Judgments on rights of sex workers

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December 1, 2021

This article is written by Rida Zaidi, a law student from the Faculty of Law, Aligarh Muslim University. The author tries to deal with some of the judgments regarding the rights of sex workers.

Table of Contents

Introduction

Prostitution is an age-old practice or occupation carried out to earn financial benefits by trading sexual intercourse. Societal stigma and prejudice is attached to the business of prostitution and is looked upon as immoral employment. The majority view is that women are trapped and forcefully made to work in this industry contrary to their free will. Though certain women become prostitutes wilfully out of economic, social, psychological causes. Under the Indian Constitution prostitution is not illegal but it is legal with certain limitations and restrictions.

Prostitution is not an offence per se under the Indian Penal Code but sexual exploitation, seducing someone, running brothels, pimping, soliciting etc are penalised under the Immoral Traffic (Prevention) Act, 1956. Section 2(f) of The Immoral Trafficking Act (1956) gives the definition of “prostitution” as sexual exploitation or misuse of any persons for any business purpose. Though Sections 366A, 366B, 370A of the Indian Penal Code deals with punishing for offences of procuration of a minor girl, importation of girl from foreign for sex and exploitation of a trafficked person respectively. Thus, under the Indian Penal Code laws related to prostitution are quite limited. The existing laws for sex workers need amendments as the lives of the prostitutes is not similar to an ordinary worker’s life that is a sex worker is constantly exploited by the customers, low wages are paid for their services, they are considered as an outcast by the society and their profession is regarded as derogatory. Sex workers are also equal citizens of the country and are entitled to the fundamental rights guaranteed to them under the Constitution of India. The Courts have passed a threshold of judgments regarding the rights of sex workers that goes in their favour and is an attempt by the judges to bring the sex workers on par with the workers of the rest of the industries and to disregard the societal stigma and disgrace encountered by them.

Case laws on rights of sex workers

Kajal Mukesh Singh & Ors v. State of Maharashtra (2021)

‘Prostitution is not an offence, a woman has a right to choose her vocation’

Petitioners- A, B and C

Respondent- the State of Maharashtra

The petitioners were victims of a crime that is pimping under the Immoral Trafficking (Prevention) Act,1956. To conceal their identity, they are named A, B and C in the records.

The petition is filed by 3 sex workers challenging the order passed by the Metropolitan Magistrate Mazgaon and the order passed by Additional Sessions Court Dindoshi which upheld the earlier mentioned order.

Facts of the Case

A pitfall was laid by the Complainant Rupesh Ramchandra More and one police constable who secretly received some information regarding a pimp named Mr Nizamuddin Khan who organizes customers for prostitutes at a guest house in Malad Mumbai.
Two persons were summoned to act as a decoy to the pimp and to act as they were one of his customers who wish to avail of his services.
The trap was executed in such a way that the police raided the guest house where the accused had arranged the prostitute for the decoy.
The police arrested the accused and the victims were taken into custody.

Observation of the Bombay High Court

The Magistrate ordered an inquiry regarding the age of the victims and for conducting a medical examination to investigate the health status of the victims.
Intermediate custody of the victims was given to an NGO for providing them with primary education and for their counselling to restrain them from prostitution.
It was revealed by the reports submitted by the probation officer as well as the Magistrate that they belong to the ‘bediya’ community where girls after attaining the age of puberty are sent into the business of prostitution.
Their parents consented to them being prostitutes so the magistrate did not give the victim’s custody to their mothers.
The appeal was laid down challenging the said order in the Court of the Session at Dindoshi which was dismissed.
The victims were detained under an institution of government ‘Nava Jeevan Mahila Vastigruha’ for their care, protection and shelter for one year.
The Court was of the view that the victims who were detained for one year without being prosecuted are declared accused in the matter or other words without any final order.
It was held that both the subordinate courts have taken the matter involved in the case in a very casual manner ignoring the factual matrix of the case, specifically Section 17 of the Immoral Trafficking (Prevention) Act.
The Court observed that the Act does not empower the Magistrate to hold the victims under custody for more than 3 weeks without a final order from the Court. The Court also observed that under Section 17(4) if the magistrate is satisfied with the inquiry under sub-section(5) of Section 17 of the Act, he shall direct the custody of the victims to a protective home.
The inquiry under sub-section(5) is to be conducted by a panel of persons having some social work background of which if practically possible 3 should be women.
The Court also pointed out the use of the word ‘may’ ought to be interchangeable with the word ‘shall’ as held in the case of Kumari Sangeeta & Anr v State & Ors (1995) that because the word ‘may’ is used it does not specify discretion of the Court but one should look at the intention of the legislature which it intends to convey through an enactment.
The Court highlighted the point that the purpose of the act is not to abolish prostitutes or prostitution but what is punishable is sexual exploitation, commercial sex and where a person is running a brothel or is seducing another person.
After considering all the facts and circumstances of the case the Court was of the view that there is nothing on record to show that they were seducing someone or that they were running a brothel.
They too have a right to reside freely at any place of their choice and to carry out the vocation as they like as their fundamental rights are guaranteed under part III of the Constitution.
The consent of the victims should have been taken before putting them under a corrective home as they are major and hold every fundamental right as an ordinary citizen does.
Both the orders of the metropolitan magistrate and Court of the session was quashed and the victims were released.

Manoj Shaw and Majoj Kumar Shaw v. State of West Bengal (2013)

‘Sex workers should be treated as victims of crime rather than the accused’

Petitioner- Manoj Kumar

Respondent- State of West Bengal

Calcutta High Court’s analysis

The chief judge of Calcutta High Court ordered the investigating officer to issue notice against the owner of the health spa under Section 41A of the Code of Criminal Procedure who had employed minor girls in the business of prostitution in his spa. According to the reports of the judicial officer, it was stated that the investigating officer was present during the hearing but on the other hand it was contended that he was not present. The Court observed that in cases where the offence is punishable for 7 years or more the investigating officer should consider all the facts that whether it is in the interest of justice to issue the notice under Section 41A of the Code of Criminal Procedure. The Court held such grave offences that come under Section 5 of the Act that is carrying out prostitution under lawful businesses like health spa etc requires sensitivity and attention and should be dealt with a serious approach. On the contrary, only notice was issued against the spa owner and the victims were put in jail who were already exploited hailing from a background that is financially not well off and is illiterate. The victims were minors and forcing minors into the business of prostitution leads to punishment for more than 7 years under the Immoral Trafficking (Prevention) Act.

The entire case reflects the glaring defects in the justice mechanism as the minor girls who were victims were made more vulnerable for threats, intimidation, etc by putting them in jail as if they were the accused themselves. The anticipatory bail of the petitioner was rejected as the Court held that interrogation is needed from the petitioner. The Court ordered a show-cause notice against the investigating officer and the victims to be released and their statements recorded under Section 164 of the Code of Criminal Procedure. The victims were directed to be granted interim compensation under the state victim compensation scheme and to accord rehabilitation in accordance with the law.

Budhadev Karmaskar v. State of West Bengal (2011)

‘Sex workers are also be entitled to live a dignified life as guaranteed under Article 21 of the Constitution’

Appellant- Budhadev Karmaskar

Respondent- State of West Bengal

Observations of the Court

The appeal of the appellant was dismissed where he was convicted for the murder of a sex worker by battering her head repeatedly against the wall and the floor of the room. The Court suo moto filed a PIL for addressing the problems of the sex workers. A panel was constituted headed by an advocate and experts from social work backgrounds and resource persons. The Central and state government was directed to initiate schemes and policies for the vocational and skill training and the rehabilitation of the sex workers with the assistance of a constituted panel instituted for the purpose. The Court held that sex workers are like ordinary human beings and have an equal right to live a dignified life as guaranteed under Article 21 of the Constitution. The major concerns that the Court pointed out were-

To prevent sex trafficking
To rehabilitate those sex workers who wish to withdraw themselves from the sex trade
To provide dignified life and dignified conditions for those sex workers who wish to continue in this industry.

The Court observed that until and unless the nexus between the traffickers, the sex workers and the family members is not broken the rescue mission is bound to fail. The Court also directed the NGOs and different state governments to provide a helpline number to redress their issues and to seek legal advice whenever required.

Gaurav Jain v. Union of India (1997)

‘Children of prostitutes have an equal right to opportunity, care and protection’

Petitioner- Gaurav Jain

Respondent- Union of India

Observations of the Court

The Court observed in this particular case where an advocate filed a PIL after reading the ‘red light trap’ in the India Today magazine. He prayed for separate inns and schools of vocational training for the offspring of the prostitutes as the environment they live in is not healthy for children and by residing separately they would be able to be somewhat a part of the mainstream public. The Court also emphasised the elimination of prostitution. It also directed the establishment of juvenile homes for their vocational training and separate hostels for these children. A review petition was filed before the Court by the Supreme Court Bar Association with the assistance of the original petitioner Gaurav Jain for reflecting the nature and scope of Articles 32, Article 142 and Article 145 (1) of the Constitution and for directions formulated for the eradication of prostitution. The Court overruled the directions for eradication of poverty but it upheld the directions for the constitution of juvenile homes for the children of these sex workers.

Delhi v. Pankaj Chaudhry & Ors(2009)

‘No means no even if a woman is of an easy virtue’

Appellant- Delhi

Respondent- Pankaj Chaudhry & Ors

Observations of court

The Court reversed the decision of the Delhi High Court of acquitting 4 accused of gang rape and upheld the conviction of the trial Court. The Delhi High Court dismissed the conviction of the accused because the women were in the custody of the police when the alleged rape is supposed to have been occurred. Though the Court held that even if the woman is immoral no one is permitted to rape her. She is as equally protected from being harassed as any ordinary citizen would be. The Court asserted that the High Court has committed an error while relying on the respondent’s contentions and ignored the complaints of the women. The police officers were also not permitted to be heard. The Court quashed the grounds which were established against the police officials for perjury. The Court emphasised that even if it is proved through material evidence that a woman is habitual of sexual intercourse, no one can take advantage of her and can raise the issue regarding her character or by contenting that she is a woman of ‘easy virtue’. The Court observed that such women have the right to refuse to submit themselves for sexual intercourse. The Court imposed a 10 years sentence for the accused as was held by the trial court earlier.

Conclusion

Prostitution is the act of sexual pleasure in return for some monetary benefits. Most of the women enter this industry out of abject poverty and illiteracy. Though some pursue it out of their own choice. Prostitutes have also been treated as an outcast for society and their profession is looked upon as derogatory. Though the Courts have passed several judgments withholding the rights of the sex workers as they are entitled to equal rights in comparison to an ordinary citizen to live a dignified life, right to reside at the place of their choice, right to choose their vocation and to refuse to give her services as and when she desires. The Courts have been asserting the fact that it is high time that society accepts sex workers the way they are and respect their profession.

References

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Time barred debts : judicial intervention of courts at pre-arbitral stage

By

Oishika Banerji

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December 1, 2021

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This article is written by Shivam Gupta, a student of Maharashtra National Law University Aurangabad. This article seeks to highlight the issue of judicial intervention by courts at the pre-arbitral stage when the issue is related to time-barred debts.

Table of Contents

Introduction

The question of limitation essentially pertains to the claim’s maintainability or admissibility and is determined by the arbitral tribunal. For example, a challenge to the admissibility of a claim that is time-barred or prohibited before a precondition is met will be considered as a challenge to the claim’s admissibility, not to the arbitrator’s jurisdiction to determine the claim.

The issue before the courts is always that the court can decide on a claim which is ex facie time-barred or an arbitral tribunal is only the competent authority to decide the maintainability of the claim. This article will analyse the position of the judiciary before and after the 2015 amendment of the Arbitration Act.

Issue of Limitation

The limitation is usually a question based upon facts and law, and an arbitral tribunal can only determine it when the case is to be solved by arbitration. However, a distinction can be made between jurisdictional and admissibility issues. Because the power and competence of the arbitrators to hear and resolve a case is referred to as ‘jurisdiction’. Objections to the arbitrator’s or tribunal’s competence to hear a case, such as lack of consent or a dispute that is beyond the reach of the arbitration agreement are examples of jurisdictional problems. Issues that are based upon the existence, validity and scope of the arbitration agreement are usually considered jurisdictional issues.

