Tag: #SupremeCourt

-Report by Zainab Khan

A bench consisting of SC judges of Justice U.U.Lalit, Justice Ravindra Bhat, Justice Sudhanshu Dhulia hearing a civil appeal in the case of the University of Kerala and ors. Etc. Vs Merlin J.N and anr.etc.etc held that regulations passed by UGC’s have a retrospective effect on the appointment of university Lecturers, which gives them exemption from the compulsory qualification of NET.

FACT

Appellant had qualified M.Phil in the year 2000 and completed his Ph.D. in 2006. He was appointed as a lecturer of sociology at the University of Kerala on 4.08.2012. The university provides him exemption from compulsory NET qualification while selecting him. The respondent who was ranked 2 nd in the selection process in the same category, filed a writ petition before the Kerala High court alleging that the appellant’s appointment was not in accordance with UGC, REGULATION 2009.

The HC court ruled on 1.02.2017 that the appellant was not qualified to hold the post of Lecturer, the court relied on the judgments of Suseela Vs. University Grants Commission and Dr. D Radhakrishnan Pillai Vs. The Travancore Devaswom Board.

APPELLANT CONTENTION

The counsel for the appellant argues that his appointment was made as per the law, as university has adopted the UGC regulations, 2009 on 23.11.2013 which is after the appointment of the appellant. The counsel further argues that the resolution passed by UGC in its 471 meeting on 12.08.2010 that Ph.D regulation 2004 and UGC regulation
2009 were of prospective nature.Hence appellant’s appointment should be declared as valid.

RESPONDENT CONTENTION

Counsel for respondent argues that respondent is more capable than appellant as she had qualified for her NET exam in 1998 and done Ph.D. later and since then she is working in Kerala university as a teacher. The counsel further argues that the UGC resolution on 12.08.2010 is contrary to UGC regulation 2010 and the central Government also disagrees with this resolution.

Counsel argues that the appellant should not take benefit of ph.d regulation 2009 and UGC regulation 2016 , as these have prospective effect and he has completed his ph.d before both regulations.

Key highlights of UGC amendments –

• UGC regulation 2000 states NET as an essential condition for appointment as a lecturer in any university. But it exempted candidates who acquired M.Phil or submitted a Ph.D. by 31.12.1993 from NET.
• UGC regulation amendment 2002 gives exemption to candidates from NET who acquired their M.Phil by 31.03.1993 or submitted Ph.D. by 31.12.2002.
• UGC regulation amendment 2009, it rules the minimum condition for appointment of the lecturer as NET but exempted those who acquired their Ph.D. in accordance with Ph.D. regulation 2009.
• UGC regulation amendment 2016, provides candidates having a Ph.D. degree before 11.07.2009 also considered to be appointed as lecturers.

JUDGEMENT

The Hon’ble court has observed how UGC is protecting the candidate and learned teachers by giving them exemption from compulsory NET as much possible as it can.

The court ruled that UGC regulation 2016 is retrospective in nature. The court relied on the judgment of Rafiquennessa v. Lal Bahadur Chetri (dead) through his representative and ors.

The Hon’ble court quashed the earlier orders of the Kerala High court and upheld the appellant’s appointment as valid as per UGC regulation 2016.

-Report by Anjana C

It has been held by the Hon’ble Supreme Court of India in the case of Union of India & Anr. v. Subhash Chander Sehgal & Ors. the writ petition stands dismissed, and the current appeal will be pursued.

Facts of the Case: 

• Unsatisfied with the decision of the Delhi High Court, the petitioner has appealed. 
• The possession of the land was taken by the authority in 1987and was utilized as a park by the East Delhi Municipal Corporation. 

In the case of Pune Municipal Corporation and Sree Balaji Nagar Residential Association, the following was said that has been applied to this case: 

• According to Section 24(1)(a), there is no lapse in proceedings if there is an award on the date of commencement of the 2013 Act. 
• If the award has been made within 5 years (excluding the period of an interim order of the Court), the proceedings will be according to the 2013 Act under Section 24(1)(b) under the 1894 Act, regarding it as not repealed. 
• If the possession of land has been taken over and compensation has not been paid, there is no lapse. 
• If compensation is not paid and possession has not been taken, there is no lapse. 
• If the compensation has not been deposited in court, all beneficiaries to the landholding will be entitled, as on the date of notification, to compensation under Section 4 of the 2013 Act.  
• Non-deposit does not result in a lapse of land acquisition proceedings. 
• If compensation has been tendered under Section 31(1) of the 1894 Act, he cannot state that the acquisition has lapsed under Section 24(2) as a result of non-payment or non-deposit of compensation in Court. 
• The obligation to pay is complete when the amount due is tendered in accordance with Section 31(1). 
• Landowners refusing to accept compensation/ who seek reference for a higher compensation are not in the position to claim lapse under Section 24(2) under the 2013 Act. 
• The method of acquiring land under the 1894 Act under Section 24(2) is by making an inquest report/ memorandum. 
• Section 24 applies to a proceeding pending on the date of enforcement of the 2013 Act. It does not reopen cases/ proceedings nor allow landowners to question the legality of the mode of possession.

Judgment of the case: 

If there is no lapse in acquisition proceedings under Section 24(2) of the 2013 Act, the land remains in the possession of the appellant. There will be no question of payment of compensation to the petitioners. It was said that the writ petitioners were entitled to compensation according to the Land Acquisition Act, 1894. All of the above taken into consideration, the Court declared the High Court’s order to be quashed and set aside. The writ petition filed before the High Court was dismissed. 

The present appeal was allowed, and no order was given regarding costs incurred by the parties.

Introduction

Transgender¹ or the third sex denotes those people who cannot align themselves to their given respective biological genders with their inherent biological features. They are usually born as male or female but their innate perseverance of gender turns out to be different from their bodily features. Their self-proclaimed gender identity doesn’t match with their sex leading to the discrepancy in their gender orientation. Transgender, transsexual, and hijra are synonymous with each other and are used to denote them.

Since the dawn of human civilization, the existence of transgender people has been acknowledged but they have been devoid of subsequent approval from mainstream society. Even in this 21st century, such people are viewed as taboo and are subjected to persecution and a state of constant denial. Shame and stigma still continue to characterize such subjects in both public and private spheres thus engendering grave misconceptions. They are systematically denied equal rights in spheres of education, employment, marriage, divorce, inheritance, property, adoption, etc. The rudimentary reason for their denial of equal rights is ambiguity in recognition of their gender status as most of the civil rights especially succession, inheritance, marriage, and property rights are gender-specific and the policymaking in India has been always conceived primarily in respect of only two genders i.e. male and female, thereby preventing them from exercising their civil rights in their desired gender.

National Legal Services Authority vs Union of India

The Supreme Court in its landmark judgment of National Legal Services Authority vs Union of India² declared the transgenders as the third gender and endowed them with the right of self-identification of gender as female/ male / third gender. This self-perceived gender identity forms a very crucial part of one’s right to life under Article 21 of the Indian Constitution. The two-judge bench affirmed their entitlement to the fundamental rights granted to them via the constitution of India. Any denial of their fundamental rights in the civil or criminal sphere owing to their third gender is discriminatory to them. The court held transgenders as socially and economically backward classes (OBC) who are entitled to reservation in educational institutions and public sector appointments.

Constitutional Rights

Article 14 of the Constitution of India states that the State shall not deny to “any person” equality before the law or the equal protection of the law within the territory of India. The phrase “any person” includes transgender too. And article 15 prohibits discrimination against any citizen on grounds of sex. Non-recognition of the identities of transgender/hijras leads to the systematic denial of the rights of equality and equal protection of the law. Article 19 (1) (a) of the Indian Constitution describes that all citizens shall have the right to freedom of speech and expression. It guarantees one of the most basic and fundamental human rights. Expression and alignment of one’s gender is hence an obvious derivative of article 19 (1)(a). Denial of the right to express one’s sexual identity through speech and choice of romantic/sexual partner would lead to violation of Article 19

The Transfer of Property Act 1882 and Miscellaneous rights

The Transfer of Property Act 1882³ and its subsequent amendments regulate the transfer of property. The phrase ‘transfer of property’ denotes a demonstration by which a person transfers or passes the property to at least one person, or himself, and at least one different person. It basically implies the transfer of property from one person to another. The term person consists of an individual, or body of individual or company, or association. Section 5 of the Act provides that transfer of property must take place between two or more persons who are living or it must take place inter vivos. The word “person” above forth holistically includes male, female and third gender. The other property-related laws such as The Hindu Disposition Of Property Act, 1916, The Indian Easements Act, 1882, etc include the word “person” to connote and include transgender within its sphere and do not per se disqualify them from legal transactions.

Inheritance Laws

The inheritance and succession laws lay down rules pertaining to the devolution of property on the death of an individual. The property is devolved on the basis of the relationship between the deceased and the inheritor. The succession laws in India are governed by the respective personal laws of the religious communities that chiefly recognize inheritors into the watertight compartments of the male and female genders. In order to claim property rights, transgenders are required to recognize themselves as male or female.

The Hindu Succession Act 1956⁴ which governs the inheritance of properties is completely silent pertaining to the rights of transgender. It explains who is Hindu and whom all comprise the inheritance schedule (such as son, daughter, spouse, etc.) within the said definition. The Act establishes a comprehensive and uniform system of inheritance. Ownership over the property is granted only to males and females thereby excluding the third gender. Such trans people are devoid of property rights and subject to extreme prejudice and vulnerability. They have to align their genders to respective categories of either male or female in order to claim property rights. So they have to establish their gender identity as per the one assigned to them at their birth certificate. Moreover, trans people are not entitled to the status of legal heir of their parent’s separate property nor coparcener in the Joint Hindu Family with their gender identity.

