion of the Court, were similar in nature. According to the court:

Medium of Instruction in Primary School: Can it be made mandatory by the Government?

“Whether a student or a parent or a citizen has a right to choose a medium of instruction at primary stage?”

Most likely, one would answer this question affirmatively. The answer, however, may not be that easy. A division bench of the Supreme Court of India (“Supreme Court”) has, in a set of writ petitions [State of Karnataka v. The Associated Management of (Govt. Recognized unaided English medium) Primary and Secondary Schools & Ors], referred this question to a Constitutional Bench. Whatever will be the outcome of the case, the same will definitely have far reaching consequences on primary education in the country. 

The present case, by means of an appeal against the division bench judgment of the Karnataka High Court (“High Court”), had been filed by the State of Karnataka.

(Image Courtesy: Google Images)

Factual Background:

In 1982, Government of Karnataka (“State Government”) issued an order thereby prescribing that Kannada shall be the sole first language from 1^st standard of primary school itself. The order was challenged before the High Court, which held this as unconstitutional.  Thereafter, in 1989, State Government, vide an order (“1989 Order”), made “mother tongue” as the medium of instruction at the primary school level. Along with this, State Government made it obligatory for one to take “Kannada” as second language, if the same has not been chosen as the first language. The 1989 order was challenged before the Supreme Court in English Medium Students Parents Association vs.  The State of Karnataka & Ors, which consequently upheld it.

Following this, in 1994, State Government came up with another order (“1994 Order”) which, after revising the policy, made the ‘medium of instruction’ from 1^st to 4^th standard in all schools recognised by the State Government as either Kannada or mother tongue. Contending 1994 order as violative of Articles 14, 19(1)(a), 21, 29(2) and 30(1) of the Constitution of India (“Constitution”), writ petitions were filed before the High Court. By its order, full bench of the High Court quashed the disputed clause No. 2, 3, 6 and 8 of the 1994 Order with its application to schools other than the schools run or aided by the Government. It is against this order of the High Court that the State Government has preferred an appeal before the Supreme Court, i.e., the present case.

What is the issue?

On one hand, it is the State Government that wants schools recognised by it to impart primary education in mother tongue or Kannda. On the other hand, there is a group which [consisting of parents and the schools] wishes to impart such primary education in English language. If one does not want one’s wards to study in a particular language; or, if one wants them to study in a particular language, can such wish be declined by the State Government? This is, in fact, a very vital question.

On behalf of the State Government, arguments were made by P.P.Rao, Senior Advocate and an eminent constitutional lawyer. He argued that the High Court failed to notice the mandate behind Article 350A of the Constitution, and further argued that the High Court ignored the decision of Supreme Court in English Medium Students Parents Association vs.  The State of Karnataka & Ors

On the other hand, counsel for the respondent contended that English Medium Students Parents Association case did not go into the question of medium of instruction. Rather, it dealt only with question of mother tongue/Kannada as one of the language. However, Supreme Court, in the present petition, held that the English Medium Students Parents Association case dealt with the question pertaining to the “medium of instruction”.

In conclusion, following are the significant questions that will be decided by the Constitutional Bench:

(i)What does Mother tongue mean? If it referred to as the language in which the child is comfortable with, then who will decide the same?

(ii) Whether a student or a parent or a citizen has a right to choose a medium of instruction at primary stage?

(iii) Does  the  imposition  of  mother  tongue  in  any  way affects  the  fundamental  rights  under  Article  14,  19, 29 and 30 of the Constitution?

(iv) Whether  the  Government  recognized  schools  are inclusive  of  both  government-aided  schools  and private & unaided schools?

(v) Whether  the  State  can  by  virtue  of  Article  350-A  of the  Constitution  compel  the  linguistic  minorities  to choose  their  mother  tongue  only  as  medium  of instruction in primary schools?

