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Authored By: Smita Goswami Citation: Criminal Appeal No. 758 of 2010 with Criminal Appeal No. 573 of 2016 Bench: Chief Justice of India N. V. Ramana, Justice Surya Kant and Justice Aniruddha Bose Judgment Date:7th May 2021 Court: Supreme Court of India Introduction It is a case of dying declaration whether it is the sole basis of evidence. The dying declaration is only a piece of untested evidence and just like any other evidence, which satisfies the Court that what is stated therein is the unalloyed truth and is safe to act upon it. Relevant legal provisions The relevant legal provisions involved in the case are described here as follows: The Indian Penal Code, 1860 Section 34: Section 34 defines a criminal act conducted by several persons with a shared intention. In such a situation, all of them are liable as if they had committed such an illegal act alone. Section 114: Section 114 talks about the punishment of an abettor when they are present at the time of the commission of the offence. According to this Section, if an abettor is present when the crime is committed, the abettor would be liable as if they had committed the crime themselves. Section 302: Section 302 defines the punishment for murder. The penalty so prescribed is death or life imprisonment, and a fine. Section 307: This section is related to the topic of an attempt to murder. Whenever any person with an intention or knowledge causes the other party’s death, then the party who has committed the crime will be punished with either description of a term between 2 to 10 years and a fine, or even both. Section 504: This section defines the punishment as the act of intentionally provoking someone when the person pressing knows that the provocation would result in the breach of the public peace, shall be punished with either the imprisonment extendable to 2 years or fine or both. The Code of Criminal Procedure, 1973 Section 313: Section 313 talks about the power to examine the accused in a given inquiry or trial. Section 378: Section 378 discusses the issue of appeal in the case of acquittal of the party. The appeal in this Section is made in the High Court challenging the decision of the lower courts. Also, an appeal against the High Court’s decision can be made before the Hon’ble Supreme Court. The Indian Evidence Act, 1872 Section 32: Section 32 of the Indian Evidence Act of 1872 decides cases involving statements of relevant facts made by anyone who is either dead or cannot be found. Such statements made are deemed to fall in the category of relevant facts. Facts of the case 1. In the present case, both parties knew each other very well. According to the Prosecution, there was some tussle between the families of both parties. Jayamma, the wife of Reddinaika, is the Appellant and the Respondent is Jayamma (deceased), the wife of Ramanaika. 2. On September 10, 1998, a quarrel took place between the two parties in which Thippeswamynaika, son of the dead Jayamma, injured and assaulted the husband of the Appellant i.e., Reddinaika. 3. After that, the Appellants went to the deceased’s house and confronted him about the assault committed on Reddinaika on September 21, 1998. 4. Rupees 4000 were demanded from the Respondents for the cost incurred in medical treatment. There was a heated exchange of words between the two parties, and the Appellants poured kerosene liquid on Jayamma (deceased) and set her on fire. The blame for killing Jayamma was explicitly attributed to the Appellants. 5. On hearing the cry of Jayamma, Ravi Kumar, another son of the deceased, and Saroja Bai, daughter-in-law of the dead and wife of Thippeswamynaika, arrived on the spot and tried to extinguish the fire. In the meantime, the Appellants ran away from the location. 6. Ravi Kumar requested assistance from Kumaranaika in transporting his mother to the hospital. The injured Jayamma was taken to a primary healthcare centre (P.H.C.). Thalak on a bullock cart. 7. There she received primary treatment from Dr. A. Thippeswamy, who also administered some pain killers to Jayamma. After that, the doctor sent medico-legal case information to the Thalak Police station. 8. On receiving the complaint, S.H.O. K.V. Mallikarjunappa came to the hospital and recorded the statement of the injured Jayamma in the presence of Dr Thippeswamy. Jayamma signalled all the Appellants in the case. 9. On the basis of the said statement, Crime No. 101 of 1998 was registered at the Thalak Police Station under Sections 504, 307, 114 read with Section 34 of IPC. 10. Since Jayamma was in a critical condition, she was referred to the Government Hospital, Chitradurga but on September 23, 1998, at 5:30 am, Jayamma succumbed to her injuries. 11. After that, the police sent the requisition to the Court requesting them to register the offence under Section 302 read with Section 32 of the Indian Penal Code, 1860 instead of Section 307 read with Section 34 of the Indian Penal Code, 1860. 12. The body was sent for post-mortem, and it was found that Jayamma died of shock due to extensive burn injuries. Based on the statements of the witnesses, the Appellants were arrested during the investigation. However, they were able to obtain anticipatory bail and were thus released after the arrest. 13. The matter went to the Trial Court, and during the investigation in the Trial Court, several prosecution witnesses turned hostile, except the doctor and the police officer. The matter involved before the Trial Court was whether the death was homicidal or suicidal. The Court noted that the sole reliance was on the statement that was treated as a dying declaration. 14. But the Court did not find any reason for convicting the Accused because, according to it, the Prosecution failed in discharging the proof. The prosecution heavily relied upon the said statement in order to prove the guilt of the accused. However, upon considering the mitigating circumstances such as the testimonies of the hostile witnesses, the nature of the burn injuries of the victim, and the lack of any corroborative evidence, the Trial Court was of the opinion that the prosecution had failed to prove the genuineness of the deceased beyond all reasonable doubt. 15. The only thing on record was the statement of Jayamma, treated as a dying declaration, witnesses, and the nature of burn injuries of the victim. The evidence submitted to support the prosecution was found to be vague and unsatisfactory. Hence, the Appellants were acquitted. 16. It was found by the High Court that the evidence submitted and the dying declaration were enough to bring the conviction of the appellants. The High Court reversed the acquittal granted by the Trial Court and accordingly, the Appellants were convicted under Section 302, read with Section 34 of the Indian Penal Code and were sentenced to life imprisonment. 