A. K. Roy vs. Union of India, AIR 1982

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June 7, 2024

This article is written by Shafaq Gupta. This article provides a comprehensive overview of the judgement of A.K. Roy v. Union of India (1982), which was delivered by the five judge bench of the Hon’ble Supreme Court of India. It defines the scope of the ordinance-making power of the President and the preventive detention laws in India. It also deals with the validity of the National Security Act, 1980.

Table of Contents

Introduction

The Constitution of India is the highest law of the land and is considered to be the grundnorm (the law from which all other laws derive their validity) from which all other legislation comes into being. Article 21 of the Constitution provides the right to life and personal liberty to every individual, and it cannot be contravened by any authority except according to the procedure laid down by the law. It is not an absolute right and is subject to restrictions as per law. Laws of preventive detention have been followed in our country since ancient times, as prevention is better than cure. But these laws were misused during the reign of Indira Gandhi by passing the National Security Ordinance, 1980. Due to this ordinance, a number of people were denied their right to life by being put in detention for months. They did not have access to their lawyers and felt helpless. It had put a restraint on the personal liberty of the people, which is a fundamental right guaranteed under Part III of our Constitution.

The National Security Ordinance is quite similar to the Rowlatt Act of 1919, which gave unfettered power to the British government to arrest any person for a certain period without any trial. This article will provide an in-depth analysis of the case of A.K. Roy vs. Union of India (1982), whereby this ordinance was upheld as valid by the 5 judge constitutional bench. It also deals with the scope of the President’s power to issue an ordinance under Article 123 of the Constitution of India.

Details of the case

Date of the judgement: 28 December, 1981
Case Number: Writ Petitions No. 5724, 5874, and 5433 of 1980.
Petitioner: A. K. Roy
Defendant: Union of India
Bench: Justice Y. V. Chandrachud; Justice P. N. Bhagwati; Justice A.C. Gupta; Justice V. D. Tulzapurkar; and Justice D. A. Desai
Court: Supreme Court of India
Relevant citations: (1982) 2 SCR 272, 1982 AIR 710, 1982 SCC (1) 271, 1981 SCALE (4) 1905
Relevant provisions involved: Article 21 and Article 123 of the Constitution of India.

Background of the case

In India, the preventive detention laws date back almost a millennium. These laws are preventive in nature and prevent people suspected of committing a crime from committing it in the future and escaping prosecution. In 1980, during the reign of Prime Minister Indira Gandhi, the National Security Ordinance was promulgated, which subsequently turned into an Act known as the National Security Act, 1980. It was a very draconian law that allowed the central or state government to detain any person if he/she was seen as a threat to the public order and national security of India. The decision to detain a person depends on the subjective satisfaction of the government, which can be biased. The main reason for introducing it was “to provide for preventive detention in certain cases and for matters connected therewith”. This Act has been often criticised for its arbitrary provisions, which curtail the personal liberty of individuals. Any individual could be detained for a maximum period of 12 months, and it was not considered necessary to inform him about the grounds of his arrest until 10 days had passed.

Facts of A. K. Roy vs. Union of India, AIR 1982

According to the National Security Ordinance, which later turned into an Act, A.K. Roy, who was a Marxist member of Parliament, was detained by an order passed by the District Magistrate of Dhanbad. He was detained on the ground that he indulged in some activities that were against public order. A group of writ petitions were filed under Article 32 of the Constitution by the ten opposition members of the parliament (one of them was independent and the others belonged to various political parties) who challenged the validity and fairness of the National Security Ordinance, 1980, and also a few of the provisions of the National Security Act. They also asked the judiciary to define the scope of the President’s power to promulgate ordinances and argued that it is executive power and not legislative power, so it is not a law. All the writ petitions were allowed by the court. The applications filed by the People’s Union for Civil Liberties, the Supreme Court Bar Association, and the State of Jammu and Kashmir for intervening in the matter were also allowed.

The National Security Ordinance was promulgated on 23 September, 1980, when both houses of parliament were not in session and the President was satisfied that the circumstances existed that rendered it necessary to take immediate action.

Issues raised

The following issues arose in the present case:

What is the extent of the ordinance-making power of the President and its limitations? Whether it is justifiable or not?
Whether the preventive detention laws are valid as they encroach upon the personal liberty of an individual?
What is the validity of the unenforced part of the 44th Amendment Act, 1978, and how does it affect the framework of advisory boards?
Whether Section 3(1) and Section 3(2) of the National Security Act, 1980, are vague in light of the law?
Whether the procedure prescribed and followed by the National Security Act can be considered reasonable?

Arguments of the parties

Petitioners

Shri R.K. Garg was the counsel for the petitioner, and he argued that the Ordinance is not a law. He supported his contention by making the following arguments:

The President’s power to issue an ordinance is not of legislative nature but of executive nature. He supported his argument by quoting Blackstone, who said that if the law-making power and the function of enforcing the law are vested in the same agency, there can be no public liberty.
The ordinance-making power under Article 123 has been borrowed from the Government of India Act, 1935, which provided that the governor-general has the power to issue ordinances if he considers it necessary to take immediate action during the recess of the parliament. Even the UK and America did not accept such provisions, and many members of the Constituent Assembly were witnesses to the damage caused by the exercise of free will by promulgating ordinances, yet they accepted them.
An ordinance cannot be considered law as it was not made by any legislative body established under the Constitution of India.
In order to preserve people’s rights, there has been suspicion of power, and it has been used arbitrarily in recent times.
Article 21 of the Constitution guarantees the right to life and personal liberty to every individual, and it cannot be denied except according to procedures established by law. The ordinance stays in effect only for a specific duration and does not follow a certain and fixed procedure. Therefore, it cannot be said to be ‘established’ as per Article 21.
He referred to the case of A.K. Gopalan vs. State of Madras (1950), in which the supremacy of the fundamental right guaranteed by Article 21 was upheld and it could not be suppressed by the executive’s power to issue ordinances.
Ordinances should be made only on those points of law on which no legal provisions exist. It should not encroach upon laws already made by the legislature.
He further contended that it shall not be considered a law because then it will violate the principle of separation of powers between the executive and the legislature, which forms part of the basic structure of the Constitution.
Article 14, Article 19, and Article 21 would be reduced to dead letters if the executive were given liberty to curtail the freedom of individuals by passing ordinances.

Shri Tarkunde, also one of the counsels for the petitioner, argued about the validity of the National Security Ordinance. He contended that the ordinance making power is not a liberal right that can be exercised in any situation. It must be proven that exceptional circumstances existed and that it was necessary to take immediate action. Clause (4) of Article 123 was deleted earlier by the 44th Amendment Act of 1978, which is enough to show that even the Parliament was not in favour of granting unfettered powers to the executive. Hence, the burden of proof to prove that such circumstances existed lies on the executive.
It was further argued that the preventive detention laws are not permissible under the Indian Constitution, and they impose limitations on the fundamental rights of an individual.
Dr. Ghatate argued before the Hon’ble Court that it was the duty of the central government to bring Section 3 of the 44th Amendment Act (which amended clause (4) of Article 22 of the Constitution) into force, but it has not been done till now, though it received the President’s accent. Therefore, it is not mandatory to constitute an advisory board as per the amended provision. Further, a writ of mandamus must be issued against the government to compel them to discharge their duty within a reasonable time and without any further delay.

He also opined that Article 368 of the Constitution gives the Parliament the power to make amendments to the Constitution as per the procedure prescribed. There is no authority in the law that states that such power can be delegated to the executive. It will create a parallel universe, and it will violate the separation of powers. Hence, it is ultra vires to the basic structure of the Constitution.

It was contended that the National Security Act, 1980, did not work in accordance with Article 22(4) of the Constitution, which was amended by Section 3 of the 44th Amendment Act. No law can be made against the statute made by the legislature. Hence, the National Security Act is not good in the eyes of the law.
Shri Ram Jethamalani, a very experienced lawyer, stated that the use of certain words like ‘defence of India’, ‘relations of India with foreign powers’, ‘security of India’ in Section 3(1) and (2) of the National Security Act is quite baseless as it gives a very wide and broad scope of power to the executive, which is likely to be misused. It may lead to uncontrollable detention, which infringes on the liberty of an individual.
Dr. Singhvi represented the Supreme Court Bar Association and intervened in the case. He was of the view that before the personal liberty of a person is taken away, he must be given a fair opportunity to rectify his conduct in accordance with the provisions of the law. The National Security Act does not follow principles of natural justice and is vague in its true sense.
The other arguments were made regarding the same detention period of 12 months in every case, regardless of the facts and circumstances of each case, which are different. Moreover, there was no obligation to inform the detained person of the grounds of his detention, and he did not even have permission to have access to his lawyer or have the right to cross-examination. All these things make the Act draconian in nature, and it should be struck down.

Judgement in A. K. Roy vs. Union of India, AIR 1982

The five judge bench of the Honourable Supreme Court of India upheld the validity of the National Security Ordinance, which later turned into an Act in 1980. It was found to be reasonable because preventive detention laws are necessary to promote social security among individuals, ensure the security of the state, and maintain public order. They do not violate the fundamental rights provided in Part 3 of the Constitution of India. It was held that they are not vague.

Rationale behind this judgement

This is a landmark case with regards to the constitutional validity of the ordinance making power of the President and the preventive detention laws. It showed us that in India, there is no clear separation of powers between the legislature and the executive. When both houses of Parliament are not in session and there is an immediate need to take action, the power to pass an ordinance can be delegated to the executive. The ordinance-making power of the President is legislative in nature and has the same effect as any other law made by the Parliament. The preventive detention laws are permissible and are not violative of the fundamental rights provided in the Constitution. Therefore, the National Security Act of 1980 is not vague but reasonable. Section 3 of the 44th Amendment Act is not ultra vires, as any provision needs to be implemented only when it comes into force, just like any other Act or Statute.

Issue-wise judgement

Extent and limitation of the ordinance-making power of the President and its justifiability

The Hon’ble judge denied the arguments made by the petitioner that an ordinance is not a law. He held that the Ordinance is a law within the meaning of Article 13(2) of the Constitution, which provides that the State is not entitled to make any law that takes away the fundamental rights of an individual guaranteed under Part III of the Constitution. Article 123(2) also states that the Ordinance has the same effect as the Act made by the legislature. They differ just on one point that laws made by the legislature continue to remain in force until they are repealed. But the Ordinance continues to remain in force only for a period of six weeks from the re-assembly of both the sessions of the Parliament and ceases to have effect if the resolution is passed by the Parliament disapproving it.

Article 367(2) also states that if any reference is made to any laws made by the Parliament under the Constitution, it shall also include the ordinances made by the President and the Governor. So, it is not the executive power but the legislative power of the President. Like other laws, it is also bound by the constitutional spirit. The case of R.C. Cooper vs. Union (1970) of India was referred to, which held that the President is given the right to legislate only in extraordinary situations that demand prompt action. Therefore, our Constitution provides for the Ordinance-making power of the President. It should not be used with any mala fide intention.

The judges also denied the contention that an ordinance is not a law within the meaning of Article 21 because the word ‘established’ basically means that a clear and definite procedure must be laid down. Article 123 provides a specific procedure regarding ordinances. The duration for which it remains in force is immaterial in the present case. It is the discretion of the President to issue an ordinance based upon his ‘satisfaction’ which is justifiable. It is not mandatory to disclose to the general public all the reasons for doing so.

The judges further opined on this issue that, as an ordinance is also a law within the meaning of Article 13, it is also subject to constitutional safeguards provided by Articles 14, 19, and 21 of the Constitution and can’t be ever reduced to a dead letter.

Validity of the preventive detention laws with regards to the infringement of personal liberty of an individual

Prevention detention laws were held to be valid in this judgement. The Court stated that the constituent assembly had a dual purpose in framing the Constitution. Firstly, to establish a democratic government for the people, and secondly, to protect the people against misuse of power by the government. Therefore, fundamental rights were incorporated into our Constitution. Preventive detention laws are made with the object of protecting the security of the State and maintaining public order. It is made to put reasonable restrictions on the liberty of an individual and to ensure equality among people.

Validity of the unenforced part of the 44th Amendment Act, 1978, and its effects on the framework of advisory boards

The Court held that the unenforced part of the 44th Amendment Act is valid because it will have effect on the working and composition of the advisory board only when it comes into force, like any other law made by the legislature. There is no contradiction between Article 368(2) and Section 1(2) of the Amendment Act, as the former prescribes the general rule applicable to the approval date by the President and the latter deals with the procedure regarding how various provisions of the Act can come into force. It was further held that Section 1(2) is not ultra-vires in the spirit of Article 368. The writ of mandamus cannot be issued against the government because the Court has no authority to force the government to bring all the provisions of the Amendment Act into force. It can only be done by the executive. The court can only request that the government bring the amendment into action without further delay. There is no prima facie evidence available to show the malafide intention of the government behind not enforcing Section 3 of the 44th Amendment Act. As it has not been enforced yet, it is not obligatory to compose the advisory board as provided by the Amendment Act. It can be formed as per the original provisions of the Constitution.

Whether Section 3(1) and Section 3(2) of the National Security Act, 1980, are vague?

The Court rejected the argument made by the Council for the petitioner that Section 3(1) and Section 3(2) of the National Security Act, 1980, are vague in light of the law. In the opinion of the court, it is a very impractical issue that has been raised before the court. The words or expressions used in the sections do not give them the certainty that they can be used only in a particular sense; they can be interpreted in various ways by the Court as it deems fit. To explain it further, an example from criminal law was given in which expressions like “annoyance to the public” and “contempt” have been used very frequently, but it does not give any certainty that the provisions need to be interpreted in a particular form only. Therefore, these provisions were not struck down by the Court for the reason of vagueness.

Is the procedure prescribed by the National Security Act considered reasonable?

Yes, the procedure prescribed and followed by the National Security Act was considered reasonable. It is because the procedure followed in the criminal trial is very different from the procedure followed by the advisory board in its proceedings. The rights that are available to an accused in a criminal trial cannot be extended to the proceedings by the advisory board. The advisory board has the power to regulate its own procedure on its own free will, and the court cannot intervene in it. But it is subject to any limitations imposed by the Constitution itself.

Analysis in A. K. Roy vs. Union of India, AIR 1982

In my opinion, an Ordinance should not be considered the same as a law made by the legislature. I contradict the viewpoint given by the Supreme Court that an Ordinance is a law. It can be considered a political tool in the hands of the ruling party rather than an action taken in need of an administrative emergency.

Let us have a look at the process of formulating any law:

Draft bill is presented before the cabinet committee for review, and it is also released for public comment.
Modifications are made based on public input.
Vetting by the cabinet to see that it has followed all the agreed terms and principles and does not contravene any other policy.
Then it is approved by the legal advisors.
The Bill is tabled in parliament by the concerned Minister.
A Bill is then debated in the Parliament and passed to become law based on voting.
The final Bill is enacted as an Act and comes into force on a specific date decided by Parliament.

Like this, the law-making process gives a voice to every stakeholder who will be affected by its enactment. This is a very fair and reasonable procedure formulated by Parliament.

On the other hand, an ordinance is promulgated just on the basis of the opinions of the political parties. It does not include any debates or discussions. Though it is temporary legislation, this power has been abused a number of times. It can be said to be a shortcut to passing legislation by the ruling party. One such example is the case of D.C. Wadhwa & Ors vs. State of Bihar (1986). In this case, 256 ordinances were promulgated in the State of Bihar over a period of time, including 69 ordinances which were repeatedly re-promulgated between 1967 to 1981 without being formulated into proper laws. Even the approval by the legislature was not sought every time, and it continued for a number of years. The Supreme Court held in this case that this practice followed by the Bihar government is unconstitutional. It is against the morality of the Constitution and is prima facie an exercise of colourable legislation. Therefore, the ordinance and the law must not be considered on the same footing.

Conclusion

A.K. Roy vs. Union of India is a landmark case in the constitutional history of India and has been cited a number of times as a precedent in other cases related to the ordinance-making power of the executive and the validity of the preventive detention laws. The 5 judge bench in this case addressed each and every issue in depth, which gives us a comprehensive understanding of the concept. We can also see that there is no clear separation of powers in India, and the validity of the National Security Act, 1980, was upheld by the Hon’ble Supreme Court of India. However, in my opinion, the laws made by the legislature and the ordinances passed by the executive cannot have the same value, as a few basic rights of every individual need to be protected. One such example of this is that every person accused of an offence must have the right to have his lawyer to represent him in legal proceedings against him.

Frequently Asked Questions (FAQs)

Does the President have absolute power to issue an ordinance under Article 123 of the Constitution?

No, the power of the President to issue an ordinance under Article 123 is not absolute. It must be approved by both houses of parliament for it to continue to remain in force after the expiration of two months. As per the above judgement, it was held that the subjective satisfaction of the President with regards to the matter that such circumstances exist that demand prompt action is not completely non-justifiable. There must be reasonable grounds to do the same.

Through which Article of the Constitution do the preventive detention laws derive their authority?

Article 22(3) of the Constitution provides that persons detained under any preventive detention laws do not have protection against arrest. They are arrested on the mere suspicion of the commission of a criminal offence and to protect the security of the state. Article 22(4) provides for the composition of an advisory board in case the detention continues beyond the period of three months. The detained person must be informed about the reasons for his detention after the order for his detention has been passed by the appropriate authority.

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Seema vs. Ashwani Kumar (2006)

By

Rachit Garg

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June 7, 2024

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This article is written by Shweta Singh. This article aims to explain and discuss the decision rendered by the Supreme Court in the case of Seema vs. Ashwani Kumar. The article analyses the judgement with an emphasis on the rationale of the court’s decision and the consequences. In addition, it provides an understanding of the laws that are under consideration in this case. This article also elucidates the practical effects of the judgement on people’s life and society as a whole.

Introduction

Marriage for Hindus is a sacrament and for Muslims a contract. However, in both cases, marriage cannot be broken without a reasonable cause. The instances of increased number of marital disputes and denial of marriages by the husband due to lack of provision for the compulsory registration of marriages have led the court to decide upon this pertinent issue. The Supreme Court in the case of Smt. Seema vs. Ashwani Kumar (2006) (hereinafter to be referred to as “the case” or “present case”) by looking into the grave scenarios existing in the current situation attempted to resolve this issue by suggesting a uniform law for the registration of marriages applicable to every individual irrespective of the religious background.

This article attempts to critically analyse the judgement rendered by the Supreme Court and its significance in resolving the current issue pertaining to women’s rights under matrimonial relations and safeguarding and protecting the child’s rights against child marriage.

Details of the case

Name of the case: Smt. Seema vs. Ashwani Kumar (2006)

Name of the court: The honourable Supreme Court of India

Date of the judgement: 14 February, 2006

Parties to the case

Appellant- Smt. Seema

Respondent- Ashwani Kumar

Represented by: Amicus curiae– Mr. G.E. Vahanvati, the Solicitor General, and Mr. Ranjeet Kumar, senior advocate

Equivalent citations: AIR 2006 SUPREME COURT 1158, 2006 (2) AIR BOM R 783, 2006 (2) AIR KANT HCR 402, (2006) 2 SUPREME 66, (2006) 1 KER LT 791, (2006) 2 PAT LJR 116, (2006) 3 SCJ 101.

Type of the case: Transfer Petition (Civil) 291 of 2005

Bench: Hon’ble Justice Arijit Pasayat, and Hon’ble Justice S.H. Kapadia.

Author of the judgement: The judgement was authored by Justice Arijit Pasayat.

Statutes referred: The Constitution of India, The Hindu Marriage Act, 1955, The Special Marriage Act, 1954, The Registration Act, 1908.

Background of Seema vs. Ashwani Kumar (2006)

Since independence, many measures have been taken to overcome gender inequality. Although these efforts may have brought some advancement, problems like child marriages, bigamy, and gender violence are still quite prevalent in our society despite the laws that are there to prohibit and even penalise the commission of such practices. A large number of marital status disputes are currently pending before the courts. Women are often denied the status of wives due to the lack of official records confirming a valid marriage. The courts have repeatedly underlined the necessity of compulsory marriage registration in order to secure the rights of women and children and mitigate the denial of status to women and the child born out of wedlock. Instances of marriage fraud have also increased, wherein the women are deceived into marriage without performing the necessary marriage rites required for constituting a valid marriage. Such an inverse is solely due to the lack of mandatory registration of marriages.

The persistent cases of child marriage and polygamy demonstrate the cultural and social obstacles that impede the success of reform activities. It should be noted that in spite of the existence of laws like the Prohibition of Child Marriage Act, 2006, and laws against bigamy as provided under the Hindu Marriage Act, 1955, these customs are still prevalent in society due to the long-lasting traditions and not having enough enforcement. Another serious issue is related to gender violence which is still pervasive in society due to preconceived attitudes and lack of effective implementation of statutes like the Protection of Women from Domestic Violence Act, 2005 which primarily addresses the issue of gender violence in society. The fact that registration of marriage is not obligatory increases these problems. Women and children often face legal and social challenges to enforce their rights in the absence of any formal recognition of the marriage. The absence of a mechanism for granting formal recognition of marriages renders the resolution of marriage disputes and cases of inheritance and property rights very difficult, and women end up exposed to abandonment and exploitation. The insistence on compulsory marriage registration is not just a bureaucratic measure, but is the essential path to securing women’s rights and social justice.

The emerging cases of marriage fraud have pointed out the fact that the absence of a formal marriage registration system has rendered women more prone to malpractice. The fraudulent marriages take advantage of the vagueness in the legal procedure, which has the effect of leaving women without any avenue where the requirements of a valid marriage are not met. It was therefore observed by the activist that mandatory registration of marriages may serve as a legal fence and prevent these fraudulent practices, ensuring that all marriages meet the required standards of law and the rights of women are safeguarded.