Similar to the line of succession rules of The Hindu Succession Act, the personal law of Muslims i.e. Shariat too follows similar rules pertaining to transgender property rights. Indian Succession Act, 1925 governs property inheritance of Christians. Notably, Section 44 of the act has included transgender and elucidates upon their inheritance of the ancestral property.

THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019

THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019⁵ has made a decent effort to protect the rights of transgender and promote their welfare by prohibiting discrimination on grounds of education, employment, healthcare, movement, access to goods and services, choice of occupation, etc. The act has sought to remove discrepancies in unfair treatment with regard to the right to reside, purchase, rent, or otherwise occupy any property. Section 4(2) of the Act provides the right to self-perceived gender identity. Section 5 of the Act provides that a transgender person could be perceived as third gender (transgender) by making an application to the District Magistrate for issuing a certificate of identity as a transgender person. But the act does not delineate anything about property rights thereby perpetuating lacunae in the system.

Evolving Sphere

Recently States such as Uttar Pradesh⁶, Uttarakhand, etc have sought to enforce progressive laws on property inheritance of transgender people. It has successfully passed an amendment to include transgender people in the UP Revenue code wherein they will be included in the inheritance nomenclature. The transgender people will now be recognized as members of a landowner’s family and will hold an equal right to inherit agricultural property.

Conclusion

The SC judgment in the NALSA case coupled with THE TRANSGENDER PERSONS ACT, 2019 has sought to create a level playing field by endowing trans people with the right to self-identification and creation of the label of the third gender. Transgenders cannot be denied the right to property per se as they have the absolute right to inherit family property unless disqualified by law. The State must strive to ensure equality of rights and promote the holistic development of the trans community as a whole.

References:

1. FAQs, https://transequality.org/issues/resources/frequently-asked-questions-about-transgender-people
2. WP (Civil) No 400 of 2012
3. https://www.indiacode.nic.in/bitstream/123456789/2338/1/A1882-04.pdf
4. https://www.ijlmh.com/wp-content/uploads/2019/03/Inheritance-Rights-of-Transgender-A-Cry-of-Humanity.pdf
5. https://www.news18.com/news/buzz/why-transgender-people-still-have-to-go-through-hoops-to-get-married-or-inherit-property-in-india-2842545.html

This article is written by Riya Ganguly, 2 nd year BBA LLB student at Bharati Vidyapeeth New Law College, Pune.

Introduction

Tort is a civil wrong, meaning it is a wrong committed against a person. Tort comes from the Latin word “tortum,” which means “crooked” or “twisted.” It is equivalent to the English term ‘wrong’ in this sense. There are two kinds of law: civil and criminal. Tort and contract law are two subsets of civil law. It’s essentially a violation of a legal obligation. It violates the legal rights of others. A tort happens when someone intentionally or carelessly harms another person.

Civilization and law coexist. It is not possible for one to exist without the other. If one thrives, the other develops as well, and if one declines, the other suffers. As a result, tort law was created to deal with everyday offenses.

The Tort Law can be traced back to the Roman precept alterium non-laedere. The maxim means “not to harm another,” implying that no one should be harmed by their actions or words. This maxim is similar to the maxims of honesty vivere, which means “to live honorably,” and suum clique tribuere, which means “to render to every man that which belongs to him,” or “to bring fairness to every person.” The development of tort law can be traced back to these three maxims.

What is Tort according to jurists?

Salmond defined tort as, “It is a civil wrong for which the remedy is a common-law action for unliquidated damages and which is not solely a violation of contract, trust, or other essentially equitable obligation.”

Winfield mentions, “Tortious liability comes from the breach of a primary legal obligation: this duty is owed to all individuals, and its failure is redressable by an action for unliquidated damages,” Winfield says.

The definitions of Winfield and Salmond are incompatible. The practical point of view is represented by Salmond’s definition, but the theoretician point of view is represented by Winfield’s definition. Salmond’s point of view is preferred by lawyers, but Winfield’s is preferred by students. Furthermore, Salmond’s perspective is narrower, whereas Windfield’s perspective is larger.

Application of English Law of Torts in India

In India, tort law is based on English tort law.
The English Law of Torts has a significant influence on Indian tort law, despite the fact that the act has been changed to reflect Indian legislation. When the British ruled India, they established their own set of rules and procedures for administering justice. Jimha, which means crooked in Sanskrit, was believed to be akin to “tortious of fraudulent conduct” in ancient Hindu law. At the time, the scope of British tort was limited.

Because the Indians were utterly uninformed of the English laws, they were found to be unjust and inequitable. It was difficult to administer Indians in the early days of British law since there was an English Judge who had to deal with a case in a foreign language. As a result, they resolved to draught an Indian Tort Law based on English concepts in order to avoid chaos. They chose to set up courts in India in the 18th century after studying the Indian laws at the time and obtaining the necessary approval.

Mayors Courts in the Presidency Towns of Calcutta, Madras, and Bombay were the first courts established by the British in India. These courts were subject to English statutes and Acts, which were then implemented in England.
The courts established that “justice, equity, and good conscience” were the guiding principles at the time. The Privy Council understood the phrase “justice, equity, and good conscience” to include norms of English law that are suitable to Indian society and circumstances. All of this meant that the High Courts of Bombay, Calcutta, and Madras adhered to the Common Law of Torts, while the other courts applied the principles of justice, equity, and good conscience.
Also, when looking at Indian decisions, Justice Bhagwati stated in M.C. Mehta v. Union of India,

“In a highly industrialized economy, we need to develop new ideas and lay down new rules that will effectively deal with new challenges that occur.” We cannot allow our judicial thought to be shaped by the law as it currently exists in England, or for that matter, in any other country. We are absolutely open to receiving illumination from any source, but we must first establish our own jurisprudence.” We can infer from the words that Justice Bhagwati recognized the importance of having one’s own law and how it contributes to the nation’s growth.”

The main purpose of Law of Torts in India

The primary goal of tort law is to provide compensation to people who have been injured. Though, in current times, the goal is to distribute losses among those who are connected in some way.

Furthermore, some authors argue that Tort Law is more concerned with punishing than compensating. For the purpose of Torts, everyone has their own point of view. The violation of a general duty is a common ingredient in both crimes and torts. Murder, robbery, burglary, and other major crimes are all under governmental supervision. The state has power over all common wrongs in Tort Law as well. Individual harm is thought to be equivalent to societal harm.
As a result, the primary goal of tort law is to punish wrongdoers and foster social peace.

Reasons for the slow development of Law of Torts in India

In comparison to other countries, India’s tort law is not well developed. Even the Indian Tort Law does not have a codified version. There are several reasons for India’s sluggish development of tort law, some of which are stated below:

1. The law is ambiguous. People face a great deal of uncertainty because the legislation is not codified and is still in its early phases of development. This is why only a small number of cases are filed under Indian Tort Law. Furthermore, there are few precedents, which adds to the vagueness of Tort law. The existing precedents are from English Tort law and cannot be applied to Indian law.
2. There is a general lack of political awareness among the general public. Because most people are unaware of their rights, tort law is rarely employed in the country. This issue arises as a result of India’s widespread illiteracy, which also causes people to avoid going to court to exercise their rights. People who carry out their responsibilities are given more weight than those who demand their rights.
3. Why do people disregard their legal rights? This is due to a lack of awareness of their rights and the country’s high illiteracy rate. Because of their illiteracy, people are unaware of their rights and are hesitant to seek redress through the courts.
4. Poverty continues to be a factor in India’s delayed development of tort law. The majority of India’s population is economically poor, and as a result, they are unable to afford the hefty costs of litigation. This is still a major reason to avoid bringing a Tort case.
5. The court system is also highly expensive. The cost of going to court and hiring a lawyer is extremely significant. As a result, rather than approaching the court, the poor man chooses to suffer the torture. The cases are likewise handled in a molasses-like manner. On the other hand, in England, the administration of justice is so cheap and quick that these types of cases are resolved in under a year. All of these issues contribute to the tort law’s delayed evolution.

The number of pending cases in India as of October 13, 2018, is depicted in the graph below.

The graph was created using data from the National Judicial Data Grid. Due to the sluggish evolution of Indian legislation, a considerable number of cases are still waiting.

Have Torts been Ignored in India?

The next stage will be to see if the Indian court system has disregarded tort law. Simply said, tort law has not been forgotten. The M.C. Mehta case, which established the absolute liability rule, the Supreme Court’s direction on Multinational Corporation Liability, recognition of Governmental tort by government employees, principles on the legality of the state, the evolution of the tort of sexual harassment, a grant of interim compensation to a rape victim, and award of damages for violations of human rights under writ jurisdiction are all examples of this.

Despite the fact that most areas of law, such as crimes, contracts, property, trusts, and so on, have been systematically organized, India’s lack of a torts code is notable. The work of Indian attorneys and judges has contributed significantly to the evolution of tort law. Tort reform has been advocated for about a century and a half, with the earliest support coming from Sir F Pollock in 1886, who drafted the ‘Indian Civil Wrongs Bill.’ The bill, however, was not brought up for consideration in the legislature.

The value of code cannot be denied, but it is vital to remember that tort law is still in its infancy, and codifying it would not only be difficult but may also stifle its progress. However, the lack of a code prevents torts from becoming the dominant mode of litigation. The evolution of tort law in India pales in comparison to that of other progressive countries, where tort law is substantially more mature.

As previously stated, codification of tort law at this time would be premature. A more prudent approach would be, to begin with, enactments in areas where case law is lacking. The subject of the government’s liability when it comes to torts committed by its workers is one of the first suggestions made by the Law Commission in this regard.