Settlement for waiving maintenance claim not to bar maintenance under Hindu Adoption and Maintenance Act, 1956

A recent ruling of the Supreme Court (“Nagendrappa Natikar Vs. Neelamma”), which is both cautionary and remedial in nature, has opined that giving up future claim for maintenance (“by a compromise settlement”) and the fact of it being accepted by the court under Section 125 of CrPC, would not preclude a wife from claiming maintenance Section 18 of Hindu Adoption and Maintenance Act, 1956. The main reason behind this is the tentative nature of the maintenance under Section 125 of CrPC. In this short judgment, Court held that:

“Section 125 Cr.P.C. is a piece of social legislation which provides for a summary and speedy relief by way of maintenance to a wife who is unable to maintain herself and her children. Section 125 is not intended to provide for a full and final determination of the status and personal rights of parties, which is in the nature of a civil proceeding, though are governed by the provisions of the Cr.P.C. and the order made under Section 125 Cr.P.C. is tentative and is subject to final determination of the rights in a civil court.”

“Section 25 of the Contract Act provides that any agreement which is opposed to public policy is not enforceable in a Court of Law and such an agreement is void, since the object is unlawful. Proceeding under Section 125 Cr.P.C. is summary in nature and intended to provide a speedy remedy to the wife and any order passed under Section 125 Cr.P.C. by compromise or otherwise cannot foreclose the remedy available to a wife under Section 18(2) of the Act.”

Note: Under Indian Contract Act, 1872, Section 23 & 24 provides for the "unlawful". However, Court, in this judgment, has referred to Section 25 of the Act which provides for an agreement to be void if it is without consideration. Click here for the judgment

Section 26 of the Specific Relief Act, 1963: Rectification of an Instrument and Undue Influence

Section 26 of the Specific Relief Act, 1963 (“Act”) provides the means to rectify a contract or any other instrument which, by mutual mistake or fraud, does not express the real intention of the parties. However, when an agreement provides for the entire subject matter and does not show any sort of ambiguity, applicability of this section will not arise.[1]

On 12^th March, 2013, Supreme Court (“Court”), in Joseph John Peter Sandym (“Appellant”) v. Veronica Thomas Rajkumar & Anr (“Respondent”), had to decide a question concerning the applicability of Section 26 of the Act. In this case, deceased father executed two registered settlement deeds thereby transferring two houses in favour of the appellant and the respondent (“they are siblings”). On an allegation by the appellant that wrong houses have been provided to them, contesting parties executed an “unregistered deed” for exchanging the houses. Since respondent did not give effect to this unregistered deed, appellant filed a suit before the trial court. During the pendency of the suit, father of the contesting parties executed a rectification deed by which allotment of houses to the parties was changed. Following this, decision of the trial court, which was decreed in favour of the appellant, was overruled by the High Court. Against this, appellant filed an appeal before the Supreme Court.

Supreme Court, while determining the scope of Section 26 of the Act, held that it does not have a “general application”, and can be attracted only in a limited number of cases.

“The relief of rectification can be claimed where it   is   through   fraud   or   a   mutual   mistake   of   the  parties   that   real   intention   of   the   parties   is   not   expressed   in  relation to an instrument”[2]

Admissibility of an “unregistered instrument”

While deciding the outcome of the case, court also dealt with the question of admissibility of an unregistered instrument. In doing so, court referred to the case of State of Bihar & Ors. v. Radha Krishna Singh & Ors., AIR 1983 SC 684, wherein it was held that:

“Admissibility of a document is one thing and its probative value quite another - these two aspects cannot be combined. A document may be admissible and yet may not carry any  conviction and weight of its probative value may be nil.”[3]

Onus of “Proof”

In this case, Court was also of the view that onus of proving the validity of an instrument is on the one (“plaintiff”) who produces it, and not on the other party (“defendant”).[4] As far as fiduciary relationship is concerned, the   burden   of   proving   the   absence   of   fraud, misrepresentation   or   undue   influence   is   upon   the   person   in   the dominating position.[5]

Undue Influence

Court also dealt with the issue of undue influence in this case. While doing so, court referred to Afsar Shaikh & Anr v. Soleman Bibi & Ors, AIR 1976 SC 163 wherein the it had laid down the conditions before which one can allege the presence of undue influence.