Facts of Seema vs. Ashwani Kumar (2006)

A case was filed at the District Court in Haryana by the petitioner, Seema, against the respondent, Ashwani Kumar in the year 2005 because of the recurring conflicts and arguments between the couple. During the proceeding, the case was moved to the Court of Additional District Judge (ADJ) in Delhi. On April 15, 2005, an interim order was issued that put the case proceedings on halt. Thereafter, the case was transferred to the Supreme Court of India due to a broader concern that had emerged, i.e. the problem of unregistered marriages.

The matter was transferred to the Supreme Court because of the fact that the absence of official marriage records allowed many people to deny their marriages. This, however, was particularly problematic because very few Indian states had marriage registration requirements included in their laws, and inconsistency in such a requirement among various states resulted in many legal ambiguities and complications in matrimonial disputes.

Due to the wide-ranging ramifications, the Supreme Court issued notices to different states and Union Territories to submit their stand on the matter. The court approached the then Solicitor General and Mr. Ranjit Kumar, a learned senior counsel, to be appointed as amicus curiae to assist the court on this matter.

In response to the notice issued by the court, all the states and Union Territories indicated their intention regarding the high necessity of introducing a mechanism that resulted in making the registration of marriages mandatory. This consensus highlighted the need for marriage registration to eliminate the misuse of non-formalized marriages, where vulnerable members of society were often exploited.

One of the main questions for which the Supreme Court was called upon to consider in this case was whether mandatory marriage registration should be introduced and adopted through out the Indian territory as a legal requirement. In view of the increase in the matrimonial dispute leading to the denial of marriages in the absence of any uniform provisions for the registration of marriage, the Supreme Court was approached to critically examine the legal framework in existence relating to the registration of marriage among various states. In addition, the court was also called to fill the gap that was present with regard to the inconsistent laws being prevalent among different states, impacting individual rights within marriage.

The case was transferred to the Supreme Court with the expectation of determining the course of mandatory marriage registration that would be useful to simplify matrimonial disputes and provide legal clarity and protection to all of the involved parties.

Issues raised

The main issues before the court were as follows:

Whether the registration of marriage should be made compulsory for all the citizens of India.
Whether providing for the compulsory registration of marriage is in accordance with the constitutional principles.

Arguments of the parties

This case before the Supreme Court is a transfer petition, wherein the case was transferred to the Supreme Court to decide upon the crucial issue of the impact posed by the non-registration of marriage on the rights of women, widows, and minor girls. The representatives of various states and Union Territories along with the learned Solicitor General and Mr. Ranjit Kumar, learned senior counsel who were appointed as amicus curiae to provide their stand regarding bringing laws for the compulsory registration of marriage.

All the states and Union Territories unanimously expressed their stance that compulsory registration of marriage is highly desirable in view of the scenarios currently prevalent in the nation. It has been suggested that making registration of marriage compulsory would be a good step towards the elimination of child marriages which are still prevalent in several regions of the country and also in the effective resolution of matrimonial disputes wherein one party takes advantage of the legal lacuna regarding the compulsory registration of marriage.

Laws involved in Seema vs. Ashwani Kumar (2006)

Hindu Marriage Act, 1955

Section 8

Section 8 of the Hindu Marriage Act provides for the registration of marriage solemnised by following Hindu rituals and ceremonies. Section 8(1) enables the state government to make Rules for the registration of Hindu marriages. This means that the parties in a Hindu marriage, may, if they so desire, have the details of their marriage entered into a special marriage register to be known as the Hindu Marriage Register. The manner and terms on which this registration is to take place shall be in accordance with the rules set by the state government.

Registration of marriage under Section 8(1) is voluntary in nature, however, as per the provisions contained in Section 8(2) the state government may, if it considers necessary or expedient in respect of the whole or any part of the state, declare that the registration of such marriages shall be mandatory. This may be applicable to all Hindu marriages or any specific cases as determined by the government. It further provided that where the registration of marriage is made compulsory by the state government, the violation of the registration rules may lead to a penalty charge of up to twenty-five Rupees.

Section 8(3) creates an obligation on the state government to submit the rules formed under this Section to the state legislature as soon as they are created. This avoids the risk of legislative oversight in the establishment of rules.

It is further provided under Section 8(4) that the register of marriage shall be made available for inspection at reasonable times. Moreover, the register can be used as legal evidence in courts. Copies and certified copies of any extract from this register may be obtained on application and payment of the prescribed fee. While subsection (4) guarantees that the record in the register serves as legal evidence of marriage, Section 8(5) explains that the Indian marriage is not invalid merely because it is not registered. It is to be noted that as per the provision of Section 8(5) even in the absence of registration of the marriage in the Hindu Marriage Register, the marriage is still legal. This provision serves the purpose that the legal sanctity of a Hindu marriage would not be affected by the fact that the marriage was not registered.

The Registration Act, 1908

Section 6

According to the provisions of Section 6 of the Registration Act, of 1908, the state government has the authority to appoint any individual as a Registrar or Sub-registrar. The Registrar shall be responsible for registering the Hindu marriage with the specified district, while Sub-registrar shall register Hindu marriages solemnised within smaller administrative divisions known as the sub-district in a particular state. The provisions of Section 6 allow the state government to appoint any individual whether a public servant or not as Registrar or Sub-registrar, which implies that both government employees (public servants) or private individuals can be appointed, if deemed fit, by the state authorities.

The Constitution of India, 1950

Entries 5 and 30 of List III (Concurrent List) of the Seventh Schedule

Entry 5 of the Concurrent List mentioned under the Seventh Schedule of the Constitution of India, authorises the central government as well as the state government to enact laws with regard to matters concerning “marriage and divorce; infants and minors; adoption; wills, intestacy, and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law.”

Entry 30, on the other hand, authorises the central government to collect information regarding “vital statistics including registration of births and deaths.” as interpreted by the Supreme Court, in this case, the term “vital statistics” encompasses within it the registration of marriage as well.

Judgement in Seema vs. Ashwani Kumar (2006)

Obiter dicta

The Supreme Court observed that after examining the relevant legislation regarding the registration of marriages, it was found that only four statutes mandated compulsory registration. These statutes were:

The Bombay Registration of Marriages Act, 1953

This Act was applicable in the states of Maharashtra and Gujarat. It was one of the earliest legislations in India to make marriage registration mandatory, aiming to ensure that all marriages performed within these states were officially recorded.

The Karnataka Marriages (Registration and Miscellaneous Provisions) Act, 1976

This Act was introduced to mandate the registration of marriages in Karnataka. By enforcing this law, the state aimed to provide legal recognition to marriages and address issues such as fraudulent marriages and disputes over marital status.

The Himachal Pradesh Registration of Marriages Act, 1996

The government of Himachal Pradesh implemented this Act to make the registration of marriages compulsory. This legislation was intended to create a reliable record-keeping system, helping to resolve matrimonial disputes and protect the rights of spouses and children.

The Andhra Pradesh Compulsory Registration of Marriages Act, 2002

This act required that all marriages in Andhra Pradesh be registered. It was enacted to provide a legal framework for marriage registration, thereby reducing cases of marriage fraud and ensuring that marriages were recognized by law.

Aside from these four statutes, no other states in India had legislation that made marriage registration compulsory. The court highlighted that the provisions for voluntary registration of Muslim marriages existed in Assam, Orissa, and West Bengal through specific Acts, like

Yet even with these provisions, the voluntary nature resulted in many marriages that remained unregistered, thereby leading to gaps in legal documentation. The court noted that a Hindu Marriage Registration Rules, 1973 was implemented in the state of Uttar Pradesh for compulsory registration of marriages by the Panchayats along with maintenance of birth/ death records. However, this was not the case in Jammu and Kashmir since the rules for registration of marriages had not been framed or applied for both Hindus and Muslims which led to the failure of systematic recording of marriage thereby resulting in legal and social consequences. Such remarks of the court again highlighted the discrepancies and lacunae in marriage registration legislation across different regions, which resulted in several legal and social issues and failure to protect individual rights as well as resolve matrimonial disputes in an effective manner.

The court referred to various statutes relating to marriage in India. According to the Special Marriage Act of 1954 which is implemented for all Indians irrespective of their religion, every marriage should be registered by the designated Marriage Officer. The Indian Christian Marriage Act of 1872 provides for compulsory registration of marriage with the entries made in the marriage register maintained in the church after the ceremony is over and signed by the bride, bridegroom, priest who performed the ceremony, and witnesses. Likewise, the Parsi Marriage and Divorce Act of 1936 provides for the compulsory registration of marriages. However, according to Section 8 of the Hindu Marriage Act of 1955, it is left to the discretion of the parties to either perform the marriage in the presence of the sub-registrar or, alternatively, opt to register it after the ritual ceremony. The Act, also provides further that any omission to register does not invalidate the marriage. The Hindu Marriage Act of 1955 also enables the state government to make rules for the registration of marriage and to provide for compulsory registration of marriages whenever the state government considers it necessary to do so. Infringement of such rules would attract a penalty in the form of a fine.

The court referred to entries 5 and 30 of List III of the Seventh Schedule of the Constitution of India in order to decide upon the issue regarding the constitutionality of making marriage registration a mandatory process in India. Entry 5 gives both the state and central governments the right to pass laws in connection with marriages and divorces and this even includes stipulations regarding the procedure of marriage registration. Entry 30, on the other hand, authorises the central government to collect information regarding “vital statistics including registration of births and deaths.” The meaning ascribed to the term ‘vital statistics’ in Entry 30 includes information concerning marriages and thus encompasses marriage registration within the scope of Entry 30.

The court perused an affidavit filed by the National Commission For Women (NCW) which stated that non-registration of marriages is often to the disadvantage of women. Several vital problems could be solved with the help of compulsory registration of marriage, according to the NCW. It would help in safeguarding the children from child marriages by enforcing the minimum age of marriage to be observed as well as prohibiting marriages that are done without the consent of the parties involved. It would also help in combating illegal bigamy and polygamy as this would help in identifying multiple marriages. In addition, mandatory registration would guarantee the married women’s rights to stay in the matrimonial home and receive financial support together with assisting widows to exercise inheritance rights and access benefits in the event of their husbands’ deaths. Furthermore, it would discourage husbands from deserting their wives after the wedding, and the sale of young girls under the pretence of marriage, both locally or abroad. This position by the NCW made it clear that compulsory registration of marriages would lead to better legal protection of women and address many social injustices.

Ratio decidendi

The Supreme Court, after reviewing the provisions of law and affidavits filed by NCW, arrived at a crucial conclusion regarding the registration of marriage. The court acknowledged that most of the conflicts pertaining to the solemnization of marriages could be easily eliminated if marriages were officially recorded. This conclusion was consistent with the view of the National Commission for Women which stated that failure to register marriages especially put the rights of women at risk affecting their legal and social status. The court arrived at the conclusion that compulsory registration of marriages was an important evidence that would be essential in legal matters in relation to whether marriage had occurred or not and it would further create a rebuttable presumption in legal matters. This would mean that while the registration itself would not categorically show that a valid marriage took place, registration would provide significant evidence that the marriage took place. This evidentiary value would be particularly important with respect to the cases concerning custody of children, the rights of children born out of wedlock, and where the parties to the marriage do not produce their ages.

The court noted that lack of marriage registration renders women helpless because there are no ways to prove the rights to entitlements in the marriage like maintenance or the right to the residence in the matrimonial home. Further, unregistered marriages could trigger legal uncertainties regarding the social background of the children they bear impacting their entitlement to inheritance and social legitimacy. This was further affirmed by the court which suggested that compulsory registration of marriage would be in the interest of society at large. It would also mean better enforcement of marriage laws, thus discouraging illegal practices such as bigamy and child marriage, and protecting the rights of the women within marriage. Compulsory registration of marriage would help the legal system to give stronger support and recognition to the matrimonial relationship and thus help reduce the number of disputes associated with it and contribute to the increase in social stability.

Therefore, for the reasons mentioned above the court held that marriages of all Indian citizens regardless of their religion must mandatorily be recorded in the states in which the marriage took place. Consequently, the court directed both the state and central governments to take the following steps:

Procedure notification- Each state has to notify the procedure in which the registration of marriage would take place. The court provided a period of three months for the respective states to notify such a procedure. The court suggested that this can be done by amending current rules or introducing new ones. All these rules can be implemented by the states only after inviting the public objections ensuring the proper publication of the invitation of objection and that the objection period remains open for at least one month from the date of the advertisement. Following this period the states should release a notification to enforce the rules.
Authorised Registration Officer- The officer designated under these rules shall have the authority to conduct the registration of marriages. The registration must explicitly disclose the age and marital status (unmarried or divorcee) of the individuals. The rules should also prescribe penalties for failure to register marriages or for false declaration of marriage. The primary purpose of these rules is to implement the directives of this court.
Central Government Legislation: Any statute that is to be passed by the central government in the form of consolidated legislation should be subjected to the review of the Supreme Court.
Compliance Assurance: It is the duty of the counsels for the various states and union territories to ensure strict compliance with these directions.

The Supreme Court, in the end, asked the Registry to facilitate the learned Solicitor General with a copy of the order for necessary follow-up action. The court also expressed its gratitude for the helpful submissions made by Mr. G. E. Vahanvati, the Solicitor General, and Mr. Ranjit Kumar, senior advocate serving as Amicus Curiae.

Analysis of the case

It would not be appropriate to disregard unregistered marriages in India because most marriages are performed without priests being present, without any formalities following local customs only in the presence of the relatives. That is why, India, like many other countries, had reservations about the Convention on the Elimination of All Forms of Discrimination Against Women, 1993, which promotes the compulsory registration of marriages. The law must therefore create room to accept the diversity in customs and personal laws. Legal education is therefore necessary so that the population understands the importance of registering their marriages. An unregistered marriage must not be considered as invalid. Rather, small fines for not registering their marriage are a good option in persuading people to register. This is helpful in cases where one spouse is left destitute and the other remarries, ensuring that there is proof of first marriage. There are several laws that deal with marriage and divorce in India and the Compulsory Marriage Registration Bill 2005 is not intended to clash with such laws but only aims to encourage all marriages to be registered.

The Supreme Court and the High Courts of India have repeatedly emphasised the importance of compulsory registration of marriages. The ruling of the Supreme Court, in the present case, which stresses the need for mandatory registration of marriages by all individuals irrespective of their religion has set a foundation for the subsequent case before the courts to decide the issue upholding the individual right to the registration of marriage. The Delhi High Court in the case of Reena Chadha vs. Govt. of NCT of Delhi, (2021) by interpreting the term “personal appearance” for the purpose of marriage registration as appearance through video conferencing stated that it “cannot allow a rigid interpretation of the statute allowing for the registration of marriage to prevent citizens from exercising their rights”.

In the present case, the Supreme Court has rightfully acknowledged the importance of providing for mandatory registration of marriage due to reasons such as preventing child marriage and ensuring the stipulation of the minimum age requirement for marriage. Registration of marriage also assists in preventing bigamy or polygamy, promoting that marriage happens with the consent of both parties and supporting the rights of married women to stay in the matrimonial home and to receive maintenance. It also helps in redressing the claims of widows to their rights of inheritance and deterring men from abandoning their wives.

With the prevailing conditions and scenario, the given decision has assumed a rather important role in protecting the rights of many women and girls. By making marriage registration mandatory, the Supreme Court aimed to address a legal gap and provide a solution to the major problem of underage marriage in the country. Child marriage is another problem that has been pervasive in our country. The Delhi High Court in the case of Lajja Devi vs. State NCT of Delhi (2012) also upheld this decision in 2012 whereby they mandated marriage registration. The court noted that marriage registration would help prevent guardians from marrying off the minor children because the document will show the age of the child and this would result in the discovery of illegal marriages of minors.

At first, the case looked like a typical domestic case pertaining to a wife and her husband who could not manage to reconcile their differences caused by marital conflicts. However, as the hearing continued the court realised that there were more pressing national concerns arising from gaps in the current laws. These issues pointed out the need to adopt stricter legal frameworks that would help in the protection of vulnerable individuals and prevent illegal marriages from taking place.

Aftermath of Seema vs. Ashwani Kumar (2006)

The decision passed by the Supreme Court in this case mandated the central government to enact a comprehensive law for the compulsory registration of marriage. In light of recent developments in states and Union Territories with regard to compulsory marriage registration, the issue at hand is whether there is a need for central legislation on the subject. If so, the next question that arises is whether to amend the Registration of Births and Deaths Act, 1969 as suggested in the Registration of Births and Deaths (Amendment) Bill, 2015 or to create a separate standalone law to introduce the mandatory registration of marriages.

It may be noted that there have been some legislative and judicial initiatives in India in the last few years to make the registration of marriages compulsory for all individuals, irrespective of their religion. In 2008, the 18th Law Commission of India suggested that under the Prohibition of Child Marriage Act 2006, registration of marriage be made compulsory throughout the country for all communities including Hindus, Muslims, Christians, and others. Later the Commission in its 211th Report proposed an application of the Marriage and Divorce Registration Act for the entire country and recommended the renaming of the Births and Deaths Registration Act, 1969, as the Births, Deaths and Marriages Registration Act, 2012. As a result of the decision of the Supreme Court in this case, a Bill was drafted in the year 2012 to provide for the compulsory registration of marriage in the Registration of Births and Deaths Act of 1969. This Bill was passed by the Rajya Sabha in the year 2013 but lapsed after the dissolution of the Fifteenth Lok Sabha in 2014. The Standing Committee had expected this legislation to strengthen women’s rights as far as maintenance and property rights are concerned while at the same time discouraging bigamy.

A new draft of the Bill was tabled in 2015 and in 2017 the Department of Legal Affairs asked for feedback from the Law Commission on whether to undertake amendments to an existing Act or introduce new legislation for the mandatory registration of marriage. The Commission was also asked to consider the needed amendments to central laws, the need to make marriage registration IT-enabled, and other related issues.

A recent 270th report by the Law Commission of India shows that there is a need to amend the Registration of Births and Deaths Act, 1969 to provide for the compulsory registration of marriage. This change intends to embrace marriages from different religions and castes, thereby facilitating better implementation of laws against child marriage and forced marriage, thus advocating for gender equality and women empowerment. The recommendation recognises the existence of various personal laws while ensuring that all marriages are officially recorded under the appropriate laws.

The judiciary has also played a significant role in emphasising the importance of compulsory registration of marriage and thus through its decision has many times equated it to the fundamental right of an individual. The Rajasthan High Court in the recent case of Smt Ashwani Sharad And Anr. vs. Registrar Of Hindu Marriage Anr. (2023) deliberated on the issue of compulsory registration of marriage and observed that the denial of registration of marriage on the ground that one of the parties to the marriage is a foreign national is a violation of the right to equality guaranteed under Article 14 of the Indian Constitution and therefore held that if the marriage is solemnised in India in accordance with the laws of India, then the marriage has to be compulsorily be registered and the registrar cannot deny the same.

In another recent case of Lalan P.R. and Others vs. Chief Registrar General of Marriages (Common), (Director of Panchayaths), Thiruvananthapuram, and Others (2022), the Kerala High Court made the registration of marriages mandatory. This decision was instrumental in ensuring that minor girls are not exploited in the form of forcing them to marry and being sold under the pretext of marriage and marrying them without their consent. The court thus made registration of marriage mandatory to enable it to regulate and control such marriages adequately. Moreover, this ruling granted married women many rights. It assisted them in protecting their right to live in the matrimonial home and to claim maintenance from their husbands hence alleviating their sufferings and likelihood of being deprived of marital rights.

These rulings by the Supreme Court indicate the stance of the judiciary on necessitating the compulsory registration of marriages to maintain the rights of the citizens and deal with the issue of social injustice prevalent in society. It well explains how the judiciary interprets the laws with the aim of eliminating social vice and guaranteeing justice for affected groups and individuals. The cases mentioned above are an example of the Supreme Court’s proactive approach to using legal provisions to ensure social protection and protection of human rights legislation.

Conclusion

With this landmark judgement, the Supreme Court not only gave basic protection to married women who are struggling and denied their marital rights such as the right to live in their matrimonial house, or the right to receive maintenance but more importantly it came to the rescue of minor girls enduring severe abuses. Some of the abuses they experience are child marriage, their parents selling them off under the guise of marriage, and marrying them without their consent. This judgement is a clear illustration of the judiciary’s spirited and tireless fight for the protection of the rights of people in the country. Thus, by properly interpreting the legal provisions, the judiciary serves a pivotal role in eradicating social vices as well as providing justice to every individual. This is just one of the many cases that shows the judiciary’s commitment and responsibility to uphold and defend the civil liberties of the population.

Frequently Asked Questions (FAQs)

What are the conditions that are required to be fulfilled for a marriage to be valid?

Section 5 of the Hindu Marriage Act deals with the conditions for a valid Hindu marriage. According to this Section, a marriage between two individuals who are Hindu shall be considered valid only when the individuals marrying each other do not have a spouse living at the time of their marriage. The bridegroom should be of the age of 21 and the bride of the age of 18 years. Both parties should not be of unsound mind and capable of giving their consent. Even if any of the parties is capable of giving consent, they should not be suffering from such mental order having the effect of making the person unfit for marriage and the procreation of children. Both parties should not be suffering from repeated attacks of insanity. Another condition stipulated under Section 5 is that the parties shall not fall within the category of prohibited relationships. An exception to this condition is that such a condition shall not be applicable if customary practice and usage to which the parties are subjected permit the marriage between the two. The last condition is that the parties are not sapinda of each other, however, it shall not be applicable in case the custom and usage allow the solemnization of such marriage.