Admissibility issues on the other hand revolve around procedural conditions which can be in the form of violation of pre-arbitration requirements. If a case arises where mediation is put as a mandatory condition before arbitration can be commenced or where to make any claim specific condition is required to be fulfilled. Admissibility is determined by the essence of the argument or the facts surrounding it. The arbitrator’s jurisdiction to determine the claim is not challenged by an admissibility question.

Singapore Court of Appeal in the case of Swissborough Diamond Mines (Pty) Ltd. & Ors. v. Kingdom of Lesotho (2018) distinguished between “jurisdiction” and “admissibility” and opined that jurisdiction can be defined as the power of the tribunal to decide the case, whereas admissibility can be commonly understood as whether it will be feasible for the tribunal to decide a case and jurisdiction refers to the presence of an arbitral tribunal’s adjudicative capacity, as well as admissibility, which refers to the exercise of such power and the appropriateness of the claim filed pursuant to that power for adjudication. These views were further taken into consideration in the case of BBA & Ors. v. BAZ & Anr. (2020) in which Singapore Court of Appeal applied the “tribunal versus claim” test to decide whether the issue is related to admissibility or jurisdiction and opined that the tribunal versus claim test is used to determine whether the objections are directed at the tribunal (as the claim should not be allowed to be arbitrated because of some kind of a flaw in or neglect to consent to arbitration) or the claim itself (in a sense that claim should not be raised at all as it is defective). Therefore according to the tribunal versus claim test if the claim in itself is defective then there is no need to set up the arbitral tribunal to decide over that claim.

Position before the 2015 Amendment

The pre-amendment law does not anywhere state that the Chief Justice of the High Court while hearing the application for appointment of an arbitrator can also decide on whether the claim is dead/time-barred and needs arbitration or not. But with time, the Supreme Court through its judgements stated that arbitration should be done only for live claims. In the case of S.B.P. and Co v. Patel Engineering Ltd. and Ors. (2005), Supreme Court while defining the powers of the Chief Justice when dealing with the applications under Section 11 of the Act observed that the Chief Justice can also decide on whether the claim is dead or live claim and the arbitral tribunal should decide it or not. The reasoning behind this observation given was that a party cannot seek the appointment of an arbitrator after for resurrection of a claim which is already dead or time-barred because there have been cases where the party wants the appointment of an arbitrator after the contract ended many years ago and in some cases decades ago. In another case of National Insurance Co. Ltd. v. Boghara Polyfab Pvt. Ltd. (2008), the Court considered the view of Patel Engineering and observed that whether the claim is a dead claim or live claim is one of the preliminary issues and can be decided by the Chief Justice.

Position after the 2015 Amendment

The post-amendment law introduced Section 11(6A) in the Act which confined the High Courts to only examine the existence of an arbitration agreement which means that in the cases of appointment of an arbitrator under Section 11. As a consequence of this amendment, High Courts can only decide the issues related to the existence of the arbitration agreement. The amendment shows the importance of the doctrine of the Kompetenz-Kompetenz which says that the tribunal is competent enough to decide on its own all the disputes. As a result, court intervention at the pre-reference stage is minimized. Amendment also overruled the rulings given in Patel Engineering and National Co. Ltd.

Jurisprudential analysis

Konkan Railway Corporation Ltd. v. Mehul Construction Co. (2000)

In this case, the Supreme Court held that the powers of the Chief Justice under Section 11(6) of the 1996 Act are administrative in nature and that the Chief Justice or his designate does not act as a judicial authority while appointing an arbitrator. This judgement was overruled by the judgement of Patel Engineering and the Supreme court held that power under Section 11 of 1996 Act is judicial and not administrative but after the insertion of Section 11(6B) through the 2015 amendment, it was made clear by the legislature that appointment of arbitrator under Section 11 is not to be considered as the delegation of judicial power.

Duro Felguera SA v. Gangavaram Port Ltd. (2017)

In this case, the Supreme Court considered an application under Section 11(6A) and observed that the legislature’s objective is very obvious in the Section, which states that the court should and must only look into one aspect—the presence of an arbitration agreement. The second question is what considerations should be considered when assessing whether or not an arbitration agreement exists. The remedy is simple: look to see if the agreement has a section that provides for arbitration in the event of a dispute between the parties. From this observation, it can be concluded that courts are only required to determine the existence of the arbitration agreement at the pre-reference stage. The views were followed in the case of Mayavati Trading Company Private Ltd. v. Pradyut Dev Burman (2019) and the Supreme Court further opined that the powers under Section 11(6A) are to be construed in the narrow sense.

Vidya Drolia v. Durga Trading Corporation (2020)

In this case, the three-judge bench of the Supreme Court observed that the Limitation Act, 1963, applies to arbitrations in the same way as it does to court proceedings, according to Section 43(1) of the Arbitration Act and Sub-Section (2) says that arbitration shall be assumed to have begun on the date specified in Section 21 for the purposes of the Limitation Act and the Arbitration Act. Limitation legislation is procedural, and most disagreements are factual, requiring the arbitrator to make a decision based on the facts discovered and the relevant law. Only when in all forms it is clear that the claims are ex facie time-barred and obsolete, or where there is no ongoing dispute, the court can intervene at the referral stage. All other cases are referred to an Arbitral Tribunal so that they can be decided on merits. Court also observed that when it is ex facie and without an iota of a doubt certain that the arbitration agreement is non-existent, invalid, or the disputes are non-arbitrable, the court may intervene at Section 8 or 11 stage as a demurrer, though the nature and facet of non-arbitrability would, to some extent, determine the level and nature of judicial scrutiny. The purpose of the restricted and limited review is to ensure that parties are not forced to arbitrate when the subject is non-arbitrable and to eliminate deadwood. These observations imply that when the concerned claim in the dispute is ex facie time-barred, then the court can interfere at the pre reference stage and can decide whether the claim in dispute needs arbitration.

Bharat Sanchar Nigam Ltd. & Anr. v. M/S Nortel Networks India Pvt. Ltd. (2021)

In this case., Nortel raised a claim for payment from BSNL and it was subsequently rejected by BSNL. After a period of more than five and half years, Nortel invoked the arbitration clause against BSNL and BSNL approached the Supreme Court and contended that the Arbitration clause cannot be invoked as the claim is time-barred and exceeded the limitation period. On this Supreme Court needed to decide whether the court can interfere at the pre reference stage and declare the claims as time-barred or the arbitral tribunal can only decide such a question of law. The Supreme Court on this held that the claim in dispute is deadwood and ex-facie time-barred. In one of the conclusions, Supreme Court observed that the Court may decline to issue the reference in rare and unusual situations where the claims are ex facie time-barred and it is clear that there is no ongoing dispute. By this observation, the Supreme Court implied that when the claims in dispute are ex facie time-barred, the court can refuse to make a reference of those claims to an arbitral tribunal.

Conclusion

From the above analysis through various cases, it will be sufficient to conclude that when at pre reference stage if the courts found that the claims in dispute are ex facie time-barred then the courts can interfere and refuse to refer the case to the arbitral tribunal. Though from the plain reading of Section 11(6A) it is clear that the courts only need to examine the existence of an arbitration agreement and not go beyond that. But from the reasoning given by Supreme Court in various judgements, it is clear that there is no need for arbitration which does not exist and ex facie time-barred debts is one of those things as they are time-barred and arbitral tribunal in all the circumstances will come to the same result as the judicial court can arrive at the pre-arbitration stage. Arbitration is chosen as an alternative method for dispute resolution because it saves time for both the parties and also of the courts and the Arbitration Act also provides different strict timelines which makes the intention of the legislation clear that the cases need to be disposed of in a speedy manner. If in any way if the setting up of an arbitral tribunal is in all likelihood will prove as wasting of time as the thing doesn’t exist can be considered as defeating the purpose of the Act.

References

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The doctrine of privity and exceptions to its application

By

Oishika Banerji

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December 1, 2021

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This article is written by Adhila Muhammed Arif, a student of Government Law College, Thiruvananthapuram. This article elucidates on the Doctrine of Privity and the exceptions to its application.

Table of Contents

Introduction

According to Section 2(h) of the Indian Contract Act, 1872, a contract can be defined as an agreement that subsists between two or more parties that is enforceable in the courts of law. When one party fails to perform their obligations provided in the contract, the other party can sue them for the breach and obtain adequate remedy. Consideration is one of the major requisites for the validity of a contract and it is defined in Section 2(d) of the Indian Contract Act. It refers to any act or abstinence performed by the promisee or any other person at the request of the promisor. Indian law permits consideration to be moved by persons who are not parties to the contract as long as it is at the request of the promisor.

What is privity of contract?

The doctrine of privity of contract is one of the major principles that govern the law of contracts. The word ‘privity’ means ‘with knowledge and consent’. According to this doctrine, only parties to a contract have the right to enforce the rights and obligations provided by the contract and strangers to the contract are barred from enforcing any obligation on any party. This doctrine protects parties to a contract from obligations that they never agreed to incur. Only those parties that have an interest in the contract can sue for its enforcement. The first case in India that affirmed the applicability of the doctrine was the case of Jamna Das v. Ram Autar Pande (1916).

For example, A and B entered into a contract where A gave Rs.100 in return for which B agreed to deliver a watch to C. Here since C is a stranger to the contract he cannot sue B if he fails to deliver the watch.

Though consideration can be provided by third parties, they can never enforce the performance of the contract as they are strangers to the contract. It is important to note that there is a difference between a stranger to contract and stranger to consideration. As a stranger to consideration remains a party to the contract in spite of not providing consideration, he can still file a suit challenging the contract.

Doctrine of privity in english law

English law is more restrictive in comparison to Indian law in the application of the doctrine of privity. This is because English law only recognizes consideration that moves from the promisee himself and not from anyone else, which puts both strangers to contract and strangers to consideration on the same footing. Thus, when the promisee to a contract does not provide the consideration himself, he loses his right to enforce the contract as he is a stranger to consideration.

The doctrine of privity of contract was first recognized in English law in the case of Tweddle v. Atkinson (1861). In this case, John Tweddle William Guy entered into a contract where they agreed that both of them would pay a sum of money to their children who were engaged. However, the father of the bride William passed away before he fulfilled his obligation. The father of the groom died too before he filed for a suit. The groom filed a suit against the executor of William for the payment of the sum of money. The Court ruled that since the son was both a stranger to the contract and a stranger to the consideration, his suit was not maintainable.

The relevance of the doctrine was affirmed again when it was cited in the well-known case Dunlop Pneumatic Tyre Co. Ltd. v. Selfridge & Co. Ltd (1915). In this case, Dunlop Company manufactured tyres and they entered into an agreement with Dew & Co., who were dealers. Dunlop entered into the agreement so that they can maintain a standard market price for the tyres and Dew & Co. agreed that they would not sell the tyres below the fixed price. Dunlop also insisted that the dealers must have the same terms in their agreements with the retailers. Dew & Co. entered into a contract with a retailer Selfridge, which had a provision that if the tyres were sold below the fixed price, they would have to pay 5 Pounds per tyre as damages to Dunlop & Co. When Selfridge sold some tyres below the fixed price, Dunlop sued them for damages and the decision was in favour of Dunlop. But, on appeal the decision was reversed and it was held that Dunlop did not have the right to claim damages as the contract was only between the retailer Selfridge and Dew & Co.

Exceptions to the rule that a Third Party to contract cannot sue

The doctrine of privity of contract is however not absolute. There are several exceptional situations in which a third party to a contract can sue. The following are the exceptions to the doctrine of privity in Indian law :

Trust of contractual rights or beneficiary under a contract

A trust refers to something created by a contract for the benefit of a third party. In a contract of trust, the trustor transfers the title of a property to the trustee, so that the trustee holds it for the benefit of a third party who is also called the beneficiary. Even though beneficiaries are third parties to a contract they have the right to enforce the provisions of trust.

