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January 2021

ALLIED LAWS

By Dr. K. Shivaram | Senior Advocate
Rahul K. Hakani | Shashi Bekal | Advocates
Reading Time 9 mins

15. Arnab Manoranjan Goswami vs. The State of Maharashtra & Ors. Cr. Appeal No. 742 of 2020 (SC) Date of order: 27th November, 2020 Bench: Dr. Dhananjay Y. Chandrachud J., Indira Banerjee J.

 

Human liberty – Role of Courts – Misuse of the criminal law is a matter to which the High Court and the lower Courts in the country must be alive [CrPC, 1973, S. 482, Constitution of India, Art. 226, 227]

 

FACTS

The appellant is the Editor-in-Chief of an English television news channel, Republic TV who was arrested on 4th November, 2020 in connection with FIR No. 59 of 2018 that was registered at Alibaug Police Station under sections 306 and 34 of the IPC. It was registered on 5th May, 2018 on the complaint of the spouse of the deceased informant who is alleged to have committed suicide. The deceased had not received payment for the work which was carried out by him, as a result of which he was under mental pressure and committed suicide by hanging on 5th May, 2018; there is a suicide note holding the appellant and others responsible.

 

HELD

Human liberty is a precious constitutional value which is undoubtedly subject to regulation by validly enacted legislation. As such, the citizen is subject to the edicts of criminal law and procedure. Section 482 recognises the inherent power of the High Court to make such orders as are necessary to give effect to the provisions of the Code of Criminal Procedure – or prevent abuse of the process of any Court or otherwise to secure the ends of justice. The recognition by Parliament of the inherent power of the High Courts must be construed as an aid to preserve the constitutional value of liberty. The writ of liberty runs through the fabric of the Constitution. The need to ensure the fair investigation of crime is undoubtedly important in itself, because it protects at one level the rights of the victim and, at a more fundamental level, the societal interest in ensuring that crime is investigated and dealt with in accordance with law. On the other hand, the misuse of the criminal law is a matter to which the High Courts and the lower Courts in the country must be alive.

 

In the present case, the High Court could not but have been cognizant of the specific ground which was raised before it by the appellant that he was being made a target as part of a series of occurrences which had been taking place since April, 2020. The specific case of the appellant is that he has been targeted because his opinions on his television channel are unpalatable to authority.

 

In failing to make even a prima facie evaluation of the FIR, the High Court abdicated its constitutional duty and function as a protector of liberty. Courts must be alive to the need to safeguard the public interest in ensuring that the due enforcement of criminal law is not obstructed. The fair investigation of crime is an aid to it. Equally, it is the duty of Courts across the spectrum – the district judiciary, the High Courts and the Supreme Court – to ensure that the criminal law does not become a weapon for the selective harassment of citizens. Courts should be alive to both ends of the spectrum – the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment. Liberty across human eras is as tenuous as tenuous can be. Liberty survives by the vigilance of her citizens, on the cacophony of the media and in the dusty corridors of courts alive to the rule of (and not by) law. Yet, much too often, liberty is a casualty when one of these components is found wanting.

 

16. Noy Vallesina Engineering SpA vs. Jindal Drugs Limited & Ors. Civil Appeal No. 8607 of 2010 (SC) Date of order: 26th November, 2020 Bench: S. Ravindra Bhatt J., Indira Banerjee J.

 

Arbitration – Foreign award – Setting aside – Not maintainable [Arbitration and Conciliation Act, 1996, S. 34]

 

FACTS

The appellant company (N.V. Engineering) was incorporated under Italian law and was involved in the setting up and construction of plants for production of synthetic fibres, polymers and ascorbic acid in India. The respondent (Jindal Drugs) is a public limited company incorporated under the Indian law. Disputes arose between the two in respect of an agreement between them. The latter (N.V. Engineering) terminated the agreement and claimed damages. Jindal Drugs filed a request for arbitration before the International Court of Arbitration (ICC), Paris. But its claims were rejected by the Tribunal via a partial award.