Does the registration of marriage prove that a marriage is valid?

No, the registration of a marriage is not conclusive proof that a marriage is valid and vice versa, that is, the absence of registration of marriage shall have no effect on the validity of the marriage. For a marriage to be valid, the condition stipulated under Section 5 of the Hindu Marriage Act, 1955 needs to be fulfilled. Moreover, according to Section 8(4), the register maintained for the registration of marriage can be used as legal evidence in courts. Copies and certified copies of any extract from this register may be obtained on application and payment of the prescribed fee. While Section 8(4) guarantees that the record in the register serves as legal evidence of marriage, Section 8(5) explains that the Indian marriage is not invalid merely because it is not registered. It is to be noted that as per the provision of Section 8(5) even in the absence of registration of the marriage in the Hindu Marriage Register, the marriage is still legal. This provision serves the purpose that the legal sanctity of a Hindu marriage would not be affected by the fact that the marriage was not registered.

What is the procedure for registering a marriage in India?

To start the process of marriage registration, both individuals have to fill up a marriage registration form along with basic details and information about themselves. The documents required at the time of registering a marriage include birth certificates, proof of residence, marriage invitation cards, and passport photos for both the grooms and brides. Both parties must also provide a valid consent statement. At times, authorities may announce a public notice to receive objections, which usually takes not more than 30 days. This makes sure that one is not related to the other within the prohibited degree of marriage relation. The authorities will give out the marriage registration certificate once the inquiry period is completed.

What is a transfer petition?

A transfer petition is an application filed before a Supreme Court with a request to transfer a case pending in a lower court (usually a High Court) to another court, typically for reasons of convenience, justice, or avoiding prejudice.

References

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Competence of corporate governance for a state-owned enterprise within the UK

By

Vanshika Kapoor

-

June 6, 2024

0

This article has been written by Shubham pursuing a Diploma in Corporate Law & Practice: Transactions, Governance and Disputes frok LawSikho.

This article has been edited and published by Shashwat Kaushik.

Table of Contents

Introduction

Corporate governance refers to the guidelines and methods put in place by a governing body for overseeing how businesses operate. The main reason for corporate governance is to create an understanding between components of a business, like shareholders, management and directors, and to ensure its unhindered functioning. Corporate governance has become a necessity because of the competing businesses and their goal of succeeding with whatever means necessary.

Corporate governance can be dated back to around the 1800s in the United Kingdom, but it was only in the 1990s that it became noticeable to mainstream economists because of the misconduct and unfair practices that came into light during this time, causing a stir among the consensus. Some of the popular incidents that made headlines in the 1990s were:

It could be noticed that Britain’s economic scene has been going through turmoil in recent times, like dealing with issues like Brexit, climate change and the Covid-19 pandemic, yet still, the economy is somehow able to sustain this all only because of its control over state-owned enterprises (SOEs). SOEs are companies partly or fully owned by the UK government, with a minimum of 51% stake in them. These SOEs can be seen actively operating in many areas of the UK’s core economic functional fields like health care, education, energy, transport, defence, etc.

SOEs can have sizable economic and social impacts, as they have always operated in strategic sectors such as energy, transport, telecommunications and health care. However, they too face governance challenges, which in some cases are only specific to their business structure. Therefore, it is important that every SOE operating in any field follow high standards of corporate governance, such that it ensures a clear separation between ownership and management functions, establishes independent and competent boards of directors and implements effective internal and external audit mechanisms. Every SOE should also not fail to disclose its relevant financial and non-financial information to the public and by performing all these functions regularly and competently, every SOE operating on behalf of the state can enhance their performance, competitiveness and reputation and can also contribute to the economic growth and social welfare of the nation.

OECD report on the SOEs in UK

The OECD report stated that there were about 103 big public companies in the UK which are state owned. These companies had a value of £146 billion and provided jobs to roughly 8,00,000 people in the country, generating employment in bulk and catering to around half of the nation’s population, according to an estimate.

Corporate governance for SOEs in the UK must deal with issues and chances distinct from those of a private enterprise operating in a similar space in the UK. SOEs observe issues like political interference, functioning based on polarised state ideology, consideration of social goals, public inspections, etc., and therefore need special practices designed just for their functioning for safety and clarity.

The report states that the UK state does not prescribe one determined way to decide the goals of SOEs and hence the ways of creating them are also different in the region. The formation of such SOEs involves public groups that are not even a part of the department or in any way related to the executive officers, money making funds or corporations by law. Guidelines, laws, amendments and codes issued by the UK government are applicable to SOEs.

The UK government has issued various rules and guidelines from time to time but nothing specifically related to state-owned companies. The applicability of all these acts/ guidelines/ and codes is kind of similar to other forms of company operating in a similar space, but it does contain some provisions exclusively for the SOEs:

The Corporate Governance Code for Central Government Departments (2017)

This law mainly amends the 2011 edition of it passed by the UK government and mainly comments on the part and duties of the departmental boards on policy and performance. One of the rules states that the board must be fair in the appointment of ministers, big jobs and non-government outside members, which should be equal in numbers.

Risk management: The code highlights the need for risk management and internal control in the department and the need for a separate unit for such a function. It also provides how the board should get itself audited and analysed at regular intervals.
Arm’s length bodies: The code comments that the board should make sure that it encompasses strong rules for its arm’s length bodies and should monitor their functioning the same as that of the department’s single plan.

The Code states that the board is vested with the option to choose between ‘follow or explain’. This means a department might not follow the code but then needs to explain why it didn’t follow it in its yearly governance statement attached to a monetary report. The code also expresses ideas such as the Nolan Principle, the Ministerial Code, the Civil Service Code, Managing Public Money, the Audit and Risk Assurance Committee handbook, and the relationship between departments and bodies not connected to them. The Code also discusses how ministries influence the policies of the organisations they run. This might involve SOEs and carrying out their departmental plan.

The UK Corporate Governance Code (2018)

This Code was published by the UK’s Financial Reporting Council. This Code is applicable to firms that are registered on the London Stock Exchange, which also includes some of the SOEs and hence applies to them too.

The Code is mainly divided into five sections, which are:

Board leadership and Company Purpose
Division of Responsibilities
Composition, Succession, and Evaluation
Audit, Risk and Internal Control
Remuneration

It should be considered that the code is general and not exclusively directed towards SOEs and changes accordingly to the sector in which the SOE generally operates. The code also comments on how boardrooms should work, government ownership and control, being open about things and sharing information, and fair treatment of shareholders and other investors.

Code of Conduct for Board Members of Public Bodies

These Rules chart down some behavioural boxes to checkmark for the directors and their duties in charge of these public groups. These rules are meant to tell the boards of these state enterprises what they should do for everyone, how they need to act in favour of all and what guidelines the board members must abide by. It also provides that the board members must also be well-versed in how a state-run company works. How to make public organisations and big companies more open and trustworthy.

UK Companies Act, 2006

This Act covers all the businesses operating in the UK and considers no exceptions for businesses, even if they are owned by the state. The law does consider that, along with the general compliance commitments, SOEs might have to consider some other duties, such as following public goals, offering public services or supporting national interests, which is distinct from what other businesses do to sustain, survive and prosper. The UK Companies Act 2006 does not have special rules for state-owned companies as such and generally directs all leaders to do general things like acting within their allowed roles, following and pushing the company’s success, staying clear of personal conflicts and conveying about any possible deals or plans they’re connected with.

The Public Services (Social Value) Act, 2012

This Act states that those in charge of these government run organisations must think about how to enhance services, goods or jobs to improve economic, social and environmental health in their sector. The law demands government organisations connect with their subject and make improvements in providing better services that will give good value at an affordable price.

This Act covers and comments on public service contracts and framework deals. The government needs to abide by this Act before it enters into any contracts or deals. The government needs to think about how it can get social good through what it wants, how it checks those things and how it manages its contracts. The Act also directs that at least 10% should be allocated for social value.

Sector specific regulations

There aren’t any regulations specific to SOEs with respect to their business structure, but there are regulations applicable to SOEs that are sector specific. SOEs are regulated with rules and regulations depending on the industry they belong to and how much the government is involved in that sector. Some of the common regulations that apply to SOEs in the UK are:

Energy sector: The Petroleum Act 1998 and the Electricity Act 1989.
Water industry: The Water Industry Act 1991
Transport sector: The Railways Act 1993, The Transport Act 1985 or The Road Traffic Act 1988.

These are specific to SOEs and the sector in which they are operating.

Assessing competence of corporate governance with respect to SOEs

Looking at the competence of the law governing SOEs in the UK, there are certain parameters that are to be considered to derive an assessment.

Board structure and composition

Assessing the board involves scrutinising the board’s diversity of members and their expertise, freedom from any external or internal manipulation and competence with the organisation’s business matters. This involves confirming the number of members required to meet the board criteria, along with all other requisites like the number of meetings to be held in a year and board resolutions or quorums for meetings, etc. It also involves the selection of board members, compensating them with the right remuneration in accordance with the remuneration limits, and having a check over their functioning and activities. The OECD Guidelines on Corporate Governance of State Owned Enterprises (2015) provide comments about how things should be run, like making sure that board members are selected in a transparent and regular manner, which could be backed by appropriate reasons and justified by their skills. Another requisite is that the members should be able to separate politics and management.

Transparency and accountability

The OECD Guidelines (2015) advise on conveying data relating to the transparency and accountability of the organisation and state that it’s necessary for SOEs to disclose such data to the general public. Maintaining transparency on the decision-making aspect of the SOEs and practices for accountability. Some of the details which a SOE should share with the general public are money performance, ownership structure and management controls. The code also suggests checking on the steps needed and taken to make sure SOEs are accountable for their decisions.

Compliance and ethical practices

Keeping track of ethical behaviour and being aware of whether social well-being being followed or not. Tracking if the SOEs obey rules in their work, like laws about monetary holdings and external currency investments, environmental protection laws and labour laws. Guidelines from the OECD (2015) elaborate on these topics and give suggestions on them.

Performance and impact

To evaluate the impact of the SOEs and their performance on society as a whole would require evaluating the financial performance of SOEs in terms of their profitability, efficiency, productivity, etc. whereas to evaluate their impact on public policy objectives, social welfare, environmental sustainability, innovation, etc. The OECD Guidelines on Corporate Governance of State-Owned Enterprises (2015) provide commentary and guidelines on these aspects of performance objectives and sufficient financial resources to achieve their objectives.

Importance of corporate governance for SOEs

Effective corporate governance is crucial for state-owned enterprises (SOEs) to operate in a transparent, accountable, and efficient manner. It helps align the interests of various stakeholders, including shareholders (the government), management, and the public. Here are some key points:

Transparency and accountability:
- Corporate governance ensures that SOEs are transparent in their operations, decision-making, and financial reporting.
- It establishes clear lines of responsibility and accountability, making it easier to hold management and the board of directors responsible for their actions.
- Transparent governance helps prevent corruption, mismanagement, and misuse of public funds.
Alignment of stakeholder interests:
- Effective corporate governance aligns the interests of different stakeholders in an SOE, including the government (shareholders), management, employees, and the public.
- It ensures that decisions are made in the best interests of the organisation and the public good, rather than for the personal gain of a few individuals.
- Alignment of stakeholder interests helps foster trust and confidence in the SOE.
Efficiency and performance:
- Sound corporate governance practices contribute to the efficiency and improved performance of SOEs.
- Clear decision-making processes, effective risk management, and robust internal controls help SOEs operate more efficiently.
- Good governance also promotes innovation, encourages entrepreneurship, and fosters a culture of continuous improvement.
Compliance with laws and regulations:
- Effective corporate governance ensures that SOEs comply with applicable laws, regulations, and ethical standards.
- It minimises the risk of legal liabilities, fines, and reputational damage.
- Compliance with laws and regulations helps SOEs maintain a positive public image and build trust with stakeholders.
Attracting investment and capital:
- Strong corporate governance practices make SOEs more attractive to investors, both domestic and foreign.
- Investors are more likely to invest in SOEs that are transparent, accountable, and well-managed.
- Good governance enhances the reputation and credibility of SOEs, making them more competitive in the global marketplace.
Sustainability and long-term viability:
- Effective corporate governance helps SOEs adopt a long-term perspective and make decisions that are sustainable in the long run.
- It encourages SOEs to consider environmental, social, and governance (ESG) factors in their decision-making.
- Sustainable practices contribute to the long-term viability and success of SOEs.

Recent developments

The UK government has introduced the Corporate Governance Code for State-Owned Companies, which sets out a series of principles and guidelines for the governance of SOEs. The Code aims to ensure that SOEs are managed in a transparent and accountable manner, and that they operate in the best interests of the public.
Independent scrutiny and reporting mechanisms have been established to enhance oversight of SOEs. These mechanisms include the National Audit Office, which is responsible for auditing the financial statements of SOEs, and the Public Accounts Committee, which is a parliamentary committee that scrutinises the performance of SOEs.
The government has also introduced a number of reforms to the way in which SOEs are privatised. These reforms are designed to ensure that privatisation is carried out in a fair and transparent manner, and that the proceeds of privatisation are used to benefit the public.
In addition to the UK government, a number of other countries have also introduced reforms to the governance of SOEs. These reforms reflect a growing recognition of the importance of ensuring that SOEs are managed in a transparent and accountable manner.
The reforms to the governance of SOEs are a positive development. They will help to ensure that SOEs are managed in a way that is in the best interests of the public.

Challenges faced by SOEs

Here are some of the key challenges facing SOEs in the U.K.:

Political interference: SOEs are often subject to political interference, which can lead to inefficient decision-making and a lack of accountability. For example, a government may pressure an SOE to hire unqualified workers or to make investments that are not in the best interests of the company.
Lack of competition: SOEs often operate in markets where they have little or no competition. This can lead to complacency and a lack of innovation.
High costs: SOEs often have higher costs than private-sector companies. This is due to a number of factors, including political interference, a lack of competition, and inefficient management.
Lack of accountability: SOEs are often not held accountable for their performance. This is because they are not subject to the same market forces as private-sector companies. For example, if an SOE makes a loss, it can simply ask the government for more money.
Corruption: Corruption is a major problem in many SOEs. This is because SOEs are often seen as a source of patronage for politicians and their cronies. For example, a study by the World Bank found that corruption costs the global economy trillions of dollars each year.
Inflexibility: Inflexibility is another major challenge facing SOEs. This is because SOEs are often bound by a number of regulations and rules that make it difficult for them to adapt to changing market conditions.
Lack of investment: SOEs often lack the investment capital needed to stay competitive. This is because governments are often reluctant to provide funding for SOEs, especially when they are running at a loss.
Low productivity: SOEs often have lower productivity than private-sector companies. This is due to a number of factors, including political interference, a lack of competition, and inefficient management.

Despite these challenges, SOEs can play an important role in the U.K. economy. SOEs can provide essential services that may not be provided by the private sector, such as infrastructure and utilities. SOEs can also help to promote economic development in underserved areas.

The competence of corporate governance for SOEs in the U.K. is a complex issue. There are a number of challenges facing SOEs, but they can also play an important role in the economy. It is important to find a balance between the need for efficiency and accountability and the need for essential services.

Case studies

Exemplary Governance Practices: Showcasing SOEs with effective governance structures and successful practice/ profit making in the UK.

One example of an SOE with effective governance structures and practices in the UK is the BBC, the British Broadcasting Corporation. The BBC is a television broadcaster that operates under the Royal Charter, i.e., with the allowance of the King in the year 1927. The BBC has also entered into a framework agreement with the UK government for the broadcasting services which it provides. It is governed by a board of directors, which sets the strategic directions, ensures compliance with legal and regulatory obligations and oversees the delivery of the public service. The board reflects diversity in parlance with the UK’s population and the members participating are appointed through a very fair and open procedure.

The board is seconded by many committees, such as the Audit and Risk Committee, the Editorial Guidelines and Standards Committee, and the Nominations Committee. The BBC’s management is structured unitarily and is led by a Director-General, who is the chief executive officer and editor-in-chief. The Director General is responsible for the operational management of the BBC and is backed by a senior leadership team. An annual report is published by the BBC, which provides information in relation to its performance, governance and impact. It also publishes its accounts to the general public and believes in maintaining standards of high integrity and editorial independence. The BBC is subject to external oversight by Ofcom, the UK’s communications regulator, which monitors its compliance with broadcasting rules and licence conditions.

Deficient Governance Instances: Analysing SOEs in the UK that failed to maintain and sustain governance failures and their repercussions.

The most prominent of the lot as an example of deficient governance would be UK Network Rail, which operates and owns the railway network primarily in Great Britain. Network Rail was established in 2002 as a not-for-profit company and limited by guarantee, having members instead of shareholders. However, in 2014, the Office for National Statistics reclassified Network Rail as a central government body due to its high level of public debt and dependence on government funding.

This reclassification had significant implications for governance and accountability arrangements with respect to Network Rail, as it came under the radar for more direct governmental control and scrutiny. The SEO has been dealing with several governance challenges over the years, such as cost overruns, delayed projects, below standard performances, safety issues, and low shareholder involvement. Some of the factors that fuelled these challenges include: unclear arrangements between Network Rail and other rail operators, which brought confusion in roles to be played; lack of regulatory actions by the Office of Rail and Road; inadequate board composition and lack of skills of the board members to handle situations; inefficient risk management and low internal control; low transparency and disclosure; and cultural issues such as complacency, stocking of data not to be published in public, and lack of adaptive mentality. These governance failures have resulted in negative consequences for Network Rail’s reputation, finances, operations, and public trust.

Conclusion

The assessment of the competence of corporate governance for a SOE within the UK revealed several strengths and weaknesses. The strengths are a clear vision and social welfare-driven mission, a diverse and inclusive board that possesses qualifications, a responsive and fast track risk management system, and a respectable level of transparency and accountability. On the other side, the weaknesses include low stakeholder involvement, frail and flawed performance evaluation system, lack of adaptive mindset for innovation and digitalisation of procedures, and discordance with ESG principles and climate goals. These findings are supported by various reports and academic papers, such as the OECD Guidelines on Corporate Governance of SOEs, the CIPD factsheet on corporate governance, and the ICAEW insights on SOE sustainability.

The assessment of the competence of corporate governance for a state-owned enterprise within the UK is not a one-time evaluation but rather an ongoing process that requires progressive evaluation and adaptation. The economic and social landscapes are changing exponentially, generating new challenges and opportunities for SOEs to deal with. Therefore, it is necessary that SOEs move along with the latest trends and developments in their respective sectors, markets, and society at large, and that they adjust their governance compellability accordingly.

This can be achieved by benchmarking against best practices adopted globally or by leading SOEs, by seeking feedback from external experts and auditors, and by anticipating future scenarios and risks.

References

Disposal of suit at the first hearing under CPC : an analysis

By

Vanshika Kapoor

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June 6, 2024

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All you should know about the place for institution of a suit

This article has been written by Jatin Sharma pursuing a Diploma in Legal English Communication – oratory, writing, listening and accuracy from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Table of Contents

Introduction

When there is a violation of civil legal rights, his first thought would be to file a case against the violator in a civil court with the competency to try the matter. The procedure for it would be followed as per the Code of Civil Procedure, 1908 which talks about for instituting a suit the presentation of the plaint is the first step by the plaintiff, upon which the defendant files the written statement on his defence, Both the plaint and written statement conjunctively form the “Pleadings”. After the stage of pleadings is completed, the main issues between both parties become clear. The next stage would be “issues framing.”. This stage of examination (order 10) of the parties and their matter in controversy to suit and issue the framing process (order 14) is also known as the “first hearing”. The court has the power to pronounce judgement at the first stage of hearing, as per Order 15 of the Code.

Meaning of disposal of a suit

The meaning of the word disposed is not generally as given in the code of civil procedure but in a general sense, it was understood as when the court completes all the necessary proceedings needed to complete an issue and no further changes, examinations, etc. are needed to take the case further, the court disposes of the case as it seems fit, recording the reasons for such disposal.

Meaning of first hearing

The expression “first hearing” has not been defined anywhere in the Code. The first hearing of a suit is the day on which the court goes into the pleadings of the parties to understand their contentions. As stated above, the machinery of a court is set in motion by the presentation of a plaint, which is the first stage in the suit. The second stage is the filing of the written statement by the defendant. The third important stage in the suit is the framing and settlement of issues and the day on which such issues are framed is the first hearing of the suit. In cases in which no issues need to be framed, i.e., a small cause suit, the first hearing would be the day on which the trial starts.

Hence, the day on which the courts apply their judicial minds to a suit, either for the issue framing or examining the evidence, can be said to be “the first day of hearing of the suit.” In another sense, the first hearing is the date when for the first time, the case is “called out for hearing and gone into” and not the date when the case was fixed for hearing but was gone into.”

In Siraj Ahmad Siddique vs. Shri Prem Nath Kapoor (1993), the Supreme Court said that “the date of hearing a suit under this code is typically considered the date when the intends put its judicial mind in the arguments presented in the pleadings and documents submitted in support of them and for framing the issues to be resolved in the suit.” It can never be earlier than the date fixed for the preliminary examination of parties and settlement issues.

Role of Order X & Order XIV CPC

Order X Rule 1 provides for the court at the first hearing to ascertain from every party to the suit, either themselves or through their pleader, whether they admit or deny such alleged facts of the case as made in their complaint or in the written statement, if any, of the opposite party. If the court wants, they can use this power very smartly to move forward with the case more diligently and speedily without wasting any time.

Order XIV Rule 1 talks about the framing of issues; issues are those facts or material propositions of law that are accepted by one and denied by the other.