In the report of the commission led by MN Venkatachaliah CJ, the National Commission for Review of the Working of the Constitution (NCRWC) has also recommended a statute that makes the state liable for the torts of its employees (2002). The small volume of tort litigation in Indian courts, on the other hand, contributes considerably to why an Indian code on this branch of law may be premature. Currently, only a small percentage of tort lawsuits are ever brought to court. However, this is a catch-22 since until a code for tort law is developed, there will be few tort cases brought in courts because people have no means of knowing what they are getting into.

Concerns with Tortious Litigation in India

Despite the fact that India is regarded as a litigious country, the number of lawsuits filed is quite modest. This is because of the limits and roadblocks that have been placed in place, including prohibitive fees, lengthy delays, and inadequate harm grants. In recent years, there has been a notable increase in the number of cases completed, particularly in cases involving the administration. This is typically linked to India’s financial development and, as a result, increased awareness of legal rights.

Common law jurisprudence shaped the Indian legal system and was introduced to the Indian people in an uncommon way. Although the English tort law served as a model for its Indian counterpart, its application is still ambiguous and limited. Several decisions and cases involving defamation and contributions between joint tortfeasors plainly illustrate that India cannot and does not adhere to English common law.

The English tort law applied differentially to Presidency towns and the mofussil throughout the colonial era. Indian citizens are exempt from the champerty and maintenance statutes. In fact, only those provisions of English tort law that suit the local conditions in India have been upheld and are valid in India. Given this situation, determining whether a given English statute also applies in India is difficult.

It was also unclear whether a specific statute remained in force in India after being abolished or changed under English law. For such a question, there is no final answer. As a result, unless a judge decided otherwise, it was difficult to know whether aspects of English law were applicable in India. Tort law remained uncodified even after the Constitution took effect. Article 372 of the Indian Constitution states that legislation in effect immediately prior to the adoption of the Constitution remains in effect. Any rulings issued by English courts, on the other hand, are no longer required to be upheld by Indian courts.

These decisions may only have persuasive power at most. As a result, the state of tort law remains unchanged. Because English tort law cannot be applied generally to the Indian setting, Indian tort law as a whole remains ambiguous. Furthermore, there is still a discrepancy in the application of laws in Presidency towns against the mofussil.
Citizens do not have a clear knowledge of their rights and responsibilities before going to court. Lawyers are likewise constrained in how much assistance they can provide in this circumstance because many areas of the law are still uncertain. The judge presiding over the case also has a difficult assignment ahead of him.

It’s simple to understand why victims often accept the wrongdoings they’ve been subjected to without pursuing legal redress. Is there always a way to stand up for one’s rights? The explanation, according to Professor Northrop, could be found in the cultural contrasts between eastern and western nations. Compromise is encouraged in Eastern societies. Furthermore, Asian tribes have a reluctance to use Western, right-wing legislation to resolve their conflicts. As a result, when it comes to torts, there is very little litigation.

People have been skeptical of such sweeping generalizations for a long time, while also urging that we reconsider the need for tort law litigation in India and its repercussions. Such recommendations strongly propose that empirical research be conducted to evaluate the validity of such reasons, which are mostly based on sociological, civilizational, and cultural elements.

If there is one thing that is certain in today’s culture, it is that quality justice is not provided; rather, it can only be purchased at a hefty cost. This is not to imply that the court is corrupt; rather, it demonstrates how a common man cannot even imagine receiving proper recompense for the damages to which he is entitled. This is true because the adversary can always use his money or influence to get around our country’s complicated judicial structure.

The commoner, on the other hand, will face a chain reaction of procedural issues as soon as he approaches the judicial system with his grievance, which will absorb all of his money, willpower, and time. The aggrieved will be obliged to pay hefty lawyer’s fees, court fees, and other incidental charges just to file his claim in court. To the uninitiated, it may not seem true, yet his legal expenses in seeking to recover his losses might sometimes much outweigh the original amount of his claim.

Unfortunately for him, if he loses at the conclusion of the trial, he may be forced to pay even more money to the court, first as costs, and then to file an appeal in a higher court. We haven’t even discussed the length of time it takes to resolve a civil case in India. According to studies, courts in tortious litigation cases take an average of nearly 6 years to reach a judgment. So far, the shortest time it has taken for a tort case to be resolved in 5 years, while the longest time it has taken is 13 years. Even severely harmed people are discouraged from resorting to civil action due to the excessive costs and lengthy decision-making process involved in tort claims.

We have highlighted a few cases that have further discouraged those who have been wronged in order to show the court attitude in such scenarios where compensations must be paid. According to precedent, in a case where the plaintiff’s claim was for Rs. 10,000/-, he was only awarded Rs. 1/- in compensation. In another case, two civil actions were valued at Rs. 500/- apiece, but the court only granted the aggrieved parties Rs. 60/- and Rs. 50/-, respectively.

The Hon’ble Nagpur Bench of the erstwhile Bombay High Court determined that in a matter where the claim was for Rs. 11,300/-, the aggrieved would be satisfied with an award of only Rs. 315/-. In a case before the Hon’ble Madras High Court, a plaintiff filed a claim for Rs. 10,000/- but was only given Rs. 650/- in compensation. It should be noted that these examples are somewhat ancient, yet they have been mentioned to emphasize the Indian judiciary’s inclination to ignore tort proceedings and award grossly disproportionate amounts when contrasted to the plaintiff’s claims.

Major Breakthroughs in Tort Law in India

UPHAR CINEMA CASE –The Gateway to Tort Law in India

The Uphaar Cinema, located in a wealthy suburb in the center of the country, New Delhi, caught fire on June 13, 1997, due to a malfunctioning generator mounted by the Electricity Board in the theatre’s basement. The exits from the balcony were clogged due to the installation of unlicensed seats years ago. As a result, the occupants inside the theatre were unable to flee, and fifty-nine people perished and another hundred were injured.

In November 1997, all of the injured’s outraged family members established an association and filed a complaint in the High Court of New Delhi, represented by a volunteer lawyer. The group sought Rs. 22.1 crore in compensation and Rs. 100 crore in punitive damages, which would be used to establish a trauma center, making it the biggest demand in an Indian tort case to date.

Following that, in 2003, the court ordered Rs. 21 crores in compensation for the families of the deceased people, as well as Rs. 1.04 crore for the 104 injured theatre-goers. In addition, a sum of Rs. 2.5 crore has been approved for the establishment of a trauma center in this regard.

The multimillionaire theatre owners were then charged with criminal offenses, and the Sessions Court found them guilty and sentenced them to two years in prison. However, the aggrieved association, dissatisfied with the penalty, went to the Supreme Court in 2007, which maintained the convictions and enhanced the sentence.

In India, the Uphaar Cinema Case was a watershed moment for tort relief in catastrophes. It had well-organized and affluent appellants represented by a dedicated lawyer who did not charge for his services, as well as a case with no evidentiary issues.

However, fourteen years after the fire, on October 13, 2011, the Supreme Court reduced the damages awarded to the deceased victims to a fraction of their original amount, from 2.5 crores to 25 lakhs, a 90% reduction, and all government agencies charged with the fire were exonerated except the Delhi Electricity Board. Even when it was a win-win case totally in favor of the appellants who had been tortured by the incompetent authorities, the future of mass tort in India appeared dismal once again.

In 2014, the Supreme Court heard a new appeal in the criminal case of Uphaar. It upheld the Ansals’ convictions, i.e. the cinema owners who had previously been found guilty, but it couldn’t agree on the amount of compensation to be paid to the victims. Justice T.S. Thakur favored restoring the Ansals’ original punishment, but Justice Gyan Sudha Mishra favored awarding Rs. 100 crore as compensation for the establishment of a Trauma Center in the Uphaar Victims’ memory. The judge’s readiness to award such a large sum for a tort law case in India, far bigger in magnitude than had previously been contemplated, demonstrated the growth of mass torts in India.

INDIAN MEDICAL ASSOCIATION VS. V.P. SHANTHA– The Saha Case

In 1986, Parliament passed the Consumer Protection Act, which established a three-tiered consumer grievance redress system to give remedies for substandard “goods and services” across the country. In 1995, the Supreme Court ruled that “medical services” would fall under the Consumer Protection Act of 1986’s “goods and services” category. As a result, medical claimants no longer have to travel to court and pay high court fees, and they began submitting claims in Consumer Tribunals, which accounted for the majority of the cases handled by the Consumer Tribunals at the time.
From 2008 to 2014, the National Consumer Dispute Redressal Service delivered 154 medical malpractice lawsuits, accounting for 8% of its total judgments. Surprisingly, the claimants won over the medical practitioner in nearly 45 percent of the cases. From the moment the lawsuit was filed until the final verdict was reached, it took an average of 11.7 years.

An Indian-American couple traveled to Kolkata a year after the Uphaar tragedy to meet their relatives. The husband was a medical doctor, and the wife was a child psychologist who was 36 years old. The wife had a treatable but uncommon skin ailment and was admitted to the AMRI hospital, where she was cared for by a number of famous medical professionals. The treatment involved the administration of massive amounts of Depomoderol, which exacerbated the wife’s condition and finally led to her death.

Dr. Kunal Saha, the dissatisfied spouse, filed a complaint with the West Bengal Medical Council, which cleared the doctors. The spouse then filed criminal charges against the doctors under section 304A of the Indian Penal Code. The doctors were convicted by the West Bengal courts, but the Calcutta High Court overruled the District Court’s decision and exonerated them. Regrettably, the Supreme Court confirmed the Calcutta High Court’s decision regarding criminal responsibility.