17. Aggrieved by the High Court order, the Appellants filed two criminal appeals before the Hon’ble Supreme Court against the decision of the High Court. Arguments Arguments by the Appellant’s counsel The learned counsel for the Appellants is of the argument that the High Court has erred in reversing the acquittal order of the Trial Court solely based on the dying declaration of the deceased. It was contended that neither the High Court evaluated the entire evidence nor did it deal with the specific findings of the Trial Court, and as such, the High Court failed to discharge its obligation under Section 378 CrPC. Moreover, in the case of, it was argued that in the absence of a medical certificate attesting to the mental fitness of the deceased before the recording of the dying declaration, the High Court ought not to have placed any reliance upon Ex.P-5. It was then submitted that the High Court overlooked the fact that the prosecution had miserably failed to establish any motive in the present case and, thus, the conviction of the appellants was untenable. Arguments by the Respondent’s Counsel On the contrary, learned State Counsel supported the conviction awarded by the High Court. He clearly pointed out the High Court was justified in convicting the appellants with specific reasons. He even used the case to support his argument. Here, it was contended that in cases of hundred percent burn injuries, the Courts can rely upon the dying declaration to convict the accused. Issues raised The following issues were raised: - A.Whether the High Court erred in reversing the findings of the trial court in the exercise of its power under Section 378 of the CrPC? B.Whether the prosecution has successfully established that the deceased died a homicidal death at the hands of the appellants? Judgment The Supreme Court looked at the dying declaration of the deceased and found out that there was some manipulation done in the original dying order as it appeared that some words had been inserted by the police officer with a different ink. To advertise the actual admissibility and credibility of the statement, the Court quoted a few judgments close to the present case’s facts. The brief of some of the decisions cited is presented here as below: 1. In a case[3], the question before the Court was to consider whether the percentage of burns suffered can act as a determinative factor in affecting the credibility and recording of a dying declaration. The Court held that there was no fixed universal rule in this regard, and it would depend upon the nature of the burn, the impact of the burn, and the part of the body affected by that. 2. In another case[4], the Honorable Supreme Court restated that “the dying declaration is only a piece of untested evidence and just like any other evidence satisfy the Court that what is stated therein is the unalloyed truth and that it is safe to act upon it.” Moreover, they gave some crisp, justified reasons on why the High Court was erroneous in reversing the verdict of the Trial Court. a) They pointed out that the narration of events in the dying declaration seemed so accurate that even a witness in a normal state of mind could not be expected to do so. In addition to this, the events were somehow influenced by the police officer who was present at that time. b) Secondly, the deceased woman was an unlettered, old person who was not expected to narrate the events with such high accuracy. c) Thirdly, the injured 80% burn victim was charged with highly sedative painkillers, which cleared the fact that she might have been in a state of delusion while recording the dying declaration. Besides, it was endorsed by the doctor that she was in a fit state of mind ‘after’ the dying declaration and not before, contradicting the normal practice. Also, the police officer seemed to be in a hurry that he did not record the dying declaration in front of a Judicial or Executive Magistrate. d) Fourthly, there was tremendous contradictions between the statements made by Dr Thippeswamy and the police officer, K V. Mallikarjunappa, regarding the injuries suffered by the victim in different parts of the body. The police officer stated that the deceased’s hands were not injured and that she, therefore, made a thumb impression, but the doctor claimed that the deceased’s hands were injured. e) Fifthly, the police officer has admitted that he did not obtain a doctor's approval as to whether the injured was in a fit state of mind or not. The doctor and officer had tried to cover this solemn fact, and later on, the police officer took an endorsement regarding the state of mind unusually. f) Sixthly, there was no evidence proving the death to be homicidal. The prosecution made no efforts to prove the fact that the deceased was lit with kerosene by the appellants. In addition to this, the son and daughter in law later agreed to the fact that she committed suicide. g) The seventh reason was that there was a divergence from natural recourse being taken, that is, lodging a complaint at the nearest police station for reporting such a ghastly crime, by the son and daughter in law of the deceased. The police officer had enough time to call an Executive/Judicial Magistrate to record the dying declaration. It is believed that such officers have the requisite training to judicially record a dying declaration after complying with particular prerequisites such as certification or endorsement from a medical officer. The Hon’ble Supreme Court was reluctant to accept the contents of the dying declaration. It further said that the victim was brought to the Civil hospital at 12:30 on September 22, 1998. She died due to burn injuries almost 30 hours later, i.e., at 5:30 am on September 23, 1998. There was adequate time to call the Executive Magistrate, but the same did not happen. The Supreme Court felt that the power of authority by the High Court under Section 378 of the Code of Criminal Procedure, 1973 should not be invoked routinely when the view of the Trial Court is the possible and correct one. The judgment of the Trial Court should not be set aside merely on the fact that the High Court finds its view more correct and reasonable. The above reasons make it clear why the High Court should not have reversed the verdict by the Trial Court and why the prosecution also failed to establish that it was a homicidal death at the hands of the appellants. Therefore, the Hon’ble Supreme Court finds it difficult to hold the appellants guilty based only on the dying declaration. Both the criminal appeals were allowed, and the appellants were acquitted of the charge. Conclusion The above-mentioned case throws light on the fact that a single mistake during the interpretation of a case can lead to injustice. Here, if the Supreme Court had not reversed the verdict by the Trial Court, the appellants would have been mistakenly convicted of a crime they have not committed. Someone who is not guilty of any wrongful act and getting convicted poses a threat to the mental health of the person as well as on his family. Society also starts viewing him from a different perspective. Thus, a proper understanding of the situation and putting facts in front of judges by the respective counsels play a major role while delivering a decree or a judgment. Precedents [1]Paparambaka Rosamma & Ors v. State of A.P [(1999) 7 SCC. 695 : 1999 SCC (Cri) 1361] [2]Vijay Pal v. State (Government of NCT of Delhi)(2015) 4 SCC [3]P.V. Radhakrishna v State of Karnataka AIR 2003 SC 2859 : 2003 AIR(SCW) 3587 : 2003 (6) JT 84 : 2003 (5) Scale 438 : 2003 (6) SCC 443 : 2003 (5) Supreme 98 : 2003 (4) RLW 557 [4]Sham Shankar Kankaria v State of Maharashtra,(2006) 13 SCC. 165) Bibliography 1. Jayamma v State of Karnataka https://blog.ipleaders.in/jayamma-anr-v-the-state-of-karnataka-the-supreme-court-clarifies-the-law-on-dying-declaration/ 2. Judgment https://main.sci.gov.in/supremecourt/2009/38202/38202_2009_31_1503_28001_Judgement_07-May-2021.pdf