The material proposition of law is that the plaintiff has the right to sue and the defendant has to show the defence against such an alleged right. Every material proposition of law or fact presented by one person and denied by the other should be part of the subject matter of a distinct issue.

Background of Order XV CPC

The lawsuit was successfully filed, and the plaintiff presents the claims on which he has presented the lawsuit on which the first hearing of that suit is called.

In the case of Arjun Khiamal Makhijani Etc vs. Jamnadas C. Tuliani & Ors. Etc. (1989) ,the first day of the hearing would be when the court, by applying its judicial mind, either decides to move forward or listens to argue the case further.

Order XV deals with cases where a court can pronounce a judgement at the first hearing of the case. The cases that fall under that category are as follows:

Rule 1: When parties are not at issues

Talks about parties contesting the suit at the first hearing appear to have no issues on any question of law or fact; the court, as deems fit, can pronounce the judgement at the same time.

In the case of Desai Kedar vs. Huzurabad Co-operative Marketing Society Ltd. (1994) the court held at the first hearing that there is no issue that can be raised on any factual or legal issue, and the court is competent and qualified to pronounce the judgement at once as per Order 15 Rule1. The parties are not required to follow the procedure laid down in Order 20. In this case, no legitimate ground has been given to the court, where the court should point to the investigation of the statute. The court has the power to pronounce the judgement as per Order 15 Rule 1. In such a scenario, the way out given in Order 20 cannot be used by such contesting parties.

Rule 2: When there is more than one defendant

In a civil lawsuit involving multiple defendants, the court holds the authority to deliver judgment against a specific defendant under Order 15 Rule 2 of the Code of Civil Procedure, 1908. This rule becomes applicable when one or more defendants do not contest the factual and legal aspects of the case. The court can then pass judgment against that particular non-disputing defendant without proceeding with a full trial.

The rationale behind Order 15 Rule 2 is to expedite the legal process and prevent unnecessary delays in resolving the dispute. When a defendant accepts the facts and law of the suit, it indicates their agreement with the plaintiff’s claims. In such situations, the court can render judgment without delving into a lengthy trial, thereby saving time and resources.

The court’s power under Order 15 Rule 2 is subject to certain conditions. Firstly, the defendant must expressly admit to the facts and the applicable law. A mere statement of non-contest or failure to appear in court is insufficient to invoke Rule 2. The court must be satisfied that the defendant’s admission is voluntary, informed, and unequivocal.

Secondly, the court has the discretion to decide whether or not to apply Order 15 Rule 2. The rule is not mandatory but rather an enabling provision. The court may consider factors such as the complexity of the case, the number of defendants, and the potential impact of the judgment on other parties involved.

It is important to note that Order 15 Rule 2 does not apply to the plaintiff. If the plaintiff has no dispute with the facts and law, they cannot seek judgment against themselves. The rule is exclusively meant for defendants who are in agreement with the plaintiff’s claims.

In summary, Order 15 Rule 2 provides an efficient mechanism for the court to dispose of a case where one or more defendants do not contest the facts and law. It enables the court to pronounce judgment against such defendants without a full trial, thereby expediting the legal process and avoiding unnecessary delays.

And on such delivery of judgement shall be followed by a decree.

The suit then would proceed against other such non-claiming defendants because the court, if it finds that each side fails to provide the facts for no legal reason, the court will at that time, without further consideration or if it feels appropriate, postpone the case to provide the evidence sufficient to decide those matters after framing and documentation problems.

Rule 3: Parties at issue

The parties contesting are at issue on some question of law or fact, and such issues have been framed by the court, which is satisfied that no further arguments and evidence would be produced by the parties and that the result of the proceedings immediately is no injustice, the court can decide those issues and, when the findings are sufficient for Rule 3 of this Order, may decide the case. The summons may also be issued for the settlement of issues or for the final disposal of the suit.

Proviso: that where the summons has been issued for the settlement only, the parties or their pleaders are present and none of them objects.

In such cases, if the party fails to provide sufficient documents or pieces of evidence on which they rely, then the suit can be disposed of by the pronouncement of judgement by the court.

Rule 4: Not sufficient pieces of evidences

The party or its pleader makes certain admissions of facts that are sufficient to dispose of the case. At the first stage of hearing, if the facts adduced by the party are sufficient to adjudicate that case and no further evidence can be given against that fact disproving it, the court has the power to pronounce the judgement on that fact. If the court finds that fact non-sufficient or without any legal stand on that fact, the court gives time to prove the same.

Rule 5: Issues framed

After framing the issues, the court is fully convinced and satisfied that no additional arguments or evidence is needed. After listening to all the arguments and examining the evidence provided by each of the parties, the court framed the issue and found that no further facts or evidence in relation to the suit could be presented. The court can move forward with pronouncing its judgement on issues such as framed.

Landmark cases for disposal of a suit at the first hearing under CPC

In the realm of civil litigation, the concept of landmark cases holds immense significance. These cases set precedents and shape the future course of legal proceedings. In the context of the Code of Civil Procedure (CPC) in India, there are several landmark cases that have significantly contributed to the interpretation and application of the provisions related to the disposal of suits at the first hearing.

State of Uttar Pradesh vs. Mohammad Nooh

The case of State of Uttar Pradesh vs. Mohammad Nooh, decided by the Supreme Court of India in 1958, stands as a significant landmark in Indian jurisprudence. This case established the crucial principle that a suit can be disposed of at the first hearing itself. This principle applies when the court, after careful examination, is satisfied that there is no genuine triable issue and that the suit is suitable for summary dismissal.

The court’s decision in State of Uttar Pradesh vs. Mohammad Nooh stemmed from the need to ensure efficient and expeditious disposal of cases, thereby addressing the issue of unnecessary delays often encountered in the judicial process. Order VII Rule 11 of the Code of Civil Procedure (CPC) provides the legal framework for such a summary dismissal. According to this rule, a court may dismiss a suit at the first hearing if it appears that the suit is barred by any law, is otherwise not maintainable, or that the allegations in the complaint are so vague or uncertain that no specific relief can be granted.

In the State of Uttar Pradesh vs. Mohammad Nooh case, the court emphasised the importance of avoiding unnecessary delays in the administration of justice. The court recognised that protracted litigation can not only be frustrating and costly for the parties involved but can also undermine the public’s confidence in the judiciary. By allowing for summary dismissal in appropriate cases, the court aimed to strike a balance between the need for fair and thorough adjudication and the need for efficient disposal of cases.

The principle established in State of Uttar Pradesh vs. Mohammad Nooh has had a lasting impact on the Indian legal system. It has provided courts with a valuable tool to streamline the litigation process and prevent frivolous or unmeritorious suits from clogging the judicial system. However, it is important to note that the power of summary dismissal must be exercised judiciously and with due regard to the principles of natural justice. Courts must ensure that a proper opportunity is given to the parties to present their respective cases before a decision is reached.

Smt. Sushila Devi vs. Shri Ved Parkash Marwaha

The case of Smt. Sushila Devi v. Shri Ved Parkash Marwaha, decided by the Delhi High Court in 1981, stands as a landmark precedent in Indian civil procedure. This case significantly contributed to the interpretation and application of Order VII Rule 11 of the Code of Civil Procedure (CPC) concerning the dismissal of suits at the first hearing.

In this pivotal ruling, the Delhi High Court held that a suit could be dismissed at the first hearing if the plaintiff failed to establish a prima facie case. The court emphasised that Order VII Rule 11 was not intended to serve as a means for conducting fishing inquiries or allowing the plaintiff to engage in a voyage of discovery. The court reasoned that the purpose of the rule was to prevent the abuse of process and ensure the efficient administration of justice.

The court observed that in order to establish a prima facie case, the plaintiff must set out a clear and concise statement of material facts, supported by evidence, that, if believed, would entitle the plaintiff to the reliefs sought. The court further clarified that the standard of proof required at this stage was not as stringent as that required for a full trial but was sufficient to demonstrate a reasonable likelihood of success.

The decision in Smt. Sushila Devi vs. Shri Ved Parkash Marwaha has had a profound impact on civil litigation in India. It has been cited and followed by numerous courts and tribunals in subsequent cases, solidifying the principle that suits can be dismissed at the first hearing if the plaintiff fails to present a credible prima facie case.

This landmark ruling underscores the importance of carefully drafting pleadings and presenting a well-supported case from the outset. It also highlights the need for courts to exercise their discretion judiciously in determining whether a suit should be dismissed at the first hearing, balancing the interests of justice and the efficient administration of the legal system.

Shamsher Bahadur Singh vs. State of Uttar Pradesh

The Supreme Court of India, in the landmark case of Shamsher Bahadur Singh vs. State of Uttar Pradesh, decided in 1975, reaffirmed and emphasised a fundamental principle established in the earlier case of State of Uttar Pradesh vs. Mohammad Nooh. This principle underscores the importance of Order VII Rule 11 of the Code of Civil Procedure (CPC).

Order VII Rule 11 of the CPC is a crucial provision that empowers courts to dismiss a suit or an appeal if the plaintiff or appellant fails to take the necessary steps to prosecute the case diligently. The court in Shamsher Bahadur Singh vs. State of Uttar Pradesh held that Order VII Rule 11 is a valuable tool that enables courts to dispose of cases expeditiously and prevent the abuse of the judicial process.

The court recognised that litigation can be a time-consuming and resource-intensive process, and it is essential to ensure that cases are not unduly prolonged or unnecessarily delayed. Order VII Rule 11 serves as a check against frivolous or vexatious litigation by allowing courts to dismiss cases where the parties fail to demonstrate a genuine interest in pursuing the matter.

The court further emphasised that the power to dismiss under Order VII Rule 11 should be exercised judiciously and with caution. Courts must consider all relevant factors, including the reasons for the delay, the conduct of the parties, and the merits of the case, before arriving at a decision. The court also acknowledged that the right to a fair hearing is a fundamental principle of justice, and courts must balance this right with the need for efficient disposal of cases.

By reiterating the principle laid down in the State of Uttar Pradesh vS. Mohammad Nooh case, the Supreme Court in Shamsher Bahadur Singh vs. State of Uttar Pradesh reinforced the importance of Order VII Rule 11 in ensuring the smooth functioning of the judicial system. This provision serves as a deterrent against dilatory tactics and promotes the timely resolution of disputes, ensuring that justice is not delayed or denied due to unnecessary delays.

These landmark cases have significantly contributed to the jurisprudence of the disposal of suits at the first hearing under the CPC. They have clarified the scope and ambit of Order VII Rule 11 and have provided valuable guidance to the courts in dealing with such cases. These cases serve as precedents and continue to be cited by courts in subsequent cases involving the disposal of suits at the first hearing.

Conclusion

The article aims to make you aware that the civil court has one of the hidden powers to try and dispose of the suit at the first stage of hearing as per Order 15 of the Code of Civil Procedure, 1908. This provides certain conditions on which the court uses this power to dispose of the suit at the first stage of hearing rather than dragging it to years or months, as well as reducing the pile of cases and doing the speedy disposal of the suit as needed to provide justice to the aggrieved and compensation of the damages it accrues from the defendant.

References

C.K. Takwani, Code of Civil Procedure and Limitation Act, 1963 (9th ed. 2021).
Vol. 4, S.K. Mulla, Code of Civil Procedure, 1908 (19th ed. 2017).
Majumdar, P.K. and Kataria, R.P., Commentary on the Code of Civil Procedure, 1908, Universal, Delhi, (1998).
Siraj Ahmad v. Prema Nath 1993 4 SCC 406: AIR 1993 SC2525.
Arjun Khaimal Makhijani v. Jamnadas C. Tuliani (1989) 4 SCC 612.
Desi Kedari Vs. Huzurabad Co-Operative Marketing Society Ltd., AIR 1994 AP 301.

Enforcement of interim arbitral awards in India : all you need to know

By

Vanshika Kapoor

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June 6, 2024

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This article has been written by Harshala Keny pursuing a Diploma in Domestic & International Commercial Arbitration from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Table of Contents

Introduction

“Justice delayed is justice denied”. A proverb that highlights the importance of time in Justice. With the increasing population and subjects of dispute and violations, the judicial bodies attained more and more complex structures to deal with it, with inevitable delays in their procedural regulations. Needless to say, new methods were searched for efficient handling of disputes. One tool is the Alternative Dispute Resolution System, which has several mechanisms under it like mediation, conciliation, Lok Adalat, etc. to efficiently cut delays in dispute resolution. Arbitration is one of the mechanisms under the Alternative Dispute Resolution System. The traces of the arbitration mechanism can be seen right from the Brihadaranyaka Upanishad in India. In ancient times, there were arbitration bodies like Sreni, Puga, and Kula known as Panchayats.

Arbitration, being part of the Alternative Dispute Resolution System, is a mechanism to resolve disputes without the courts. The parties agree to resort to this mechanism for their current or future disputes arising out of their commercial or any other contractual transactions and submit their disputes before an amicably selected body called an Arbitrator or an arbitral tribunal, if in plural. Arbitration has several types based on the style of conducting the arbitration as well as the enforceability of the arbitral awards. Arbitration, apart from being a speedy tool of dispute resolution, transcends jurisdiction issues in international commercial transactions and thus is one step ahead of the courts in dealing with international commercial disputes efficiently.

Interim relief is another arena in arbitration worth navigating. This present article attempts to shed light on the available provisions and existing lacunae when it comes to seeking interim reliefs in arbitration.

What is arbitration and arbitral awards

In the words of Halsbury, ‘Arbitration’ means “the reference of dispute or difference between not less than two parties, for determination, after hearing both sides in a judicial manner, by a person or persons other than a Court of competent jurisdiction.”

The key element in this is that in arbitration, the arbitrator judicially hears the matter, evaluates its merits, and does not play the role of a negotiator. The judgement that the arbitrator or arbitral tribunal arrives at is called an arbitration award.

What are interim awards

Arbitration serves as an alternative to traditional court proceedings by offering a court-like setup. However, to be effective, it must incorporate provisions for granting interim relief. Interim relief plays a pivotal role in preserving the intended outcome of dispute resolution.

Interim relief is granted during the arbitration process to address immediate and pressing issues that arise before a final decision is reached. It is a temporary measure designed to prevent irreparable harm to either party involved in the dispute.

There are several reasons why interim relief is essential in arbitration:

Preserving the subject matter of the dispute: Interim relief helps maintain the status quo of the subject matter in dispute. It prevents one party from taking actions that could irreparably harm or moot the final outcome of the arbitration.
Preventing irreparable harm: In situations where immediate action is necessary to prevent significant and irreversible harm to a party, interim relief can be granted to mitigate the potential damages.
Maintaining the balance of power: Interim relief can address imbalances in the parties’ positions, ensuring that neither party has an undue advantage during the arbitration process.
Enforcing arbitral awards: Interim relief can be used to enforce arbitral awards if a party fails to comply with the final decision. It ensures that the outcome of the arbitration is implemented promptly.

The scope and nature of interim relief may vary depending on the specific circumstances of the dispute and the governing laws and rules of arbitration. Common examples of interim relief measures include:

Injunctions: Interim injunctions can be granted to restrain a party from taking specific actions that could harm the other party.
Preservation of assets: The arbitral tribunal may order the preservation of assets relevant to the dispute to prevent their dissipation or concealment.
Discovery and production of documents: Interim measures can facilitate the exchange of information and documents between the parties to ensure transparency and fairness.
Security for costs: The tribunal may require a party to provide security for costs to ensure that the other party is not left without recourse if the arbitration concludes in their favour. It is necessary that, until a tribunal arrives at a final award, harm should not have already been caused during the proceedings to any of the parties. Hence, an award that grants interim relief is called an interim award.

Which interim reliefs can be granted

Section 17 of the Act, enlists the interim reliefs that can be granted by an Arbitrator. In other words, Interim awards can be granted on these subjects that have been enlisted. They are:

appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings
the preservation, interim custody, and sale of any goods that are the subject matter of the arbitration agreement;
securing the amount in dispute in the arbitration;
the detention, preservation, inspection of any property or thing which is the subject matter of the dispute in arbitration, or as to which any question may arise therein and authorizing for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken, or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;
interim injunction or the appointment of a receiver;
other interim measure of protection as may appear to the arbitral tribunal to be just and convenient, and the arbitral tribunal shall have the same power for making orders, as the court has for the purpose of, and in relation to, any proceedings before it.

What are the criteria for granting interim reliefs

In the landmark case of Shabnam Dhillon vs. Zee Entertainment Enterprise Ltd., (2019), the Delhi High Court established clear criteria for granting interim reliefs in arbitration proceedings. According to the court, an arbitrator must carefully evaluate the following prerequisites before deciding whether to grant interim relief:

Setting out a case of irreparable harm:

The party seeking interim relief must demonstrate that they will suffer irreparable harm if the relief is not granted.
Irreparable harm refers to significant, long-term damage that cannot be adequately compensated through monetary damages alone.

Urgency in seeking relief:

The party must establish that there is an urgent need for interim relief to prevent imminent harm.
Factors such as the time-sensitive nature of the dispute and the potential consequences of delay will be considered.

Non-prejudice to the subject matter of the final dispute:

The interim relief should not prejudice or determine the outcome of the final dispute.
The arbitrator must ensure that the interim relief does not create a fait accompli or make it difficult for the tribunal to reach a fair and impartial decision.

Prima facie case established in favour of the party seeking interim relief:

The party seeking interim relief must establish a prima facie case, meaning they must provide sufficient evidence to support their claims and show a likelihood of success on the merits.
The arbitrator will assess the strength of the evidence and the overall merits of the case.

5. Balance of convenience in favour of the party seeking interim relief:

The arbitrator must consider the balance of convenience, weighing the potential harm to the party seeking interim relief against the potential harm to the other party if the relief is granted.
Factors such as the relative strength of the parties’ cases, the potential impact on third parties, and the public interest will be taken into account.

The Delhi High Court’s criteria provide a structured and balanced approach for arbitrators to evaluate requests for interim reliefs in arbitration. By considering these factors, arbitrators can ensure that interim reliefs are granted fairly and in a manner that protects the rights and interests of all parties involved.

Enforcement of domestic interim award

As per Section 17(2) of the Arbitration and Conciliation Act, 1996, interim awards that grant interim relief on the subjects mentioned in Section 17(1) of the Act enjoy the status of a court order. This means that interim awards are legally binding and have the same effect as orders issued by a court of law.

The procedure for enforcing interim awards is the same as that for enforcing court orders. In India, the Code of Civil Procedure, 1908 governs the enforcement of court orders and interim awards. The enforcement process involves filing an execution petition with the appropriate court and requesting the court enforce the award. The court may then issue an execution order, which authorises the court bailiff to take steps to enforce the award, such as attaching and selling the assets of the party against whom the award has been made.

It is important to note that interim awards are not final and binding decisions. They are intended to provide temporary relief to the parties while the arbitration proceedings are ongoing. The final and binding decision in an arbitration is the arbitral award, which is issued by the arbitral tribunal after the completion of the arbitration proceedings.

Which court to approach

In its judgement in Jaycee Housing (P) Ltd. v. High Court of Orissa (2023), the Indian Supreme Court clarified the procedure for enforcing domestic arbitration awards in India. The Court held that for domestic awards not arising out of international commercial arbitration as defined under Section 2(1)(f) of the Arbitration and Conciliation Act, 1996 (the “Act”), the enforcement petition must be filed before the commercial court exercising jurisdiction.

Key points of the judgement

Jurisdiction: The Act establishes commercial courts to handle arbitration-related matters, including the enforcement of domestic awards.
Principal civil court of original jurisdiction: In districts without a commercial court, the Principal Civil Court of Original Jurisdiction will exercise jurisdiction over the enforcement of domestic awards.
Commercial division of the high court: In cases where the amount in dispute exceeds the pecuniary jurisdiction of the principal civil court, the enforcement petition may be filed before the commercial division of the high court concerned.

Significance of the judgement

The judgement provides clarity on the procedure for enforcing domestic awards, ensuring a streamlined and efficient process. Here are the key implications:

Consistency: It establishes a uniform approach for enforcing domestic awards, avoiding variations in practices across different courts.
Legal certainty: The judgement provides legal certainty and predictability for parties involved in domestic arbitration, promoting the effective resolution of disputes.
Dispute resolution efficiency: By designating specific courts to handle domestic arbitration matters, the judgement aims to facilitate quicker dispute resolution and reduce delays.

Overall, the Supreme Court’s decision in Jaycee Housing (P) Ltd. vs. High Court of Orissa is a significant step in strengthening the enforcement of domestic arbitration awards in India, contributing to a more efficient and reliable dispute resolution system.

The provision for appeal

Section 37 (2)(b) enables a party to seek an appeal against the orders passed under Section 17(2). A second appeal cannot be sought; however, nothing stops a party from appealing to the Supreme Court.

Limitation period

Section 2(1)(c) of the Act states that the term arbitral award includes interim awards as well. So, in the absence of special provisions for interim awards, the provisions for arbitral awards shall apply. Thus, the limitation period to file an appeal is 3 months, as per Section 34 (3) of the Act.

Enforcement of foreign interim arbitration awards

Enforcement of foreign interim arbitration awards is still a blurry path in India. There is no provision for enforcement of foreign interim awards analogous to Section 17(2), which can help in enforcing the same. The Delhi High Court in Raffles Design vs. Educomp also acknowledges this issue. The Act has been made in parity with the UNCITRAL Model Law on International Commercial Arbitration. However, no provision in pari materia to Article 17 H has been provided in the Act. It is thus evident that an amendment is necessary for this purpose.