“..if   a   person   seeking   to   avoid   a  transaction on the ground of undue influence  proves-

(a)   that   the   party   who   had   obtained   the  benefit was, at the material time, in a position to dominate the will of the other conferring  the benefit, and

(b) that the transaction is unconscionable,

the burden shifts on the party benefiting by  the   transaction   to   show   that   it   was   not induced by undue influence. If either of these two conditions is not established the burden will not shift

With regard to undue influence, court, in case of Afsar Shaikh, referred to a judgment of Privy Council wherein it was held that if the transaction appears to be unconscionable, then the burden is on the person exercising dominating will to disprove the existence of undue influence.[6] Burden, in this situation, can be understood as the burden to provide the absence of undue influence. However, the first thing to be considered is the relation of the parties and not the unconscionable transaction.

Outcome of the case

After considering the above positions in relation to Section 26 of the Specific Relief Act, undue influence and onus of proof, Court, in Joseph John Peter Sandym v. Veronica Thomas Rajkumar & Anr, held that there was a presence of undue influence, In support of this, court confirmed the findings of the high court that at the time when exchange deed between the parties was executed, respondent was not married and was dependent on the appellant for sustenance. 

---

[1] Subhadra & Ors. v. Thankam,  AIR 2010 SC 3031

[2] Also see State of Karnataka & Anr. v. K. K. Mohandas & etc, AIR 2007 SC 2917

[3] Also see  Madan Mohan Singh &  Ors v. Rajni Kant & Anr, AIR 2010 SC 2933, H.Siddiqui (dead) by Lrs. v. A.Ramalingam AIR 2011 SC 1492; Laxmibai (dead) thr. Lrs. & Anr v. Bhagwantbuva (dead) thr Lrs. & Ors, JT 2013(2) SC 362

[4] See Thiruvengada   Pillai   v.   Navaneethammal   &   Anr,  AIR  2008   SC   1541; K. Laxmanan v. Thekkayil Padmini & Ors., AIR 2009 SC 951

[5] Krishna   Mohan   Kul  v. Pratima Maity & Ors.  AIR 2003 SC 4351

[6] Raghunath Prasad v. Sarju  Prasad,  (AIR 1924 PC 60)

Retrospective Application of an amended Procedural Law: Right of Action v. Right of Forum

Unless otherwise mentioned in the text of a statute, usually it has a prospective application. The main purpose behind such a principle is to avoid multiplicity of proceedings and litigation for the decided matters. However, this principle of prospective application is not applicable where a provision is of procedural nature. Such a prospective application is applicably only to the substantive part of a statute.

One such issue had come before the Supreme Court (“Court”) in the case of Ramesh Kumar Soni v. State of Madhya Pradesh wherein Court held that enactment of a procedural provision usually has a retrospective application. This is because of the fact that a person has a “vested right of action” but not a “vested right of forum”. In this case, following the passage of Code of Criminal Procedure (Madhya Pradesh Amendment) Act, 1973, offences under Section 467, 468 and 471 of Indian Penal Code, 1860, were made triable by the Court of Sessions instead of a Magistrate of First Class. Subsequently, a reference was made to the M.P. High Court for clarifying the applicability of this amendment. By its order, Full Bench of the High Court held that all cases pending before the Court of Judicial Magistrate First before the amendment remained unaffected and were triable by the Judicial Magistrate First Class.

At a time when investigation was pending in his case, appellant, relying on this decision of Full Bench of the High Court, filed an application before the Judicial Magistrate for remission of his case ("his case was transferred to the Court of Sessions"). The same was rejected by the Judicial Magistrate and was consequently affirmed by the High Court. In appeal, Supreme Court held that a case must be deemed to be instituted only when the Court competent to take cognizance of the offence alleged therein does so. In this situation, no charge-sheet was filed before the court, and hence, no case was pending before the judicial magistrate when amendment came into effect. However, Supreme Court did not concur with the Full Bench  of High Court in relation to the prospective application of the Amendment Act.

As far as the question of retrospective application of amendment Act was concerned, Court referred to its decision in the case of Hitendra Vishnu Thakur and Ors. etc v. State of Maharashtra and Ors. (1994) 4 SCC 602, wherein it summed up the legal position with regard to the procedural law being retrospective in its operation and the right of a litigant to claim that he be tried by a particular Court. Following were the principles laid down by the court:

(i) A statute which affects substantive rights is presumed to be prospective in operation unless  made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be  retrospective in its application, should not be given an extended meaning and should be strictly  confined to its clearly defined limits. 

(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature. 