Dr. Saha’s wife died as a result of the negligence of the three AMRI doctors, and a claim of Rs. 77 crore was made with the National Consumer Disputes Redressal Commission (NCDRC). The National Consumer Disputes Redress Commission (NCDRC) dismissed his claim and complaint in 2006. Dr. Saha represented himself in all of these proceedings, which cost him in a number of ways: (1) He had to travel 50 times from the United States to India as the case advanced. (2) Due to legal and travel expenditures, he declared bankruptcy in the United States of America. (3) He did not take up his academic position in Cincinnati, and as a result, his academic career was cut short.

Finally, the Supreme Court of India rejected the NCDRC’s ruling in 2009, and the matter was referred back to the National Consumer Disputes Redressal Commission to determine the amount of compensation. In October 2011, the commission finally awarded Dr. Saha damages of Rs. 1.5 crore. When the matter was appealed to the Supreme Court, a sum of Rs. 6.08 crores was awarded to Dr. Saha, directed against the doctors and the hospital, plus interest of 6% per annum, more than double the compensation previously awarded.

The Saha Case is a classic example of a one-on-one case that resulted in a milestone in Indian tort law. The Supreme Court granted increased damages because of the loss of a long career with a high American income that was harmed. The Saha case is an interesting reversal of the Bhopal Gas Tragedy, in which the perpetrator was an American Union Carbide Company and the victims were Indians, whereas the Saha case involved Indian wrongdoers and an American victim. We still don’t know if the broad tort damages based on monetary losses perpetuate gaps and inequality among the general public.

The Future of Torts in India – Conclusion

There is no empirical evidence to claim that India is a litigious nation. The truth is that Indian courts move slowly not because they are inept, but because there are too many cases for too few judges. We need to increase capacity in order to make our judicial system more strong, not just for civil cases, but also for criminal proceedings. Personal harm, which is addressed by tortious litigation elsewhere in the globe, requires significant attention in India, as has been adequately portrayed in this study. Tortious responsibility claims, both against the government and private parties, abound in the country. The procedure of approaching the court, on the other hand, is so delirious for the plaintiff that they are better off not going.

In general, as things stand now, those with money and privilege are able to buy their way out of the judicial system and avoid responsibility for their own negligent behavior. With little resources, it is the poor who must fight the system and the aggressor. This deplorable state of affairs necessitates a reassessment of tort litigation in India. Perhaps there is a need to constantly issue statutes that correctly deal with diverse tort law principles, rather than codifying and therefore making the entire branch immobile. A strong civil-litigation system will undoubtedly strengthen the government’s and citizens’ discipline, while also protecting human life and dignity. A strong civil-litigation system will undoubtedly strengthen the government’s and citizens’ discipline, while also elevating the value of human life and dignity for all people, not just the wealthy.

This article is written by Uday Todarwal.

This article talks about Section 13(B) and the effects of the cooling period being waived off and various cases to understand this better.

INTRODUCTION 

Marriage is considered one of the essential sacraments for all Hindus. None other than the Hindus have endeavored to Idealize the institution of marriage. Due to this a divorced person was stigmatized and hindered in the Hindu Society but over the years as our nation developed and Hindu Marriage Act came into force eventually the divorce aspects also found their own place in the act. The Hindu Marriage Act, 1955 under Section 13 (B) states that a petition for mutual consent divorce is presented by the parties with the following averments: –

1. That both the spouses are living separately for a period of one year,
2. The Spouses have not been able to live together,
3. Both the spouses have been living separately by consent.

In recent years Supreme Court has given a new perspective to the cooling period in mutual and consented divorce. The court held that this clause of the Hindu Marriage Act,1955 which allows a cooling-off period of six months is not compulsory but just directory to the courts. According to this, the courts in which the divorce proceedings are ongoing under extraordinary cases have the right to suspend this time if other conditions are met, including the fact that the spouses have been piecemeal for a period of more than18 months, that all comforting and concession attempts to reunite the parties have collapsed and the parties have truly resolved their controversies, indeed in regard to alimony.

MEANING OF THE TERM ‘COOLING-OFF PERIOD’?

Under Section 13 of the Hindu Marriage Act, 1955 a married couple can get a divorce on the grounds of mutual consent through filing a petition to the court. It’s a straightforward method to dissolve the marriage where both the parties peacefully agree to the separation. According to Section 13 (b) of the Hindu Marriage Act, 1955 for a statutory interregnum understanding, a cooling period of six months between the first and the last motion for divorce by mutual consent so as the possibility of cohabitation and settlement could be explored. This period of 6 months is called the cooling-off period.

APPLICABILITY OF COOLING PERIOD IN CASES OF DIVORCE

The expenses are the clearest preferred position of consensual divorce. Consensual divorce that stays uncontested is sort of often the foremost economical method of dissolving the wedding. The minimal effort of the cooling period isn’t, be that because it may, but it’s the littlest bit of leeway in consensual divorce. In the event that the degree of contention between the 2 partners stays low, a consensual divorce offers an approach to stay it that way. It is extremely private and progressively helpful and is helpful to keep a greater amount of your advantages in all of your personal assets and not on the hands of the law, and other required things within the procedure of the dissolution of marriage. Separation by mutual consent expels superfluous squabbles and saves a lot of time and money. With the expanding number of uses being applied for a separation, a consensual divorce is the best alternative. Uncontested separation offers to break away life partners the chance to finish their marriage discreetly and with dignity.

UNDER WHAT CIRCUMSTANCES IT CAN BE WAIVED OFF?

In Abhay Chauhan v. Rachna Singh, 2006 both the parties were 30 years old, well educated, and mature and the marriage of the parties was solemnized four years ago and there was absolutely no possibility of reconciliation. The Delhi High Court in such a case held that the cooling period of 6 months can be exempted in certain cases but this controversy is still continuing. High Courts are overwhelmingly waiving this period by calling it directory rather than mandatory provision but some high courts beg to differ.

In an important judgment of Amardeep Singh vs Harveen Kaur on 12th September 2017, the Supreme Court held that this cooling period of 6 months can be waived in cases of mutual consent. Section 13B (1) of the Hindu Marriage Act deals with the petitions sustainability therefore it cannot be abolished and Section 13B (2) in spite of being administrative should be repealed after the details of every situation as they may vary from each other, wherever the little possibility of reconciliation is seen.

In the Avneesh Sood vs. Tithi Sood case and in the Shikha Bhatia case vs Gaurav Bhatia & Ors case, the courts held that a spouse who undertakes to comply with the consent given in the first motion for the dissolution of marriage under Section 13B (1) of the Hindu Marriage Act and for filing a second motion he/she would not be allowed to withdraw such an undertaking subject to an agreement reached between both the spouses.

Rajiv Chhikara vs. Sandhya Mathu, the Delhi High Court held that retracting from mediation would be considered as mental cruelty. The Court also noted in the case that the partner had lived apart since 2009 and that their relationship was now beyond repair. Therefore, under these circumstances, one partner demands that the marital bond be maintained and the same would be as putting the partner in extreme mental cruelty.

In Suman v. Surendra Kumar, the High Court of Rajasthan addressed this question for the purpose of the cooling period whose purpose is to give both the partner time and opportunity to reflect on their decision. The partners or one of them may have second thoughts in this cooling period and may change their minds about the dissolution of marriage.

However, the court always takes into consideration the following aspect before waving off the cooling period:

1. The statutory cooling period of 6 months as given under Section 13B (2) and the period of one year as specified under Section 13B (1) is already over before the commencement of the first movement of the divorce case.
2. If the parties have already dealt with their differences and have come to terms in matters such as alimony, custody of their child, and all other disputes between them then the waiting period only increases their agony and there is no point of it.
3. That all means of conciliation/mediation and efforts made in terms of Section 23(2) of the Hindu Marriage Act,1955 and Order XXXII A Rule of Code of Civil Procedure have failed to reunite and save the marriage, and no hope is left for saving the marriage.

Thus, the Supreme Court has given family courts the discretion to determine whether to waive the six-month cooling-off period or not. The Court also held that the application for a waiver of the cooling period can be made as early as one week after the divorce petition had been filed in the court.

SOME OTHER IMPORTANT CASES UNDER SECTION 13 (B)

In the Sureshta Devi v. Om Prakash case, the Hon’ble Supreme Court held that the phrase ‘living separately’ refers to not living as husband and wife. It has no reference to where the spouses live. It is possible that the partners may are living under the same roof and still may not live as husbands and wives. The partners don’t wish to fulfill marital obligations. The Supreme Court of India had ruled that mutual consent is a sine qua non I.e an essential condition for passing a decree of divorce and the said agreement must be binding and subsist until a final decree of divorce has been issued.

In Hirabai Bharucha vs. Pirojshah Bharucha, the High Court held that the courts are obliged to make every effort to maintain the institution of marriage. That is an arrangement between the partners specifying the terms of settlement runs counter to public policy, they should be regarded as void ab initio and it is unenforceable and, in such cases, it cannot be recourse to contempt proceedings.

The court ruled that where a solicitation is submitted for divorce through common concurrence under Section 13B of the Act, the Court will move that the concurrence granted by the mates persists until the date of the allocation of the divorce decree. And if one mate freely withdraws its support, in view of the provision of Section 13B of the Act, the Court doesn’t have the power to grant a divorce decree by collective concurrence.

CONCLUSION

Consensual divorce refers to that stage where both the partners dissolve their marriage by mutual consent. Divorce is an equally important part of society as marriage. As we all know that all marriages are not perfect and cannot be sustained or continued, ending such marriage is the best possible damage control that can be done for both spouses. Divorce by Mutual-consent is one of the recent addition to the Indian jurisprudence of divorce and is fairly integral. Earlier, Indian couples resorted to the very time-consuming and expensive method of ground-based litigation, which did no good to the parties but rather induced animosity between them and involved many maligning.