Authored By: Niket Aman Citation: MANU/SC/0014/2021 [Civil Appeal Nos. 3802-3803/2020] Date of Judgement: 11 January 2021 Division Bench: Dr D.Y. Chandrachud, Indu Malhotra, and Indira Banerjee, JJ. Court: Supreme Court of India Introduction The Arbitration and Conciliation Act came into existence in the year 1996, and the purpose of this act is to minimize the load of the courts, as already courts have thousands of pending cases that are very serious. Through this the parties don’t have to go to the courts to settle their disputes, they appoint someone who will look after their disputes when it arises. Parties can make a separate agreement for the arbitrator, or they can include it in their partnership deed (both can be possible). The doctrine of separability of the arbitration agreement connotes that the invalidity, ineffectiveness, or termination of the substantive commercial contract, would not affect the validity of the arbitration agreement, except if the arbitration agreement itself is directly impeached on the ground that the arbitration agreement is void ab initio. The case of N.N. Global Mercantile vs. Indo Unique Flame Ltd. in which the agreement of arbitration is not duly stamped then the contract is not valid. This judgment brings a new light to the field of arbitration, and it also means that there will be a friendly environment for the arbitration. The judgment is very essential for the Doctrine of Severability, it is very important for arbitration. Facts In this case, the parties Global Mercantile and Indo Unique came together to form a contract of “Transport Work Order” for the washing and transportation of coal. For the work order of Indo Unique form, a bank guarantee in favour of KPCL by State Bank of India (Respondent 2). For transportation of coal, they entered into a sub-contract with N.N. Global Mercantile. Global Mercantile can issue the securities that have been deposited and contained in clause 9 of the sub-contract. If there are any disputes between the parties then they can refer to the arbitration process that has been mentioned in clause 10 of the sub-contract. In favour of the State Bank of India, Global Mercantile furnished the [I1] bank guarantee. One of the events is that the case went to the commercial court of Nagpur that has been presented before the Bombay High Court, through the written petition under articles 226 and 227 of the Constitution of India. The court in its finding mentioned that the commercial court is not right in its judgment, and it has been overthrown and told that the arbitration of agreement is maintainable between the parties and the application under section 8 of Arbitration and Conciliation Act, 1996. The arbitration agreement is unenforceable if the sub-contract is unstamped and it could increase the filling under section 11 of Arbitration and Conciliation Act, 1996, it has been told by High Court in its finding. Not satisfied by the decision of the High Court of Nagpur, the aggrieved party that is Global Mercantile filed a special leave petition before the Supreme Court of India under its constitutional rights. Key Contentions/Issues Raised After hearing the argument from both the parties, there are three issues raised[I2] : I. Whether an arbitration agreement would be enforceable and acted upon, even if the Work Order dated 28-09-2015 is unstamped and un-enforceable under Stamp Act? II. Whether allegation of the fraudulent invocation of the bank guarantee is an arbitrable dispute? III. Whether a Write petition Under Articles 226 and 227 of the Constitution would be maintainable to challenge an Ordre rejecting an application for reference to arbitration Under Section 8 of the Arbitration Act? Arguments 1. Argument presented by the Appellant: The appellate counsel, filed a civil suit against three respondents before Commercial Court, in which it has been told that the work has not to be allotted under work order by Indo Unique, and no payment has been made for that, or any receipt has been given. [I3] It has also been told that the bank guarantee is not in the terms of the work order, and it is a conditional guarantee linked to the performance of the work. At the request of the counsel for the Appellant, the High Court suspended the operation of its Order for a period of one month from 30.09.2020. 2. Argument presented by the Respondent: According to the respondent counsel, they raised the objection [I4] on the ground of the civil revision petition before the Bombay High Court that has been challenging the order of the commercial court. [I5] Judgment The apex court into its judgment took the Doctrine of Separability and [I6] the Amendment in section 11 of the act tells that the interference of the court should not be in the arbitration process. It has been told by the court that the unstamped agreement cannot be considered and enforced into the arbitration agreement through the case of SMS Tea Estates Pvt. Ltd. Vs. Chandmari Tea Co. Pvt. Ltd. In this judgment, the court looks at the aspects of the non-registered and unstamped document that are unenforceable in the agreement. In the context of the stamp duty, the court said that if the payment of the stamp is not made then the Stamp Act cannot be read in a balanced way with the provision of the Arbitration and Conciliation Act. The court in this case mentioned minimizing the judicial intervention following the amendment of Section 11 of the Act and corresponding legislative overruling of Patel Engg. This court relied on the judgment given by Raveendran and in the SMS Tea case, the conclusion is the same as in the SMS Tea case. It has been told the arbitration clause only be enforceable only when it could be enforceable by law through the case of Garware. It also should be duly stamped to be enforced. For the unstamped agreement, the court has to look into Stamp Act, Contract Act, and Arbitration and Conciliation Act, to be read to find out. After reading all the provisions the court found out that the arbitration agreement would not render if the stamp duty is not paid on the substantive commercial contract as the agreement contained in it is unenforceable or invalid. The Court then reasoned by adopting a harmonious view of the relevant Stamp Act's required clauses and its duty to implement arbitration agreements. They told the inadequacy in the judgment in Garware so they rely on the doctrine of separability, it has also been mentioned that the stamped duty should be paid and until then the arbitration agreement is not vails in the eyes of law. SMS Tea’s judgment has been overruled by the current case judgment. At the time of the appointment of an Arbitrator the unstamped document can be dealt with, it has been laid down by