To cite an example, in the case of Rana Uma Nath Baksh Singh v. Jang Bahadur (1938), the trustor was a father who transferred all of his estates to his son for him to hold in trust for the benefit of the trustor’s illegitimate son. The son had the obligation to provide the illegitimate son with money on a regular basis. When the son failed to perform his obligation, the illegitimate son filed a suit to recover the amount to be paid and the suit was maintainable even though he was not a party to the contract.

Provision for marriage or maintenance under family arrangement

In a contract for a family settlement either for marriage or maintenance, where the contract is intended to benefit a third party, he may sue on the contract to secure his rights.

For example, in the case of Lakshmi Ammal v. Sundararaja Iyengar (1914), there was an agreement among the brothers of a Hindu joint family to pay for the expenses to be incurred for the marriage of their sister. Despite being a third party to the agreement, the sister had the right to enforce the provision that was made for her.

In the case of Veeramma v. Appayya (1955) the daughter of the family had the responsibility of taking care of the father. So, there was a family arrangement made for conveying the father’s house to her. Since the agreement benefited her, she had the right to file a suit for the specific performance of the contract.

Acknowledgement or Estoppel

According to the law of estoppel, if a person by words or conduct suggests something, he is not allowed to contradict it later. Thus, if a party to a contract acknowledges by words or conduct that a third party has the right to sue him, he cannot deny that later by the rule of estoppel. In such cases, a suit filed by that party, despite being a stranger to the contract, is maintainable.

For example, A and B enter into a contract where A pays B a sum of money that has to be given to C. B acknowledges to C that he is holding the sum for him. If B defaults in the payment, C will have the right to recover the sum from him.

In the case of Devaraj Urs v. Ramakrishnayya (1951), A bought a house from B. B asked A to pay the price for the sale to B’s creditor. The buyer paid a part of the price to the creditor and promised him that he would pay the rest later. On his default, the creditor filed a suit against him. The court ruled in favour of the creditor, though he was a third party to the contract.

Contracts entered into through an agent

It is not uncommon for people involved in commerce and business to enter into contracts through their agents. These agents can enter into contracts for them and represent them in the relations that arise in such contracts. Thus, whatever contracts entered into by an agent while acting within the scope of his authority can be enforced by the principal. It may seem that the agent is the party to the contract, but in reality, he is more of a representative of the principal.

For example, A appoints B as his agent. He asks B to buy a bag of rice from C on his behalf. Here, B enters into a contract with C when he buys the bag of rice, but it is A who has the right to enforce the contract as B is a mere representative of A.

Charge created on a specific immovable property

In certain cases, charges or covenants are made on a specific immovable property, like land for the benefit of a third party. In such cases, these third parties can enforce the contract, though they are strangers to the contract.

Assignment of a contract

Assignment of contract refers to the transfer or assignment of the rights and liabilities arising from contractual relations to a third party. In cases where the benefits of a contract are being assigned, the assignee of the benefits can sue upon the contract though he is not a party to the contract.

For example, a husband assigns his insurance policy in favour of his wife. As the benefit of the contract is assigned to her, she has the right to enforce the contract though she is not a party to it.

Collateral contracts

Collateral contracts refer to the contracts subsidiary to the original contract. It could be entered into by the same parties or one of the original parties with another party. It can be made before or after the main contract is formed. When a third party has entered into a collateral contract, he can also file a suit to enforce the main contract in spite of not being a party to it. The best example of a collateral contract is a manufacturer’s guarantee regarding the goods sold. The sale of the goods is the main contract and the guarantee is the contract collateral to it.

In the case of Shanklin Pier Ltd. v. Detel Producers Ltd. (1951), a person A was employed as a contractor by B. B asked A to buy some paint manufactured by C. B wanted A to buy C’s paint because of a statement that was once made by C that the paint would last for seven years. But the paint only lasted for three months. In this case, the guarantee given by C to B forms a contract that is collateral to the contract made by A and B. The suit filed by B was maintainable even though he was not a party to the main contract.

Conclusion

To sum up, the doctrine of privity of contract is not an absolute rule. There are many cases in which a person who is not a party to a contract can enforce the contract as explained above. The doctrine of privity of contract protects the parties to a contract from legal action taken by strangers against them, as they are obligated to only the party with whom they contracted. But, there are situations where third parties can be aggrieved by the breach of a contract and the exceptions to the doctrine enable them to take action against the parties to the contract.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:https://t.me/joinchat/L9vr7LmS9pJjYTQ9

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High Court procedures and practice in India

By

Abanti Bose

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December 1, 2021

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816963-bombay-high-court-09 (1) — Image Source: https://rb.gy/9ct0xm

This article is written by Harshada Sanjay Ghode, pursuing Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from Lawsikho.com.

Table of Contents

Introduction

The High Court stands as the head of the judiciary at the State level. The High Courts in India enjoy civil, criminal, original, appellate, ordinary as well as extraordinary jurisdiction. High Courts were first established in India under Indian High Court Act, 1861 at Calcutta, Bombay and Madras in 1862. At present, there are twenty-five High Courts in India with an appropriate number of benches in respective states.

The High courts exercise Ordinary Jurisdiction conferred on it by various statutes as well as extraordinary jurisdiction under Article 226 of the Constitution of India to issue writs. Every High Court enjoys Original Jurisdiction, that is, it has the power to hear and decide the case in the first place without going to any intermediary stage, as well as it enjoys appellate jurisdiction, that is, it entertains an appeal against the verdict of a court subordinate to it. The procedure of the Original and Appellate Jurisdiction of the High courts is governed by its Original Side rules and Appellate side rules, respectively. Every High Court in India has its own and separate set of Original Side rules and Appellate side rules with minor differences.

What are High Court procedures?

The High Court procedures can be understood through the steps elaborated as under:

Case filing

Every High Court has a Registry that is headed by Registrar/ Joint Registrar/ Deputy Registrar or any other officer specially authorised on that behalf. All plaints, petitions, applications, memorandum of appeal shall be presented by the plaintiff, petitioner, applicant, defendant, respondent, appellant or filing party in-person/ his duly authorised agent/ an Advocate, duly appointed by him for that purpose, at the filing counter of the Registry. Thereafter, the officer in charge of the filing counter shall endorse the date of receipt on the document (i.e., petition, petition, memorandum of appeal or application, etc.) presented and also on the duplicate copy of the index and return the same to the filing party.

The registry soon places the presented plaints, petitions or applications in the appropriated part of the concerned files. The registry conducts close scrutiny of the presented pleadings and ensures that the pleadings have no defects. On finding the defects, the Registrar/ Deputy Registrar/Assistant Registrar/Officer in Charge will specify the objections to the filing party through notice and ask to correct or remove the listed defects and present the amended pleading/ document within the specified time. These defects can be with respect to payment of inadequate court fees or documents filed are in a language other than English (any document in a language other than English should essentially be filed with an English translation of such document) or when the pleadings or documents do not comply with the High Court Rules.

If such a pleading or document on notification of objections is not taken back for amendment or is not presented with amendments within the specified time, it shall be registered and listed before the Court for its dismissal for non-prosecution.

Once the pleadings, applications, documents are presented appropriately in a required manner, they are ready for filing; the Registrar makes the registration of the same and prepares a list of cases for the hearing.

Writ of Summon

The Writ of Summon is issued on the opposite side to appear and file a response to the application/ pleading filed against them. The service of summons is affected in the manner provided in Order 5 of the Code of Civil Procedure, 1908. If the Writ of Summons is not appropriately served within the reasonable time, the suit is placed on board for dismissal. Replication can be filed by the party instituting the suit as a reply to the response filed by the opposite party.

Pre-admission hearing

Pre-admission hearing is generally seen in the matter of appeals and writ petitions. At this stage, the party filing the parties presents their arguments convincing the court that the case presented has merits and; qualifies for the admission and the remedy they have applied for.

Admission

On hearing the arguments presented by the party for the admission of the case, if the court is satisfied that the case is baseless and has no merits or issues involved and does not qualify to be admitted or kept pending for admission, the High Court dismisses the case. On the other hand, if the court, after going through the arguments presented by the petitioner or applicant or appellant, comes to the conclusion that the case involves a valid legal issue or is convinced that the case is based on merits and involves a question of law to be solved, the court admits the case. Thus, this is called an admission of the case.

Admission hearing

On the admission of the case, a regular hearing of the case commences. At this stage, the court examines the pleadings, i.e., the written arguments filed by the parties. Once a brief narrative of the case is presented by the petitioner/ applicant/ appellant before the court through their pleadings, the opposite party is asked to present a reply to such pleading. A written reply is then filed by the opposite party which is generally called a ‘reply on affidavit/ affidavit in reply’. A counter reply can also be filed to such a reply on affidavit by the first party. However, it is pertinent to note that such replies are presented only when the court grants permission to file such replies. Once the court closely examines the pleadings presented by the parties to the case, the court may allow an oral hearing. These oral hearings essentially involve oral arguments, putting forward newly discovered facts, and submission of evidence. An oral hearing may not essentially be completed on a single day, but it may continue for a number of days. After critically examining the pleadings presented by the parties, the oral arguments and averments, the court comes to the conclusion that the case requires further detailed hearing of case; evaluation of facts and evidence, the court admits the case for Final Hearing.

Final disposal at Admission Stage: On taking into consideration, the submissions, averments and arguments presented by the first party to the case, if the court comes to the conclusion that the matter is capable of being disposed off within a short time at the admission stage itself, they place the matter in the Motion Hearing list. This step is taken for the ‘Final disposal of the matter at Admission Stage’. A notice of the same is served to the opposite party and they are asked to file a reply and appear before the court. After the Opposite party appears, the case is heard and finally disposed of. The procedure of ‘Final disposal at Admission Hearing’ is not a product of any High Court Rules but it is a scheme or rather a practice developed by The High Courts themselves. The practice is developed with the view to lessen the burden of the courts at the final hearing as a case which is capable of getting disposed at the admission stage itself is admitted for disposal at final hearing will prolong the disposal of such a case as they will be listed on the board of Final Hearing after a number of years as per their turn because of the huge pendency of Final hearing matters.

Rule nisi: After hearing a petition or an application at the admission stage if the court comes to the conclusion that the case involves such merits and issues which require and are worthy of hearing at the final hearing, the High court issued rule nisi. Such a rule may be issued in writ petitions, Civil Revision Applications, Contempt Petitions, Criminal Writ Petition or any other kind of Petition. If the court is of the opinion that a prima facie case for granting a petition or an application is made out, a rule nisi is issued calling upon the person or persons against whom the petition/ application is filed and order is sought, to appear on a specified day to show cause why such orders should not be made absolute. The summons or notice of the rule issued is then served on the person against whom the order is sought. Such a person is required to file a ‘Return’ i.e., a detailed reply to the petition/application as the case may be. Thus, the High Court by issuing rule nisi admits the petition/application for the final hearing.

Final hearing

Once the case is admitted for the final hearing, the matter is placed on the list of the final hearing. Every High Court has the Board of Final hearing which lists down the matters as and when their turn appears. At least one week before the date fixed for the final arguments, the advocates of the respective parties are required to exchange their respective list of judicial precedents to which they are likely to refer in the final argument. Also, the advocates of the respective parties are required to submit within the specified time a short synopsis listing the issues and details of the relied oral and documentary evidence in the case. On the day fixed for final hearing, both the parties to the case make a final argument on the issues framed. Such an argument is supported by evidence and judicial precedents. The final hearing does not essentially get completed in a day and may require a number of days depending upon the case and the arguments presented. The court may, on hearing the final arguments and on critically examining the evidence, pass a judgement or fix some other day for pronouncing the judgement.

Judgement and decree

A judgement with appropriate reasoning is formulated by the judge/judges after hearing the final argument. The judgement is pronounced by the court on the day fixed. It is not necessary for the court to read out the whole judgement but it shall be sufficient for the court to just read out the findings of the court on each issue and the final order passed.

In the cases where the court had issued rule nisi, if the judgement is drawn in favour of the petitioner/ applicant, such a judgement will mention after the reasoning at the end ‘rule made absolute’, while if the judgement is drawn against the petitioner/ applicant the judgement mentions at the end ‘rule discharge’.