Reference: 

1. https://nrilegalconsultants.in/waiving-off-period-of-6-months-cooling-off-period in-case-of-a-mutual-divorce/ 
2. https://www.latestlaws.com/latest-news/couple-gets-divorce-without-6-month cooling-off-period/ 
3. https://www.thehindu.com/news/national/sc-sanctions-divorce-to-couple-without six-months-cooling-off-period/article25237873.ece 
4. https://health.economictimes.indiatimes.com/news/industry/future-of-artificial intelligence-in-healthcare-in-india/56174804

This article is written by Tanya Arya, a second-year law student at Vivekananda Institute of Professional Studies.

ABSTRACT

The given article seeks to explore the evolution of the Arbitration laws in the Indian sub context from stem to stern. The article traces the journey of Arbitration from the enactment of the very first legislative piece in 1899 until the most recent amendment of 2019.

INTRODUCTION

In order to decipher the insightful journey of the arbitration laws, it shall be necessary to first comprehend the meaning of the term ‘arbitration’. Colloquially speaking, the term ‘arbitration’ basically means an adjudication of disputes by an impartial and independent third party i.e. arbitrator. Thus, arbitration is a private, out of the court procedure. Regular court procedures are usually complex, expensive, and time-consuming. Adjudication of the disputes via the less formal and alternate forums such as the ‘arbitration’ provides a more effective and speedy resolution of disputes.

Thus, Arbitration is the result of written agreements between the parties wherein the parties agree to submit the accruing present or future disputes arising out of a legal relationship between them to an arbitrator.

ARBITRATION PRACTICE IN THE ANCIENT WORLD

The practice of arbitration has been pervasive throughout the world since ancient times. King Solomon of the ancient Jewish empire is usually hailed as one of the first arbitrators as per the Old Testament. The book by Elkouri and Elkouri¹ describes in length the arbitration proceedings of Solomon that bear resemblance to the modern-day arbitration practice. Further, the Greece historian Homer also gave detailed accounts of arbitration in his poem wherein the third party adjudicators settled the disputes between the masses.

In the Indian subcontinent, mentions of arbitration can be found in ancient texts of Brhadaranayaka Upanishads² that mentioned about srenis, kulas, pugas, and other autonomous bodies which adjudicated arbitration proceedings. Instances of local adjudication of disputes without the intervention of courts via the panchayats can also be found in Mauryan and Mughal times. Even today, the Khap panchayats are examples of such extra-judicial bodies that arbitrate disputes among the parties involved.

SCOPE OF THE LEGISLATIVE ENACTMENTS

1. THE INDIAN ARBITRATION ACT 1899
The said Act³ came into force on 1 st July 1899 and was drawn on the lines of the English Arbitration Act. It was the first legal attempt to formalize and codify the laws and procedures pertaining to the arena of arbitration by filling in the void created due to the absence of legislative enactments. The Act sought to amend and facilitate the process of Arbitration by agreement between the parties which therein gave away the need for engaging in the long-drawn tedious and complex procedures of the civil laws. However, the applicability of the Act was limited only to the presidency towns of Madras, Bombay, and Calcutta.

The Act provided that if the parties explicitly agreed in writing to refer to an arbitrator in the event of any dispute, then in the event of an eruption of any dispute, an application could be made to the court, having jurisdiction in the said matter, to enforce the arbitration agreement, the subject matter of which should be legal off course, in accordance with the provisions of the agreement and appoint an arbitrator, in absence of any agreed provision for appointment of any specific arbitrator between the parties thereto.

The Act lays down in length and breadth about the ifs and nots for appointment of an arbitrator, procedure for the perusal of the evidence, grounds of mistake for setting aside an arbitration award, powers of the court to enact arbitration agreement, enforcement of arbitration award, stay of proceedings, award of the decree, and a host of other provisions.

The scope of Arbitration further got modified and codified with the enactment of CPC in 1908 under Clause 1 to 16 of Schedule II, whereby the provisions of arbitration were extended to the other parts of India. However, the infancy of the Indian Arbitration Act with its inborn imprudence coupled with the technicalities of the CPC 1908 proved to be incapable of governing the catena of arbitration and thus paved the way for the enactment of The Arbitration Act 1940.

2. THE ARBITRATION ACT 1940
The act⁴ provided systematic and comprehensive legislation on arbitration by improving upon the shortcomings of the previous Act. It came into force on 1 st July 1940 and extended to the entire Indian territory except for the State of Jammu and Kashmir. The Act sought to amend, bolster and integrate laws relating to arbitration and provide for a hassle-free arbitration experience, thereby saving the precious time of civil courts.

The Act provided for agreement between the parties thereto for the appointment of an arbitrator by a third party and; the appointment of up to three arbitrators by the parties themselves. The appointment of an arbitrator could be revoked only by the leave of the court and further, the death of the parties did not discharge the arbitration agreement. The Act widened the horizon of the court by empowering it to appoint, modify or remove the arbitrators; or modify/ remit the arbitration award after its filing in the court, if it deemed it to be fit. The Act also imbibed the provisions for insolvency of the parties, powers of the arbitrator to grant interim awards, powers, and procedure of civil courts, etc. It is to be noted that the Act was subservient to the provisions of the Indian Limitation Act 1908.

The major flaw of the Act was that it only dealt with adjudication of domestic arbitration rewards and had no imbibed provision for the enforcement of foreign awards. Further, ineffective application of the provisions of the Act, leading to irregular and faulty proceedings gave a major blow to the applicability and usefulness of the Act. In the case of Guru Nanak Foundation v Rattan Singh⁵, the Supreme Court lamented over the inefficacious working of the Act which had led to time-consuming and complex procedural claptraps.

Despite the inherent malaise in the applicability of the act, combined with other infirmities, the act remained operational until the year 1995. The economic liberalization policy of the 1990s necessitated the creation of a favorable and conducive business environment so as to attract investments and provide speedy dispute resolutions, thereby enhancing the ease of business. Now, in order to simplify the tedious and complex court procedures and facilitate the businesses, arbitration as a method for commercial dispute resolution was encouraged and it was in this background that the Arbitration and the Conciliation Act 1996 was passed by the parliament.

3. THE ARBITRATION AND THE CONCILIATION ACT 1996
The act⁶ came into force on 25th January 1996 and repealed the Arbitration Act 1940. The Act was enacted in consideration to and in consonance with the UNCITRAL Model Law on International Commercial Arbitration.

The Act provides for domestic as well the foreign commercial arbitration coupled with the enforcement of the international awards. The Act for the first time carved out an avenue for the process of conciliation. The Act is divided into four parts, spanning 87 Sections. Part 1 provides for the procedural details of domestic arbitration and Part 2 provides for enforcement of certain foreign awards in the light of New York and Geneva conventions while Part 3 deals with the aspect of Conciliation by elucidating it in length and breadth.

In the case of Bhatia International v. Bulk Trading S.A. and Another⁷, it was held that the arbitration benches seated outside India shall be subjected to Part 1 of the 1996 Act unless it was impliedly or expressly excluded.

The Act gives paramount importance to the autonomy of parties which can be adduced by the expressions used in the Act such as “with the agreement of the parties” every now and then. The Act underpins the necessity of the arbitration agreements for enforcement of arbitration proceedings, gives full autonomy to the arbitration tribunal to carve out the procedures, and seeks to clearly distinguish between arbitration and conciliation. Moreover, the Act intends to provide for speedy resolutions which could be deduced from the fact that it did not provide a second appeal except for an appeal to the SC.

In the case of Centrotrade Minerals and Metals Inc. v. Hindustan Copper Ltd⁸, the court underpinned the fair and impartial adjudication process of the arbitration tribunals that gave paramount consideration to the party autonomy and safeguards therein. However, the court criticized the cumbersome procedure for setting aside the arbitration awards.

Given the beneficiary aspect of the said Act, it suffered from the twin malady of excessive court intervention and procedural expensiveness. Challenge of an Arbitral award under Section 34 of the Act would put an automatic stay on the execution of an award thus, making it executable. Also, a charge of excessive fees by the arbitrators and absence of time limit for adjudication of the arbitration award would make the option of arbitration altogether as a means for dispute resolution unfeasible and cumbersome.

This necessitated the needful improvisations in the said act and hence the Arbitration and Conciliation Amendment Act was passed in 2015, incorporating the required amendments.