(iii) Every litigant has a vested right in substantive law but no such right exists in procedural law. 

(iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished. 

(v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication.”

However, for the cases decided by a court before change in the law, the same shall not become illegal merely because an amendment has changed the forum of trial. If allowed, it will lead to multiplicity of litigation [See: Baburam v. C.C. Jacob and Ors. (1999) 3 SCC 362]. Hence, Court referred to its decision in the case of Nani Gopal Mitra v. State of Bihar AIR 1970 SC 1636 whereby it held that

“amendments relating to procedure operated retrospectively subject to the exception that whatever be the procedure which was correctly adopted and proceedings concluded under the old law the same cannot be reopened for the purpose of applying the new procedure”

Apart from the applicability of an act, court also referred to the prospective application of a precedent, a doctrine invoked by this court for the first time in I.C. Golak Nath and Ors. v. State of Punjab and Ors. AIR 1967 SC 1643. By this principle, all actions taken contrary to the declaration of law, prior to the date of the declaration are validated (“in larger public interest”).

In conclusion, it can be said that though a person can move to new forum by virtue of change in law, he cannot do so if the case has already been decided. Otherwise, there will appear a problem every time a change in law is carried out. That would certainly not be in public interest.

Mediation and Marriage Disputes: Supreme Court ruling in K. Srinivas Rao v. D.A. Deepa

With modes of alternative dispute resolution (“ADR”) emerging as a popular mechanism, their influence on marriage disputes is inevitable. Further, given the delicate nature of marriage disputes and their abysmal consequences for the couple and their families, litigation only makes the dispute worse. This is evident from the manner in which parties keep on accusing each other in a litigating dispute. In litigation, instead of resolving the dispute in an amicable manner, it rather becomes a matter of winning and losing the game. These matrial disputes, usually arising from trivial problems, can be settled amicably at an early stage.  It is at this early stage that the usage of alternative dispute mechanisms becomes important.

In the recent case of K Srinivas Rao v. D.A. Deepa, Supreme Court considered the importance of mediation as a means for settling a marriage dispute amicably. The case that, by special leave, came before the Court was related to a dispute whereby husband had sought divorce on the ground of mental cruelty. While granting divorce, Justice Ranjana Prakash Desai referred to the case of Samar Ghosh v. Jaya Ghosh, in which Supreme Court had laid down some guiding principles for determining mental cruelty. In the instant case of K Srinivas Rao, wife filed criminal cases against the husband and his family members (including a case under Section 498-A). She also made an allegation that the mother of the husband asked her to sleep with the father of the husband. After discovering the presence of mental cruelty, court also opined that the marriage had broken down irretrievably.  

What for Mediation?

Considering the importance of mediation in matrimonial disputes, Court noted that 10 to 15% of the matrimonial disputes get resolved by various mediation centres. Since the cause of the misunderstanding in a matrimonial dispute is usually trivial at first, the same, in the opinion of the court, can be sorted out by a mediator before it takes the shape of a furious legal battle. Following observation was made by the bench:

“We, therefore, feel that at the earliest stage i.e. when the dispute is taken up by the Family Court or by the court of first instance for hearing, it must be referred to mediation centres. Matrimonial disputes particularly those relating to custody of child, maintenance, etc. are preeminently fit for mediation. Section 9 of the Family Courts Act  enjoins upon the Family Court to make efforts to  settle the matrimonial disputes and in these efforts,  Family Courts are assisted by Counsellors. Even if the Counsellors fail in their efforts, the Family Courts  should direct the parties to mediation centres, where trained mediators are appointed to mediate between the parties. Being trained in the skill of mediation, they produce good results”

At the same time, court also observed that there can, very often, be situations when one of the parties files a case under Section 498A of IPC. Since offence under Section 498A is non-compoundable, it is usually not possible to circumscribe it by means of a settlement (“A successful mediation results into a settlement”). In fact, Supreme Court, in Ramgopal & Anr. v. State of Madhya Pradesh & Anr.[ (2010) 13 SCC 540], had requested the Law Commission and the Government of India to  examine whether offence punishable under Section 498-A of the IPC could be made compoundable.