the court. The court in its finding distinguished the purpose of sections 11 and 9 of the act and told that the cases that have been filed under section 9 should be dealt with quickly and give more importance to that, the Court would first grant ad-interim relief to safeguard the subject-matter of the arbitration and then impound the instrument for payment of the required stamp duty. On the second question, whether the allegation of fraudulent use of the bank guarantee was arbitral, the Court relied on several of its judgments and found that the courts' earlier views of non-arbitration fraud were completely out of date and obsolete. The court dismissed these concerns, usually based on assessments of extensive evidence, poor arbitrator expertise, inadequacies in arbitration, and misconceptions about public policy, and therefore ruled that fraud was arbitrable. Precedent Mentioned (Case Laws): 1. Heyman v. Darwins Ltd., 1942 2. Bremer Vulkan Schiffbauund Maschinefabrik v. South India Shipping Corporation, 1981 3. Harbour Assurance v. Kansa General International Insurance, 1993 4. Lesotho Highlands Development Authority v. Impregilo SpA and Ors., 2005 5. Gossent v. Caparelli Cass, 1963 6. Fiona Trust & Holding Corporation v. Privalov, 2007 7. Fill Shipping Co. Ltd. And Ors. v. Premium Nafta Products Ltd. And Ors., 2007 8. Prima Paint Corporation v. Flood & Conklin MFG. CO., 1967 9. Buckeye Check Cashing Inc. v. Cardegnaet, 2006 10. Rent-A-Center, West, Inc. v. Jackon, 2010 11. Preston v. Ferrer, 2008 12. Purv Sainik Kalyan Nigam Ltd. v. Northern Coal Field Ltd., 2019 13. Duro Felguera S.A. v. Gangavaram Port Ltd., 2017 14. Dresser Rand S.A. v. Bindal Agro Chem Ltd., 2006 15. BSNL v. telephone Cables Ltd., 2010 16. PSA Mumbai Investments Pte. Ltd. v. Jawaharlal Nehru Port Trust, 2018 17. A. Ayyasamy v. Parmasivam and Ors., 2016 18. Garware Wall Ropes Limited v. Coastal marine Constructions and Engineering Ltd., 2019 19. SMS Tea Estates Pvt. Ltd. v. M/S Chandmari Tea Co. Pvt. Ltd., 2011 20. SBP & Co. v. Patel Engineering Ltd., 2005 21. United India Insurance Co. Ltd. v. Hyundai Engg. & Construction Co. Ltd., 2018 22. Shriram EPC Ltd. v. Rioglass Solar SA, 2018 23. Hindustan Steel Ltd. v. M/S. Dilip Construction Company, 1969 24. Vidya Drolia & Ors. v. Durga Trading Corporation Case Analysis This case is made the true nature of the Doctrine of Severability, and it is based on the International landmark judgment of Gosset v. Caparelli, 1963, in which it has been noted that the arbitration agreement is can survive in the situation in which the contract is invalid, this is because of Kompetenz-Kompetenz. There has no clause for the impeachment of the arbitration clause. In addition, the Supreme Court of India mentioned that the arbitration clause can maintain its position despite the contract being not maintainable, this comes under section 16 of UNCITRAL Model Law. Section 3 of the Maharashtra Stamp Act tells that there should not be required to the arbitration agreement should be stamped. Then we can say that this section does not act as an obstacle to the invoking of the arbitration clause as the contract is not stamped. Not only this the Court also took significance into the minimum judicial intervention in the dispute resolution through section 5 of the Arbitration and Conciliation Act, 1996 and also section 16 of this act. In these sections, it has been mentioned that all the matters related to the industry, civil, and partnership matters can easily be resolved by arbitration by the appointment of an arbitrator. The Supreme Court of India in its second issue told that the judicial pattern has not been followed very well it did not take into consideration the arbitration issue, the judgment given on this is a biased form of interpretation. It can be said that the judgment was given in this case that the parties have the right to invoke the arbitration clause in the unstamped instrument, meantime seeking any middle path and nominating an arbitrator. whether an arbitration agreement would be unenforceable if the underlying contract was not stamped- the answer to this question is, that the apex court into his precedent told that if the arbitration agreement is not been duly stamped underlying the contract, then according to sections 33 and 35 of the Stamp Act, such contract shall be unenforceable till the payment of the requisite stamp duty. Conclusion It can now be said that the Supreme Court of India has given the judgment by considering the Heyman v. Darwins, case established by Lord MacMillan in the English Common Law. This judgment is the pillar of section 16 of the Arbitration and Conciliation Act, 1996. The purpose of this is to give equal rights to both the parties and they don’t have to go to the courts and incur expenses not only money but also time. This case sets an example for the future and encourages the other to go to the arbitration rather than the courts as it is more resourceful and less expensive than the courts, as the courts follow so many procedures and technical processes that take time to finish. This judgment has significance internationally as well as nationally. This judgment also going to benefit the international business venture and also promote doing business with India. The Court has by this judgment made it clear that the disputes regarding the arbitration and many frauds related to that should be dealt with by the arbitration tribunal. References/ Bibliography: 1. N.N. Global Mercantile Pvt. Ltd. vs. Indo Unique Flame Ltd. and Ors., 2021 MANU/SC/0014/2021, 2. SSC OnLine SC13. 3. A1996-26.pdf (legislative.gov.in)

Authored By: Aryamann Bhatia Citation: Civil Appeal no. 10084 of 2016 Date of judgement: 6th October,2016 Division bench: Justice Kurian Joseph and Justice Rohinton Fali Nariman Court: The Supreme Court of India Introduction Women for centuries have been subjected to abuse and violence at their homes. In recent times, when a lot of people are confined to their homes due to covid pandemic, there has been a significant increase in reported cases of violence/abuse against women. In countries like India, women still find it difficult to protest or lodge a complaint because of the sensitivity, humiliation and shame around the subject as well as pressure imposed by the families. Therefore, it is important that women should understand their rights provided by laws and the courts of our country. The Protection of Women from Domestic Violence Act, 2005 defined different aspects as to the meaning of domestic violence, the aggrieved, the respondent etc. Section 2(q) of the Protection of Women from Domestic Violence Act, 2005 defined the term “respondent” as any “adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act.” On 6th October, 2016, in the case of Hiral P. Harsora and Ors vs Kusum Narottamdas Harsora and Ors. [Civil Appeal No.10084 of 2016], the Supreme Court deleted the word “adult male” replaced it with “person” in Section 2(q) of the Protection of Women from Domestic Violence Act, 2005, detecting that “the words “adult male person” are conflicting to the object of affording protection to women who have suffered from domestic violence “of any kind” and