4. THE ARBITRATION AND CONCILIATION AMENDMENT ACT 2015
The act⁹ came into force on 23 rd October 2015 and sought to amend and consolidate the Arbitration and Conciliation Act 1996. The Act amended Section 2(1), 7, 8, 9, 11, 12, 14, 17, 23, 24, 25, 28, 29, 31, 34, 36, 37, 47, 48, 56, and 57, and furthermore, added a fourth, fifth, sixth and seventh schedule to the principal Act. The key features of the amended Act are as follows:

• The Act added to the meaning and interpretation of the term “courts” with respect to domestic and international arbitration. As regards domestic arbitration, the term ‘court’ shall include both principal civil courts in districts and High Courts in the exercise of their original jurisdiction and with regards to international arbitration, the term ‘court’ shall include only High Courts in the exercise of their original civil jurisdiction.
• International commercial arbitrations whose benches are seated outside India shall also be subject to the provisions of 9, 27, and 37 of the Act, and the ensuing arbitral reward of such cases shall be perfectly enforceable in India.
• As regards interim protection awarded by the courts, the arbitration proceedings shall commence within a period of 90 days or if any as determined by the court, from the date of order for grant of interim protection.
• In order to curb the unnecessary court interventions and uphold the spirit of the arbitration agreement, the act makes it necessary to refer the subject matter disputes to arbitration in case of the existence of arbitration agreements for such matters.
• The Act seeks to curb the discretionary power of CJI and bring to the center stage, the twin institutions of the Supreme Court and High Courts instead of keeping CJI and his nominated institutions at the forefront for the task of appointing arbitrators.
• The Act confers power upon the central government to amend the fourth schedule.
• In order to enhance the efficiency and effectiveness of the process of arbitration, the Act prescribes a period of 12 months for the completion of the arbitration proceedings under the Act and also accordingly awards the arbitrators for speedy dispute resolutions.
• To encourage transparency, impartiality, and fairness of the entire scheme of arbitration proceedings, the Act prescribes for disclosure of any past/present or direct/ indirect relationship of the arbitrator with parties thereto or subject matter of the dispute that may give rise to justifiable doubts as regards to impartiality and independence of the proceedings. The fifth schedule of the Act extensively and methodically lists out the cases of arbitrator’s relationship with parties thereto that are likely to vitiate independence and fairness of the proceedings.
• The Act provides a scope for the appointment of guardians during the course of arbitration proceedings for minors or for persons of unsound mind.
• The Act seeks to encourage to the greatest extent, the scheme for oral hearings. Moreover, the Act drives to foster the virtue of regularity as regards the arbitration proceedings and dissuades adjournments by levying heavy costs.
• The Act equips the arbitrators/ courts with discretion to determine and award the costs to be paid by the parties to each other and to the arbitrators/ courts per se.
• The Act uncovers speculations by defining the conditions that lead to a conflict of public policy in India. The conditions include the cases of fraud and contravention of Indian law and notions of morality or justice.

The case of Perkins Eastman Architects DPC and Ors. vs. HSCC (India) Ltd.¹⁰ dealt with the unilateral appointment of the arbitrators, wherein the two judges bench of SC held that a person who was ineligible to act as an arbitrator cannot appoint one of his choices and the court could exercise its power under the Section11(6) of the Arbitration Act 1996 and appoint an independent arbitrator to maintain fairness and impartiality of the proceedings.

In spite of the much-sought amendments brought in by the Amendment Act of 2015, the lack of institutionalized arbitration mechanism was deep-rooted in the country. In order to perpetuate the institutionalization of systematic arbitration, an ad-hoc committee headed by Justice B.N Srikrishna was constituted. On the lines of proposed improvements suggested by the committee, the Arbitration and Conciliation Amendment Act 2019 was enacted.

5. THE ARBITRATION AND CONCILIATION AMENDMENT ACT 2019
The amendment Act of 2019¹¹ came into force on 9th August 2019. The act seeks to amend Section 2, 11, 17, 23, 29A, 34, 37, 42 43, 45, 50, and 86 of the Principal Act. The Act further adjoins the eighth schedule and part 1A to the Act. The salient features of the Act are as follows:

• The act seeks to ease out the responsibility of the already overburdened HCs and SC by provisioning the addition of arbitral institutions for presiding over the process of arbitration which shall be accordingly designated by the SC and respective HCs, thereby ensuring speedy disposal of the disputes. In the absence of designation of arbitral institutions by the HCs, the CJ of the concerned High Court shall appoint a panel of arbitrators for the purpose of discharging the said functions of arbitral institutions.
• The arbitral institutions so constituted shall have the authority to adjudicate the cases of international arbitration.
• In order to expedite the process of admittance of claims and defenses during the course of arbitration proceedings and encourage speedy disposal of cases, the act provides for completion of the above-said claims and defenses within a period of six months from the appointment of arbitrators.
• The Act curbs the extraneous application of other laws as regards appeal under this Act and provides for only those appeals that are listed and validated by Section 37 of the Act.
• The Act absolves the liability of the arbitrators from those impugned actions that are done in good faith.
• In order to boost the competency of the arbitrators, the act prescribes minimum qualifications for the appointment of the arbitrators which shall ultimately lead to the excellence of the arbitration mechanism.
• The showstopper of the amended Act is the establishment of the Arbitration council of India that will seek to regulate the niche practice of Arbitration and Conciliation in India and make the country, a booming hub for inexpensive, effective, and sought after hub for the process of arbitration. Part 1A inserted via the amendment Act of 2019, describes in length about the constitution, functioning, and governance of the Arbitration Council of India.

CONCLUSION

The practice of arbitration as means for the settlement of commercial disputes has been a popular tool. Being speedy, cost-effective, and efficient, it provides viable options for the resolution of disputes that would otherwise take tremendous time, cost, and effort of the parties involved under regular civil litigation. The legislative enactments in the field of arbitration underwent major amendments since 1899 in order to keep abreast with the latest developments. The recent amendment of 2015 and 2019 took leap-bound steps to inculcate practices that would encourage transparency, independence, and impartiality of the arbitration proceedings, thereby preventing unnecessary intervention of the courts and ensuring speedy and timebound disposal of the cases.

References:

1. https://core.ac.uk/download/pdf/216936738.pdf
2. http://csjournals.com/IJITKM/PDF%2010-2/21.%20Sumit.pdf
3. http://jkarchives.nic.in/Record_Holdings_PDF/Acc.%20No.%201149.pdf
4. https://indiankanoon.org/doc/1052228/
5. (1981) 4 SCC 634
6. https://legislative.gov.in/sites/default/files/A1996-26.pdf
7. (2002) 4 SCC 105
8. 2006 11 scc 245
9. https://lawmin.gov.in/sites/default/files/ArbitrationandConciliation.pdf
10. SC/1628/2019
11. https://egazette.nic.in/WriteReadData/2019/210414.pdf

Written by Riya Ganguly student at Bharati Vidyapeeth New Law College, Pune.

CASE NUMBER

Bail Appl. No. 8346 of 2018

CITATION

2019 SCC OnLine Ker 13012

BENCH

THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

DECIDED ON

Decided on January 24, 2019

FACTS OF THE CASE

The applicant is a PMSAMA Higher Secondary School Urdu teacher. He oversaw the NSS’s activities. On November 6, 2018, the victim, a minor child, and a student from a different school went to a camp at PMSAMA Higher Secondary School in Malappuram. The applicant is said to have complimented her on her accomplishments. He invited the victim to the principal’s chamber at 4 p.m. He took two pens from his drawer, one of which he gave to the sufferer. He then kissed her on the forehead after touching her hand. It was offensive to the victim since, according to her, it was done with sexual purpose. A complaint was filed on November 27, 2018, alleging these claims, which resulted in the subject offense being registered under Section 10 read with Section 9 of the Protection of Women from Sexual Offenses Act, 2012.

RELEVANT SECTION

Under Section 438 of the Code of Criminal Procedure, this case was filed under the Hon’ble court. Section 438 of CrPC talks about anticipatory bail regarding the commencement of doing some nonbailable offense. Anticipatory bail means that a person who is apprehending an interest can apply for bail in advance. The addition of this provision was a recommendation made by the 41st Law Commission of India.

ISSUES BEFORE THE COURT

Is the accused liable under Section 10 read with Section 9 of the Protection of Women from Sexual Offences Act, 2012?

Section 9 of the POCSO Act: Talks about Aggravated Sexual Assault
Whoever conducts a sexual assault on a child while serving as a police officer: inside the confines of the police station or premises to which he is assigned; or (ii) within the confines of any station house, whether or not located within the police station to which he is assigned;
or
(iii) while performing his responsibilities or otherwise; or
(iv) where he is identified or known as a police officer; or

(b) whomsoever commits sexual assault on a child while serving in the armed forces or security forces in jail, remand home, protection home, observation home, or other places of custody or care and protection established by or under any government authority; or whoever commits sexual assault on a child in a hospital, whether government or private; or whoever is on the staff of management of a jail, protection home, remand home, observation home or other
place of custody or care and protection established by or under any government authority.

Hence, that a child is sexually assaulted by one or more members of a group in furtherance of their common goal, each of those members is deemed to have committed gang sexual assault within the meaning of this clause, and each of those members is liable for the act in the same way as if he had done it alone;

SECTION 10 of the POCSO Act: It talks about Punishment for aggravated Sexual Assault
Anyone who commits serious sexual assault faces a sentence of imprisonment of either kind for a period of not less than five years but not more than seven years, as well as a monetary fine.

DECISION OF THE COURT

The High Court of Kerala held that the entire dispute between the respondent and the petitioner was settled amicably. The bench of Justice Alexander Thomas in the judgment wrote that the dispute was settled amicably and ordered that petitioner’s mother was required to submit an affidavit stating that she had no problem with the quashing of FIR.

SUPREME COURT ON THE DECISION

Justice M.R. Shah of the Supreme Court held in Laxmi Narayan that the High Court in that the case had not taken into account the relevant facts and circumstances of the case, particularly the seriousness of the offenses and their social impact while quashing the FIR as a result of the parties’ settlement, despite the fact that it was a non-compoundable offense. In that case, Justice Shah found that the High Court failed to assess the distinction between a personal or private wrong and a social wrong, as well as the societal impact.

During the hearing of the Kerala Government’s appeal against the ruling, the bench observed the government’s argument that quashing the FIR is not relevant in light of the Supreme Court’s decision in the case State of Madhya Pradesh vs. Laxmi Narayan & Ors (2019). Justice M.R. Shah of the Supreme Court held in Laxmi Narayan that the High Court in that the case had not taken into account the relevant facts and circumstances of the case, particularly the seriousness of the offenses and their social impact while quashing the FIR as a result of the parties’ settlement, despite the fact that it was a non-compoundable offense. In that case, Justice Shah found that the High Court failed to assess the distinction between a personal or private wrong and a social wrong, as well as the societal impact. In this case, the High Court has taken no pains to examine the complete set of facts in context and has quashed the criminal proceedings on a mechanical basis.