As an interim solution to this problem, the court can approve the result of mediation (“even in the presence of a case under Section 498A of IPC”) by using its inherent powers. If a dispute can be solved amicably and marriage can be saved, there is no point in dragging up the issue in a litigation. In B.S. Joshi & Ors. v. State of Haryana & Anr.[ AIR 2003 SC 1386],  Court had held that

“...complaint involving offence under Section 498-A of the IPC can be quashed by the High Court in exercise of its powers under Section 482 of the Code if the parties settle their dispute.”

In the instant case, court made the following final observation:

“In terms of Section 9 of the Family Courts Act, the Family Courts shall make all efforts to settle the matrimonial disputes through mediation. Even if the Counsellors submit a failure report, the Family Courts shall, with the consent of the parties, refer the matter to the mediation centre

The criminal courts dealing with the complaint under Section 498-A of the IPC should, at any stage and particularly, before they take up the complaint for hearing, refer the parties to mediation centre if they feel that there exist elements of settlement and both the parties are willing..” (Emphasis supplied)

While first observation is appearing to be of mandatory character, the latter appears of a recommendatory character.

This is yet another case which shows how alternative dispute mechanisms are important. However, success of mediation in matrimonial disputes largely depends on the co-operation between the parties. From my own experience at a family mediation centre, I have seen the decision of the parties getting influenced by their relatives, parents. In such a situation, the possibility of them coming to an amicable solution reduces. Nonetheless, there is no harm in making parties resort to such a mechanism (at least 10-15% cases are settled by it)!

Death Penalty - Uncertain Procedure and Life of an Individual

“The judgment does not, with respect, indicate the material that led this Court to conclude what aroused the intense and extreme indignation of the community. Except the nature of the crime, it is not clear on what basis it concluded that the criminal was a menace to society and “shall continue to be so and he cannot be reformed” ( Supreme Court in “Sangeet & Ors. v. State of Haryana” )

Given the grave nature of certain crimes, imposition of Death Penalty has, for a long time, come out to be a proper way of their valid redressal. But, what constitutes this grave nature that will make a crime qualify to be a “rarest of the rare crime”? This has rather been a matter of dispute.

Recent decision of the apex court in the case of Sangeet & Ors v. State of Haryana (decided on Nov. 20, 2012) has once again thrown light on the debate surrounding the issue of death penalty. In this case, an entire family but one was brutally murdered. Considering the nature of crime to be heinous, appellants were sentenced to death by the trail court which, on appeal, was confirmed by the Punjab & Haryana High Court. While discussing the issue, Supreme Court referred to the two landmark judgments Jagmohan Singh v. State of U.P. (1973) 1 SCC 20, decided in accordance with former CrPC Code (1898), and Bachan Singh v. State of Punjab (1980) 2 SCC 684, decided in accordance with the fresh CrPC Code (1973). A number of other cases were also discussed in the judgment.

Change in the nature of Sentencing w.r.t “Death Penalty”- Since 1974, when a fresh CrPC (1973) came into force, the nature of sentencing in cases, where maximum punishment is death penalty, has significantly changed. In earlier code, death penalty appears to be the rule and life sentence an exception (as also other sentences).[1] Contrary to this, under the fresh code, death penalty appears to be exception and life imprisonment a rule.[2]

Ultimately, considering the uncertainty in the procedure governing death penalty in this case, appeal was allowed by the Supreme Court and death sentences were converted into life imprisonment.


"The Constitution Bench made it absolutely clear that the suggestions given by learned counsel were only indicators and not an attempt to make an exhaustive enumeration of the circumstances either pertaining to the crime or the criminal. The Constitution Bench hoped and held that in view of the “broad illustrative guide-lines” laid down, the Courts “will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3) [of the Cr.P.C.] viz. that for persons convicted of murder, life imprisonment is the rule and death sentence an exception." - para 28 

Earlier this year, I came across an article titled “A case against the death penalty”, published on Frontline, which thoroughly examined the issue of death penalty and inconsistencies therein. If one compares this article with the judgment in Sangeet case, the debatable issues are principally the same. Article highlighted a group of retired judges who came in rescue of those wrongly convicted with death sentences. Unfortunately, two of the convicts, who were wrongly convicted, were already executed in 1996 and 1997. According to the retired judges, this “constituted the gravest known miscarriages of justice in the history of crime and punishment in independent India.”