that “ these words discriminate between persons similarly situate, and far from being in tune with, are contrary to the object sought to be achieved by the 2005 Act. ” The provision of “adult male person” was challenged in the case. Facts Kusum Narottam Harsora and her mother Pushpa Narottam Harsora on 3rd April, 2007 filed a complaint against her brother/son Pradeep, his wife and the two sisters/ daughters under “The Protection of Women from Domestic Violence Act, 2005”, alleging acts proving violence against both the plaintiffs. They withdrew the case on 27th June 2007 and filed independent complaints against the respondents. The respondents’ sought the discharge of Respondents No. 2 to 4, i.e., the wife of the son/brother Pradeep, and his two sisters, as the said complaint was filed under Section 2(q) of “The Protection of Women from Domestic Violence Act, 2005”, which states that the complaint can only be made against any “adult male member”, and it was mentioned that as the Respondents’ no. 2 to 4 did not fall in the category of being “adult male”, they shall be discharged. This application was rejected. Hence, a writ petition was filed in the Bombay High Court by the respondent. On 15th February 2012, the Bombay High Court accepted the argument of the respondent and on the basis of “The Protection of Women from Domestic Violence Act, 2005” discharged the female respondents. The mother and daughter filed a petition in the Supreme Court of India alleging that the Section 2(q) of the above-mentioned Act is violative of Article 14 of the Constitution of India. Arguments Arguments presented by Appellants · Sh Harin P. Raval, Senior advocate appearing on behalf of the appellants argued that the “respondent” as defined in Section 2(q) of the Act can only mean an adult male person. · He stated that as per Section 2(q) of the Protection of Women from Domestic Violence Act, 2005 “respondent” only in the case of an aggrieved wife or female living in a relationship in the nature of a marriage, in this case, a female relative of the husband or male partner can be accused as a respondent. · He sought to attack the judgment on the ground that the Court has not read down the provision of Section 2(q), but read just the definition. · He further argued that in fact there was no uncertainty because the expression “adult male person” cannot be weakening in the manner done by the High Court in the dispute judgment. Arguments presented by Respondents · Ms. Meenakshi Arora, senior counsel appearing on behalf of the respondents, countered each of these submissions. · She argued that the 2005 Act is for the protection of women from domestic violence of all kinds. · In the said case, it was clear that any definition which seeks to restrict the reach of the Act would have to be either struck down as being violative of Article 14 of the Constitution. · She said that the High Court judgment was correct, and that if the said expression is not struck down, it should to be read down in the manner advised to make it constitutional. · She also countered the submission of Shri Raval stating that the 2005 is not penal in nature and cannot be availed of in the civil courts. · She further argued that the Act would become unworkable and would be used against adult male members and not their co-conspirators who may be females. · Ms. Pinky Anand, Additional Solicitor General for India, adopted the arguments of the counsel appearing for the Union of India in the Bombay High Court. · She submitted that in view of the judgment in Kusum Lata Sharma v. State of the Delhi High Court, constituting that the mother-in-law is also entitled to file a complaint against the daughter-in-law under the provisions of the 2005 Act. She submitted that the challenged judgment does not require interference at their end. Judgement The two judges of the Supreme Court consisting of Justice R. Nariman and Justice Kurian Joseph declared that the words “adult male” in Section 2(q) of the 2005 Act would stand deleted since these words do not agree with Article 14 of the Constitution of India. So, the provision to Section 2(q) rendered ineffective and stands deleted. Precedents · Prabir Kumar Ghosh & Ors vs Jharna Ghosh & Anr on 20 August, 2015 · Jyoti vs Vishal Chauhan on 3 March, 2020 · Smt. Kajal vs State Of U.P. And 3 Others on 31 January, 2020 Case analysis · The court came to the ending that the issue of Domestic Violence against Women is still triumph. There are some compensations available to the aggrieved in the Criminal law, hence “The Protection of Women from Domestic Violence Act, 2005” is important. · The limit of the Respondent to being an adult is not valid anymore as it is not difficult to find a minor person participating or abetting in domestic violence against the offence. The word “adult” deleted. · The words “adult male” being deleted would not make the rest of the sub section or section invalid. The definition of the word “Respondent” shall be changed, and it shall include anyone and everyone without discriminating on gender or age. · “Adult male” is a violation of Article 14 of The Constitutions of India 1949, they were deleted and the rest of the provision stayed valid. · This becomes even clearer from certain other provisions of the Act. Under Section 18(b), for example, when a protection order is given to the aggrieved person, the “respondent” is prohibited from aiding or abetting the commission of acts of domestic violence. · This again would not take within its ken females who may be aiding or abetting the commission of domestic violence. · Such as daughters-in-law and sisters-in-law, and would again stultify the reach of such protection orders. Conclusion Hiralal P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165, wherein the Hon’ble Court had struck down a part of Section 2(a) of DV Act holding it to be violative of Article 14 of the Constitution, and the phrase ‘adult male’ as appearing in Section 2(q) stood deleted. The High Court observed that if the said sub-section is read after deletion of the expression ‘adult male’, it would appear that any aggrieved person, in terms of DV Act, whether male or female, is entitled to invoke provisions of the Act. It gave an opening to the female or non-adult preparators to commit the acts of domestic violence, and yet no suit would be maintainable against them. Therefore, that has been rectified by this judgement. Reference/bibliography ·Hiral P. Harsora and Ors. vs. Kusum Narottamdas Harsora and Ors. (lawessential.com) ·Hiral P. Harsora And Ors vs Kusum Narottamdas Harsora And Ors on 6 October, 2016 (indiankanoon.org) ·Hiralal P. Harsora and Ors. v. Kusum Narottamdas Harsora and Ors. - iPleaders https://main.sci.gov.in/judgments ·Protection of Women from Domestic Violence Act, section 2(q), No43.Acts of Parliament, 2005. ·Hiral P. Harsora and Ors. vs. Kusum Narottamdas Harsora and Ors. (2016) 10 SCC 165. ·Protection of Women from Domestic Violence Act, section 2(a), No43.Acts of Patliament,2005. ·Protection of Women from Domestic Violence Act, section 2(f), No43.Acts of Parliament, 2005. ·Protection of Women from Domestic Violence Act, section 2(s), No43.Acts of Parliament, 2005.