This is written by Dalima Pushkarna student at Dr. Ram Manohar Lohiya National Law University, Lucknow.

This is a major decision by the Supreme Court, which determined that the online arbitration agreement is the most relevant arbitration document. Because the parties do not meet in person, but rather online, it is important to clarify all details of the dispute resolution method in the agreement. Furthermore, the court found that when entering into an agreement, a meeting of minds is critical, and the agreement must comply with Section 7 of the Arbitration and Conciliation Act, 1996.

Facts

Trimex offered VAL the supply of bauxite through email, which the latter accepted after several exchanges of e-mails, confirming the supply of 5 ships of bauxite from Australia to India. Despite the fact that a draught contract had been developed, it still needed to be formalized. After receiving the first consignments of goods, VAL requested that Trimex hold back the next consignment of goods so that they may check the utility value of bauxite. Shipowners, on the other hand, nominated the ship for cargo loading on the same day. Trimex later requested damages from VAL for damages paid to ship owners after the contract was canceled, but VAL rejected by denying any contract. The Petitioner Company is based in Dubai and trades minerals globally. The Respondent is an Indian company that uses Aluminum Ore as one of its primary inputs. Supply of Bauxite (15.10.2007 Offer) (Shipment) The reply accepted the offer through e-mail on October 16, 2007, confirming the provision of 5 shipments of bauxite, in accordance with the contract’s material terms.

The response acknowledges the offer’s acceptance at a subsequent meeting. On November 8, 2007, the respondent sent the petitioner a formal contract with a detailed arbitration clause, which the petitioner accepted with some changes. On 09.11.2007, the petitioner signed a formal Bauxite sales agreement with Rio Tinto of Australia for the supply of 225000 tonnes of bauxite. On 12.11.2007, the respondent requested that the petitioner hold the next consignment. On 13.11.2007, the petitioner informed the respondent that the cargo could not be postponed and requested that they sign the Purchase Agreement. The ship owners nominated the ship for loading the material on November 28, 2007. The petitioner terminated the contract on November 16, 2007, reserving the right to seek damages. The petitioner formally informed the shipowners of the cancellation on November 18, 2007. The shipowner filed a claim for US$ 1 million in a commercial settlement. The Petitioner asked the Respondent to pay the shipowner the stated amount plus an additional 0.8 million US dollars in compensation for lost profits and other expenditures and expenses.

The Respondent denied the Petitioner’s claim, and as a result, the Petitioner was forced to pay the shipowners 0.6 million US dollars in two installments after negotiations. The Petitioner served the Respondent with a notice of claim-cum-arbitration on September 1, 2008, requesting that it either pay up or accept the notification as a referral to arbitration. The Respondent denied the arbitration notice, claiming that the parties had not yet reached an agreement. As a result, the Petitioner filed a request for the appointment of an arbitrator.

Issue

Whether there was any valid subsisting contract between the parties in absence of any formal contract?

Petitioner’s Arguments

The primary position of the Petitioners is that the Contract was legal and binding. The Petitioner argued that: the contract was formed upon the Respondent’s acceptance of the offer for five shipments. the offer of October 16, 2007, was made in response to the Respondent’s request and was based on a previous month’s similar transaction.• the offer that was accepted by the Respondent contained the arbitration clause, which was never objected to The Petitioner also argued for the Contract’s validity, claiming that the Respondent agreed to place an order for 5 (five) shipments only after several e-mail exchanges and agreement on the contract’s material terms, based on which the Petitioner contracted with a bauxite supplier in Australia and also entered into a charter party agreement with the shipowner. The Petitioner emphasized that the arbitration clause was included in Respondent’s copy of the Contract, and because it had not been changed, the apparent conclusion was that the arbitration clause was acceptable to both parties. It also claimed that the offer dated October 15, 2007, containing all of the necessary elements for the Respondents to accept it, including the offer validity period, product description, quantity, price per tonne, delivery (CIF), and payment terms (irrevocable L/C), shipping lots, discharge port, governing law, and arbitration.

Respondent’s Arguments

The Respondent, on the other hand, maintained that no contract could be made because the parties were not ad idem on a number of key and substantial aspects of the transaction. • the product specifications, price, contract price inclusions, delivery point, insurance, contract commencement and conclusion dates, transfer of title, quality check, and demurrage remain undecided, as evidenced by several email exchanges between the parties.• the product specifications, price, contract price inclusions, delivery point, insurance, contract commencement and conclusion dates, transfer of title, quality check, and demurrage remain undecided, as evidenced by several email exchanges between the parties. As a result, the Respondent asserted that in such a situation, (a) the parties cannot be said to be “of one mind” with respect to all parts of the transaction, and (b) the parties cannot be said to be “in agreement” with respect to all aspects of the transaction.

Despite the fact that the Respondent acknowledged exchanging e-mails with the Petitioner, it claimed that there was no concluded contract because the Contract remained unsigned, preventing the Petitioner from enforcing certain obligations reflected in those e-mails and invoking the arbitration clause as if there was a formal agreement. The Respondent argued that an agreement on the parameters that will govern a contract is not the same as entering
into the contract itself, citing the Court’s ruling in Dresser-Rand S.A. v. Bindal Agro Chem Ltd.

Judgment

The fact that the parties did not prepare a formal contract after the deal was completed orally or in writing has no bearing on the parties’ acceptance or implementation of the contract. A contract is said to be completed when the parties have agreed on the ‘terms and conditions’ of the contract, though small details can be left for them to decide later, is somewhat subject to other prerequisites as provided by S.10: without such necessary elements being decided, the contract cannot be enacted by law because it is deemed incomplete. After hearing both parties at length, the Court dismissed the Respondent’s arguments and declared that the offer made on October 15, 2007, was accepted on October 16, 2007, and that any dispute between the parties must be resolved through arbitration in line with the terms and conditions agreed to.

When a contract is signed orally or in writing, it becomes legally binding.
The Supreme Court held that all necessary elements for enforcing these types of shipment contracts, such as price, quantity, product specifications, delivery and payment terms, discharge port, shipment lots, demurrage rate, quality benchmark, applicable arbitration laws, and so on, were decided by the parties. Furthermore, minute-by-minute correspondences between the parties plainly reveal that both parties were fully aware of the contract’s different conditions and were ad idem (S.13) with respect to them.

According to S.4, communication of acceptance was complete as against VAL as soon as Trimex received confirmation of 5 shipment lots. Furthermore, the acceptance was unqualified and unconditional (S.7): “We affirm the transaction for five shipments”

The Court restated its position that one of the Act’s principal goals is to reduce the courts’ supervisory function. In reaching this conclusion, the Court noted that adding a variety of other conditions, such as seals and originals, stamps, and so on, to an arbitration agreement would amount to enhancing rather than decreasing the function of courts. The Court concluded, based on UNCITRAL Model Law, that adding a number of extra formalities not contemplated by the legislation would be improper and undesirable. The goal of the court should be to carry out the legislative intended. As a result, the Court ruled in the Petitioner’s favor and assigned a retired judge to arbitrate the case.

References

1. Trimex International Fze Limited v. Vedanta Aluminium Limited | Indian Case Law
2. Judgment Analysis Format | PDF | Arbitration | Justice (scribd.com)

Written by Vidushi Joshi student at UPES, Dehradun.

Equivalent Citation

Writ Petition (Civil) No. 494 of 2012, (2017) 10 SCC 1

Bench

Sanjay Kishan Kaul, Dhananjaya Y. Chandrachud, R. K. Agrawal, J. S. Khehar, S. A. Bobde, S. A. Nazeer, R. K. Agrawal, J. Chelameswar, A.M. Sapre JJ

Decided on

24th  August 2017

Relevant Act/ Section

Article 19,19(1)(a), 21 and 25

Brief Facts and Procedural History

The Government of India has launched a scheme called “Unique Identification for BPL Families.” For the initiative, a committee was also formed. The Committee suggested that a ‘Unique Identification Database’ be created for the project. The project will be divided into three phases, according to the decision. The Planning Commission of India then issued a notification on UIDAI in January 2009. (Unique Identification Authority of India). In the year 2010, the Planning Commission also approved the National Identification Authority of India Bill. The current case was filed by retired High Court Judge K.S. Puttaswamy, who is 91 years old, is against the Union of India, or the Government of India. The case was heard by a nine-judge Supreme Court bench that had been created specifically for the Constitution Bench. Following conflicting judgments from other Supreme Court benches, the special bench was constituted to assess whether the “right to privacy” was guaranteed as an independent basic right.

The case emphasized various concerns about the government’s Aadhaar program (a form of uniform biometrics-based identity card). In the near future, the government suggested that the above-mentioned plan become required for access to government services and benefits. Initially, the challenge was brought before a three-judge bench of the Supreme Court, claiming that the scheme invaded the “right to privacy” provided to Indian people by the Constitution. On account of the Union of India, the Attorney General disputed that the Indian Constitution does not give particular protections for the right to privacy. He based this on observations made at various times in the cases of M.P. Sharma vs. Satish Chandra (an eight-judge bench) and Kharak Singh vs. Uttar Pradesh (an eight-judge bench) (a five-judge bench). Following that, an eleven-judge panel determined that basic rights should not be regarded as separate, unrelated rights, upholding the dissenting opinion in the Kharak Singh case. This also acted as a precedent of following rulings by smaller benches of the Supreme Court which expressly recognized the right to privacy. Moreover, it was in this circumstance that a Constitution Bench was established, which found that a nine-judge bench should be established to assess whether the Constitution contained a fundamental right to privacy or not.