To deal with such issues, though, Section 9 comes in handy and acts as a temporary solution. As suggested by the Bombay High Court in Hsbc Pi Holdings (Mauritius) Limited vs. Avitel Post Studioz Limited (2014):

“In the absence of a direct enforcement mechanism under the Act, parties must approach an Indian court by filing an application under Section 9 of the Act to seek relief in terms of the interim orders granted by the foreign seated tribunal.”

Section 9 of the Act gives the court the power to grant interim relief to the parties. But it is important to note that if an arbitral tribunal is already constituted, special reasons need to be provided to the court to justify why the parties did not seek the remedy under Section 17(2) before the arbitral tribunal. In the case of foreign interim awards, the special reason is that there is no provision for such a remedy.

Once an interim order is granted by the court, it will be enforced in accordance with the enforcement procedures of an order given in the Code of Civil Procedure, 1908.

Which court to approach

The case of Jaycee Housing (P) Ltd. vs. High Court of Orissa (2023) dealt with the issue of which court has jurisdiction to grant interim reliefs in cases of international commercial arbitration. The court held that the High Court, in exercise of its ordinary original civil jurisdiction, would be the proper court to seek such reliefs.

This decision is significant because it provides clarity on the issue of jurisdiction in international commercial arbitration cases. Prior to this decision, there was some uncertainty as to which court had jurisdiction to grant interim relief in such cases. The court’s decision in Jaycee Housing provides a clear answer to this question and will help to ensure that parties to international commercial arbitration agreements have access to effective and timely remedies.

The court’s decision is also consistent with the principles of international arbitration law. One of the key principles of international arbitration is that parties should be able to choose the forum for their arbitration. This principle is reflected in the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which provides that parties to an arbitration agreement can choose the place of arbitration.

The court’s decision in Jaycee Housing is also consistent with the principle of party autonomy. This principle allows parties to an arbitration agreement to make binding decisions about the conduct of the arbitration. The court’s decision respects the parties’ choice of the High Court as the forum for seeking interim relief.

Overall, the court’s decision in Jaycee Housing is a positive development for international commercial arbitration in India. It provides clarity on the issue of jurisdiction and respects the principles of party autonomy and international arbitration law.

The provision for appeal

Section 37(1)(b) enables a party to seek an appeal against the order passed under Section 9 of the Act. A second appeal cannot be sought, however, nothing stops a party from appealing to the Supreme Court.

Limitation period

There is no direct provision stating the limitation period. However, since it is a court order, the Limitation Act, 1963 would apply. Thus, as per Article 116 of the Limitation Act, 90 days is the limitation period to seek an appeal against a court order.

Conclusion

The provisions for the domestic interim arbitral award are quite elaborate, however, the foreign interim arbitral award needs a smoother route. Moreover, it is important to note that even in enforcing the domestic interim awards, one has to move the court. The execution part is ultimately handed over to the court itself. Arbitration is in the budding stage currently and has a promising future for efficient dispute settlements. Though there is a lot of scope for the arbitration mechanism to improve, nevertheless, it has solved and is solving several complex issues in world transactions and has made a notable contribution to easing the weight of pending cases before the Indian courts.

References

https://www.indiacode.nic.in/bitstream/123456789/1978/3/a1996-26.pdf
Law of Arbitration & Conciliation and Alternative Dispute Resolution Systems, Avtar Singh
https://www.scconline.com/blog/post/2024/04/02/enforcement-of-arbitral-awards-india-analysis-potential-issues-strategies-for-success/#fn25
https://indiacorplaw.in/2024/01/a-proposed-enforcement-mechanism-for-foreign-seated-interim-orders-in-india.html
https://www.lexology.com/library/detail.aspx?g=3355e0ac-b25b-43d2-bf04-03c0cff76fdb
https://theidrc.com/content/adr-faqs/what-is-history-of-arbitration-in-india#:~:text=As%20per%20the%20Hindu%20Law,they%20were%20known%20as%20Panchayat.

Krishna Gopal Divedi vs. Prabha Divedi (2002)

By

Vanshika Kapoor

-

June 6, 2024

0

This article is written by Jaanvi Jolly. It provides a detailed study of the case of Krishna Gopal Divedi v. Prabha Divedi (2002), along with the facts, issues raised, arguments of the parties, and rationale behind the judgement. It also deals in brief with the concept of bigamy under Hindu law. The case is particularly concerned with answering the question, When can a Hindu marry once a divorce decree is obtained, and what is the implication of setting aside such a divorce decree on marriages solemnised subsequent to the divorce? The related aspects of the Hindu Marriage Act, 1955, and the Indian Penal Code, 1860, have also been discussed.

Introduction

The indissolubility of sacramental marriage was the primary aspect of traditional Hindu law, but monogamy was not. The groundbreaking Hindu Marriage Act of 1955 (hereinafter referred to as “HMA”) was a colossal step towards the reform of the marital laws to bring them in line with the constitutional ethos of New India. It introduced the concept of divorce on numerous grounds under Section 13 of the Act and made monogamy the rule by providing for culpability for bigamy under Section 17 of the Act read with Section 494 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”). This is one case with peculiar facts that came before the Apex Court for determination. In Krishna Gopal Divedi v. Prabha Divedi (2002), a divorce decree was obtained ex parte by the husband, which was successfully applied to be set aside by the wife after a period of 4 years. However, prior to the setting aside, the appellant-husband had remarried. After the divorce decree was set aside, the position that emerged was troublesome, as the appellant-husband ended up with 2 wives, one from the first marriage whose divorce decree was set aside and the other from the subsequent marriage contracted after the divorce decree attained finality.

Details of the case

Case name: Krishna Gopal Divedi v. Prabha Divedi
Appellant: Krishna Gopal Divedi
Respondent: Prabha Divedi
Court: Supreme Court
Bench: Hon’ble Mr. Justice K.T. Thomas and Hon’ble Mr. Justice R.P. Sethi
Case type: Special Leave Petition
Date of judgement: 23/02/2001
Equivalent Citations: 2001 (2) ALD (CRI) 156; (2002) 10 SCC 216

Facts of Krishna Gopal Divedi vs. Prabha Divedi (2002)

The case originated via a divorce proceeding commenced by the appellant-husband, wherein an ex parte divorce decree was obtained by him. The decree was passed on 6.07.1990. Subsequently, he proceeded to perform a second marriage with another lady (second wife) on 25.05.1993. However, a twist to the tale was added by the fact that the respondent (first wife) was successful in getting the ex parte decree set aside on 31.03.1994.

Further, the respondent wife filed a criminal complaint against the appellant-husband for the offence under Section 494 of the IPC (now Section 81 of the Bharatiya Nyaya Sanhita 2023). Once the issue of process proceeded against the appellant-husband, he approached the High Court of Allahabad for quashing the proceedings and subsequently reached the Apex Court.

Issues raised

The main issue to be decided in the present case was whether the setting aside of the exparte decree of divorce by the court subsequent to the marriage contracted by the appellant-husband would render him culpable for the offence of bigamy.

Arguments of the parties

Appellant

The final divorce decree was obtained on 6.7.1990, and the marriage with another lady was performed on 25.05.1993, which was more than two and a half years after the divorce. On the date of the marriage, the decree of the court granting divorce was operative, and thus the first marriage was dissolved. The appellant-husband was free to marry again, and thus no case for bigamy could be made against him due to the subsequent setting aside of the ex parte divorce decree. Thus, the criminal complaint must be quashed.

Respondent

The respondent (first wife) admitted that she did move an application to set aside the decree of divorce passed ex parte only on 31.03.1994, and that if not from the date of the appellant’s second marriage, then at least from 31.03.1994, the appellant must be held guilty of bigamy.

Legal provisions involved in the case

Section 5 of the HMA, 1955

This section lays down the essential conditions which must be satisfied to perform a valid marriage. Section 5(i) stipulates that at the time of solemnization of the marriage, neither of the spouses should have another spouse living. Which means that essentially it declares a bigamous marriage to be void. In the case of Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav (1988), the Supreme Court held that where a Hindu performs a subsequent marriage while he has a spouse living, it would be null and void from the very start.

Section 11 of the HMA, 1955

This section is read along with Section 5 of HMA, 1955, and the conjoint effect of these provisions is that a marriage performed in violation of clause (i) or (iv) or (v) of Section 5 would be null and void in the eyes of law. In the case of Ramvati Gupta v. State of Uttar Pradesh (1984), the Allahabad High Court held that a marriage solemnised in violation of Section 11 would not confer the status of a lawfully wedded husband and wife upon the parties.

Section 15 of the HMA, 1955

This section mentions the time period that the parties are obligated to wait after the divorce decree is passed and before they can lawfully marry again. Where no right to appeal is statutorily provided, the parties can remarry immediately, but where the appeal is allowed, they have to wait till the time to prefer such an appeal has expired, or where the appeal was preferred but dismissed before lawfully remarrying. In the case of Gangabai v. Rambabu (2014), the Madhya Pradesh High Court observed that once the period of 90 days ends and no appeal has been filed, a right to remarry accrues in favour of the parties.

Section 494 of the IPC, 1960

This section deals with the offence of bigamy; it punishes the erring spouse who has contracted a second marriage during the subsistence of the first one, where, as per the law applicable to the parties, the subsequent marriage is declared to be void. In the case of Priya Bala Ghosh v. Suresh Chandra Ghosh (1971), the court ruled that for an act to constitute the offence of bigamy, the following conditions must be met: the spouse from the first marriage must be living, both marriages must be conducted with the necessary ceremonies, and the subsequent marriage must be void according to the law applicable to the parties.

Section 482 of the CrPC, 1973

This section saves the inherent powers of the High Court and allows it to make any order to ensure justice and prevent abuse of the court process. In the landmark case of State of Haryana v. Bhajan Lal (1992), it was observed that one of the grounds to quash a proceeding was that the allegations made in the complaint, even if taken on face value, do not constitute an offence. Which means that the essential ingredients to constitute the offence alleged were not satisfied by a primary perusal of the complaint itself.

Judgement in Krishna Gopal Divedi vs. Prabha Divedi (2002)

The Apex Court accepted the contentions put forward by the appellant-husband that, on the date of the subsequent marriage, the first marriage stood dissolved by the ex-parte decree of divorce. A divorce decree, as a general rule, is operative from the moment of pronouncement, subject to the limitations of Section 15 of the HMA 1955 regarding remarriage. The divorce decree dissolves marriage for all intents and purposes from the pronouncement date.

The rights of the second wife need to be protected, as she is the innocent victim in this case. As the hon’ble judges said, the good days of the newly married wife didn’t last long. In the light of constitutional principles of justice and reasonableness, no injustice can be allowed to be caused to the couple who validly married after the divorce decree became final, as per Section 15.

In the present case, the decree was set aside on 31.03.1994, while the second marriage was solemnised on 25.05.1993. Thus, it was held that the appellant-husband could in no way be convicted of bigamy, and the criminal complaint, which was an exercise in futility and would only waste the time of the courts, was quashed.

Rationale and analysis of the case

The overwhelming number of cases before the court is a well-known issue, often causing divorce proceedings to take years to reach a resolution. Forced to spend years of their lives in litigation, the parties indubitably seek to restart their lives as soon as possible. Once the trial court has pronounced its decision and the period to present an appeal expires, it would be unjust to expect the parties to live in the looming fear of a belated appeal being filed by seeking condonation of delay. The lives of people do not seem to stop, and when one relationship falls apart and the wounds are healed, they often find themselves looking for mates to carry forward the journey of life. By mere filing of a belated appeal, the validity of the marriage performed as per the provisions of Section 15 cannot be questioned. As the parties usually restart their lives by the time the belated appeal is filed, the rights of not just the parties but also of their second spouse get involved. These hard realities of life were acknowledged and recognised by the court in the present case.

Herein, once the divorce decree was obtained, the husband went ahead and married another woman after the period required under Section 15 expired. Thus, as per law, the marriage was lawful and valid, and the subsequent setting aside of the ex parte, which apparently changed the status of the marriage from dissolved to subsisting, would not have any effect on the validly performed marriage. In the case of Krishnaveni Rai v. Pankaj Rai (2020), the court observed that the bar of Section 15 applies where an appeal is filed within the period of limitation and not afterwards upon condonation of delay sought unless the decree of divorce is stayed or an interim order is passed by the court restricting the parties from remarrying. The appellant cannot be expected to wait till eternity in the anticipation that an application for condonation of delay might be filed, and consequently, an appeal would be preferred.

The following principles were laid down in relation to the facts of marriages solemnised in the following situations:

Second marriage contracted during the pendency of divorce proceedings: Until a final decree is passed, the parties continue their status as husband and wife. There might be a situation where, in the end, the court refuses to pass a decree of divorce. Thus, such a second marriage would attract the provisions of Section 494 IPC.
Second marriage contracted after a decree of divorce but in contravention of the period required by Section 15 of the Hindu Marriage Act: This question was addressed in the case of Lila Gupta v. Laxmi Narain (1978). The court observed that the consequences of treating such marriages as void would be catastrophic and are likely to affect innocent people who are associated with the marriage, including children born during its continuance. Further, HMA, 1955, is silent upon the contravention of Section 15. Its violation does not attract any penalty, nor is the marriage declared to be void, which clearly manifests the legislative intent of not treating such marriages as void. However, due to the violation of the express provision, some penalties can be imposed, for instance, a higher amount of maintenance or alimony to the wife.
Second marriage contracted after a decree of divorce and after the period required by Section 15: Such a marriage would be lawful, as legally the ex-spouse is only obligated to wait for a period prescribed by Section 15 and thereafter is free to remarry, as held in the present case. One cannot be expected to anticipate the future actions of the opposite party or stay under the damocles sword.

The respondent wife relied upon the setting aside of the decree of divorce and filed a complaint for the offence of bigamy against the husband. Bigamy, which is dealt with under Section 494 of the IPC, has some essential ingredients that need to be satisfied before a charge under the section can be sustained. In the case of Gopal Lal v. State of Rajasthan (1979), the Apex Court enunciated those essentials. First, the defaulting spouse should have contracted the first marriage validity. Second, while the first marriage subsisted, he should have married another person, and such a second marriage must be void as per the law applicable to the parties. Third, all the requisite ceremonies should have been performed in the second marriage. Applying these essential ingredients in the present case, it was observed that while the first and third conditions were fulfilled, the second was absent. The appellant-husband remarried after the decree of the trial court was final and the period of appeal had expired.

Subsequent judgments that have discussed the case of Krishna Gopal Divedi Cvs. Prabha Divedi

The ratio was also discussed in the case of Kunti Devi v. Som Raj (2004), wherein the facts were very similar to the case in point. In brief, the divorce decree was obtained, a subsequent marriage was contracted by the husband, and on appeal, the divorce decree was set aside. The complaint was filed by the wife for the offence of bigamy, against which an application under Section 482 was filed for the quashing of criminal proceedings. However, there were two distinguishing aspects:

The appellate court had stayed the divorce decree of the trial court.
There was a dispute regarding when the second marriage was contracted, whether it was before or after the stay order.

Thus, the ratio of Krishna Gopal Divedi v. Prabha Divedi was not applied by the court therein.

The judgement has also been relied upon and followed in the case of Deepak Kumar v. Murari Lal (2004), wherein the second marriage was contracted after the expiry of the period specified under Section 15, but later the ex parte decree was set aside and a complaint for the offence of bigamy was filed. Similarly, in the case of Smt. Dharmwati v. State of U.P. (2015), a second marriage was contracted after an ex parte divorce decree passed in 2004; the ex-husband remarried in 2005; later, such a decree was challenged in an appeal filed in 2010. The Supreme Court, relying upon the present case in discussion, held that solemnization of marriage after the passing of a decree cannot make him liable for an offence under Section 494 IPC, irrespective of filing an appeal in the future beyond the period under Section 15 HMA.

Conclusion

The fundamental constitutional principles that guide the legislation as well as the interpretation and adjudication of all the laws are equity, justice, good conscience, reasonableness, and non-arbitrariness. The matters of matrimony are part of the very intricate corners of our lives, built on love and compassion; nevertheless, when they fall apart, they leave behind bitterness and rancour. It is in the interest of society as well as the individual that the misery caused by the breakdown of the marriage is put to an end, thus giving the parties involved closure along with another chance to restart their lives. Thus, the courts of justice understand that the rights of numerous individuals get involved once a second marriage is performed lawfully. The rights of the second wife and the children from such a marriage cannot remain unsettled by a delayed appeal being filed. Thus, in conclusion, the court adopted an interpretation that served societal and individual interests and held that a marriage which was valid and lawful at the time of solemnization remains so even after preferring such a belated appeal.

Frequently Asked Questions (FAQs)

Can a person who was married under Hindu law subsequently convert to Islam and marry again legally, or will he be culpable for bigamy?

As settled by the landmark case of Sarla Mudgal v. Union of India (1995), a marriage contracted under Hindu law would have to be first dissolved; unless done so, the subsequent conversion to Islam and performance of Nikah would not make such a second marriage valid; it would indeed be void, and liability under Section 494 of the IPC would arise.

What is the punishment for bigamy?

Bigamy is punishable under Section 494 of the IPC with up to 7 years of imprisonment and a fine.

What is the time period required after the divorce decree and prior to remarriage, as per law?

Section 15 read with Section 28 of the HMA 1955 fixes the time in cases where appeal lies 90 days and, in other cases, after the pronouncement. If an appeal is filed, it would not ipso facto stay the divorce decree passed by the trial court, and a stay would have to be obtained.

References

https://www.the-laws.com/Encyclopedia/Browse/Case?caseId=001002393000&title=krishna-gopal-divedi-vs-prabha-divedi

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Uday vs. State of Karnataka (2003)

By

Vanshika Kapoor

-

June 6, 2024

0

This article is written by Akshay Gendle and it discusses in detail the judgement of the Supreme Court in the case of Uday vs State of Karnataka (2003). The article includes facts, issues, arguments, judgement and the rationale behind the judgement of the Supreme Court. Lastly, the article talks about the critical analysis of this judgement and the misuse of the rape law by women in a number of circumstances.

Introduction

Marriage in Indian society holds great significance. One of the prominent reasons for such significance is that after the ceremony of marriage, the married couple can legally perform sexual intercourse without the fear of society. It also shows that sex still holds a great stigma in our society. Now when such sexual intercourse happens on the future promise of marriage and marriage does not happen due to any reason, then what happens? Does such sexual intercourse amount to rape?

The same was the situation in this case. A young girl performs sexual intercourse with a man she is in love with. The man promises her that they will get married after some time. She believes him out of love and continues their relationship. Upon pregnancy, the man refuses to marry her because of social stigma. Consequently, a woman files a rape complaint against the man.

Now the Court has to decide whether there was consent from a woman in this case. Did she give her consent only because of the future promise of marriage, or did she exercise her free will? We will find out the answers to these questions, along with the rationale for the Supreme Court coming to this conclusion. We will even discuss the critics of this judgement of the Supreme Court in order to come up with our own conclusion.

Details of the case

Name of the case

Uday vs State of Karnataka

Name of the court

Supreme Court of India

Date of judgement

13th February, 2003

Equivalent citations

AIR 2003 SUPREME COURT 1639, (2003) 2 SCR 231 (SC)

Bench

Justice N. Santosh Hegde and Justice B. P. Singh

Authored by

Justice B. P. Singh

Name of the parties

Petitioner: Uday

Respondent: State of Karnataka

Facts of Uday vs. State of Karnataka (2003)

The facts of the case are quite simple and are discussed hereinafter in a story format for better understanding.

When it comes to the ages of both the prosecutrix and the accused, it is an undisputed fact that the prosecutrix was 19 years old on the date of occurrence, i.e., in the last week of August 1988 or the first week of September 1988. The prosecutrix also deposed that her date of birth was August 6, 1969. The accused was also a young man of about 20-21 years of age when the occurrence took place, as he claimed to be 25 years of age in the year 1992 when he was examined under Section 313 of the Code of Criminal Procedure, 1973.

The girl (prosecutrix) and the boy (accused) were living in Majali Gaongeri, Karnataka. The girl was studying in college, and she was living with her parents, including her brothers and sisters. As stated by the girl in her deposition, the accused used to live in her neighbourhood and used to visit her house on a daily basis. Further, she added that the accused was a friend of her brother, and while visiting her house, they also used to have some conversation in between them. This gradually developed a friendship between them, and one day the accused proposed to her for a marriage. She denied it, stating that they both belong to different castes and that such a marriage is not possible and will not be acceptable in society. Here, the prosecutrix belongs to the Goundar Community, whereas the accused was Daivanya Brahmin, as stated in the facts of the case. Furthermore, it is not a disputed fact that even though the prosecutrix denied the marriage proposal, they were still in love with each other.

One day, the accused approached her house at 12 o’clock in the night when she was studying and asked her to come out to have some conversation, or he was willing to talk to her. As she was also deeply in love with him, she responded to his invitation and came out of her house. Later, they went to the under construction house of the accused, where the accused promised to marry her, and they even had sexual intercourse later that night. Here, the prosecutrix denied such sexual intercourse in the first place, but under that circumstance, she consented to such sexual intercourse, believing the marital promise of the accused.

Thereafter, they continued their affair and frequently used to go outside. During this period, the accused promised her several times that he would marry her. The prosecutrix even agreed that they had 15-20 times sexual intercourse in between them during this period. They also used to have sexual intercourse once or twice a week, she added. Further, she admitted that they were noticed by many people in her surroundings, and one day a person named Vanamala, who also noticed, asked her about their affair, to which she responded that they were madly in love with each other and the accused had promised to marry her. She also requested Vanamala not to disclose this fact to anyone, she added in her deposition.

In the meantime, the prosecutrix used to raise the question of marriage from time to time, to which the accused continuously responded that he would marry her upon the completion of the construction of his house and they would go for a registered marriage. Consequently, the prosecutrix got pregnant and disclosed the same fact to the accused, but he reassured her, stating that she should not worry and that he would marry her after some time.