A decree is drawn as per the Judgement pronounced. If it is considered necessary by the Registrar of the court that the draft of the decree should essentially be settled in presence of the parties to the case or if the parties require it to be settled in their presence, the Registrar shall, by notice in writing appoint a time for settling the same and the parties are required to attend the appointment and produce their respective briefs and documents as may be necessary to enable the draft to be settled.

E-filing at High Courts

E-filing system has been adopted by High courts in India which enables electronic filing of legal papers in both civil as well as criminal cases. The e-filing system can be used by any advocate enrolled to Practice in the Bar Council of any State in India or by any petitioner in person to file a case before the High court. The system aims at promoting paperless filing and creating time and cost-saving efficiencies by adopting technological solutions to file cases before various High courts in India.

It is evident to know that the Supreme Court e-committee has directed all High Courts to ensure that all petitions or cases filed by the government before High Courts are done only by way of e-filing from January 2022.

High Court procedures during COVID-19 pandemic

A nationwide lockdown was imposed due to the covid-19 pandemic in March 2020. However, such an unprecedented challenge could not deter the judiciary from delivering justice. The High Courts adopted the virtual mode of proceeding. The cases were filed through the e-filing mechanism and the proceedings took place through video conferencing. The Judges of the High Courts adjusted to the digital infrastructure of the courts and delivered justice.

With the effect of COVID being lowered, the High Courts have now started conducting the proceedings in hybrid mode, i.e., both virtual as well as physical. However, most of the courts have restricted the physical hearing to only urgent cases.

Conclusion

High Courts in India are considered to be superior courts after the Supreme Court of India. Each High court exercises the power, functions, jurisdiction conferred on it by various statutes. High courts have their respective original and appellate side rules which explicitly mentions the procedures followed by the respective High court.

References

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Adducing secondary and digital evidence in the court : an insight

By

Oishika Banerji

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November 30, 2021

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This article has been written by Artha Shyam pursuing the Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho. This article has been edited by Prashant Baviskar (Associate, Lawsikho) and Ruchika Mohapatra (Associate, Lawsikho).

Table of Contents

Introduction

When we need to go to court, we present information to the judge called evidence, and the judge decides our case based on such information. The judge’s decisions are based on the evidence and testimony of witnesses. The information must not be rumour or speculation. Evidence is an important part of every case in a court of law since every accusation or demand made in court must be proven by evidence or it will be dismissed. The Evidence Act was amended by virtue of Section 92 of the IT Act and the term “evidence” was amended to include “electronic record”, thereby allowing for admissibility of the digital evidence, however, prior to the recognition granted to electronic evidence, Sections 63 and 65 of the Evidence Act dealt with and provided for the conditions for admissibility of electronic evidence. Through this article, we explore the various types of evidence while focussing on adducing secondary and digital evidence in court.

Types of evidence

The Indian Evidence Act, 1882 governs the field of Indian evidence law.

Evidence, according to Section 3 of the Evidence Act of 1872, is defined as:

All such remarks that the court permits or requires witnesses to make in connection with the facts under investigation. Such remarks made by witnesses in the court are called Oral evidence.
All of these documents, as well as any electronic records, that were brought before the court for scrutiny. Documentary evidence refers to these documents.

Evidence can be classified into two:

Oral evidence

Section 60 – Oral evidence refers to that evidence which the witness has personally witnessed, or if the witness has heard any facts or information capable of proving or establishing the facts in dispute. The only requirement for this form of evidence is that it must be direct or affirmative in order to establish the fact in question.

Documentary evidence

Documentary evidence is evidence that refers to any issue that is described or stated in any material in the form of letters, numbers, or marks, or in more than one of the forms that can be utilised to document the issue. To prove a disputed fact in court, such evidence is submitted in the form of a document.

Primary documentary evidence consists of original documents as defined in Section 62 of the Indian Evidence Act, whereas secondary documentary evidence consists of copies of documents that can be presented in court under certain circumstances or as defined in Sections 63 and 65 of the Indian Evidence Act.

Electronic records can also be offered in court as evidence, which means that electronic records can be used to provide evidence in criminal cases as well. The types of oral and documentary evidence are as follows:

Direct or primary evidence

Direct evidence is widely considered as the most significant type of evidence needed to resolve a dispute. It is one of the most effective sorts of evidence since it does not require the court to draw any inferences because the evidence demonstrates the direct impact and is extremely valuable in establishing or proving any truth in dispute. Section 64 of the Indian Evidence Act requires that primary evidence be proven. Primary evidence is the type of evidence that is thought to have the greatest degree of factual certainty in the case at hand.

Indirect or hearsay or secondary evidence

Indirect evidence is evidence that proves the facts in question by presenting other indirect evidence and then demonstrating their relevance to the issue. By relating a series of other facts to the facts in question, a deduction can be derived from such data. These circumstantial facts must be linked to the primary facts and have a cause-and-effect relationship. When there isn’t enough direct evidence to prove a fact in question, the court can make an assumption about the availability of existing evidence and build a link between the evidence and the inference. The court can establish any fact if the constructive link is proven beyond a reasonable doubt.

Secondary evidence under the Indian Evidence Act, 1872

Secondary evidence is dealt with in Section 63 of the Indian Evidence Act of 1872, and it includes:

Certified Copies;
Copies prepared by mechanical process;
Counter foils;
Photographs;
Xerox copy;
Photostat copy;
Carbon copy;
Typed copy;
Tape records;
Copies made from or compared with original copy;
Counterparts;
Original accounts;
Registration copy;
Unprobated will;
Age certificate;
Voters list;
Newspaper report.

Admissibility of secondary evidence

Basic evidence is admissible in seven cases under Section 65 of the Evidence Act. This section discusses the exemptions to the regulations in Section 64. The principle underlying that clause is that if the original document is unavailable, destroyed, retained by the opposing party, or controlled by a third party who fails to produce it after recognition, the second evidence must agree. The request for secondary evidence should include all essential facts and should be accompanied by the appropriate affidavit. It should be noted that secondary evidence of document content may not be accepted unless the original is produced in such a way that it is imported in one or more of the cases specified in the case. A document of this type must be certified by someone who is familiar with the author’s handwriting.

Digital evidence

The type of evidence we’re dealing with has been referred to as ‘electronic evidence,’ ‘digital evidence,’ or ‘computer evidence,’ among other terms. The term “digital” is frequently used in computing and electronics, particularly when physical-world data is translated to binary numeric form, as in digital audio and digital photography. ‘Information of probative value stored or transferred in binary form; and ‘Information saved or sent in binary form that may be relied on in court’ are two definitions of digital evidence¹. The Indian Evidence Act of 1872 defines evidence as a) witness testimony, which includes oral testimony, and b) documentary evidence, which includes electronic records prepared for the court’s inspection. The wording “all documents produced for the scrutiny of the Court” was replaced by “all documents including electronic records generated for the examination of the Court” in Section 3 of the Act.

The provisions of Section 65 B of the Indian Evidence Act, 1872 must be followed while proving electronic evidence. Schedule II of the Information Technology Act of 2000 introduced Section 65 B to the Evidence Act. It’s a rule that governs the admissibility of electronic evidence. It stipulates that any information contained in an electronic document is deemed a document admissible as evidence and original if it fits the requirements set forth in sections 65B (2) to 65B (5) of the Indian Evidence Act, 2000. As a result, each certificate is awarded only when the Section 65B checklist has been completed.

This specific procedure for adducing electronic records in evidence is outlined in Section 65B of the Evidence Act. A duplicate copy (including a printout) of an original electronic record may be utilised under the following technological conditions:

The computer that created the electronic record had to be in regular use at the time of its creation.
The type of data contained in the electronic record must have been input into the computer on a regular basis.
The PC was in good working order, and
The computer appeared to be in good operating order, and

Section 65B (2) specifies the requirements that must be met in order for information to be classified as a “computer output.” The provision in Section 65B(4), which states that if electronic evidence is to be used in any judicial proceeding, a certificate must be produced that identifies the electronic record and gives particulars of the device used in the production of the electronic record. This certificate must be signed by a person who has a responsible official position in respect to the operation of the relevant device, or by someone in charge of the relevant actions involved. This signature will serve as proof of the certificate’s authenticity.

Case laws

There are different Supreme Court decisions with regard to the admissibility of electronic evidence under section 65B of Indian Evidence Act:

Arjun Panditrao Khotkar Vs Kailas kishanrao Gorantyal and Others

When the original electronic record is produced, the production of a certificate is not required. If the owner of the computer/tablet/mobile phone comes into the witness box and establishes that the device where the information is first stored is owned/operated by him, the original electronic record can be adduced immediately as evidence. If the “computer” where the electronic record was first stored is part of a “computer network” or “computer system” (as defined under the Information Technology Act, 2000), and bringing such a network/system to the Court is not possible, secondary copies can be made along with the certificate required by Section 65B (4).

Anvar Vs. Basheer

It was held that, if an electronic record is used as primary evidence under Section 62 of the Evidence Act, it is admissible in evidence without complying with Section 65-B of the Evidence Act’s restrictions.” This dictum should be interpreted without the words “under Section 62 of the Evidence Act,” according to Justice Nariman.

The Supreme Court’s decision in Arjun v. Kailash will ensure that though it may appear that the Court has strictly interpreted Section 65B(4) which may put litigants in jeopardy especially when the party relying upon the electronic evidence is unable to procure the certificate, the judgment clarifies that if the party has explored all options available under law and despite such efforts is unable to procure the certificate, the Court may excuse such requirement

Section 65B(4) of the Evidence Act provides for the requirement of a certificate of authenticity to satisfy the conditions laid out by the preceding subsection (2) of Section 65B of the Evidence Act. It is to be executed/signed by a person occupying a responsible position in relation to the device through which the data has been produced and it also must identify the electronic record containing the statement. The certificate must also deal with any of the matters to which the conditions for admissibility relate. The certificate is required to prove the integrity of the source as well as the authenticity of the data as it is highly possible to tamper and alter electronic data.

In addition to electronic records being led in evidence, there has also been an increase in reliance on electronic media for other purposes in judicial proceedings. In a current order, the Punjab & Haryana High Court referred to Arjun Khotkar v. Kailash Gorantyal and concluded that Whatsapp chats were going to bear no evidentiary value until a certificate was attached with the same. However, despite various judicial precedents stressing on the importance of the certificate, the certificate has become a mere formality in today’s age. With the requirement of a certificate under Section 65B of the Evidence Act being diluted by the ruling of the Supreme Court in the case of Shafhi Mohammed v State of Himachal Pradesh, it would be interesting to see how the same is clarified by the Supreme Court.

Conclusion

Strict compliance with Section 65B is now mandatory for persons who intend to rely upon emails, websites or any electronic record in a civil or criminal trial before the courts in India. The Indian Evidence Act may be further amended to reject some guidance – not completely for the purposes of presuming prima facie genuineness of the evidence of the photoelectric record – by making further comment a condition that electronic records may be the original information contained in the “computer” itself and copies made therefrom, such “original” being primary evidence while the copies being secondary evidence. Therefore, the certificate in Section 65B(4) is unnecessary if the original document itself is produced. The courts should also be aware that data can be easily faked or altered, and section 65B of the Evidence Act does not address this possibility. When forwarding an email, for example, the person selling goods can rewrite the message. Such alterations are usually undetectable by the receiver, and as a result, a certification from a third party involved in the dispute may not always be a reliable condition to aid in the authenticity of the document. The acceptance of electronic evidence, in addition to benefits, can be complex as long as. It is up to the courts to determine whether or not the evidence meets the three essential legal requirements of authenticity, authenticity, and integrity.

References

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Mergers and acquisitions in the banking sector of India

By

Shoronya Banerjee

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November 30, 2021

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This article is written by Adv. Kashish Goel, pursuing a Diploma in M&A, Institutional Finance, and Investment Laws (PE and VC transactions) from LawSikho. The article has been edited by Tanmaya Sharma (Associate, LawSikho) and Ruchika Mohapatra (Associate, LawSikho).