Authored By: Kartikeya Nain Citation: Civil Appeal Nos. 4494-4495 of 2021 Date of Judgement: 18th March 2021 Court: The Supreme Court of India Bench: Justice Rohinton Fali Nariman, Justice B.R. Gavai Introduction An Emergency Arbitrator is a solution for the earliest relief and helps prior to framing an arbitral court. The main job of Emergency Arbitration becomes an integral factor in a circumstance when there is no arbitral tribunal set up or in a circumstance where adequate time would be squandered in setting up one, contingent on the necessities of a discretionary understanding of the institutional guidelines. It multiplies as a guarantee due to different imperfections in the framework, for example, absence of trust in the public courts to concede pressing relief, spillage of classified data, misrepresented prosecution costs, and so forth. One of the objectives of forming an Emergency Arbitrator is to accomplish a goal than that which gets through the public courts under section 9 of the Arbitration and Conciliation Act. Facts of the Case In 2019, Future Group, which is India's second-biggest coordinated disconnected retailer, needed to team up with foreign investors to develop their business. The advertisers "Biyanis" rebuilt a current gathering element, Future Coupons Private Limited ("FCPL") to obtain portions of Future Retail Limited ("FRL"). Considering it to be a splendid chance. Through the FCPL-SSA, it was commonly concluded that the Biyanis and Amazon would together exercise the privileges of FCPL in FRL, and explicitly never without Amazon's consent. Following one year, in August 2020, Amazon, to its absolute amazement, discovered that FRL, without their endorsement or consent, had supported a contested exchange with a confined individual, for example with Mukesh Dhirubhai Ambani Group ("MDA"). These contested exchanges and confined people were precluded completely under the FCPL-SSA. Amazon sought intervention under the FCPL-SSA, which was represented by the Singapore International Arbitration Center ("SIAC") and had its seat in New Delhi. Because of the earnestness in question, in October 2020, Amazon recorded an application for the arrangement of an emergency arbitrator as given under the SIAC Rules, and accordingly, an Emergency Arbitrator ("EA") was selected. Accordingly, FRL (co-Respondent), brought up a primer criticism regarding the ward and arrangement of the EA. Among others, it was additionally argued that there was no legitimate mediation understanding between the FRL and Amazon. Issue Whether an ‘Emergency Arbitrator’ is an arbitrator within the meaning of Section 2(1)(d) of the Arbitration & Conciliation Act?[ii] Arguments Contention of the Petitioner In the Court proceeding, Amazon upheld the EA's organization and presented that the EA' is well inside the extent of the meaning of 'Arbitral Tribunal' under Section 2(1)(d) of the Act. Having been passed as per the SIAC Rules, the EA's organization keeps on being legitimate and restricted to parties. The idea of party independence and its results have been relied upon by the Court to presume that EA falls inside the meaning of 'Arbitral Tribunal' as the gatherings' determination of SIAC Rules to administer the arbitral procedure, which has arrangements of Emergency Arbitration, itself demonstrates the gatherings' consent to be limited by the EA's structure. Amazon further depended on the Rules of the Delhi International Arbitration Center, Mumbai Center of International Arbitration, and Madras High Court Arbitration Center, which accommodate Emergency Arbitration techniques to fight how Emergency Arbitration is perceived under Indian law. Amazon presented that they were prepared to monetarily help the Future Group in the most ideal way they could. However it was to its shock that its shareholding had been weakened because of the contested exchanges being entered into by the Future Group with a confined individual. For example MDA disregarding the conditions of the FCPL-SSA. Amazon additionally contended that, as appropriately maintained by the EA, the Group of Companies precept applies decisively to the debate, taking into account the points of reference set out by the Supreme Court in Chloro Controls India Private Limited v. Sever N Trent Water Purification Inc.[iii] Contentions of the Respondent Respondents presented that the 'Arbitral Tribunal' as characterized in Section 2(1)(d) of the Act does exclude an EA. They kept up with the fact that the arrangement of an EA under SIAC Rules was invalid. Along these lines, any request conceded by the EA would likewise be invalid. The thinking embraced by the Respondents was that the EA's structure would never be a request for the 'Arbitral Tribunal' either under the arrangements of the Act or significantly under the SIAC Rules. Respondents additionally contended that the language of Section 17(2) of the Act, can nor be extended, nor can the meaning of 'Arbitral Tribunal' be extended by the course of development to cause a circumstance where a request/grant by an EA is put at par with the request passed by an Arbitral Tribunal. Respondents kept up with the Indian courts observations requests made by EAs just with regards to foreign situated assertions, where procedures were recorded under Section 9 of the Act to look for authorization of the foreign EA's organization and not treat an EA's structure as one passed under Section 17 of the Act and contended that the gathering of organizations precept applies just in procedures under Section 8 of the Act and not in Court Proceedings like the present. Judgement Delhi High Court decides that an EA is a sole arbitrator appointed by an arbitral foundation to consider an application for an emergency interval alleviation in situations where the gatherings have consented as per the Rules of an arbitral organization which contain arrangements connected with emergency assertion. The situation with the EA is holistically founded on party independence, and henceforth a request/grant from the EA is restricted to on every one of the gatherings. The Court then, at that point, dove into the significant qualities of emergency discretion and decided that an EA has the ability to manage emergency break help, and his request/grant can be tested uniquely at the seat of mediation. Establishments like SIAC select an EA inside 24 hours of the solicitation by a party, and the application for the said explicit design is chosen within 15 days. Consequently, the Delhi High Court held that the EA is an Arbitrator in every practical sense, which is obvious from the conjoint perusing of Sections 2(1)(d), 2(6), 2(8), and 19(2) of the Act and SIAC Rules which are essential for the mediation understanding of Section 2(8) of the Act. Further, according to the Court, Section 2(1)(d) is broad to the point of including an EA. Under Section 17(1) of the Act, the Arbitral Tribunal has a similar ability to make interval requests as the Court, and Section 17(2) makes such break request enforceable in a similar way as though they were requests to the Court. The Court additionally thought that the current Indian legal structure is adequate to perceive the law of Emergency Arbitration and that there is no need for a change in such a manner. Case Analysis As of late, the Supreme Court of India pondered on a critical part of assertion law and gave a milestone choice on account of Amazon v Future Coupons. The case raised under the steady gaze of the pinnacle court managed the enforceability of Emergency Arbitration. Its legitimacy as to Indian law was the disputed matter between both the gatherings and was treated as a significant inquiry of law by the peak court. This article tries to clarify the verifiable grid of the case and the ramifications of the choice. This case holds importance for different reasons. Initially, it adds to India's voluminous understanding of the statute on worldwide business assertion. Besides, it answers a moderately new and less well-analyzed part of discretion considering recently held choices. Thirdly, it clarifies how the choice is intelligent of India's position of negligible legal mediation in issues of discretion, consequently instigating certainty and sureness in foreign investors. Conclusion The request for the emergency arbitrator is restricting upon the gatherings however not on the along these lines established arbitral tribunal, which has the ability to re-evaluate, adjust, end or cancel the request/grant of the emergency arbitrator. The court expressed that segment 2(1)(d) of the Act, which characterizes an arbitral tribunal, is broad to the point of including an Emergency Arbitrator, as it is important for the sole arbitrator. Hence, there exist similar powers for an emergency arbitrator as given to the arbitral tribunal under the Act. References [i] Amazon v. Future Group https://main.sci.gov.in/supremecourt/2021/3947/3947_2021_32_1501_29084_Judgement_06-Aug-2021.pdf [ii] Section 2(1)(d) of the Arbitration & Conciliation Act https://www.indiacode.nic.in/show-data?actid=AC_CEN_3_46_00004_199626_1517807323919§ionId=24502§ionno=2&orderno=2 [iii] https://briefcased.in/case-brief/arbitration-law/chloro-controls-i-p-ltd-v-s-severn-trent-water-purification-inc-ors/