 

Jindal then filed a petition before the Bombay High Court u/s 34 of the Act challenging the partial award which held that since the partial award was a foreign award, a challenge through a petition was not maintainable u/s 34. Jindal then preferred an appeal against this order before the Division Bench. During the pendency of the appeal, N.V. Engineering applied for enforcement of the two awards, i.e., the partial award and the final award under sections 47 and 48 of the Act, in the chapter relating to foreign awards. This petition was allowed and Jindal’s objections against the two awards’ enforceability were overruled. Jindal preferred an appeal and N.V. filed a cross-appeal

 

Pending these two appeals, the Division Bench decided Jindal’s first appeal and held that proceedings u/s 34 could be validly maintained to challenge a foreign award. Hence this appeal by N.V. Engineering.

 

HELD

The Court relied on the decision of BALCO vs. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552 wherein it was held that the Arbitration Act, 1996 has accepted the territoriality principle which has been adopted in the UNCITRAL Model Law. Section 2(2) makes a declaration that Part I of the Arbitration Act, 1996 shall apply to all arbitrations which take place within India. Therefore, Part I of the Arbitration Act, 1996 would have no application to international commercial arbitration held outside India. Therefore, such awards would only be subject to the jurisdiction of the Indian courts when the same are sought to be enforced in India in accordance with the provisions contained in Part II of the Arbitration Act, 1996. The provisions contained in the Arbitration Act, 1996 make it crystal clear that there can be no overlapping or intermingling of the provisions contained in Part I with the provisions contained in Part II of the Arbitration Act, 1996.

The appeal was allowed and costs imposed on Jindal.

 

17. Madras Bar Association vs. Union of India & Anr. Writ (C) No. 804 of 2020 (SC) Date of order: 27th November, 2020 Bench: L. Nageswara Rao J., Hemant Gupta J., S. Ravindra Bhat J.

 

Judicial Member – Qualification and experience – Appellate Tribunal and other Authorities Qualification, Experience and Other Conditions of Service of Members Rules, 2020 [Finance Act, 2017, Administrative Tribunals Act, 1956]

 

FACTS

The petitioner filed a petition challenging the constitutional validity of the Tribunal, Appellate Tribunal and other Authorities Qualification, Experience and Other Conditions of Service of Members Rules, 2020 (Tribunal Rules) on several grounds, viz., exclusion of advocates for being considered as a judicial member in ten out of 19 Tribunals, a minimum of 25 years of experience for an advocate to be eligible to become a member in seven tribunals (Central Administrative Tribunal, Income-tax Appellate Tribunal, Customs Excise and Sales Tax Appellate Tribunal, etc.) inter alia.

 

HELD

The Hon’ble Supreme Court held that the exclusion of advocates in ten out of 19 Tribunals for being appointed as a judicial member is contrary to the decision in the case of Union of India vs. R. Gandhi, President, Madras Bar Association, (2010) 11 SCC 1 and the case of Madras Bar Association vs. Union of India, (2014) 10 SCC 1.

 

It further held that the Tribunal Rules shall be amended to make advocates with an experience of at least ten years eligible for appointment as judicial members in the Tribunals. While considering advocates for appointment as judicial members in the Tribunals, the Search-cum-Selection Committee shall take into account the experience of the Advocates at the bar and their specialisation in the relevant branches of law. They shall be entitled for reappointment for at least one term by giving preference to the services rendered by them for the Tribunals.

 

18. State of UP vs. Sudhir Kumar Singh & Ors. Civil Appeal No. 3498 of 2020 (SC) Date of order: 16th October, 2020 Bench: R.F. Nariman J., Navin Sinha J., K.M. Joseph J.

 

Principle of natural justice – Arbitrary termination is held to be bad in law [Constitution of India, Art 14, 226]

 

FACTS

The private respondents filed a case on account of illegal and arbitrary termination of their tender upon completion of one year, whereas the term stipulated in the tender was two years. It was prayed that the order terminating the tender was bad in law due to violation of the principles of natural justice, i.e., audi alteram partem.

 

HELD

The principles of natural justice have undergone a sea change. The earlier view that even a small violation would result in the order being rendered a nullity is not correct. Some real prejudice must be caused to the complainant by the refusal to follow natural justice. The prejudice must not merely be the apprehension of a litigant. No prejudice is caused to the person complaining of the breach of natural justice where such person does not dispute the case against him or it. There is a clear distinction between cases where there was no hearing at all and the cases where there was mere technical infringement of the principle. Since there was prejudice caused to the private respondents and financial loss has occurred, the Court upheld the impugned judgment of the High Court on the ground that natural justice has indeed been breached.

 

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