In the 6th month of her pregnancy, prosecutrix’s mother got suspicious and discovered the truth from her. The prosecutrix told the accused that her mother discovered their truth, to which he replied that he would take her to some other place and marry her. Later, the truth came before the whole family, and her brother inquired of the accused regarding their marriage, and the accused told him that he would marry her, but this fact must not be revealed to his parents.

In the 8th month of pregnancy, the accused told the prosecutrix to be ready and that they would leave in the early morning. But he didn’t show up, and later, his cousin told her that he had gone to Sangli. He returned after eight days, and the brother of the prosecutrix again asked him whether he would marry her. The accused stated that to keep her at some other place, he will bear her maintenance expenses, and after her delivery and after the completion of the construction of his house, he will marry her.

This continuous false assurance of marriage led to the quarrel between the two families. As the accused did not marry her as he promised, the prosecutrix filed a police complaint on 12-5-1989 against the accused. Later, she gave birth to the child on 29-5-1989.

Issues raised

Whether the consent given by the prosecutrix was consent under Section 375?
Does the consent given by the prosecutrix fall within the meaning of misconception of facts under Section 90 of the IPC?

Arguments

In this case, the accused was charged with the offence of rape under Section 375 of the IPC, and one of the most important factors in deciding such cases is whether there was consent for such sexual intercourse or not. Therefore, a number of case laws were presented before the Supreme Court of India in order to understand whether there was consent from the prosecutrix while having sexual intercourse with the accused or not. Even foreign judgements were also taken into consideration for a better understanding of the consent mechanism used by a woman while having sexual intercourse with a person. Some of them are discussed below.

Meaning of Consent

In Holman v. R. (1970). It was held that ‘consent does not always mean there is a complete willingness of a woman for sexual intercourse. Sometimes, the consent of a woman may be hesitant, reluctant or grudging, but if she consciously permits it, then it can be considered as’ consent’.

The Apex Court even referred to Words and Phrases Permanent Edition Vol. 8A and stated that ‘in order to form consent under the law, a woman must have the intelligence to understand the nature and consequences of such sexual acts. Furthermore, such consent must be based on knowledge of its significance and morality and a woman must have the choice either to resist or allow such sexual intercourse.’

In Rao Harnarain Singh Sheoji Singh v. State (1958), it was observed that ‘consent, when it comes to the offence of rape, requires the voluntary participation of a woman; she must have the intelligence to understand the significance and moral quality of the act. And lastly, she must have exercised her free choice either to assent or resist such sexual acts.’

The High Court of Kerala in Vijayan Pillai v. State of Kerala (2003) observed that ‘consent to an act means a woman agreeing actively in her mind to an act, giving permission to such act and understanding the nature of that act.

In Anthony, In re (1960), it was observed that ‘a consent on behalf of a woman is when she willingly and without coercion agrees to engage herself in such an act, having full control over her physical and moral capabilities. It requires a voluntary and conscious decision on her side either to allow or withhold her permission for such an act, expressing her complete autonomy to accept or refuse.

This same view has been reiterated by the Punjab High Court in Arjan Ram Naurata Ram v. State (1960), by the Rajasthan High Court in Gopi Shankar v. State of Rajasthan (1967) and by the High Court of Bombay in Bhimrao Harnooji Wanjari v. State of Maharashtra (1975).

Misconception of Fact

Now, while addressing the issue of misconceptions of fact, the Supreme Court looked into the various judgements of the High Court and their observations in various case laws. Some of them are discussed below.

The Calcutta High Court has the view that a promise to marry on a future date and when such date is not certain, such a promise of marriage cannot be considered a misconception of fact. When we are talking about a misconception of a fact, such a fact must have immediate relevance, which in this circumstance is not present.

This same view of the Calcutta High Court was reiterated in Jayanti Rani Panda v. State of W. B. (1975) The facts of the case were similar to this case. The accused was a teacher in a local village and used to visit the residence of the prosecutrix. One day, in the absence of her parents, the accused proposed to the prosecutrix, expressing his love and his desire to marry her. The prosecutrix was also in love with the accused. Believing in the promise of marriage, the accused and the prosecutrix indulged in sexual intercourse for several months, resulting in the pregnancy of the prosecutrix. Consequently, she insisted on marriage, but the accused suggested an abortion and agreed to marry her after some time. This proposal was not acceptable to the prosecutrix, and the case came before the court of law.

The Division Bench of the Calcutta High Court addressed the provision of Section 90 of the Indian Penal Code and concluded that not fulfilling the future promise of marriage does not always amount to a misconception of fact. The immediate relevance of such a fact is important. If the consent was obtained by the accused, showcasing the belief that they were already married, then such consent could be said to result from a misconception of fact within the meaning of Section 90. In this case, the accused made a future promise to marry and even the date was uncertain. The court further said that if a fully grown woman gives her consent believing in the future promise of marriage, indulges in sexual intercourse and continues the same act until she gets pregnant, then it’s an act of promiscuity on her part and is not induced by a misconception of fact. Section 90 can be invoked if the accused, who is intending to marry the prosecutrix, never really intended to marry her from the beginning of such a relationship.

In Saleha Khatoon v. State of Bihar (1989), the prosecutrix was a married person and the accused obtained her consent with the false promise of marriage. The lower court, instead of charging the accused with Section 376, charged the accused with Section 498 of the IPC, as the prosecutrix was already married. This verdict was overturned by the Patna High Court, which stated that a false promise of rape amounts to a misconception of facts within Section 90 of the IPC. The consent obtained by the accused was deceitful and the prosecutrix was tricked into such sexual intercourse. If she had already known about the reality of the intentions of the accused, she would not have consented to such sexual intercourse. The High Court, in their view, did not consider two questions in this case. Firstly, whether a misconception of fact must be confined to the circumstances falling under Section 375 of the IPC. And secondly, whether consent given under a misconception of fact contemplated by Section 90 has a wider application so as to include circumstances not enumerated in Section 375. Lastly, the High Court held that consent obtained through deceit is not consent and falls within the definition of rape under Section 375 of the IPC.

Law discussed in Uday vs. State of Karnataka (2003)

Some of the important sections of the Indian Penal Code, 1860 discussed in this case are as follows.

Section 90. Consent known to be given under fear or misconception

Section 90 broadly states that:

Consent is not said to be consent under the IPC if

Consent is given by a person under fear of injury.
Consent is given by a person under misconception of fact.
The person who obtained the consent knew, or has reason to believe, that the consent was given in consequence of such misconception.
Consent of Insane Person Consent given by a person suffering from unsoundness of mind or intoxication and, as a result, unable to understand the nature and consequence of that consent.
Consent of Child – consent given by a child under 12 years of age.

Section 375 Rape

Primarily, this Section enlists seven circumstances under which an offence of rape may happen and even under the Explanation 2 of this Section, it defines consent of a woman.

The essential ingredients of the offence of rape are as follows.

There must be sexual intercourse between a man and a woman.

This sexual intercourse must fall under any of the circumstances given below.

Against her will.
Without her consent.
With her consent, when her consent is obtained under the fear of death or hurt.
With her consent, when her consent is obtained under the misconception that the man is her husband but the man knows he is not her husband.
With her consent, when such consent is given because of unsoundness of mind, intoxication or under the influence of any stupefying or unwholesome substance.
With or without her consent, when she is under eighteen years of age.
When she is unable to communicate consent.

Explanation 2 of this Section talks about the consent of a woman for the purposes of this Section. It states that the consent of a woman must be voluntary, clear and unambiguous while performing any specific sexual act. Such consent may be communicated through words, gestures or any form of verbal or non-verbal communication and communicates the willingness of a woman to participate in that sexual activity. Furthermore, the explanation also provides that if a woman is not resisting such penetration, that does not necessarily mean she is consenting to such a sexual act.

Section 376 Punishment for rape

This Section enlists persons in different capacities who may commit an offence of rape and shall be punished for the same. The punishment for the offence of rape under this Section shall be rigorous imprisonment for a term not less than 10 years and may extend to imprisonment for life which includes the remainder of that person’s natural life and shall also be liable for a fine.

Judgement of Karnataka High Court

When the matter came before the Sessions Court, the judge accepted the arguments of the prosecution, stating that the consent obtained by the accused in this case does not fall within the definition of consent under Section 375 of the IPC.

When it comes to Section 90 of the IPC, the judge is of the view that the consent obtained by the accused while having sexual intercourse with the prosecutrix is solely based on the false promise of marriage. Therefore, the judge affirmed that this consent was obtained by fraud and misrepresentation by the accused. The judge therefore held that the accused had sexual intercourse with the prosecutrix without her consent, which amounts to the offence of rape under Section 375 of the IPC and is punishable under Section 376 of the Indian Penal Code.

In an appeal before the honourable Karnataka High Court, it affirmed the decision of the lower court based on the same grounds but reduced the punishment of the accused to 2 years of rigorous imprisonment and a fine of Rs 5,000, and in default, the accused underwent further rigorous imprisonment of 6 months.

Appeal to the Supreme Court

Aggrieved by the order and the judgement of the Karnataka High Court dated 20-4-1995, the accused appealed before the Supreme Court under special leave.

Judgement in Uday vs. State of Karnataka (2003)

The Supreme Court, while giving the judgement in this case, after taking into consideration the views of various High Courts, came to the conclusion that they are not deciding on two questions here. Firstly, the question of whether there is a misconception of fact when it comes to the offence of rape, confined to the situations given under Section 375 of the IPC. And secondly, whether consent given under the misconception of fact under Section 90 of the IPC has broader implications, including circumstances that are not specifically mentioned in Section 375 of the IPC.

Consequently, the Supreme Court allowed this appeal and set aside the order convicting the accused in this case under Section 376 of the IPC and the accused was acquitted. Now, we will discuss the rationale and reasoning behind this acquittal of the accused by the Apex Court.

Rationale behind this judgement

The Supreme Court, while coming to the above judgement, considered the views of various High Courts and Judicial Opinions; even foreign judgements were also taken into consideration for a better understanding of the consent mechanism of women while having sexual intercourse.

Hence, the Supreme Court observed that the majority of High Courts and Judicial Opinions are of the view that consent given by a woman having sexual intercourse with a man on a future promise of marriage does not amount to a misconception of fact, provided that she is deeply in love with that man. They further observed that a false promise of marriage is not a fact within the meaning of the Code. Even though the Supreme Court agreed to this view, it still added that there is no straight-jacket formula to understand whether the consent given by the prosecutrix in this case was voluntary or whether it was given under a misconception of fact.

The Supreme Court held that the test laid down by various Courts and Judicial Opinions provides the best guidance to the Courts to find out whether there was consent or not in these cases. But the Court, while deciding every such matter, must take into consideration evidence before it and the circumstances surrounding it, as each case has its own peculiar facts that will certainly help the Court come to the conclusion whether the consent of the prosecutrix was voluntary or it was given under a misconception of fact. Lastly, the Court added that the burden is on the prosecution to prove all the ingredients of such offence and it is also on the prosecution to prove that there was absence of consent.

Now coming back to the original facts of the present case, the Supreme Court considered the evidence on record and stated that the prosecutrix was a fully grown woman and was studying in college. She even admitted that she was in deep love with the accused; they belong to different castes and marriage was not possible for them. She revealed this fact to the accused when he proposed to her in the first place. They were aware of the fact that their marriage would be opposed by their family members.

Despite being aware of all these facts, the prosecutrix indulged in sexual intercourse with the accused. She had sufficient intelligence to understand the significance and moral quality of the act. That’s why she kept it secret from others. Even she asked one of the witnesses not to disclose this fact to anyone else. She did not resist the accused while having sexual intercourse when she was aware of all these facts. Thus, it can be said that she has exercised her free will to assent to this act, understanding the consequences and being aware of the fact that marriage may not happen between them. Finally, the Supreme Court came to the conclusion that the prosecutrix had consented to this sexual intercourse freely, voluntarily and consciously, and her consent was not in consequence of any misconception of fact.

Furthermore, there was no evidence to show that the accused never intended to marry her. Even the prosecutrix admitted that she had full faith in him. Because of the fear of family, the accused never gathered the courage to disclose his intentions to his family. And lastly, everything got complicated because of the pregnancy of the prosecutrix.

Lastly, Section 90 has two conditions to fulfil for its application. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, the person who obtained the consent knew, or has reason to believe, that the consent was given in consequence of such a misconception.

The Apex Court doubted the contention of the prosecutrix that the promise of marriage had induced the prosecutrix to have sexual intercourse with the accused. It’s already clear from the facts that the prosecutrix had full knowledge of the situation. She knew they both belong to different castes, marriage is not possible and they will face serious opposition from their families. So she was well aware of the fact that marriage may not happen between them, despite the promise of marriage from the accused. The question remains the same whether the accused knew or had reason to believe that the prosecutrix had consented to such a sexual act based on the future promise of marriage. There is no evidence to prove this contention.

Conversely, the accused had reason to believe that the consent of the prosecutrix was based on their deep love for each other. We can believe that because prosecutrix gave the accused such liberties, which are generally given to the person with whom a person is in deep love. The prosecutrix went with the accused to the lonely space at 12 o’clock in the night, which generally happens in such cases where two young people are madly in love. And in such an emotional state, they promise so many things to each other and the promise of marriage is one of them. Resultantly, the accused promised on many occasions that they will get married in future and in such an emotional and weak state of mind, the promise loses its significance.

The Apex Court believed that this must have happened in this case also and stated that the prosecutrix had sexual intercourse with the accused not because he promised to marry her in future but because she also desired for the same. In such a situation, it is not possible for the accused to have the knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise because there were other reasons than one for her consent.

Significance of Uday vs. State of Karnataka (2003)

Deelip Singh v. State of Bihar (2004)

In this case, the victim and the accused were neighbours and they fell in love. One day, the accused forcefully raped her and later consoled her by saying that they would get married. They continued to have sex for several months and eventually the victim got pregnant. This fact was revealed to the family of the victim but they did not oppose the accused because of his marriage promise. But the father of the accused took him to another village to get him married. Hence, the complaint under Section 376 of the IPC was filed by the victim.

The trial court held that sexual intercourse had happened against the will of the victim and hence amounted to the offence of rape. The High Court upheld the conviction of the accused but reduced the sentence of rigorous imprisonment from 10 years to 7 years.

But the Supreme Court reversed the decision of the High Court and held that the accused was not guilty of rape. The Apex Court cited that there was no evidence to show that the accused never intended to marry the victim right from the start. The facts and circumstances of this case state that the accused had genuine intentions towards the victim but was not able to fulfil them due to family pressure.

Deepak Gulati v. State of Haryana (2013)

The alleged facts of the case were as follows.

The accused and prosecutrix had known each other for some time. One day, the accused induced the prosecutrix, who was 19 years of age, to go to Kurukshetra to get married and she agreed. On the way, the accused took her to Karnal lake and had sexual intercourse with her against her will. Then he took her to Kurukshetra, stayed with her for 3-4 days and committed rape on her.

Later, she was thrown out by the accused. She then went to Kurukshetra University Hostel and stayed there for a few days. The warden got suspicious and asked her and then she narrated the incident. The warden informed her father. In the meantime, she left the hostel and met with the accused in the temple, where he again promised her that they would go to Ambala and get married. Later, the accused and the prosecutrix were on the bus stand, where police apprehended the accused.

The undisputed facts of the case were

The prosecutrix was 19 years of age.
She was in love and had willingly gone with the accused.
The accused assured her many times that they would get married.
The sexual intercourse happened with the consent of the prosecutrix, as there was no complaint raised by her and she even stayed with him for several days and travelled along with him.
Even after leaving the hostel, she again met the accused to get married.

The Supreme Court relied on the judgement of Uday v. State of Karnataka and stated that

The prosecutrix (19 years) had adequate intelligence and maturity to understand the significance and morality of the sexual act.
She had the knowledge that their marriage may not be possible due to castes and other factors.
It is not possible to conclude that the prosecutrix consented as a result of a misconception of fact because of the promise of marriage by the accused.
Even so, there was no evidence to prove that the accused never intended to marry her.

Finally, the Supreme Court held that the case was based on the fact that there was a false promise of marriage from the accused. But even in facts, it is clear that the accused was taking her to Ambala to get married so consequently, there was no false promise of marriage by the accused when considering the facts of the case.

Thus, the Supreme Court set aside the conviction of the accused and acquitted him.

Critical analysis of the Judgement

The judgement in this case is comprehensive but still, there are some factors that are neglected by the Supreme Court that are essential and the author, in her dissenting judgement, addressed the same. We are discussing the same hereafter.

Impossibility of intercaste marriage

In this case, the Supreme Court held that both prosecutrix and the accused belonged to different castes and they were likely to be opposed by their families. Even though they belong to different castes, there is still special legislation for such marriages in India, i.e., the Special Marriage Act, 1954. It is very unclear for the author why this judgement took such a harsh stance over the possibility of their marriage.

Characterization of consenting adult

The judgement cites that the prosecutrix had 15-20 times sexual intercourse with the accused and further clarifies that this sexual intercourse happened not only because of the promise of marriage but also because the prosecutrix also desired it. This promise of marriage was controversial in this case. The judgement states that an intelligent consenting adult woman will not enter into sexual acts knowing the impossibility of their marriage. She understands the moral implications of such intercourse and she will not engage herself in such an act because of the promise of marriage from the accused. This amounts to characterization of consenting adults in the eyes of the author.

Desire vs. Consent

In the present case, the accused used to visit the house of the prosecutrix and they gradually developed friendships between them. Eventually, the accused proposed the prosecutrix, which she denied. So the author points out that there was no sexual relationship between them before the promise of marriage from the accused.

Furthermore, the original judgement states that sexual intercourse also happened because of the desire of the prosecutrix. Here, the dissenting judgement of the author addresses the same issue in an important paragraph, stating that “desire cannot be considered to be synonymous with consent and prosecutrix may have been desirous of having sexual intercourse with the accused, but that does not imply that she consented to such sexual intercourse.”

Importance of promise of marriage

The author states that a promise of marriage has great importance in the eyes of the prosecutrix. The original judgement states that the accused, because of social pressure, did not keep his promise, though there was no legal impossibility for such a marriage in the eyes of the law. Inter-Caste marriages do happen in society. The author further adds that the positiveness of the prosecutrix was completely overlooked by the Supreme Court in this case. She crossed social boundaries with the accused and the judgement, instead of acknowledging this fact, states that the prosecutrix knowing the impossibility of marriage, still proceeds with such sexual intercourse because of her desires and her sexual liberties.

Misuse of Section 375 IPC

There are a number of cases where the accused used the victim for his sexual desires and left her alone once his desires were fulfilled. This is the harsh reality of society. But there is another facet to this issue and it is becoming rampant in today’s society. It is the misuse of the rape law by a woman when things are not working according to her will in a relationship. There are a lot of examples where a woman has filed a false rape complaint against a man just to take revenge. Some of these case laws are cited hereafter.

One of the recent cases was Manoj Kumar Arya v. State of Uttarakhand (2024). In this case, the complainant was involved in an intimate relationship with the accused for over a decade. They promised they would get married. Later, the accused got married to someone else. Even knowing this fact, the complainant still continued their intimate relationship with the accused and later an FIR was filed against the accused under Section 376 of the IPC.

The High Court, looking at the facts, stated that the complainant voluntarily established a relationship with the accused even though she knew that he was married. The element of consent is present here. The High Court further stated that in this modern society, Section 376 is being misused by women as a weapon against their male counterparts once there arise certain differences in their relationship.

In Sameer Amrut Kondekar v. State of Maharashtra & Anr (2023), a case before the Bombay High Court, a woman and the accused were in a relationship for a period of 8 years. They were involved in sexual intercourse whenever the prosecutrix used to meet him. Their affair was also known to their families. When the accused refused to marry her, she filed a complaint under Section 376 of the IPC against the accused. She contended that she was involved in such a physical relationship because of his promise of marriage.

The High Court of Bombay held that “cases where a relationship turns sour cannot be inferred from the fact that the physical relationship established on every occasion was against the will of the woman.” Hence, the accused was released by the court.

Conclusion

Indian society strongly believes in the institution of marriage and sex is an integral part of an institution of marriage. A promise of marriage is also an important part of the relationship between the couple. Hence, the court assumes that such a promise is, in most cases, not false, but there are adverse situations that are likely to happen that make the promise hard to fulfil. Therefore, women used to file complaints against the accused for having sexual intercourse on the false promise of marriage. Hence, the Supreme Court also directed that courts, while deciding such cases, must look into the facts and circumstances of the case in order to see whether there was consent or not.

References

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Arbitration in industrial relations

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Guest Post

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June 6, 2024

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This article is written by Akshay Gendle. It discusses in detail the role of arbitration in resolving industrial disputes. Further, it explains in detail voluntary arbitration and arbitration agreements under Section 10A and the binding value of their awards.

Table of Contents

Introduction

There are two types of people working in society: those who work on daily wages in various establishments and those who own these establishments like factories, machines, etc. Primarily, the owners focus on profits, and the workers focus on increasing their daily wages. This basic difference often leads to disagreements between them, which, if not solved in time, may lead to major disputes eventually called Industrial Disputes.

Such disputes create major losses for both parties, hence the Industrial Disputes Act of 1947 provides an amicable method of solving such disputes through arbitration. Parties, instead of going for an adjudication, can settle their dispute outside the court of law through these methods of peaceful settlement.

But the question remains: How does this happen? Why do they believe in the out of court settlement? What role does the government play? We will discuss all these questions hereafter. Furthermore, the article exhaustively discusses the role of arbitration in resolving industrial disputes between workers and their employers.