Table of Contents

Introduction

The world can be said to be in the state of flux i.e. it is being affected by the rapidly changing technology and the forces of globalisation due to which the companies are facing fierce competition. They are exploring different strategies in order to grow internally as well as externally. A way to achieve growth internally can be by streamlining the operations, improving the management, and investing capital into the existing business of the firm. The other tools and methods that are used to find growth are by way of merger and acquisition (M&As), joint ventures (JVs), strategic alliances, etc. By doing any of the previously mentioned exercises, the companies can gain an advantage over the rest of the competition.

Mergers and acquisitions in India

The Indian corporate sector has shown interest in the M&A practice and various business entities and companies are using this to build different companies that cater to the ever-growing domestic and global markets. These activities were dormant until the policies of 1991 came which led to the departure of the old policies. In the years before the liberalisation, due to the restrictions that were created by the likes of MRTP Act, ICA 1956, FERA Act the number of the activities that pertained to the strategy of using mergers and acquisition were low in number.

The basic economic policies during the time of pre-liberalisation era were not beneficial to the private sector and that in turn stopped them from creating monopolies. However, when the policies changed in 1991, which can be called the post-liberalization era, many companies across the country started using this as an effective strategy to expand. All of it is because of the relaxation under the MRTP Act and FERA Act. It can be said that the growth in the sector of M&A has been a spectacular thing to watch. India was a great participant in the study that was conducted by Grant Thornton and stood at 661 in the year 2007. Over the years, India has managed to become a good player in the field of mergers and acquisitions, not only domestically but internationally as well.

Banking mergers

The Indian banking system has achieved various milestones in a relatively short amount of time. This is the world’s largest and most diverse democracy which itself is a challenge as the companies have to cater to such a diverse customer base. It is part and parcel of the agenda of the government to reform the banking sector by repositioning and integrating it into the global financial system. In the past years, there have been various reforms and successful mergers which have had a positive impact on the banking sector.

Example:
1. Punjab National Bank taking over “Oriental Bank of Commerce and United Bank of India”.
2. The merger of Indian bank and Allahabad Bank.

3. The merger of Canara Bank and Syndicate Bank.

4. The merger of Union Bank of India with Andhra Bank and Corporation Bank.

As of August 2019, there were 27 public sector banks, but due to this practice of M&A, the number was reduced to 12. The merger of Punjab National Bank with Oriental Bank of Commerce and United Bank of India is considered to be the second-largest merger in the public sector undertakings.

RBI Guidelines

In the case of “Peerless General Finance and Investments Co. Limited vs. Reserve Bank of India” the Apex Court held that RBI plays an integral part in the economy and in its financial affairs, and the main role of RBI is to regulate the banking sector of India. Two functions of RBI that are supervisory in nature have helped the sector in a great way as it has enhanced the banking standards of India by developing a sound line and improved the methods of operating the activities.
Banking Regulation Act 1949 provides two types of mergers namely :

1) forced, and

2) voluntary mergers.

The initiations of a forced merger are by RBI to achieve the main objective of protecting the depositors of a weak bank. There are various signs that are indicative that a bank is weak such as:

1) a huge amount of non-performing assets, and

2) use of junk or erosion in the net worth.

Under such circumstances, it is the duty of the RBI to intervene and merge the weak banks with the stronger ones. The procedure prescribed in the Banking Regulation Act, 1949 is applicable for only the private sector bank’s involuntary and compulsory mergers. Governance of the regional rural bank is done by the Regional Rural Banks Act, 1976.

Role of RBI in the compulsory merger of private sector banking companies: Under Section 45 of the Banking Regulation Act 1949, RBI has the power to apply to the Central Government of India for the suspension of the businesses by a company which is in banking to prepare a reconstruction scheme or an amalgamation scheme. It is to provide a compulsory amalgamation of the bank with any other bank without the vote of their members or creditors. A period of moratorium has to be declared by the RBI for the interest of the various shareholders and to get a proper managing committee of the bank that will prepare the scheme of merger or amalgamation. It also provides that the various schemes finalised by the RBI have to be filed before the Central Government of India that has the power to sanction the scheme either with modifications or without changes.
Jurisdiction of High Court in bank mergers: An interesting conflict arose before the High Court of Allahabad where the petitioner challenged an order of moratorium passed by the Central Government under Section 45(2) of the Banking Regulation Act, 1949, and a scheme prepared under Section 45(4) by RBI , on the grounds that there had previously been a High Court order under Section 153 of the Companies Act which sanctioned an arrangement by the shareholders and creditors of the bank for the continuance of the bank and satisfaction of the liabilities. The Contention of the appellant was that Section 45 cannot operate to nullify the orders passed by the High Court under the jurisdiction conferred on it by the Companies Act. The court ruled that such reading went against the wording of Section 45 which expressly stated that it operated notwithstanding all other laws, and dismissed the appeal. Jurisdiction of the High Court and the power of judicial review with regard to RBI’s decision on schemes of amalgamation are severely limited in many aspects.

The maintenance of a distinction between the jurisdiction of the High court and RBI under the Banking Regulation Act, 1949 was clarified by the Supreme Court in the decision of Himalayan Bank Ltd v. Roshan Lal Mehra. In this case, it was held that a petition presented to the High Court by a bank currently under a sanctioned scheme of amalgamation under Sections 45M and 45B of the Banking Regulation Act, could be entertained, as the High court retained jurisdiction to pass orders under Section 392 read with Section 391 of the Companies Act. In such cases, the Court pointed out that the scheme of amalgamation was not a substitute or an alternative mode of liquidation, but rather was an alternative to liquidation itself.

Purpose for M&As under The Banking Sector of India

The Indian banking sector has been molded into a perfect structure because of mergers and acquisitions. There are many opinions on this material but there is a hope that the situation will improve after mergers between the banking institutions. Some reasons for mergers and acquisitions under banking sector are:

Rise in market competition

The invention of new financial products and the merging of regional financial systems are the reasons for the merger. Markets industrialised and became more competitive and because of this, the market share of all individual companies condensed, and hence, mergers and acquisitions started.

Economies of scale

Economies of scale can lead to consolidation within an industry as smaller companies have difficulty competing with larger and, therefore, more efficient institutions.

Skill and talent

As one firm merges or acquires the other, an exchange of talent and skills takes place. Due to the highly competitive nature of the industry, having a bigger pool of talent and skill gives an edge over the competitors.

Technology and products

With the introduction of e-banking and some monetary instruments/derivatives and the removal of admission barriers, the gates have opened for new banks with the latest technology, and old banks can’t compete with them. Hence, they decide to merge, which gives the old bank the latest technology that the banking industry needs and the new bank an established customer base.

Positive synergies

Synergy as a concept states that the combined value and performance of two companies will be greater than the sum of the separate individual parts. It is a term that is most commonly used in the context of mergers and acquisitions (M&A). Synergy, or the potential financial benefit achieved through the combining of companies, is often a driving force behind a merger.

Conclusion

In recent years, the banking industry has been undergoing massive mergers and acquisitions in order to achieve bank consolidation. Mergers and amalgamations assist the institutions in scaling up fast and gaining a bigger number of new consumers so as to improve their balance sheet and cash flow statements. An acquisition or a merger not only offers a bank more capital to work with in terms of giving out loans and making investments, but it also helps in the expansion of the bank’s geographic reach that enables it to provide services to a larger customer base. However, a sharp rise in the number of such mergers and acquisitions has resulted in an unprecedented increase in bank concentration at the market level, which may have an impact on banking competitiveness.

The unexpected increase in the country’s nonperforming assets (NPAs) and bad loans has harmed its international standing and therefore mergers do seem like a way out. However, anti-competitive mergers and abuses of dominance in the banking sector should be closely scrutinised by the Government. Currently, there is also a need for the Government to adopt essential merger regulations relating to both PSBs and private banking organisations.

References

https://rbidocs.rbi.org.in/rdocs/Publications/Pdfs/18577.pdf
http://www.ukca.in/wp-content/uploads/2021/07/Mergers-in-the-Banking-Sectors.pdf
https://www.legalserviceindia.com/legal/article-5207-mergers-and-acquisitions-in-the-indian-banking-sector-impact-on-shares-and-performance-check.html

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

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Permissibility of anti-arbitration injunctions in India : Bina Modi v. Lalit Modi

By

Rachit Garg

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November 30, 2021

0

Arbitration-1200x800-1 (1) — Image Source: https://rb.gy/wbijvf

This article is written by Amulya Bhatia, from Symbiosis Law School, NOIDA. This article discusses whether the civil court can grant an anti-arbitration injunction in light of the judgment, Bina Modi vs. Lalit Modi.

Table of Contents

Introduction

The longest tussle for jurisdiction, the issue of whether an anti-arbitration injunction can be issued by civil courts in India has been discussed extensively over many years, with multiple arguments and conclusions. The grant of this injunction has been a major controversy under international arbitration, which was brought up yet again in 2020 when a family had disputes over a trust deed. Some say that an anti-arbitration injunction is simply a way to disrupt international arbitration proceedings, while some believe for it to be an essential manner, in exceptional situations where judicial interference by the court is required. As per the legal provisions concerning arbitration, judicial intervention is allowed only when it can be shown that the arbitration agreement is null and void; but who decides whether any such agreement is valid or invalid? This decision lies with the arbitration tribunal as well. The concept circling this issue was brought up in the case, Bina Modi v. Lalit Modi (2020). This article discusses in detail the legalities around the grant of an anti-arbitration injunction, keeping in mind the provisions of the Arbitration and Conciliation Act, 1996 in light of the judgment, Bina Modi v. Lalit Modi, along with other landmark judgments pertinent to understanding this legal concept.

Anti-arbitration injunction in India

An Anti-Arbitration Injunction (now referred to as ‘AAI’) is basically when one party approaches the court, asking them to grant an injunction to restrain the other party from either commencing or continuing an arbitral proceeding, when the same may be necessary as per the Arbitration and Conciliation Act, 1996. Such injunction is usually called for either before the arbitral process, or during the hearing, or even after the conclusion of the hearing is drawn, but before the final reward of the case is announced.

Legality of an AAI

As far as the legality of an AAI is concerned, both the UNCITRAL Model Law on International Commercial Arbitration, 1985 and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 on which the Arbitration and Conciliation Act, 1996 is built does not recognize or provide a specific provision to grant an AAI. However, these legislations and conventions do not explicitly prohibit this either.

Those against the grant of an AAI claim that the courts must ask the parties to seek relief through arbitration, allowing the arbitration tribunal to exercise its jurisdiction. As per the principle of Kompetenz-Kompetenz, the arbitral tribunal has the competency to provide a ruling on matters regarding the validity of an arbitral agreement, meaning that judicial intervention is not required.

However, those in support of the grant of an AAI go on to refer to Section 8 of the Arbitration and Conciliation Act which states that the parties involved in an arbitration agreement may refer to arbitration unless it is evident from facts that the agreement was not valid in the first place. Also, Section 45 of the Act states the same thing when foreign arbitration agreements are concerned. Legally, there is a provision for the civil court to refuse to refer to arbitration, meaning that the civil court would technically have jurisdiction to grant an AAI, but it is only possible when the agreement in question is deemed invalid.

Judicial trends

The courts in India have had several opportunities to analyze the concept of the grant of anti-arbitration injunction. In 2001, it was held by the Hon’ble Supreme Court in the case, Kvaerner Cementation India Limited v. Bajranglal Agarwal that the civil court did not have the jurisdiction to interfere in arbitral matters, owing to the principle of Kompetenz-Kompetenz which focuses on think the competence of a court or arbitral tribunal to decide on matters, and this principle is enshrined in Section 16 of the Arbitration and Conciliation Act.

In SBP & Co. v. Patel Engineering Ltd. (2005), the argument that only the arbitral tribunal could decide the validity of an arbitration agreement was rejected by a seven-judge bench. This ruling was further affirmed by the Hon’ble Supreme Court in the case of World Sport Group (Mauritius) Ltd. v. MSM Satellite (2014) wherein it was stated the civil court would have jurisdiction to refuse arbitration if the clauses mentioned under Section 45 of the Act are satisfied.