Article 21 of the Constitution of India, 1950, provides to every person a life and personal liberty. This right of life and personal liberty can only be taken away by a procedure established by law. In the light of Maneka Gandhi v. Union of India, it has now become clear that this procedure cannot be “arbitrary, unfair, oppressive or unreasonable”. In India, Code of Criminal Procedure, 1973, empowers the judges to provide a death penalty, and for doing so, reasons are to be noted. But what are the criteria for providing these reasons? Seeing the absence of any such proper mechanism, Supreme Court, in the case of Bachan Singh (supra), came up with certain principles. Unfortunately, these principles have not been followed uniformly. In Bachan Singh (supra), court was of the opinion that due weightage should be given to both the crime and the criminal, instead of crime alone. It was also held that death penalty should be given only in rarest of rare crime. Further, Section 235 of CrPC empowers the judge for giving a judgment once the arguments are heard. Of Course, discretion should be left to the judge deciding a particular case. But, should the life of a person be made subject only to this discretion? Should not there be certain basic principles to be followed with certainty? In the absence of such a certainty, life of a person will depend merely on the what a judge thinks of. There can be a situation when one judge may provide a death sentence, but other judge, on the same facts and circumstances, may not. Whether it should be crime and criminal, or the criminal alone, is a matter which needs thorough deliberation. Reverting back, do all these circumstances leave the procedure under Article 21 of the Constitution  as reasonable? In my opinion, the substantive part of the procedure under Article 21 needs more clarity as far as the death penalty is concerned. In the absence of such a clarity, the life of an individual, though an accused, will be at stake. It is true that certain crime are so grave that death penalty may be warranted for it. Nonetheless, procedure of providing death penalty should have some certainty

From the judgment of the Court in Sangeet Case, and also other cases mentioned therein, it is clear that  in awarding death sentence, there has not been a consistency in the principles followed. Much discretion is provided to the judge in determining what constitutes rarest of rare crime. This uncertainty in the decisions is also because of the change in the judges serving the apex and other courts. It is high that that, if not abolition, then a uniformity should appear in such grave convictions.

contact - abhinav.s@nujs.edu

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[1]See Code of Criminal Procedure, 1898, Section 367(5)

[2] See Code of Criminal Procedure, 1973, Section 354(3)

Compensation Under Public Law Remedy – A Review of Uphaar Cinema Judgment

The decision of Supreme Court in case as regards Uphaar Cinema tragedy which occurred back in the year 1997 may have come along with several criticisms for reducing the amount of compensation. But, it has been able to throw light on certain imperative aspects of law, specifically the recourse which shall be adopted while awarding compensation under Public Law Remedy. Public Law remedy, as distinct from Private Law Remedy, can be exercised by the Constitutional Courts (High Courts and Supreme Court) under Article 226 and 32 of the Constitution of India, 1950. The judgment encompasses two parts, first part deals with the liability of the officials under Public Law, and secondly it deals with the amount of compensation which can be awarded under Public Law Remedy.

The appeals have been filed by Municipal Corporation of Delhi, Commissioner of Police (Licensing Authority) and M/s. Ansal Theatre and Clubotels Pvt. Ltd. These appeals are against order of Delhi High Court.

A separate judgment was delivered by Justice K.S. Radhakrishnan wherein he discussed the issue as regards Constitutional Tort.

Public Law Remedy

A Public Law can be defined as those laws which construct a relationship between Individuals and the state. Constitution is one such kind of law, and remedy provided therein under such law can be termed as a Public Law Remedy. In the instant case also, original suit had been filed before the Delhi High Court under Article 226 of the Constitution, on the ground that impugned irregularities and the negligence on the part of the appellants led to the infringement of Right to Life as provided under Article 21 of the Indian Constitution. The remedy provided by the court under such category will not be categorised under ordinary tort law, rather it would be categorised under Constitutional Tort Law. Supreme Court in this case relied on the judgment of Rabindra Nath Ghosal Vs. University of Calcutta and Ors. (2002) 7 SCC 478, where it had been held by the court that by means of moulding relief under Article 32 or 226 penalises the wrong doer or the state monetarily for the wrong which they have committed. Further, court was of the firm view that before any action can be taken against state, it shall be unquestionably being shown that the acts of the public functionaries were arbitrary and capricious that eventually left victim helpless.