What is arbitration

An overview

Arbitration is also one of the means of alternative dispute resolution mechanisms in which parties refer their dispute to the arbitrator or number of arbitrators, and then the arbitrators try to solve their dispute amicably. The whole process happens without the intervention of a court of law.

Primarily, the origin of arbitration can be traced in the history of Britishers in the Middle Ages. The concept of arbitration evolved because of commercial disputes happening between merchants. Therefore, merchants demanded an alternate method of solving disputes that could be speedy and easy to apply in such cases. Hence, arbitration originated, which started solving disputes without the strict litigation procedures of England’s court and was even accessible to non-English merchants/parties having commerce on the British shores. With the rise of arbitration in commercial disputes, the British Parliament passed the first Arbitration Act in 1698.

When it comes to India, the origin of arbitration can be traced back to when people used to submit their disputes to the village panchayat. This village panchayat shall act autonomously and consist of the sarpanch or mukhiya of the village and other noble persons in his panchayat. The decision of such a panchayat shall be binding on both parties, and they will try to resolve disputes amicably without the intervention of formal dispute-resolving bodies existing during that period.

In India, the first attempt at a proper arbitration law was made by Britishers in the year 1772 with the help of the Regulating Act. This Regulating Act of 1772, instead of abolishing traditional panchayats, gave proper recognition to them in the form of arbitration and recommended parties with certain disputes approach them to resolve their disputes. The Act even said the award of the panchayat shall be binding and shall have the equal status as the decree of the court.

Statutory and contractual arbitration

In India, a person can refer their dispute to arbitration, either with the help of a statute called statutory arbitration or with the help of an express clause present in their contract called contractual arbitration. Some of the prominent examples of statutory arbitration are the Railways Act 1989, the Electricity Act 2003, the National Highways Act 1956, the Micro, Small and Medium Enterprises Development Act, 2006, etc. A person having any dispute that falls under any of the provisions of these acts has to resolve such dispute with the help of arbitration.

On the other hand, contractual arbitration refers to the incorporation of a separate clause by parties in their contract or the signing of an entire arbitration agreement stating all future disputes pertaining to this agreement shall be referred to arbitration, and the decision shall be binding on parties to this agreement. Furthermore, such a clause or agreement shall contain mutually accepted basic guidelines to solve disputes between contracting parties, like the seat of the arbitration, venue, number of arbitrators, language of the proceeding, etc.

What is industrial dispute

Before jumping to the concept of industrial dispute, we need to understand what industrialization is and its basics. The concept of industrialization can be defined as the process of transforming a traditional agrarian economy into a manufacturing economy with the help of advanced technological machines. In India, industrialization started in the mid-19th century with the incorporation of the first steam-powered cotton mill in Bombay. With time, a number of industries were incorporated all over India that completely transformed the Indian economy into a manufacturing economy.

This rapid industrialization also leads to a rise in industrial disputes among workers and their employers. The management or the employers try to focus on maximising the profit; on the other hand, workers or labourers expect to maximise their income or daily wage to the extent possible, which leads to conflict between them and eventually leads to an industrial dispute.

Broadly, there are two facets to this industrial dispute. Firstly, the management, who owns all the necessary equipment, machinery, and infrastructure to run the business, can be called factors of production and secondly, the workers, who actually manufacture the goods. The management focuses on profits; hence, try to implement discipline, good conduct, and rules among the workers, whereas workers focus on high income, freedom of speech, having a say in management’s decisions, a safe working environment, etc. Here, both parties have different interests hence disputes are bound to happen between them.

Industrial Dispute Act, 1947 under Section2(k) defines industrial disputes as “any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person.”

Thus according to the definition, industrial disputes may happen between the following parties

Employers and Employers
Employers and Workmen
Workmen and Workmen

Furthermore, grounds for disputes are also given in the definition viz

Employment or Non-employment
Terms of employment
Conditions of labour

There are various ways in which workers may show their dissatisfaction with respect to the terms and conditions of their employment. Some of them are strikes, lock-outs, go-slow strikes, pen-down strikes, bandh gherao, etc. Prominently, with the help of a strike, workers stop the ongoing work and try to create pressure or compel the employer to agree to their demands. If the employer, instead of agreeing to workers’ demands, puts a lock on the factory and refuses to employ workers, thereby refusing their demands, the situation is called a lock-out. When such a situation happens, dispute redressal mechanisms kick in to solve such problems and try to bring consensus between the disputing parties, mainly with the help of arbitration and conciliation, discussed in further sections.

Types of industrial disputes

Industrial disputes can be classified into four categories.

Interest disputes

Generally, interest disputes are also known as economic disputes. These disputes happen when there is a demand from workers to increase the wage, job security, or terms and conditions of their employment and the employer is not ready for it. Here, the economic power lies in the hands of the employer; hence, these issues must not escalate to the extent that they become a test of economic power between both parties. These disputes shall be resolved through negotiations and conciliation at the very moment.

Grievance or rights disputes

When an employee is not satisfied with the terms of their employment and the employer tries to violate the rights of the employee, a grievance dispute takes place. Generally, when there is some dissatisfaction among the employees, they try to raise a complaint regarding the same. When such a complaint goes unaddressed by an employer, it turns into a grievance. Such grievances can be filed by an employee, worker, or group of workers, or by the union on their behalf.

Grievances, when not resolved properly by the management or an employer, may turn into legal disputes, which may lead to significant costs to both parties. Furthermore, such disputes may create unending tensions between workers and management for a long time. The government in such a dispute encourages parties to seek arbitration for a speedy and peaceful redressal mechanism. Some of the main causes of such disputes are

Dismissal and reinstatement of an employee and the compensation for the same
Wages, mode of payment, Denial of the right of an employee when two awards regarding wages are given and the employee has the liberty to choose either one
Disputes related to providing a safe working environment, safety measures and health
Working hours, provident fund, gratuity, pension, promotions, demotions, seniority

Unfair labour practises disputes

Labourers are the working force for employers and they get paid for their work. But sometimes labourers work more than required because of the pressure from their employers, which leads to unfair labour practices. There are a number of unfair labour practices that are prescribed in the Industrial Dispute Act under Schedule V. Furthermore, the act also recognises the unfair practices by the labour, employer, and even trade union and prescribes punishment for the same under Section 25 and Section 25 respectively.

Some of such unfair labour practices from the employer side are given below.

To recruit workmen during a strike which is not an illegal strike.
To refuse to bargain collectively, in good faith with the recognised trade unions
To Transfer a worker mala fide from one place to another
To dismiss workmen by way of victimisation
To dismiss a workman for taking part in any strike
Refusing to promote workmen to higher posts on account of their trade union activities

Recognition disputes

Most of the time, trade unions represent employees and negotiate with employers or management on behalf of such employees. This is due process, but the problem arises when there are multiple trade unions and all of them claim that they are representing the best interests of their employees. Now, in order to solve the dispute, employers wish to start negotiations, but they don’t know which trade union they should recognize for such negotiations.

This recognition of an exact trade union is important because such a trade union gets bargaining rights and the ability to negotiate collective agreements on behalf of employees. Furthermore, sometimes employers do not wish to recognize a particular trade union because of their hatred, which leads to the victimisation of such trade unions by employers.

But in the end, this negotiation process is important and supposed to happen quickly, as the delay in negotiation leads to hampering production, unnecessary delays in orders, and strained worker-employer relations that ultimately affect industrial peace and profits in the long run. Recognition disputes are settled based on the guidelines made by the government for the recognition of trade unions.

Role of arbitration in industrial dispute

As discussed earlier, arbitration plays a vital role in settling disputes outside the court of law, therefore many times, parties choose arbitration as a method of solving their disputes without the intervention of traditional courts. This is because parties have a wide scope in choosing so many things while referring their disputes to arbitration. For example, parties can choose the number of arbitrators, the governing law, the seat and venue of the arbitration, the language of the arbitration, the jurisdiction etc.

Even under the Industrial Disputes Act, parties may refer their dispute to arbitration before choosing adjudication as the final option to resolve their dispute. Since there is no prior agreement between these parties to refer their future dispute to arbitration, the act gives the option of voluntary arbitration as a means of settlement under Section 10A of the ID Act, 1947.

Voluntary arbitration

The original draft of the ID Act of 1947 did not contain a provision for voluntary arbitration. The only way to resolve the dispute was through adjudication and conciliation. This led to severe criticism, and consequently, the government introduced Section 10A through the Industrial Disputes Miscellaneous Provision (Amendment) Act, 1956. Even though voluntary arbitration was introduced, the award of the arbitration did not hold equal status to that of the decision of the adjudication or conciliation. But later, the Amendment of 1964 introduced Section 10A (3A), which eventually gave equal status to the award of the arbitration.

The government even set up the National Arbitration Promotion Board with the recommendation from the National Commission on Labour in 1969 to promote voluntary arbitration. Even the Indian Labour Conference in 1962 emphasised the importance of arbitration.

Still, voluntary arbitration did not hold a great position in India, and the commission did cite the following reasons for the same:

Lack of skilled arbitrators
Deep trust in adjudication
No appeal against the award of arbitrators
Cost to the parties, especially workers

It was even argued that the government has some sort of control over the process of voluntary arbitration, hence not getting much attraction from the disputing parties. But the government under, New Economic Policy (NEP) 1991, chose a policy called the Disinvestment Policy, thereby limiting its interference in industrial disputes.

Furthermore, the government was only playing the role of referring the dispute to arbitration under the ID Act and was not acting as an arbitrator; hence, it never had any control over the process of arbitration.

The NEP, 1991 opened the Indian economy on a global scale by promoting liberalisation, privatisation, and globalisation. With the opening of the Indian economy, many private sector companies formed and the government started encouraging these private companies to resolve their disputes through the process of voluntary arbitration.

Arbitration agreement

Section 10A of the ID Act provides for arbitration agreements and we will break down this Section further hereinafter.

Under this Section, parties may refer their dispute to voluntary arbitration; such dispute may exist or be apprehended. But one of the prerequisites of voluntary arbitration is that parties just cannot refer any dispute to voluntary arbitration; such a dispute must be an industrial dispute, and only then will voluntary arbitration kick in.

This Section 10A gives the term ‘at any time parties can refer their dispute to voluntary arbitration’. But that certainly does not mean that parties can at any time refer their dispute; rather, they are required to refer their dispute to voluntary arbitration before the appropriate government makes reference of their dispute to adjudication under Section 10 of the ID Act.

Section 10A 1A states that parties may choose an adjudicating officer of the labour court or tribunal to act as an arbitrator in their dispute if they fail to choose arbitrators with mutual consent. Even if the parties choose an even number of arbitrators, the Section mandates them to choose an umpire in case a tie happens between them while rendering their decision. In the event of a tie, the decision of the umpire shall prevail. Earlier, there was no option for the parties to choose an umpire, so when a tie used to happen, the only recourse for the parties was adjudication.

Section 10A 2 states that an arbitration agreement shall not only be in writing but also signed by the parties to the industrial dispute. Such agreement shall also have the name of arbitrators and be in the prescribed manner.

Further, Section 10A 3 states that a copy of the arbitration agreement shall be sent to the appropriate government, and the same shall be published in the official gazette within 1 month by the appropriate government. The Section mandates publishing the arbitration agreement within the period of 1 month, but still, some High Courts have taken other stances on the same issue. For example, The MP High Court in Modern Stores v. Krishnadas (1969) held that “requirements under S10A 3 are partly mandatory and partly directory”.

However, the Supreme Court cleared the confusion and resolved the same in the Karnal Leather Karmachari Sanghatan v. Liberty Footwear Company(Regd.) & Ors. (1989) case, wherein the appropriate government did not publish the arbitration agreement in the official gazette within a period of 1 month. The apex court observed that this arbitration agreement will bind all the parties to this agreement including workers; hence, they should be made aware of such an agreement. Further, workers must know about the dispute, an agreement, and even the arbitrator who is dealing with their own case. Publishing this agreement even gives them an opportunity to present their views before an arbitrator if necessary. Thus, this agreement must be published in the official gazette by the appropriate government.

Furthermore, under Section 10A 3A, the act gives the opportunity to the workers who are not a direct party to the arbitration agreement but are concerned with the dispute, to present their case before the arbitrator. Such workers shall also be bound by the award of the arbitrator.

The question lies: as Section 10A 3A is based on the principle of voluntarism, does binding the parties who are not directly party to the arbitration agreement or who did not give their consent for such arbitration constitute a violation of the principle of voluntary arbitration? The answer is no because the right under this Section is not an absolute right and is subject to the object of the act. The court, while addressing this issue, contended that even the Fundamental Rights under the Constitution are not absolute rights but are subject to reasonable restriction.

Lastly, Section 10A 4A says that the appropriate government has the power to stop a strike or lock-out once the dispute is referred to arbitration by the parties to the dispute.

An arbitration agreement is important as it governs the whole proceedings of arbitration once the dispute is referred. Section 10A provides one last option for the disputing parties to resolve their dispute outside the court of law with the help of impartial, independent arbitrators. Though it is not mandatory to refer the dispute to arbitration, it is still highly encouraged by the government to refer the dispute to arbitration if conciliation does not happen between the parties. The intention of the government is quite clear, as they want to reduce industrial disputes to the extent possible, and even if they happen, they must be resolved through arbitration and conciliation instead of going for adjudication.

Binding nature of these awards

Section 18 of the ID Act expressly talks about the binding nature of the arbitration award on the parties. According to Section 18(2), an arbitration award is binding on the parties who referred their dispute to arbitration under Section 10A of the ID Act. Furthermore, Section 18(3) explains the further enforceability of an arbitration award, like, in the case of an employer, the award shall be binding on his legal heirs, successors, etc. The award shall be binding on the persons who are employed in that establishment or part of the establishment to which the dispute relates.

How is arbitration beneficial

Speedy

Usually, proceedings under arbitration are quicker than those in traditional courts, thereby providing speedy justice or settlement to the parties. This was one of the reasons why voluntary arbitration was introduced in the ID Act.

Confidential

Unlike traditional legal courts, arbitration proceedings happen only between the parties who referred their dispute to the arbitration. There is no media coverage, and journalists are not involved which helps maintain the confidentiality of the proceedings.

Flexibility in procedure

10A arbitrator is allowed to follow the procedure of his choice, provided such procedure shall not go against the laws and rules that are already present and shall not go against the principles of natural justice. As long as these conditions are fulfilled, the arbitrator has full autonomy regarding the procedure of arbitration.

Expertise

In arbitration, parties do have the liberty to choose the number of arbitrators for their dispute. Thus, parties mostly choose people who are experts in such matters so that their expertise can be utilised in their cases. This benefit is not at all available in traditional courts.

Finality of the Award

Generally, arbitration awards shall always be final, and appeals lie to the higher courts only in some situations, i.e. the scope of appeals in arbitration is quite narrow. This leads to the finality of the award, and once decided parties are free from future litigation.

Case laws

There are some important questions regarding voluntary arbitration under Section 10A of the ID Act, and these questions stood before the High Courts and the Supreme Court, and they have tried to resolve such dilemmas with the help of case laws and we will be discussing the same case laws for further clarification on those questions.

Is the arbitrator allowed to follow a procedure of its own under 10A

In Daily Aljamiat v. Gopinath (1976), Justice Rohatagi opined that an arbitrator is not bound by any procedure. Even though the arbitrator is not bound by any specific procedure, he is bound to comply with statutory provisions and the rules that are present, and the procedure shall not be against the principles of natural justice.

What status does the 10A arbitrator enjoy Whether he can be regarded as a statutory arbitrator or a private arbitrator

The Supreme Court in Rohtas Industries v. Its Union, (1976), observed that an arbitrator under Section 10A has the power to bind the parties who are not even parties to the arbitration agreement as the statute allows it. Thus a 10A arbitrator can be considered as statutory arbitrator and his decisions are also amenable to judicial review.

Can the High Court quash the 10A award under Article 226 if there is an error of law or the arbitrator has exceeded his jurisdiction or acted without jurisdiction

In R. v. Disputes Committee of National Joint Council for the Court of Dental Technicians (1953), it was stated that the writ of certiorari or prohibition can only be sent to the statutory arbitrator and it was already established that the 10A arbitrator is a statutory arbitrator, and hence the High Court does have power to quash the 10A award under Art 226. The writ of certiorari can be sent to judicial and quasi-judicial bodies, and the 10A arbitrator is already established as a quasi-judicial body. Hence, it falls under the writ jurisdiction of the High Court.

Conclusion

One of the best ways to solve any dispute is to bring the disputing parties to the negotiation table, and that is a herculean task. But with these methods of dispute resolution, we can do the same job of bringing disputants together and allowing them to discuss their problems directly with the help of an impartial third party.

Arbitration helps parties find the best settlement for their disputes amicably; hence, there is always hope for a better future relationship between the parties and that is certainly important in industrial disputes. Furthermore, this method is also helping to reduce the burden on traditional courts; that’s why the government is also pushing it in industrial relations.

In conclusion, we can say that arbitration plays a vital role in resolving industrial disputes in India. It provides greater flexibility, speedy resolution, and good control over the resolution process to the disputing parties as compared to traditional courts. But, many times, parties do not wish to choose it as they are not aware of its advantages; hence, we must talk about it on every forum, through articles, social media, etc. to spread awareness about them.

Frequently Asked Questions(FAQs)

What is the difference between arbitration and conciliation

The arbitration is a quasi-judicial proceeding that involves an independent third party who shall act as an arbitrator to resolve the dispute and the award of the arbitration shall be binding on both the parties. Whereas, Conciliation is headed by a conciliator who shall help parties to reach a mutually accepted agreement with the help of negotiation and communication.

Who is an arbitrator

The arbitrator is an independent third party who shall render the decision on a dispute depending upon the evidence presented before him by the parties.

References

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Correction/interpretation and additional awards under The Arbitration and Conciliation Act, 1996

By

Vanshika Kapoor

-

June 5, 2024

0

This article has been written by Harshala Keny pursuing a Diploma in Domestic & International Commercial Arbitration from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Table of Contents

Introduction

The number of cases pending before the Indian court is more than 5 crore. Out of which about 30% are civil cases. A portion of civil cases would have been even more difficult without the existence of the Alternative Dispute Resolution System (ADRS). ADRS is a system that helps to resolve disputes out of court. There are several mechanisms under it like Lok Adalat, Mediation, Conciliation, Arbitration, etc. Arbitration has played a significant role in handling not only domestic civil matters but international commercial matters in a speedy way.

There have been constant efforts to build this mechanism more profoundly to make it stand as a strong and speedy alternative to the court as well as a tool to handle the profusely increasing disputes of an ever-flooding population. The Arbitration and Conciliation Act, 1940 and later the Arbitration and Conciliation Act, 1996, thus try to encode the process of carrying out arbitration and conciliation to make it more efficient. Out of several provisions regulating the process, one of the provisions is related to the Correction and Interpretation of Awards and Additional Awards, which helps in removing procedural defects in the process.

What is arbitration

Arbitration is the mechanism in ADRS that goes close to the setup of a court. Arbitration is a mechanism of dispute resolution where parties to the dispute amicably agree to resolve their dispute through an arbitrator or arbitrators who are either appointed by them or on their request, by whom a judgement is passed, which is called an award. Such an award is legally enforceable under Section 36 (1) of the Arbitration and Conciliation Act, 1996, as if it were a decree passed by the court.

Halsbury defines arbitration as “the reference of a dispute or difference between not less than two parties, for determination, after hearing both sides in a judicial manner, by a person or persons other than a court of competent jurisdiction.”

The primary elements of an arbitration are:

An Arbitration agreement (whether before or after the dispute has arisen but before submitting the dispute to the court)
No less than two parties agree to the same.
Existence of a dispute that is covered in that arbitration agreement.
Appointment of an arbitrator (mutually selected by the parties or on their request).

Arbitration has also been defined in the Collins vs. Collins (1997) case as “an arbitration is a reference to the decisions of one or more persons, either with or without an umpire, a particular matter in difference between the parties.”

Arbitration award

An arbitral award is legally enforceable as if it were a court decree under Section 36(1) of the Arbitration and Conciliation Act, 1996. Thus, the Arbitral Award must meet certain essentials for it to be a proper award. Section 31 of the Arbitration and Conciliation Act, 1996 prescribes the essentials for a properly enforceable award.

Essentials of a proper award:

It should be in writing.
It should be signed by all the members of the arbitral tribunal. In the case of more arbitrators, the signatures of the majority of the arbitrators are also valid if the reason for the absence of the signatures of other arbitrators is stated clearly.
The arbitral award should contain reasons for its decision, except when the parties specifically agree for no reasons to be stated or if it is an award passed on agreed terms under Section 30 of the Arbitration and Conciliation Act, 1996.
Date and place of making the arbitral award.

Things to take into consideration regarding an arbitral award:

The signed copies must be delivered to all the parties.
An interim award can be turned into a final award meeting the above essentials.
Unless there is an agreement between the parties regarding this, an arbitral award dealing with the payment of money can include interest on the full or partial sum to be paid at the rate at which it deems fit. That interest can be either levied from the whole period between the commencement of the proceedings and the date of passing of the award or a part of it.
If there is no express direction in an arbitral award regarding this, the sum to be paid in the arbitral award will have an interest rate of 2% more than the prevalent rate of interest on the day of the passing of the arbitral award. From the day of passing it to the day of payment.
The costs of the arbitration will be fixed as per Section 31A of the Act by the Arbitral Tribunal.