Authored By: Saumya Singh Citation : Civil Appeal Number- 000019-000020 of 2021 (arising out of SLP (C) Nos. 18728-18729 of 2018)[Diary Number- 16762 of 2018] Bench: Justice N.V. Ramana, Justice S. Abdul Nazeer and Justice Surya Kant Court: Supreme Court of India Judgment Date: 5 January, 2021. Judgment of this case states that the value of homemaker's work is no less than the value of husband's work at the office. In this case ,the court settled the controversy as to whether the concession made by any counsel would be binding on the litigating party or not. Introduction: In this case the Supreme Court while calculating the National income in the motor vehicle accident, was of opinion that the non earning members including homemakers and the deceased members should be taken into consideration for just and fair compensation. The court partly allowed the appeal from the award of the High Court of Delhi where the High Court had disallowed future prospects awarded by the Motor Accident Claims Tribunal, Rohini for a deceased victim who was a home-maker and additionally increased the awarded compensation amount. Brief Facts of the Case: 1. These Civil Appeals have been filed by three surviving dependents (i.e. two minor daughters and father) of the two deceased in which they challenged the Delhi High Court's judgment dated 17/07/2017. 2. On 24/12/2016 the High Court reduced the amount given for the motor accident compensation which was awarded by Motor Accident Claims Tribunal, Rohini as per section 168 of the Motor Vehicles Act 1988, and it was reduced from Rs. 40.71 lakhs to Rs. 22 lakhs. 3. The accident occurred on 12/04/2014 in which the deceased couple Vinod and Poonam were hit by a Santro Car (Registration Number: DL 7CA 1053) while commuting on a motor-cycle in the early morning at around 07:00am. The couple passed away on that day itself from hemorrhagic shock and cranio cerebral damage caused due to the accident's blunt force trauma. 4. An FIR was filed against the car driver for rash and negligent driving under sections 279 and 304 of the Indian Penal Code, 1860. Subsequently, the two toddler daughters and septuagenarian parents of the deceased filed a claim petition according to the section 166 of the Motor Vehicles Act, 1988 against the Oriental Insurance Company Ltd. 5. The tribunal took note of the charge sheet filed against the driver of the car and relying on the strong testimony of the independent witness(Constable Vishnu Dutt), the Tribunal held that the car driver was driving rashly which made the insurance company liable for the payment of the compensation. The tribunal also took various factors into account and awarded a total sum of Rs. 40.71 lakhs to the deceased's claimant. 6. However the respondent-insurer (Oriental Insurance Company Ltd.) was not satisfied with the decision of the Tribunal and challenged the said award before the High Court of Delhi. The High Court accepted most of the contentions made by the respondent-insurer. And allowed the appeal in part, and deleted a part of compensation awarded by the Tribunal towards capitalization of the future prospects. 7. Thus, the claimants of the deceased, aggrieved by the order of the High Court filed an appeal before the apex court for redressal. Issues Raised before the Supreme Court: Issues raised in this case are as follows- 1. Deduction for personal expenses- To calculate the share of deduction of personal expenses, should the subsequent death of the deceased's dependent mother be taken into consideration? 2. Assessment of the monthly income- To calculate the monthly income of the deceased, should the minimum wage of the lowest-tier be used? 3. Addition of future prospects- Where there is no proof of any fixed salary or employment, should the payment for future prospects be made to the deceased? Relevant Provisions: 1. Section 166 of the Motor Vehicles Act, 1988- States for the application for compensation. 2. Section 168 of the Motor Vehicles Act, 1988- States the award of the claims tribunal. [ii] 3. Section 279 of the Indian Penal Code, 1860- States rash driving or riding on a public way and it's punishment. 4. Section 304 of the Indian Penal Code, 1860- States punishment for culpable homicide not amounting to murder. [iii] Decision of the Honorable Supreme Court: The court made the following observations and decided on each issues that arose before the court- 1. Deduction of personal expenses- The apex court observed that, at the time of death due to accident there were four dependents of the deceased, not three. The four dependents of the deceased were two parents and two children having the age of three and four years respectively. The deceased's defendant mother died subsequent to the occurrence of the motor accident. The court held that deceased dependent mother's death subsequent to the occurrence of the motor accident cannot be a reason for reduction in motor accident compensation amount. Thus while determining the compensation amount, claims and liabilities have to be considered at the time of the accident itself and any changes after that would not ordinarily affect the proceedings. Similarly it was legally settled by the apex court that counsel (advocates) cannot enter into any arrangements which is against the law and also either sides advocate would not legally bind the parties in this regard. Furthermore the court observed that any compensation awarded by a court should be just, reasonable and must be guided by the principles of fairness, equity and good conscience. The court also observed that the family of the deceased consist of not only septuagenarian parents but also there were two toddler girls of three and four years of the age respectively and both the children requires a good amount of care and expenses till the time they become self dependent. Additionally, the rash and negligent driving of the driver also extinguished the life of the third child of the family who was a foetus in the womb of Poonam as she was pregnant at the time of accident. Therefore, the appropriate deduction for personal expenses of the two deceased (i.e. Poonam and her husband, Vinod) ought to be 1/4th only and not 1/3rd as determined by the Tribunal and High Court. 