Extent of the Liability of Public Functionaries under Public Law Remedy

In the instant case, court discussed its judgment in Rajkot Municipal Corporation v. M.J. Nakum (1997) 9 SCC 552, wherein it had been held by the court that a mere omission to do something which cannot reasonably give rise to a legal action against the state. Court relied on this judgment with reference to the contentions put forth by the MCD for exonerating it from all the claims. It can be concluded from this judgment that in order to succeed in a claim against the state under Public Law Remedy, claimant has to prove his claim substantially. A Canadian Judgment in the case of John Just v. Her Majesty The Queen -- (1989) 2 SCR 1228 was discussed by the court along with some English and other Canadian Cases. In this Case, Canadian Supreme Court had held that –

“...In order for a private duty to arise in this case, the plaintiff would have to establish that the Rockwork Section, having exercised its discretion as to the manner or frequency of inspection, carried out the inspection without reasonable care or at all. There is no evidence or indeed allegation in this regard......I would therefore dismiss the appeal.”

Supreme Court was of the view that just because an authority owes a public law duty under any statue, it cannot in any way mean that such a statue will give rise to a duty of care, The wordings of the judgment can be read as follows –

“A duty of care at common law can be derived from the authority's duty in public law to give proper consideration to the question" whether to exercise power or not (p.411). This public law duty cannot by itself give rise to a duty of care. A public body almost always has a duty in public law to consider whether it should exercise its powers but that did not mean that it necessarily owed a duty of care which might require that the power should be actually exercised............ An absolute rule to provide compensation would increase the burden on public funds”

Eventually, MCD was exonerated from its liability on the ground that an authority cannot in any manner be held liable merely because of the reason that it had discharge some duty, or it failed to discharge its duty in a proper manner. The same should be grave. MCD’s liability was only limited to the action which it ought to have taken against the parapet wall raised by the Licensees. At the time when the wall was raised, MCD was not the sanctioning authority, instead PWD was responsible. And by the time MCD was conferred with this sanctioning power, the wall was already in existence for some 20 years. And this turned out to be the prime factual point which eventually favoured MCD. Nonetheless, this did not exonerate Delhi Vidyut Board (“DVB”) and Licensees. Also, MCD was exonerated because parapet wall did not turn out be the prime reason for the tragedy to take place. Rather, it was the inside construction carried out by the Licensees in the hall.

Amount of Compensation under Public Law

While dealing with this matter, court came across the calculation carried out by the Delhi High Court while awarding damages to the claimant. High Court framed out the average income of the deceased persons, and thereafter multiplied it with the digit 15 in order to conclude the final amount to be awarded to each of the claimants. In this matter, High Court awarded Rs. 18 lakhs to the legal heirs of those deceased aged 20 years or more, and Rs. 15 lakhs to the legal heirs of those deceased persons aged 20 years or less. Supreme Court put itself in front of a question that whether the impugned method adopted by the High Court in awarding compensation could have actually been carried out by means of a Public Law Remedy under Article 32 and 226 of the Constitution. The nature of compensation awarded under Public Law Remedy is palliative in nature, and the same cannot be equated with the damages under civil law. A person can approach a civil court if he is not satisfied with the compensation under Public Law Remedy. This position can be derived from the stand of Supreme Court in the case of Rudul Sah vs. State of Bihar [1983 (4) SCC 141, and the same line of reasoning can be found in the case of Sube Singh vs. State of Haryana [2006 (3) SCC 178]. Further, Court while discussing the issue of compensation under Public Law in the case of Nilabati Behera alias Lalita Behera vs. State of Orissa [1993 (2) SCC 746]

“The compensation is in the nature of 'exemplary damages' awarded against the wrong doer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law.”

Supreme Court, in the case, was of the opinion that considerable amount of compensation by means of Public Law Remedy is not safe and this turned out to be the reason for the reduction of compensation by the Supreme Court. Nonetheless, Supreme Court made arrangements for the speedily. In determining the amount of compensation, factors which play crucial role are

The first is the age of the deceased, the second is the income of the deceased and the third is number of dependants (to determine the percentage of deduction for personal expenses)

Reference as to these criterion can be made to the Judgment of Supreme Court in Sarla Verma v. Delhi Transport Corporation (2009) 6 SCC 121

But, the same amount shall exclusively be borne by the Licensees i.e. Theatre Owner.