Many rulings were made in favour of the ability of the civil court having jurisdiction to grant an anti-arbitration injunction, but with responsibility. As a result, even the ruling given in Kvaerner Cementation India Limited v. Bajranglal Agarwal in 2001 was overruled.

Case analysis

Whether the civil court has the jurisdiction to grant an anti-arbitration injunction has been analyzed and discussed over multiple cases. This conflict was brought up again in the year 2020 to understand the permissibility of an anti-arbitration injunction by a civil court. The same is discussed below in light of the case, Bina Modi v. Lalit Modi (2020).

Facts of the case

The K.K Modi Family Trust was executed by the late industrialist, Mr. K.K. Modi wherein his family Bina Modi, Lalit Modi, Charu Modi, and Samir Modi were the designated trustees.
Clause 36 of the trust deed which laid down the dispute resolution process, said that in case of any disputes regarding the trust, the Rules of Arbitration of the International Chamber of Commerce (ICC) at Singapore would be approached.
Several disputes arose between the members of the family after the death of K.K. Modi.
As per the trust deed, these disputes were now to be resolved through arbitration.
Subsequently, Lalit Modi invoked the said arbitration clause and applied for a grant of relief before the International Court of Arbitration in Singapore.
Bina Modi, Lalit Modi’s mother, and his siblings, Charu Modi and Samir Modi, taken aback by his actions then retaliated by filing a civil suit before the Delhi High Court, seeking an anti-arbitration injunction, restraining Lalit Modi to continue with the arbitral proceedings.
It was contended by Bina Modi that Lalit Modi initiating proceedings in Singapore was invalid and violated the public policy of India since the law governing the arbitral proceedings was Indian law.
The Single Judge ruled in favor of Lalit Modi, following which Bina Modi appealed before the Division Bench of the Delhi High Court.

Issues involved

The issues that the Court has come across and answered through this case are as follows:

Whether there is a valid agreement between the two parties involved?
Whether a civil court has the jurisdiction to grant an anti-arbitration injunction?

Contention of the parties

Plaintiffs’ arguments

The learned counsel appearing on behalf of the petitioner, i.e. Bina Modi, Samir Modi, and Charu Modi humbly submitted before the Court that Clause 36 of the Trust Deed which states that in the case of any dispute regarding the deed, Rules of Arbitration of the International Chamber of Commerce (ICC) at Singapore would be approached, cannot be enforced as it is not in line with the public policy of India. Mukul Rohatgi, who was the senior counsel put forth certain facts which would serve as pertinent to the judgment of the case:

The assets of the deed in question are located in Delhi.
Both the plaintiff and defendant are residents of Delhi.
According to the counsel, the defendant has approached the international court in Singapore for arbitration only to avoid proceedings in Delhi.

As per these facts, it is evident the law of the land must be applied to the case in hand. Moreover, the counsel also relied on the judgments Vimal Kishor Shah v. Jayesh Dinesh Shah (2016), Vidya Drolia & Ors. v. Durga Trading Corporation (2020), Mcdonald’s India Pvt. Ltd. v. Vikram Bakshi (2016), Union of India v. Vodafone Group PLC United Kingdom (2018). In these cases, it was held by the courts that there is no bar to grant an injunction to restrain the defendant from proceeding towards arbitral proceedings, thereby making their case and establishing that it is well under the jurisdiction of the civil court to grant an anti-arbitration injunction.

Defendant’s arguments

The learned counsel on behalf of Lalit Modi on the other hand claimed that the principles on which the plaintiff is standing because of the judgments cited fall flat for the simple reasons that these cannot be applied to the present case. Section 8 of the Arbitration Act can only be applied to cases dealing with domestic arbitration and not international. The current case is concerning an international arbitration, meaning that the principles presented by the plaintiff cannot be applied. Moreover, judicial intervention is only welcome when it is proved that the agreement is invalid, and the power to deem an agreement invalid also lies with the arbitration tribunal.

The counsel further cited the judgments to Bharti Tele-Ventures Ltd. v. DSS Enterprises Pvt. Ltd. (2018), Kvaerner Cementation India Ltd. v. Bajranglal Agarwal (2001), and Ashok Kalra v. Akash Paper Board Pvt. Ltd. (2013) to strengthen their case. It was humbly submitted before the Court that the suit declaring the invalidity of the arbitration proceeding followed by the injunction to restrain arbitration is not maintainable before the eyes of the law.

Judgment

The learned Single Judge of the Delhi High Court, in this case, was very quick to dismiss the suit, meaning that they had a negative opinion on the maintainability of an anti-arbitration injunction. The Court relied its judgment on the doctrine of Kompetenz-Kompetenz, embodied in Section 16 of the Act. Aggrieved by the decision of the single judge of the Delhi High Court, Bina Modi then appealed before the Division Bench of the Delhi High Court which granted an interim injunction in the present case for now. The Division Bench displayed their disagreement with the judgment delivered by the Single Bench.

It was observed by the Court that civil courts have the jurisdiction to dwell upon the arbitrability or non-arbitrability of disputes. Emphasis was placed on the judgment delivered in McDonald’s India Private Limited v Vikram Bakshi where it was held that when the party seeking the injunction can show that the agreement is null and void, the Court will have the jurisdiction to grant such an injunction. As per the Division Bench, the Single Judge made an error in their reasoning by not granting an anti-arbitration injunction as a relief to Bina Modi. In conclusion, the Court also relied on the decision delivered in Vimal Kishor Shah and Vidya Drolia to claim that the dispute in question was non-arbitrable. Therefore the appeal was allowed, and the decision of the single judge was squashed, allowing an anti-arbitration injunction against Lalit Modi in the given case.

Conclusion

The law of arbitration is based on the idea of referring to an arbitral tribunal instead of an ordinary court in case of any conflict. The objective behind the Act is to resolve disputes in a faster manner than remain pending before the court for months. However, there are certain situations where judicial interference in arbitration proceedings becomes necessary to smoothen the legal process. However, such interference is subject to the limitations specified within the Arbitration and Conciliation Act, 1996.

As far as an anti-arbitration injunction is concerned, there is still a lot of ambiguity around this concept. Questions regarding whether the grant of an injunction is defeating the purpose of the Act have also come up in this discussion. But one thing that seems to be clear is that the Indian Courts, through the multiple judgments delivered, have concluded that the civil courts are well within their jurisdiction while granting such injunction. The case of Bina Modi v. Lalit Modi has set clear boundaries regarding the interference of the court in arbitral matters. There needs to be a fine balance between the autonomy of an arbitral tribunal and the power of Indian Courts to interfere in arbitral proceedings, and this judgment is likely to have a positive impact on the concept of arbitration in India.

References

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Uniform sentencing policy in rape cases

By

Rachit Garg

-

November 30, 2021

0

Virtual rape — Image Source: https://rb.gy/temyqx

This article is written by Ansruta Debnath, from National Law University Odisha. This article talks about the need to employ uniform sentencing policies in rape cases.

Table of Contents

Introduction

Owing to a large number of cases of rape, a need for establishing uniform sentencing policy guidelines have been felt. Too often the punishment gets diluted because of ancient misogynistic influences on the judges. The unconscious prejudice against women that exists even today cannot be allowed to dictate the basic right of a rape survivor to get justice. This article mainly explores this issue and points out how rules are required to attain justice without bias.

Rape crimes : spiralling into worse

Regardless of whether one is a feminist or not, every person believes that rape is one of the most heinous crimes possible. Motivated with a need to assert dominance, a need exacerbated by the prevailing notions of patriarchy, toxic masculinity and misogyny, rapists violate the fundamental bodily autonomy of their victims, leaving long-lasting mental and physical repercussions.

According to Indiastat, the number of victims of rape in the year 2019 were more than 32,000 among which nearly 5000 were minors. 2017 had the same total number, but the percentage share of minors was much more. The year 2020 saw a dip with cases just upwards of 28,000. Yet the reason for such a low number of cases was probably because of the lockdown that was imposed nationwide for the pandemic and not because of any change in the state machinery.

The number of cases is still alarming. There might be so many cases that simply go unreported. Due to people being stuck indoors, the number of cases being reported is also reduced, especially when it comes to rape within the household or in the neighbourhood. Clearly, the present criminal justice system is not being able to effectively control the disconcerting and increasingly spiralling number of cases.

Existing legal provisions

Rape

The Indian Penal Code, 1860 and the Criminal Procedure Code, 1973 are two of the most comprehensive criminal laws of India. Legal provisions related to sexual crimes have found their backing here. According to Section 375 of the Indian Penal Code, rape is said to have been committed when any man penetrates a woman, or causes someone else to penetrate, either penal penetration or other, through the woman’s vagina, urethra, anus or mouth without her consent.

Consent

According to Section 90 of the IPC, consent under fear of injury is not considered free consent. Thus, consent in rape is not considered valid consent when it is given under fear of being hurt to the woman or to any other person. Moreover, consent by a minor and that given by a wife under 15 years of age to her husband is considered invalid consent. It is important to note that according to Section 114A of the Indian Evidence Act,1872, presumption of absence of consent will be there if it is so claimed by the victim of rape.

Punishment

Over the years, the degree of punishment and scope of sexual offences recognized by the law has been increased.

Initially, for rape, the minimum jail term was set at 7 years of rigorous imprisonment. But the Criminal Law (Amendment) Act, 2018 made the current punishment for rape a minimum jail term of 10 years which might extend up to life imprisonment. The accused is also liable to pay a fine.

After the Nirbhaya gang-rape case, Section 376A was inserted by way of the Criminal Law (Amendment) Act, 2013 that introduced ‘death penalty’ as a punishment to the perpetrator who caused the woman to die or left her in a vegetative state.

Moreover, the Criminal Law (Amendment) Act 2018 put the minimum punishment for rape of a girl below 12 years of age at 20 years which could be increased up to capital punishment.

Trends in punishment

Certain crimes have fixed single punishments while others provide a range. Using the established legal text, the judge decides the punishment. Thus, even though law boasts of being unambiguous, in a certain sense, the punishments given are to some extent based on the judges’ sense of justice. Determining sentences is never a black and white affair. After the accused is convicted, the judge needs to decide based on the way the crime was committed, the degree of accountability the convict is accepting, the effect the crime had on the victim etc. Thus, they have a significant amount of discretion in this matter.

Now, the sense of justice is not the same in every person. In most cases, this sense of justice is heavily influenced by the cultural norms with which the person grew up. The same applies to judges. As a result, despite there being a uniform law regarding the matter, judgements pronounced, although echoing similar sentiments, might have great non-uniformity with regards to the degree of punishment.

A disturbing mentality

In cases of rape and other sexual offences, judgements are significantly marred by patriarchal notions that persist in the minds of judges. These societal influences are revealed throughout their comments in cases they are judging. The notion that rape is an attack on a woman’s ‘purity’ is widely prevalent. Losing this ‘purity’ makes a woman incomplete in the eyes of society because she is not ‘marriageable’ anymore. To rectify the situation, the judges give suggestions like asking the rapist to marry the victim and what not. The absolute fallacy of these types of judgements is glaring.

For starters, these judges fail to identify why rape survivors come to courts for remedy in the first place. The notion that women only care about getting married is ridiculous. Rape survivors approach the courts to get justice for the violation of their dignity and body. It is alarming to find that judges actually believe that women will be happy and satisfied being married to her rapist.

Secondly, the fact that rape ruins the ‘purity’ of someone is a very problematic idea in itself. Instead of the rapist, the victim feels the most shame. The taboo related to rape also prevents so many women from reporting what happened to them.

In a more recent case of Mohit Subhash Chavan vs. the State of Maharashtra and Anr.(2021), Chief Justice Bobde was reported to have asked the Accused whether he is willing to marry the victim. Facing backlash, Chief Justice Bobde defended his statement saying that “as an institution, they have the highest respect for womanhood” and that the statement was based on judicial records of the case. The facts of the case involved a man repeatedly raping a minor. However, before a complaint could be filed, the man’s mother made an agreement with the minor’s illiterate mother that upon reaching the age of majority, the two would get married. But upon reaching the age of majority, the victim filed a complaint instead. CJ Bobde claimed he was asking the question to the accused in relation to his promise and had no intention of implying that in case the accused agreed to marry the victim, it somehow diluted the severity of the crime.