Power to award interest

In the Supreme Court’s decision in Govt. of Orissa (Dept. of Irrigation) vs. G. C. Roy (1992), it was held that an arbitrator can only award interest from the date of passing the award to the date of decree or realisation. However, this was the case when the Arbitration and Conciliation Act of 1940 was in force. According to Section 31(7) of the Arbitration and Conciliation Act 1996, there are no restrictions on the power of the arbitrator or arbitral tribunal to award interest.

Correction of arbitral award

A legally enforceable award must be free from errors and aptly made. However, human errors are inevitable. However, the Arbitration and Conciliation Act, 1996, provides a provision to which parties can resort for correction of such awards.

Errors that can be corrected

Computation errors

If the award involves the amount to be paid by the parties or the computation of any liability that is levied on any or both parties. The computed amounts must be accurate. When both the parties and the arbitrators know how it is going to be calculated and the amount in the award is merely a calculation error, then under Section 33(1)(a), relief can be sought.

Clerical or typographical errors

Clerical or typographical mistakes that change the meaning of the award. Where both the parties and the arbitrator know the intention of the award, but either the use of words makes the meaning otherwise or the parties are incorrectly named. In such a case, recourse to Section 33(1)(a) can be taken.

Accidental slip or omission

At times, issues are mentioned in the claim about which the award is silent. Such omissions need to be conveyed and addressed. A new award, thus covering the omitted issue, is necessary.

What is an accidental slip? In Rees vs. Earl of Plymouth and Ors. (2020), it was a case of appeal. The issue before the judge was whether an accidental slip meant just a typographical error or an accidental slip in the judge’s thought process as well? The appeal was rejected, saying that an accidental slip includes an error in the judge’s interpretation of evidence, causing an error in a decision.

It is pertinent to note that on the pretext of applying for a correction of the award, a party cannot request to make material changes to the award that tries to change its decision made on merit.

In M/S Chandi Construction vs. Executive Engineer (2013), the High Court of Punjab and Haryana specifically stated that “a party seeking a review against the merits of an arbitral award, cannot be allowed to take siege of Section 33 of the Act. An Arbitral Tribunal or the Arbitrator, as the case may be, can, within 30 days from the receipt of the arbitral award, correct any computation, clerical or typographical errors, or any other errors of similar nature, but the Section does not enable any judicial review of the judgement. The Arbitral Tribunal has specific and limited jurisdiction that cannot traverse beyond the scope of Section 33 of the 1996 Act.”

Procedure to apply for correction

The party seeking to apply for correction has to complete the following two things within 30 days from the receipt of the arbitral award:

Give notice to the other party that he/she is applying for correction of the arbitral award.

This notice must be in writing and must be served on the other party in the manner prescribed by the arbitration rules. The notice must state the grounds on which the correction is sought and must be accompanied by a copy of the arbitral award.

Apply before the arbitrator for correction of the arbitral award through a request letter.

This request letter must be in writing and must be submitted to the arbitrator in the manner prescribed by the arbitration rules. The request letter must state the grounds on which the correction is sought and must be accompanied by a copy of the arbitral award.

The arbitrator must consider the request for correction and issue a decision within 30 days of receiving the request. The decision of the arbitrator is final and binding on the parties.

If the arbitrator denies the request for correction, the party seeking correction may appeal to the court. The appeal must be filed within 30 days of the arbitrator’s decision. The court will review the arbitrator’s decision and may uphold, modify, or vacate the award.

However, if some other period is agreed upon for requesting a correction in the arbitration agreement, that shall apply.

The time limit for the correction of the award

An arbitrator, after receiving the request and being satisfied that the request is justified, has to correct the ward within 30 days of receiving the request.

Limitation period for setting aside an award

The limitation period for setting aside an award starts after the passing of the corrected award and not after the passing of the original award.

Suo moto correction

An arbitrator has the authority to correct certain errors in their award on their own initiative. This authority is limited to clerical or typographical mistakes, accidental slips, or omissions. The arbitrator must act within 30 days of passing the award to make these corrections.

The purpose of this provision is to allow arbitrators to correct minor errors that do not affect the substance of the award. This helps to ensure that the award is accurate and reflects the arbitrator’s true intent.

Here are some examples of errors that an arbitrator may correct under this provision:

A typographical error in the name of a party.
A mistake in the calculation of damages.
The omission of a provision that was clearly intended to be included.

If an arbitrator discovers an error that they believe is substantial and affects the substance of the award, they cannot correct it on their own initiative. In this case, the arbitrator must seek the consent of the parties to correct the error. If the parties do not consent, the arbitrator may only correct the error if they are directed to do so by a court.

The ability of arbitrators to correct errors on their own initiative is an important safeguard that helps to ensure the fairness and accuracy of arbitration awards. This provision allows arbitrators to correct minor errors without the need for a lengthy and expensive court proceeding.

Interpretation of an arbitral award

An arbitral award must be clear and self-explaining. To execute an award, there should be clarity in understanding an arbitral award. If any of the parties are unable to interpret the arbitral award or any of its clauses specifically, they can seek an interpretation from the arbitrator of the same.

Procedure:

Within 30 days from the receipt of the award, the party seeking interpretation has to:

Give notice to the other party that he/she is seeking an interpretation of the arbitral award.
Apply for an interpretation of the arbitral award before the arbitrator through a request.

However, if some other period is agreed upon between the parties in their agreement, that shall apply.

The time limit for giving an interpretation:

An arbitrator has to, within 30 days from the receipt of such a request, give an interpretation of the award.

Effect:

The interpretation given by the arbitrator will form part of the original award.

Court on the misuse of this provision:

In CMI Ltd. vs. BSNL (2011), it was pointed out that under the pretext of seeking interpretation, a party cannot reargue their claim.

Additional awards

In the realm of arbitration, it occasionally occurs that certain claims raised by the parties during the proceedings are not explicitly addressed or resolved in the final arbitral award. This situation, known as an omission or silence in the award, requires careful attention and appropriate action to ensure that all claims are adequately dealt with.

When an arbitral award remains silent on specific claims, it is crucial that the issue be promptly brought to the attention of the arbitrator. The party or parties affected by the omission may file a request for an additional or supplementary award, also referred to as an “additional ward.” This request serves to clarify or rectify the incomplete nature of the initial award by addressing the outstanding claims.

The process of obtaining an additional ward typically involves submitting a formal request to the arbitral tribunal or the institution administering the arbitration. The request should clearly identify the specific claims that were omitted from the original award and provide any relevant arguments or evidence supporting the request. The tribunal or institution will then consider the request and decide whether to issue an additional ward.

The issuance of an additional ward is generally governed by the arbitration rules and applicable laws. In some jurisdictions, there may be specific time limits or procedural requirements that must be met when requesting an additional ward. It is essential to comply with these requirements to ensure the validity and enforceability of the subsequent award.

Once an additional ward is issued, it becomes part of the original arbitral award and has the same binding effect. The additional ward may address the omitted claims in full or may provide partial resolution, depending on the circumstances of the case.

In summary, when an arbitral award fails to address certain claims, it is important to promptly request an additional ward to ensure that all claims are fully and fairly resolved. The process of obtaining an additional ward involves submitting a formal request to the arbitral tribunal or institution, complying with applicable rules and time limits, and presenting relevant arguments and evidence. The additional ward, once issued, becomes an integral part of the original award and carries the same legal weight.

Procedure

The party seeking an additional award within 30 days from the receipt of the award has to:

Send a notice to the other party notifying them of his intention to seek an additional award on the claims that the original award was silent on.
Formally request the arbitrator for an additional award by bringing his attention to the claims that the original award was silent on.

However, if some other period has been agreed upon by the parties, that shall apply.

The time limit for passing an additional award:

An arbitrator has to pass an arbitral award within 60 days from the receipt of a request for it.

Effect:

An additional award will be considered a separate award with a distinct identity.

Extension of Period:

An arbitrator or arbitral tribunal may extend the time limit for correction, interpretation, or passing an additional award.

Application on Section 31:

Section 31 will also apply to the correction made, the interpretation stated, or the additional award passed by the arbitrator or the arbitral tribunal.

Role of Section 34:

In the landmark case of Geojit Financial Services Ltd. vs. Kritika Nagpal (2013), the Indian courts focused on the crucial issue concerning the scope of judicial intervention in arbitration proceedings. The case centred around the question of whether a party could seek judicial recourse if an arbitrator refused to adjudicate on a claim that had not been considered in the original arbitral award. The court’s decision in this case has significant implications for the interpretation of Section 34(4) of the Arbitration and Conciliation Act, 1996, which empowers courts to intervene in certain limited circumstances.

The facts of the case were as follows: The parties had entered into an agreement containing an arbitration clause. A dispute arose, and the matter was referred to arbitration. In the course of the arbitration, the claimant raised additional claims that were not part of the original claim. The arbitrator, however, declined to consider these additional claims, holding that they were beyond the scope of the arbitration agreement. The claimant then approached the court under Section 34(4) of the Arbitration Act, seeking a direction from the arbitrator to adjudicate on the additional claims.

The court, in its judgement, held that Section 34(4) does indeed provide a mechanism for judicial intervention in cases where an arbitrator refuses to consider a claim that is within the scope of the arbitration agreement. The court observed that the purpose of Section 34(4) is to ensure that arbitral awards are complete and final, and that all claims between the parties are resolved in a fair and just manner. The court further held that the power of the court under Section 34(4) is limited to directing the arbitrator to eliminate any ground that may lead to the setting aside of the award on the ground of incompleteness.

The court’s decision in Geojit Financial Services Ltd. vs. Kritika Nagpal is a significant development in Indian arbitration law. It clarifies the scope of judicial intervention in arbitration proceedings and provides a much-needed mechanism for parties to seek redress when an arbitrator refuses to consider all claims within the scope of the arbitration agreement. The decision also underscores the importance of ensuring that arbitral awards are complete and final and that all disputes between the parties are resolved in a fair and just manner.

Conclusion

The purpose of Section 33 of the Arbitration and Conciliation Act, 1996, is nothing but to provide procedural efficiency. The remedy it gives should be sought before the Arbitrator within time, as no such applications for correction of the award can be sought before the executing court or under the Application before the court under Section 34 which deals with grounds for setting aside an award. Section 33 helps in eliminating human errors and thus makes the arbitration mechanism even more preferable, along with its other major benefits.

References

https://www.mondaq.com/india/arbitration–dispute-resolution/1089272/interplay-between-the-scope-of-correction-and-setting-aside-of-an-arbitral-award-under-the-arbitration–conciliation-act-1996
Law of Arbitration & Conciliation and Alternative Dispute Resolution Systems, Avtar Singh
Arbitration & Conciliation Act, 1996 with Alternative Means of Settlement of Disputes, Dr. S. C. Tripathi

Access to electronic media for people with hearing and vision impairment

By

Vanshika Kapoor

-

June 5, 2024

0

This article has been written by Girija Menon pursuing a Startup Generalist & Virtual Assistant Training Program from Skill Arbitrage.

This article has been edited and published by Shashwat Kaushik.

Table of Contents

Introduction

Newborns today are oriented to be digitally savvy. Electronic media has taken us around the world to places we never even thought would be possible. It has expanded our horizons, yet shrunk the world to fit into our palms. It’s important to be updated and upskill yourself to deal with the digital world daily. If you get left behind, then the pace of this world is so fast that it would be difficult to keep up.

Having said that, there is a category of special individuals who need an extra helping hand to give them a heads-up and manage this digital space. The specially-abled, specifically those with vision and hearing impairment. They require it as much as you and me, yet the challenges they face are more, and technology must help them to have an even playing field when they are in front of the screen. If this digital world has to embrace people, it also has to create tools or software that hand-hold them into the digital space

If someone has been blind since birth or if blindness has gradually affected their sight, the use of assisted technology is a lifesaver. Since the blind, can hear and their sense of hearing is normally very powerful, the technology used is a spoken medium while accessing text. Those who are not totally blind can enlarge the text to suit their requirements.

Tools for visually impaired

Some of the tools for the visually impaired that are used and can be enhanced in the future with technological advancement are as follows:

ZoomText Xtra screen-magnification software— enlarging the screen display to read text – this is for those who are not impaired and can see with a little help
JAWS screen reader- Voice input helps them access information from the internet.
Open Book text reader- Helps those with low or no vision by scanning printed text and converting it to synthetic speech.
Duxbury Braille Translating Software- A word processing software that helps them type in Braille and subsequently print out the matter in Braille, therefore having a Braille embossed hardcopy for future reference.
Talking typer software- Originally from the American Printing House (APH), provides audiovisual instruction and lessons.
Basic on-hand tools- There are also the not-too-complicated tools, which are cheaper and more basic. Few are handheld magnifying glasses, signature guides, felt-tip pens, and devices like the CCTV, which uses a video camera lens to exponentially enlarge normal size text.

We ought to be glad that we live in an era where nothing is impossible, both for the normal and for those who are specially-abled. When technical minds are at work, there is the vastness beyond the horizon that can be embraced and, in the digital age, literally brought to your home screen with a click of a button. Indeed, not being able to see, is a huge challenge but we are aware that those with this impairment have other senses that work or function at a rapid and precise pace, which in a way helps them overcome the disadvantages of having no sight.

As per statistics from the WHO, the number of people with vision impairments is around 2.2 billion. Sadly, some of these could have been prevented or addressed, but unfortunately they were not. It can affect individuals of all age groups, yet it seems most people who suffer are on the path to getting blind over the age of 50.

In India, there are an estimated 4.95 million people blind (0.36% of the total population), 35 million people visually impaired (2.55%), and 0.24 million blind children. Though a lot is being done to treat and give more than a helping hand, the numbers are alarming, unfortunately.

Hearing impairment

Nonetheless, hearing impairment is one other condition that might exist from birth, at times as the kid grows, maybe because of an injury or accident, or it may manifest in adults because of age. The reasons are many and cases can be unique in their own way

Medical saviours help at one end; however, technological saviours help them at the other end. Creating a world equal in all respects for those with hearing issues is what inclusivity is all about. When we, as normal individuals, can use digital media to our advantage, why not those with special challenges? Well, we have technical advancements that come as a saviour to many who want to take advantage of the digitalization of our universe, which is galloping in every area, every corner, and in every possible way.
The following are some of the assistive technology tools for those with hearing impairment that are currently in use and may be improved in the future as technology advances.

Since they can see, reading texts on the net or other platforms will not be an issue; however, when there is audio attached to a video or just audio itself, it becomes a challenge. Having an interpreter with the capabilities of sign language is a solution, Microsoft and Apple have programmes that help with prompts from audio.

Tools for hearing impaired

Sound sentry- Available on Microsoft, Vista, and Apple, helps to convert audio into text flashes, which put the video in perspective with flashes without really having to hear
Instant messaging- For those who can’t hear, this tool helps them talk to one another.

Besides the above, the following are additional assistive technology tools for those with hearing issues that are currently in use and may be improved in the future as technology advances:

Google Hangouts- Video chatting with real-time captions on the discussions.
Hamilton Mobile CapTel- The user can see everything being spoken on the phone with real-time captions on another screen.
Purple Mail- Very similar to instant messaging, but communication is in text, enabling the user to talk to another person who has the video-based messaging app.
Red Cross Mobile Apps- Used for emergencies that are very relevant, viz., health or natural disasters.
Subtitle Droid- Subtitles of movies and shows. This is a great tool for not just those with hearing impairments but for regular people, enabling them to access media in various languages.

Hearing-impaired people do not come across as challenged initially, yet they feel alone in a crowd and unless someone understands them and includes them in conversations, the feeling of being alone can be a cause for low self-esteem. As a progressive society, it’s up to each one of us to make them feel included with open minds and open arms.

Statistics claim that over 5% of the world’s population, or 430 million people, require rehabilitation to address their disabling hearing loss (including 34 million children). It is estimated that by 2050, over 700 million people—or 1 in every 10 people—will have disabling hearing loss. Those figures are huge and unless addressed as a priority, they may go up by 2050.

As per WHO estimates, in India, there are approximately 63 million people, who are suffering from significant auditory impairment; this places the estimated prevalence at 6.3% in the Indian population. As per the NSSO survey, currently, 291 persons per one lakh population are suffering from severe to profound hearing loss (NSSO, 2001).

Strategies

In addition to assistive technologies, such as screen readers and hearing aids, there are a variety of strategies that can be implemented to make electronic media more accessible for individuals who are hearing or vision impaired.

For individuals with hearing impairments, strategies can include:

Providing closed captions or transcripts for audio content, such as videos and podcasts.
Ensuring that audio content has clear and concise sound quality.
Offering visual cues, such as on-screen text or body language, to convey information that is communicated through audio.
Using visual aids, such as charts and graphs, to present information in a way that is easily understood.

For individuals with visual impairments, strategies can include:

Providing text alternatives for images, such as Alt text or image descriptions.
Using high-contrast colours and fonts to make text more readable.
Resizing text and images to make them easier to see.
Offering keyboard shortcuts and other navigation aids for users who have difficulty using a mouse.
Providing tactile feedback, such as vibration or sound cues, for users who are deaf blind.

By implementing these strategies, organisations and content creators can make their electronic media more accessible to a wider range of users, including those with hearing or vision impairments. This not only benefits individuals with disabilities, but also makes content more usable for everyone.

Using descriptive language: When creating or consuming electronic content, use descriptive language that helps to convey the visual and auditory elements of the content. This can help individuals who are unable to see or hear the content to understand what is happening.
Providing alternative text: When posting images or videos online, provide alternative text that describes the content of the image or video. This alternative text will be displayed to individuals who are unable to see the content.
Using clear and concise language: Use clear and concise language that is easy to understand. Avoid using jargon or technical terms that may be unfamiliar to individuals with disabilities.
Testing your content: Before publishing electronic content, test it with individuals who have disabilities to ensure that it is accessible. This will help you to identify and fix any potential accessibility issues.

By following these tips, you can help make electronic media more accessible for individuals who are hearing or vision impaired. This will help to ensure that everyone has the opportunity to enjoy the benefits of electronic media.

Tips for making electronic media more accessible

Adjust display settings:
- Increase the font size to make text easier to read.
- Enhance contrast to improve the visibility of text and images.
- Enable high-contrast themes, which use contrasting colours to make text and images stand out.
Use accessibility features:
- Most devices and software have built-in accessibility features that can be customised to meet individual needs.
- For example, screen readers can read text aloud for people with visual impairments, and closed captioning can provide subtitles for people with hearing impairments.
Alternative formats:
- Look for content available in accessible formats, such as:
  - Audiobooks for people who have difficulty reading text
  - E-books with text-to-speech for people who prefer to listen to text
  - Captioned videos for people who are deaf or hard of hearing
Accessible websites:
- Ensure that websites are designed with accessibility guidelines in mind.
- This includes using proper Alt text for images, which provides a description of the image for people who cannot see it.
- It also includes providing keyboard navigation so that people who cannot use a mouse can still navigate the website.

Advocacy and awareness

Advocate for accessibility
- Work with content creators, developers, and organisations to prioritise accessibility in their electronic media offerings.
- Encourage the adoption of universal design principles to make digital content accessible to people with disabilities.
- Advocate for legislative measures that require accessibility standards for websites and digital platforms.
Raise awareness
- Educate the general public about the challenges faced by individuals with hearing and vision impairments.
- Highlight the importance of accessible technology for promoting inclusivity and equality.
- Share success stories of individuals who have overcome challenges with the help of assistive technologies.

By understanding the available assistive technologies, making use of accessibility features, and advocating for inclusivity, we can create a more accessible digital environment for people with hearing and vision impairments. This will empower them to fully participate in the digital world, access information, communicate with others, and pursue their goals. Here are some specific actions that can be taken:

Content creators:
- Use descriptive text alternatives for images and videos.
- Provide closed captions and transcripts for audio content.
- Design websites and applications with keyboard accessibility in mind.
- Use high-contrast colour schemes and legible fonts.
Developers:
- Develop assistive technologies such as screen readers, magnifiers, and speech recognition software.
- Integrate accessibility features into operating systems and web browsers.
- Collaborate with disability advocacy groups to ensure that assistive technologies are effective and user-friendly.
Organisations:
- Create accessible websites and digital platforms that comply with accessibility standards.
- Provide training and support to employees on how to use assistive technologies.
- Purchase accessible hardware and software for employees with disabilities.
Individuals:
- Learn about the available assistive technologies and how to use them.
- Advocate for accessible technology in the workplace and in public spaces.
- Support organisations that are working to promote accessibility.

Inspiration from around the world

The inspiring life story of Hellen Keller, author, lecturer, and crusader for the handicapped, is a great example. She became blind and deaf when she was less than two years old. She was believed to have had scarlet fever, which then was uncurable, but today, with proper medication and an on-time diagnosis, she can be cured.

Who cannot hum or tap their toes when Stevie Wonder sings or plays the piano? He has proved that nothing is beyond limits and that you can follow your dreams through darkness. Indeed, this is the path to seeing the light at the end of the tunnel.

Closer to home is Sonu Anand Sharma, an Indian deaf badminton player who won a gold medal at the 1997 Deaflympics.

Inspiration is plentiful around the world; it’s just the mind that needs a bit of fine-tuning to learn, use tools, make the most of digital advancement, and hop on the bandwagon that says, “With technology, we can achieve the unimaginable.”

Conclusion

Inclusivity is here to stay and grow. Having digital access, irrespective of your challenges, is a great way to interact autonomously with the world. Where digital is a way of life. We as individuals and society have to take it on ourselves to help specially-abled people reach and achieve their goals by just being that ‘bridge’ that connects.

The medical field has significantly improved our quality of life in the modern world. The pace at which it is advancing every second, aiding in the treatment of illnesses that, even a decade ago, seemed to be a death warrant, is indeed comforting.