Punitive Damages

Punitive damages are also known as exemplary damages, and are awarded so as to deter the defendant from carrying out any such action in future. In the instant case, Delhi High Court awarded Rs. 2.5 crore to the claimants by means of Punitive Damages. But this view of the High Court was not appreciated by the Supreme Court. High Court, while calculating the damages, took into account the 52 seats which had additionally been installed in the theatre. But, High Court ignored that fact that sanction was given to the installation of 37 seats by the Delhi High Court at the time of installation. Hence, Supreme Court calculated the benefit which was derived out by the theatre owners in the between the period 1979-1996, which eventually reduced the damages from Rs. 2.5 crore to Rs. 25 Lakhs.

Separate Judgment of Justice K.S. Radhakrishnan

The separate judgment of Justice Radhakrishnan dealt with the issue of Constitutional Tort. He aptly pointed out the shortcomings in the existing remedy under Public Law, and recommended that a specific legislation is urgently required so as to address the compensation claim under Public Law. He opined that most of the cases under Public Law which come before the court are very often based on violation of personal liberty, right to life or human rights.

Sovereign Immunity

Sovereign Immunity is a legal concept which depicts that a state cannot commit any wrong. But, there can be circumstances when state can be held liable for the wrongs committed by its functionaries, and for those acts no sovereign immunity can be claimed. In the absence of action against state, fundamental rights may act only as a unresponsive provisions. This issue was discussed by Justice Radhakrishnan, and he referred to the judgments of State of Rajasthan v. Vidyawati AIR 1962 SC 933, Kasturi Lal v. State of U.P. AIR 1965 SC 1039 to signify that there is a distinction between sovereign functions and non-sovereign functions of the state. While, state cannot be held liable for the former, it can incontestably be held liable for the latter. In N. Nagendra Rao v. State of A.P., AIR 1994 SC 2663, it had been held by the Supreme Court that in modern era, emphasis is more on the liberty, equality and rule of law and less emphasis is on the efficiency and dignity of the state as a juristic person in comparison to the former. Further, court in this case was of the view that when public official can be held liable in their personal capacity, there is no reason why state cannot be held liable for the same.

Constitutional Tort

Constitutional Tort, according to Justice Radhakrishnan, found its expression in the case of Devaki Nandan Prasad v. State of Bihar 1983 (4) SCC 20, For this purpose, case of Khatri & Others v. State of Bihar & Others (1981) 1 SCC 627, where a claim was brought before the court for the infringement of fundamental right enshrined under Article 21 of the Constitution.

Other Judgments - Sebastian M. Hongray v. Union of India, AIR 1984 SC 1026, Bhim Singh v. State of J. & K. (AIR 1986 SC 494), Saheli v. Commissioner of Police, Delhi, (AIR 1990 SC 513), Inder Singh v. State of Punjab (AIR 1995 SC 1949), Radha Bai v. Union Territory of Pondicherry AIR 1995 SC 1476, Lucknow Development Authority v. M.K. Gupta (AIR 1994 SC 787), Delhi Domestic Working Women's Forum v. Union of India, (1995) 1 SCC 14, Gudalure M.J. Cherian v. Union of India 1995 Supp (3) SCC 387, Sube Singh v. State of Haryana 2006 (3) SCC 178

In other words, it would not be wrong to say that sovereign immunity cannot be claimed for the cases involving violation of fundamental rights. This position of law can be found in the case of Nilabati Behera v. State of Orissa (AIR 1993 SC 1960), where in it had been held by the court that a remedy provided in the form of fundamental rights is based on the strict liability of the state, and the same cannot be compared with the remedies provided under private law, or in the words of the court –

“It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution."

At the same, no strait jacket formula can be applied in computation of the compensation for claim made under Public Law (D.K. Basu vs. Union of India (1997) 1 SCC 416). And the remedy shall only be invoked under special and extreme circumstances where grave violation of fundamental rights has been proved.

abhinav.s@nujs.edu