In another case of outraging the modesty of a woman, the Accused was asked by a bench of Justices AM Khanwilkar and S Ravindra Bhat of the Madhya Pradesh High Court to present himself in front of the complainant so that she might tie a rakhi on him. Only then, the Court stated, will the Accused be eligible for bail. The Supreme Court later overturned this order.

According to Section 53A of the Indian Evidence Act, past sexual experiences of the victim are immaterial while deciding cases of rape. Thus, questions related to that cannot be asked to the victim. Yet a two-judge bench of the Punjab and Haryana High Court, in Vikas Garg v. State of Haryana (2019), while granting bail to three people charged with rape and other offences, observed that the victim apparently had a “promiscuous attitude” and her “narrative did not throw up gut-wrenching violence that normally precedes such incidents”. Thus, apart from bringing up the victim’s past history, the judges revealed an inherent mental image of an “ideal case of rape” which involves the woman fighting and resisting till she falls unconscious. Anything other than that signifies consent to a certain degree.

Similar observations have been made by the Delhi High Court in Mahmood Farooqi v. NCT of Delhi (2018), where the victim was sexually attacked by someone she knew. The Court commented that it is very “surprising” that she did not bring it up with the attacker the next day.

In another instance, the Karnataka High Court, while granting bail to the rape accused in Rakesh B v State of Karnataka (2020), commented on the fact that the victim fell asleep after she was raped and that the fact she fell asleep was not the way “Indian women react after getting ravished”.

These kinds of misogynistic comments and mindset affect the judgements by subtly blaming the victim and in effect reducing the sentence the accused would otherwise be awarded.

Compromise

A lot of times, compromises between the accused and victim are encouraged to reach a solution without a trial. This seems acceptable in petty offences especially because of the large pendency of cases in Indian trial courts. Offences can be categorised into compoundable and non-compoundable offences. Compoundable offences are those offences on commission of which a compromise can be reached between the victim and accused. In that case, charges are dropped against the accused and the victim generally receives some kind of property or any other kind of consideration for the same. The Code of Criminal Procedure, 1973 enumerates in Section 320, the offences which are compoundable and offences that can be made compoundable with the permission of the court.

In the case of B.S. Joshi v. The State of Haryana (2003), the Court relied on the judgment of Surindra Nath Mohanty v. State of Orissa 1999 and declared that a non-compoundable offence cannot be compounded in any case, even with the permission of the Court. Thus rape, which is not a compoundable offence, cannot be compounded under any circumstance. In a case of rape, the opposing parties cannot bargain and make out-of-court settlements instead of going through the proper procedure of trial and conviction or acquittal as under the criminal justice system.

The Law Commission in its 237th report stated that in case the offence has a serious impact on the security of the state or society at large, in those cases, offences should not be compounded. “The interest of victims of crimes and the societal interest in the conviction of the offender often clash and this makes the job of law-makers more complex. No offence other than that specified in Section 320 can be compounded.”

In the case State of Madhya Pradesh v. Madanlal (2015), the Supreme Court held that in no way compromise can be allowed to happen because it would be extremely dangerous to assume that the victim made out the compromise-free of any external coercion or pressure.

The case of Balwinder Singh v. The State of Punjab, 2014 shows how the pressure of entering into a compromise adversely affects the victims. In that case, the police officers tried to force a compromise between the rapists and the victim. The victim later committed suicide and in her suicide note mentioned the harassment and pressure she faced to enter into a compromise.

Recently, a man was charged with the murder of his wife. The man had raped her before they got married. But the Court released him on bail when he signed an affidavit saying he would marry the victim. Thus, the dangerous consequences of this type of compromise are clearly evident.

Varying interpretations

A major problem that arises is the way certain provisions of law are interpreted. The varied interpretation results in dilution of penalties and a lot of confusion regarding the matter. A very recent example is the interpretation of what “skin-to-skin” contact meant under Protection of Children from Sexual Offences (POCSO) Act, 2012. Section 7 of the said Act defined sexual assault as physical contact, with sexual intent, with the vagina, penis, anus or breast of the child. The Bombay High Court, in its extremely controversial judgement held that “physical contact” implied “skin-to-skin” contact. The Accused, thus, would not be liable under this section because he groped the victim over her clothing. This interpretation was extremely dangerous as it diluted the ambit of sexual assault, leaving hundreds of victims vulnerable and devoid of adequate protection. The Supreme Court later in November 2021, set aside the Bombay HC order saying that “skin-to-skin” was not necessary to constitute an offence under Section 7.

Uniform sentencing policy : a necessity

Judgments

In Shankar Kisanrao Khade v. the State of Maharashtra (2013), the Court held that awarding death penalty or commuting it should not be a matter of uncertainty but must be based on a uniform policy. The Court stated that the Law Commission might resolve the issue by framing appropriate laws and guidelines.

In Gopal Singh v. The State of Uttarakhand, (2013) it was held that “just punishment is the collective cry of the society. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence.”

As mentioned before, giving out judgements depends on a case-to-case basis. The Supreme Court observed in Soman v. State of Kerala (2013) that even though punishment to induce deterrence is at the heart of our criminal justice system, it is the weakest part due to the lack of guidelines.

The Supreme Court also held in State of M.P. v. Bablu Natt (2009) that any offence that affects the morale of our society to the core should be severely dealt with.

Reports

One of the most significant reports on this issue is the one made by the Committee on Reforms of the Criminal Justice System headed by Justice V.S.Malimath. The Committee was formed to give recommendations to re-haul the existing Indian criminal justice system. Among various other suggestions, the Committee also recommended that a statutory committee should be formed that would lay down guidelines in relation to sentencing offences of the Indian Penal Code.

Way forward

Thus, even though provisions exist to prevent out of court settlements in cases of rape, they are still allowed in this country. The possible solution to this is to formulate a uniform sentencing policy that would be applicable to all rapists without bias. Strict emphasis should be given on sentencing without taking into account the sexual history of the victim.

A very important addition to uniform sentencing policy in rape cases is the inclusion of marital rape within its ambit. Till today, marital rape is not a crime in India, unless the victim is below 15 years of age. Because rape is an attack on a person’s bodily autonomy, whether the attacker is the victims husband must be considered immaterial. This idea that rape by husband is not rape reflects the archaic notion that marriage is the only thing that women care about. Thus, there is an immediate need of criminalizing marital rape.

A primary question that might arise is whether all rapists might be considered equal. This question arises if we need to take the rehabilitative goal of criminal law under consideration. But the fact is that rape survivors’ life gets altered forever after they undergo that traumatic ordeal. The state will never be able to restore the rape survivor back to where they were before. The only thing that might ease the pain is to see that the rapists are adequately punished. This can be ensured when convicted rapists are mandatorily punished with a set punishment. That punishment can be increased but cannot be decreased under any circumstance. However, exceptions can be made in cases where the rapist’s action was completely beyond their control due to mental illness.

Conclusion

From the above discussion, it is very clear why a uniform unbiased policy for sentencing convicts in cases of rape is required. That should be one of the primary aims of the lawmakers in this government. A long term aim of the government should be to take steps such that victim-blaming completely stops. Only when rape stops becoming a hush-hush topic will actual change be brought.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

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Apple v/s. Microsoft – whose systems offer better security

By

Rachit Garg

-

November 30, 2021

0

This article has been written by Narendra Jain, pursuing a Diploma in Cyber Law, FinTech Regulations and Technology Contracts from LawSikho.

Table of Contents

Introduction

Either Apple or Microsoft; these are the two names which instantly come to mind when one thinks of buying an operating system, be it in the form of a Desktop or laptop.

Apple is very easy to use and very easy to maintain, but very pricy. Microsoft is usually easy to use, but not always, and is not very user friendly, but it is cost effective.

Apple’s iOS operating system, in most circles, has been considered more secure for a long time as compared to Microsoft, because the operating system of Apple is a closed system and it does not release its source code to App developers. Also iPhones and iPads owners cannot modify the code on their phones themselves.

Windows 10 of Microsoft and Mac OS of Apple as everybody knows, are two of the most popular and frequently used operating systems in the world. Both operating systems utilize security features to protect users’ data and minimize threat risks. However, both the operating systems differ as they have different security and privacy standards. The competition between Windows 10 and Mac OS has been going on for years, and the question remains – Which operating system is better from the point of view of privacy?

While similar security features are offered by both operating systems, Apple has a more secure browser called Safari and it shares less user data with fewer third parties whereas Windows 10 does not have a stellar reputation for data sharing.

Thus it can be argued that from the point of view of privacy and security Mac OS is better as compared to Windows 10.

The following points can be used as specifics to compare the two operating systems Windows 10 and Mac OS and draw a contrast between their security and privacy features.

Both Operating Systems offer boot-up protections: These protections are very critical to ensure the security of both the device and an operating system. In both systems secure chips are used to scan OS files before the files are loaded. These scans help to protect the BIOS and to ensure that all firmware and hardware components are working correctly and aren’t being compromised.
Both Operating Systems offer Out-of-the-box malware and antivirus protection: Malware and viruses can harm the computers. These malicious programs steal passwords, sensitive information, delete files, and in some cases can damage a computer beyond repair. Any malware or virus infections can affect a computer’s security and exploit the data stored therein.
Both operating systems offer accessibility to safe app stores. Both Operating systems use screening processes before downloading apps in their app stores and making them available. This prevents users from downloading infected and malicious files which could harm their devices and steal their personal information.
Automatic updates are offered in both operating systems. Automatic updates keep the running computer safe, secure, and efficient. Both operating systems notify users as to when it is time to apply an update, if automatic updates are disabled.
Built-in hard disk encryption capabilities are offered in both operating systems. In both operating systems data is accessible by authorized users only. Both systems offer standard encryption and their own encryption software technology which in turn protects sensitive information by translating the same into scrambled code, mainly a Cipher.
Own default browsers with built-in safety features in both operating systems. Windows 10 uses Microsoft Edge as its default browser whereas Mac OS uses Safari as its default browser.
Both operating systems offer a feature to find lost devices. When a device is lost or stolen these inbuilt features allow the users to trace their device using GPS installed in the operating systems.
Both operating systems have problems with Data tracking and harvesting. Both Mac OS and Windows 10 track data of the users for selling it to third parties. However, comparatively Windows 10 tracks and sells more data than Mac OS.
Safety. Microsoft has the biggest market share and thus makes it an easy target for attackers, thereby rendering their users more vulnerable. A wide range of malware is available for Microsoft Windows. But Mac users still need Antivirus and Malware protection. More malware is released for Apple than Windows due to increasing popularity of Mac OS. Thus when it comes to security both operating systems and devices are likely to be equally affected by security issues.

Key security features

There are differences among the Operating Systems when it comes to key security features which are mentioned below:-

Anti-virus-malware

Windows 10 comes with a free built-in AntiVirus suite which is reasonably competent at detecting commodity malware and is better than Apple’s application security technologies i.e. Gatekeeper, XProtect and Malware Removal Tool.

Closed environment

A sandbox is a closed environment in which a process is executed which protects the rest of the computer from untrusted processes by effectively preventing the process from reading and writing to other files, interacting with other processes or changing system settings.

Windows and Mac OS both have sandbox apps which are installed from their own App Stores by default.

Authentication technology

Code signing is an authentication technology to ensure that an application or process has come from the source it says it has come from. In addition, code signing ensures that the executable, package or bundle has not been tampered with since it was digitally signed.

Windows and Mac OS both make use of code signing to some degree

Degree of system protection

Mac OS is superior when it comes to protecting the system from rootkits and malware which tries to modify or replace the core system utilities. Apple’s System Integrity Protection (SIP) is built-in and entirely transparent to the user. It also prevents even root user from changing some things to protect from certain types of malware behaviours.

Windows has a secured and trusted root user to protect the system but the same are not as strong as Apple’s System Integrity protection and the additional security measures which are found in Macs’ touch bar-equipped devices.