Finally, on August 24, 2017, the Supreme Court issued a landmark decision, declaring the right to privacy a Fundamental Right under Article 21 of the Indian Constitution.

Issues before the Court

• Whether the ‘right to privacy’ is a basic part of the right to life and personal liberty provided under Article 21 and also a part of the freedoms provided by Part III of the Constitution,
• And whether the judgment was taken in M P Sharma v Satish Chandra, District Magistrate, Delhi was right in the face of law?
• And was the decision taken in Kharak Singh v State of Uttar Pradesh correct in a legal sense?

The decision of the Court

On August 24, 2017, a nine-judge panel of the Supreme Court of India issued a major decision upholding the basic right to privacy guaranteed by Article 21 of India’s constitution. The Supreme Court’s historic nine-judge bench unanimously agreed that Article 21 of the Constitution secured the right to privacy as an essential aspect of the right to life and personal liberty. Privacy is a distinct and independent basic right granted by Article 21 of the Indian Constitution, according to the Supreme Court, which relied on six separate judgments. The decision’s most crucial element conveyed a broad interpretation of the right to privacy. It was clarified that the right to privacy is a broad right that covers the body and mind, including judgments, choices, information, and freedom, rather than narrow protection against physical derivation or an invasion right under Article 21. Privacy was found to be a predominant, enforceable, and multifaceted right under Part III of the Constitution. Overall, the Court overturned the judgments in M.P. Sharma and Kharak Singh because the latter found that the right to privacy was not a fundamental right guaranteed by the Constitution, and the Court found that the judgment in M.P. Sharma was legitimate because the Indian Constitution did not contain any limitations to the laws on search and seizure comparable to the Fourth Amendment in the United States Constitution. Nevertheless, the Court held that the Fourth Amendment was not a comprehensive concept of security and that the absence of a comparable assurance in the Constitution didn’t imply that India lacked a distinctive right to protection by any stretch of the imagination– and thus, the decision in M.P. Sharma was overturned. Kharak Singh’s biased perspective on close-to-home freedom was also invalidated by the Supreme Court. This viewpoint was referred to as the “storehouse” approach obtained from A.K. Gopalan by Justice D.Y. Chandrachud. The Court stated that after Maneka Gandhi, this method of seeing fundamental rights in watertight containers was abandoned.

The Court stated that after Maneka Gandhi, this method of seeing fundamental rights in watertight containers was abandoned. The Court also pointed out that the majority conclusion in Kharak Singh was internally inconsistent, as there was no legal basis for striking down domiciliary visits and police monitoring on any grounds other than privacy – a right they referred to in theory yet ruled to be unconstitutional. The Court further stated that subsequent cases maintaining the right to privacy after Kharak Singh should be viewed in light of the principles set forth in the opinion. The court also considered whether the right to life, the right to personal liberty, and the right to liberty established in Part III of the Constitution protects the right to privacy in affirmative instances. The court decided that privacy “is not an exclusive concept.” It dismissed the Attorney General’s position that the right to privacy should be ceded in exchange for the state’s welfare rights. Overall, while ruling that the right to privacy is not self-contained, the decision also outlined a legal survey standard that should be applied when the state intrudes on a person’s privacy.

It was decided that the right to privacy could be limited where an intrusion met the three-fold requirement of legality, which assumes the existence of law; need, which is defined in terms of a reliable state point; and proportionality, which ensures a reasonable relationship between the objects and the methods used to achieve them. The fourth point of this criteria was added by Justice S.K Kaul, who demanded “procedural assurances against maltreatment of such obstacles. Chelameswar, on the other hand, feels that the “overriding national interest” threshold should be applied only to privacy claims that demand “close inspection.”

The court found that the fair, just, and reasonable criteria of Article 21 should be applied to additional privacy issues and that whether or not to apply the “national priority” standard depends on the facts. The court also stressed the importance of sexual orientation in terms of privacy. It also examined the negative and positive aspects of the right to privacy, namely, that the state is not only prohibited from interfering with this right but is also required to take reasonable steps to protect personal privacy. Information privacy is part of the right to privacy, according to the ruling. Despite the fact that the court recognized the need for a data protection law, it left the burden of enacting legislation to Parliament.

References

Justice K.S.Puttaswamy (Retired). vs Union of India and Ors., 2017. | LawFoyer

Written by Vidushi Joshi student at UPES, Dehradun.

INTRODUCTION

Lately, we have seen a remarkable expansion in the occurrence of police barbarities all around the country. Launch by the June 2020 instance of fierce custodial torment and killings of Jayaraj and Bennix in Thoothukudi, Tamil Nadu. While numerous episodes of police ruthlessness occur routinely, and regularly openly in spaces, not many of them get featured in the media or similarly witness public shock. Then, at that point, as well, once the ­initial period of public shock tides over-soothed through inquiries, captures and examination seldom are police authorities arraigned and indicted for these terrible demonstrations of viciousness. While the law is regularly promoted as an answer for social issues, ­including police torment, custodial brutality, and extrajudicial killings, this article contends that the arrangements of law and their execution are a contributor to the issue.

CUSTODIAL VIOLENCE

Custodial brutality principally alludes to savagery in police guardianship and legal care. Except for assault, death, and torment are two different kinds of custodial brutality. Custodial brutality is not a new peculiarity. Sections 330, 331, and 348 of IPC; Sections 25 and 26 of the Indian Evidence Act; Section 76 of CrPC and Section 29 of the Police Act, 1861 were ordered to check the propensity of police officers to turn to torment to separate admissions and so on despite these legitimate arrangements, custodial savagery keeps on happening. Custodial brutality is a term, which is utilized for depicting savagery submitted against an individual by a police authority. In this way, custodial viciousness can be characterized as “a barbaric attribute that springs out of an unreasonable longing to cause enduring when there is no
chance of any reprisal; a silly presentation of prevalence and actual control over the person who is overwhelmed.”

Even though stuffing, ailing health, unhygienic conditions, and absence of clinical consideration are a portion of the elements of death in police and legal guardianship, custodial savagery stays the normal reason for passing’s in penitentiaries and lock-ups. Be that as it may, notwithstanding the Constitutional and Statutory arrangements contained in the Criminal Procedure Code and the Indian Penal Code pointed toward shielding individual freedom and life of a resident, the developing occurrence of torment and passing’s in police guardianship has been upsetting. Experience shows that the most exceedingly terrible infringement of basic freedoms happens throughout examination when the police, with the end the goal of getting proof or admissions, frequently resort to third-degree strategies including torment and procedures of captures by either not recording them or portraying the hardship of freedom simply as “delayed cross-examinations”.

CAUSES OF POLICE ATROCITIES IN INDIA

Despite the way that each section of the general public has a concerned outlook on custodial savagery, throughout the long term it has stayed unabated. It is by all accounts on ascent consistently, disregarding the way that pace of proficiency has expanded and individuals have become mindful with regards to their privileges and obligations. The principal arm of the criminal equity framework that arrangements with individuals in authority are police. It will, accordingly, be important to discover afflictions, which administer this office coming about into maltreatment of the people who are in their care. The fundamental reasons for Custodial viciousness can be gathered in the accompanying classifications: –

CASES AGAINST POLICE ATROCITIES IN INDIA

In D.K Basu v/s State of West Bengal, [(1997) 1 SCC 416; AIR 1997 SC 610] (1)the Court has laid down detailed guidelines to be followed by the police at the time of arrest and detention.

The case of Joginder Kumar v/s State of U.P [1994 AIR 1349, 1994 SCC (4) 260] (2) is an example that highlights the wrongful use of arrest power by the police without a justifiable reason and the arrest was not recorded in the police diary.

Interfering of evidence in matters regarding Habeas Corpus where it was seen on a petition where a father desired to take the custody of his minor girl for the accused whereby the accused brought a wrong person misdirecting the court to believe the person to be the same for whom the petition was filed, the court ordered an inquiry under Section 193,196 and 199 to be filed against the respondent. It emphasizes the offense of tampering with evidence. R. Rathinam v/s Kamla Vaiduriam.1993 CrLJ 2661(Mad) (3)

The case of Nilabati Behra v/s State of Orissa & Ors. [1993(2) SCC 746] (4) is a glaring example of death caused by police brutality. In this specific case, the state was held responsible and was ordered to pay compensation to the appellant. This cruel act of police was seen as a blatant violation of the rights enshrined in Article 21 of the Indian Constitution.

The apex court in Bhim Singh Versus State of J & K. [(1985) 4 SCC 677; AIR 1986 SC 494], ordered the State Government to pay a compensation of Rs 50,000 for detention and illegal arrest of Bhim Singh by the police to avert him from attending the Assembly Session. (3)

References

1. D.K Basu vs. State of West Bengal. lawtimesjournal.in. [Online] https://lawtimesjournal.in/d-k-basu-vs-state-of-west-bengal/.
2. Joginder Kumar vs State Of U.P on 25 April, 1994. indiankanoon.org. [Online] https://indiankanoon.org/doc/768175/.
3. Remedies Against Illegal Action by Police. blog.ipleaders.in. [Online] https://blog.ipleaders.in/remedies-illegal-police-action/.
4. Smt. Nilabati Behera Alias Lalit … vs State Of Orissa And Ors on 24 March, 1993. indiankanoon.org. [Online] https://indiankanoon.org/doc/1628260/.

This article is written by Sara Agrawal student at Sinhgad Law College, Pune.