Mac or Windows- which operating system is more secure?

The Mac operating system seems to be the safest even though it faced more malware attacks than the average PC in 2019.

Data is safer and more private in Mac OS than in Windows 10 and Mac OS also decreases the likelihood of hardware vulnerabilities, as it is a closed system. Despite Apple’s marketing making a tall claim of their built in security, the truth is that Mac security features like Gatekeeper, XProtect, and MRT are not comprehensive and are easily defeasible.

In comparison, Microsoft Windows 10 continues to improve security but their data tracking and harvesting are a matter of great concern. Tech-savvy users or those familiar with Windows PCs may be better able to disable any questionable security settings, but even then Windows 10 browsing is never fully private. It is a well-known fact that Windows is the most targeted of all the operating systems because the size of the install base makes it very easy and the easiest to attack. Both Apple and Microsoft need to do more to protect their users’ privacy and data. Data tracking should be disabled by default in both Operating systems and not by an opt-in feature.

Neither platform is perfect when it comes to security. Both OSes have suffered malware attacks, hacks and other security incidents. Even so, both Apple and Microsoft go to great lengths to keep their operating systems secure. Whichever operating system you use, it is important to enable the built-in security features and to apply security updates as they become available.

Conclusion

It is difficult to establish one OS as “more secure” than the others, as security is not a feature one can build into an operating system for the simple reason that security isn’t a commodity that one can “add” or “take away”.

It can therefore be safely concluded that it has become increasingly important to have a fool proof endpoint security with automated detection and prevention capabilities across the entire fleet, regardless of Operating System, as every OS has its vulnerabilities and it is likely that every network contains a mixture of operating systems and a mixture of vulnerabilities. One also needs visibility across the network to find out and trace the attack indicators. Businesses today don’t just need Operating systems with security features but also need integrated security software solutions and employees who follow best security practices. While features like code signing, sandboxing and system protection are all part of a good security posture, enterprise security is ultimately a practice or set of practices that need to be in any organizational DNA

It is therefore obvious and clear that choice of Operating System is really not that significant.

References

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Constitutionality of taking voice samples from an accused

By

Diva Rai

-

November 30, 2021

0

This article is written by Ansruta Debnath, a student currently pursuing the BA LLB degree from National Law University Odisha. This article explores the legal validity of extracting voice samples from an accused in a criminal investigation for identification purposes.

Table of Contents

Introduction

We have all seen law-enforcement agents nailing the accused with voice analysis in crime thrillers. It is widely known that movies and books generally provide a glossed up and glamorous version of reality. The nitty-gritty details involved in using voice analysis to identify the accused largely goes ignored. Here we discuss that with an emphasis on whether it is constitutional or whether it goes against the rights guaranteed to the accused. A further detailed discussion has been done on a landmark judgment on this issue.

Article 20(3) of the Indian Constitution

Article 20 is one of the most important Articles of the Indian Constitution. Keeping in mind the reality of the Indian criminal justice system, the truth is it is extremely harsh to the accused. A very important tenet of our justice system is that every person is innocent until proven guilty. As celebrated English jurist William Blackstone said and observed, “It is better that ten guilty persons escape than that one innocent suffer.”

Thus until an accused is convicted, they deserve to be treated like anyone else and therein lies the significance of Article 20. Article 20 provides certain rights to accused and convicts.

Out of those rights, Article 20(3) encompasses the doctrine of self-incrimination. It prevents any person accused of any crime to be forced to give any kind of information that might aid in the conviction of said accused. In other words, an accused cannot be forced to be a witness against themselves.

Now there has been a lot of debate with regards to what constitutes information that is within the ambit of “witness against themselves”. In M. P. Sharma v. Satish Chandra (1954) the Court held that “to be witness” referred to oral testimony in court as well as providing anything in writing outside court which incriminated the accused. The Court had then observed that “to be a witness” meant to “furnish evidence”.

In the State Of Bombay v. Kathi Kalu Oghad And Others (1961), the Supreme Court while agreeing to M.P.Sharma, stated that “to be witness” did not include calling upon a person accused of an offence to give his thumb impression, his impression of palm or fingers or of sample handwriting or signature, even when all these fell under the ambit of “furnishing evidence”. The court held that while it was necessary to protect the rights of the accused, it was equally necessary to arm the agents of law and law courts with information that might help them apprehend offenders of the law. Overall, it was held that evidence that was material and given in personal capacity while using the mental faculties of the accused were what could be considered within the ambit of the protection given by Article 20(3).

Voice sample and its use in forensics

The 87th report of the Law Commission of India on the Identification of Prisoners Act, 1920 spoke about voice print as a visual recording of a voice. They stated that voices were unique to every individual due to concentrations of energy at certain frequencies. These concentrations called ‘formants’ were what made voices unique.

Voiceprint analysis gained momentum since the Watergate scandal of the early 1970s. Gradually the concept of voiceprint lost importance because it started being associated with fingerprints which had a much higher degree of scientific backing.

Criminal investigations around the world now use voice analysis to zero in on criminals. However, many scholars and forensics scientists have said that the method of analysis is not fool-proof. Moreover, there are a multitude of methods that are available, and it is unclear which the best is. The French Acoustical Society submitted a public request in 1997 to end the use of forensic voice science in courtrooms. The request was made in reaction to the case of Jerome Prieto, a man who was imprisoned for ten months as a result of a contentious police investigation that incorrectly identified Prieto’s voice in a phone call claiming responsibility for a vehicle bombing. Yet voice analysis continues to find intensive application in investigations today.

Legal provisions in India

As of now, no specific legal provision exists with regards to the collection of voice samples for analysis by the courts or the police during an investigation.

Ritesh Sinha v. the State of UP (2019)

Ritesh Sinha v. the State of Uttar Pradesh (2019) is a landmark judgement decided in 2019 with regards to this issue. With former Chief Justice of India, Justice Ranjan Gogoi on the Bench, the Supreme Court of India decided that acquiring voice samples from the accused during the course of a criminal investigation was not unconstitutional. The Court conceded that the statutory aspect of this should be framed by the legislature but declared that in the presence of the legal lacunae, temporary measures had to be taken by the judiciary.

The case was originally filed in the High Court of Allahabad after which it came on appeal in the Supreme Court in 2012. The appeal was heard and ended up in a split verdict, thus requiring reference to a larger bench through a special leave petition.

Facts of the case

In 2009, a First Information Report (FIR) was filed against the appellant, for being an associate in a scam that involved collecting money from people in exchange for providing them with a job in the Police. The investigating agency wanted to confirm whether a phone conversation was between the appellant and his associate, i.e., they wanted to confirm the identity of Ritesh Sinha in the phone call. Accordingly, the Chief Judicial Magistrate directed the accused to appear before the investigating agency to provide said voice sample and based their order on Section 482 of the Criminal Procedure Code, 1973. Section 482 is on the inherent powers of the High Court. This order was challenged by the accused and led to the case being discussed.

Questions raised

In the split verdict judgement of 2012, two pertinent questions were raised-

Whether Article 20(3) protects an accused from providing voice samples.
In case there is no violation, whether a Magistrate was authorized to direct the accused to provide said voice sample.

The two-judge Bench, including Justice Desai and Justice Alam, concurred on the first question but differed on the second.

Principles applied

First question

With regards to the first question, reliance was placed on Section 53 of the Cr.P.C. by Justice Desai. But Justice Alam placed his reliance on amendments Sections 53, 53A and 311A of the Cr.P.C.
Currently, 53 and 53A allowed medical examination of the accused (53A is for those that are accused of rape) while 113A allowed a Magistrate to direct an accused to provide handwriting and specimen signature samples if need be.
To add on, the three-judge Bench in the special leave appeal also placed emphasis on the observations made in the State Of Bombay v. Kathi Kalu Oghad and Others and said that since fingerprint, palm print etc. weren’t part of “to be witness”, the same logic could be applied on voiceprints.

Second question

Justice Alam in 2012 held that since there was no provision with regards to the contended power of the Magistrate in this regard, it was most likely that the said omission by the legislature was deliberate.
The above-mentioned law commission report had suggested that Section 5 of the Identification of Prisoners Act, 1920 could be amended to include voice samples within its ambit. Currently, Section 5 empowers the Magistrate to direct the investigation agency to collect measurements and photographs of an accused.
The issue discussed thus was to what extent the judiciary’s law-making powers extended. It is pertinent to note that this has been an eternal debate, and the judiciary has had been extremely cautious to ensure they don’t encroach within the purview of the legislature and undermine the age-old principle of separation of powers.
It was observed that despite express reminders throughout the years, the legislature did not proceed with legislating on the issue. This legislative inaction could be attributed to “justified legislative concern and exercise of care and caution”. But, temporary patchwork had to be done by the judiciary to address cases where this issue was constantly being raised.
The Court pointed out that in State of Uttar Pradesh v. Ram Babu Misra (1980), the Supreme Court had said that there was a requirement to bring about a statutory provision with regards to handwriting samples along the lines of Section 5 of the Identification of Prisoners Act, 1920. An amendment, accordingly, was brought about by way of the Code of Criminal Procedure (Amendment) Act, 2005 that inserted Section 113A in the Cr.P.C.
Thus, it could be expected that the legislature would make similar changes after this case has been decided.
The Court finally held that although lawmaking was not a judicial function, in a situation where the call for justice was too large, expression of an opinion on a silent aspect of the Statute through the principle of ejusdem generis was required. Moreover, the opinion given would be on the principle of imminent necessity and would include a call to the legislature to formulate appropriate laws.

Other observations

The Court thus allowed the acquisition of voice samples by a method of judicial interpretation and in the exercise of their jurisdiction of Article 142 which gives the Supreme Court the authority to do complete justice.
The Court conceded that even though the Magistrate did have the power to acquire voice samples (temporarily with the backing of this judgement until appropriate legislations are drafted) and said acquisition was not unconstitutional, in case the accused refused to give out the sample, use of force would be illegal as there was no legal sanction.
A fundamental point that was asked was whether taking a voice sample would infringe upon a person’s right to privacy The Court observed that according to the K.S.Puttaswamy case, the fundamental right to privacy was not absolute and was subjected to the greater good.

Other judgments

Central Bureau of Investigation, New Delhi v. Abdul Karim Ladsab Telgi and Ors. (2005)

Here the Bombay High Court allowed a petition by the CBI to record voice samples of the accused. The court had reasoned that according to Section 73 of the Indian Evidence Act, 1872 or Sections 5 and 6 of the Identification of Prisoners Act, 1920, the Magistrate had the power to direct the acquisition of measurements. The said measurements included finger impressions and footprint impressions. Thus logically by judicial interpretation, it meant that voiceprints could be included under its ambit. This could be done especially since in the State Of Bombay v. Kathi Kalu Oghad And Others, fingerprints etc. did not fall within protection given by Article 20(3).

Rakesh Bisht v. Central Bureau of Investigation (2007)

Here, the CBI had made an application for the collection of voice samples. The application was allowed by the Trial Court. The Delhi High Court held, however, that although there was no infringement of Article 20(3), the accused cannot be compelled to give voice samples. It said that the Trial Court had no powers to direct the collection of voice samples during investigations and that Section 311A has no application to voice samples and voice recordings.

Thus the Delhi High Court, through its findings disagreed with the Bombay High Court in its judgement of Central Bureau of Investigation, New Delhi v. Abdul Karim Ladsab Telgi and Ors.

However, this order does not remain valid as Supreme Court judgements prevail over High Court ones.

Mukul Roy v. State of West Bengal (2019)

The court reiterated principles laid in Ritesh Sinha v. the State of UP.

Conclusion

Thus the constitutionality of taking voice samples was established with this landmark judgement. However, there is an utmost need for the legislature to address this issue. Moreover, the use of voice analysis in criminal investigations by law enforcement agencies needs to be regulated to provide uniformity and coherence. Excessive encroachment in the domain of the Right to Privacy in the name of public good also cannot be allowed.

References

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https://t.me/joinchat/L9vr7LmS9pJjYTQ9

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