2. Assessment of the monthly income- The court on this issue observed that determining the compensation amount at the rate of minimum wage in the absence of proof of deceased's income is not justified. Further court also stated that the existing standard of living of the family of deceased and his (deceased's) educational qualifications have to be taken into consideration while determining the amount of compensation as per the motor accident compensation law. The minimum wage applicable to a skilled-workers must be used to calculate their monthly income. The apex court held that the minimum wage applicable to the skilled workers in the state of Haryana during the time of motor accident (i.e. during April 2015) have to be applied here in this case also. 3. Addition of future prospects- While referring to this issue, the apex court relied on the judgment passed by the constitutional bench of this court in the case of National Insurance Co. Ltd. versus Pranay Sethi (Supra) [iv] where the court held that in case the deceased was on a fixed salary or self employed and he was below forty years of age then the future prospects must be paid to the tune of forty percent of the established income. The court also discussed the observations of this court in the case of Hem Raj versus Oriental Insurance Company Ltd. wherein the court was of view that there cannot be any distinction between the cases where there is positive evidence of income and the cases where the minimum income is calculated on basis of guesswork in the facts and circumstances of the case. Therefore the court granted future prospects calculated to tune of forty percent of deceased's established income as Vinod and Poonam (29 and 26 years of age respectively) both were below the age of 40 years. The court also rejected the contention of respondent insurer (Oriental Insurance Company Ltd.) that the future prospects cannot be allowed in the cases of National Income. The court allowed the appeals in-part. Also the court increased the motor accident compensation of rupees twenty-two lakhs awarded by the High Court to the claimant-appellants. The court increased it by Rs. 11.20 lakhs making it a new sum of Rs. 33.20 lakhs as motor accident compensation. Analysis of the Judgment: Justice N.V. Ramana was of the same opinion with the above findings and reasonings of the court in this case. In addition, he penned down his opinions with respect to the question on the determination of national income of the housewife and whether the future prospects should apply to the same or not. His observations are as follows- a) While determining the national income of a victim, there are two different categories of situations on the basis of which the court usually decides, wherein the first category consists of the cases wherein the victims who are employed at the time of accident but the surviving dependents (claimants) of that victim are not able to prove her actual income before the court. In such a case, the court guesses the victim's income on the basis of evidence on record. For example - On the basis of the living standards of victim, educational qualifications, her family and other considerations. The second category relates of the cases wherein the court has to decide the income of non earning victim such as a student, a child or a homemaker. b) The future prospects cannot be refused solely on the ground that there was no evidence to prove the actual income of the deceased and the future prospects is also payable in the cases of national income and the same principle must be applied in case of non-earing victims particularly with the respect to housewife. c) The granting of compensation to housewife on the pecuniary basis is a settled opinion of law. d) The granting of the future prospects on calculated national income, is a component of just compensation. e) Fixing national income of a housewife will serve as a extreme important function and it will serve in the recognition of the labor, services and sacrifices of the housewife. Additionally it will promote the constitutional vision of ensuring dignity of life to all the individuals and social equality. f) There can be no fixed approach to calculate the national income of a housewife as there are various methods through which it can be determined. But it is the responsibility of the court to ensure that the method used in calculating the national income of a housewife is just as per the facts and circumstances of the particular case. Conclusion: The apex court in this case stated that the estimation of homemaker's work is nearly as equivalent as others who are office specialist. This judgment will provide guidance to the tribunals and courts while assessing compensation for the victims of motor accident especially homemakers. This judgment contribute towards negating the notion that homemakers cannot share the same position of that of a bread-winner and do not contribute any economic value to the society. Furthermore, it will also aid and reinstate the principles of social equality and dignity of all as provided in the Constitution of India. References: [i] Kirti & Anr. versus Oriental Insurance Company Ltd. [ii] Section 166, 168 Motor Vehicles Act. [iii] Section 279, 304 IPC. [iv] National Insurance Co. Ltd. versus Pranay Sethi (Supra)

Authored By: Devashish Bodhankar Citation – Criminal appeal No. 510 of 2021 Date of Judgment – 12/05/2021 Bench - Justice Uday Umesh Lalit, Justice K.M. Joseph, Justice Ms. Bannerjee Court –Honorable Supreme Court of India Introduction In this case, the petitioner was arrested from his residence in Delhi. After this he moved to Delhi High Court to file a writ of Haebous Corpus and contends the arrest as illegal. At the same time he was produced before the Chief Metropolitan Magistrate by the NIA (National Investigation Agency), who by its order permitted NIA to produce Mr.Gautam before the special court of NIA in Maharashtra. After this, CMM’s (Chief Metropolitan Magistrate) order was stayed by the Delhi High Court and directed the NIA to keep the petitioner in “house arrest” until further orders. Then a writ petition was filed in the honorable Supreme Court against the Maharashtra Police, through this the order of “house arrest” was extended and then Supreme Court dismissed the writ petition. After this High Court of Delhi by setting aside the order of CMM of transit remand , allowed petitioner’s plea by observing that the constitutional mandates was not followed in this case and it was held that the petitioner “house arrest” finally come to an end (Gaurav Thote, 2021). Facts of the case On August 2018, the petitioner was arrested and the authorized police was granted transit remand to take him from New Delhi to PS Vishrambaug, Maharashtra state. On the same day, petitioner challenged this arrest and remand in a Habeas Corpus writ before the High Court of Delhi. The court directed that the petitioner should be put under “House arrest”[1] till the decision on the petition is made. Later it was also extended. During his detention, the petitioner was not permitted to meet or interact with his family members and lawyers and also his house was guarded by the two police guards[2]. On 1st October 2018, the said remand was illegal. But later in April 2020 he was arrested again. In this respect he filed petition of default bail before the trial court of state of Maharashtra. Due to this the concept of (section 167)[3] was raised rapidly and many arguments were made in respect of this section. The petitioner mentions that he has gone through 34 days of his house arrest, NIA detention of 11 days in April 2020 and mainly the detention period from April 25 to June 18[4]. The petitioner claims the right of the default bail because his imprisonment surpassed 34 days in the custody and also the NIA has failed to file the charge sheet and also did not present him before the magistrate[5] within the statutory period of his detention period but both the courts had denied the fact that the house arrest of the petitioner should be a detention under section 167 of criminal procedure code (Taneja, 2021). Issue Raised in this case The main issue raised in this case was whether the period of time spent in detention by the petitioner during his home arrest can be considered as custody for the purpose of default bail. Arguments of Petitioner The counsel for the petitioner states that the police should investigate the matter and also can ask questions to him after the High Court grant leave during his house arrest in 2018. Further he argued that there was no stay in the investigation process of the police and they can bring the petitioner any time in the police custody under section 43D(2)(b) [6]. He further argued before the court that the remand was overturned eventually and the said detention of the petitioner was unconstitutional on the basis of the facts mention under section 167 of CrPC. The counsel for the petitioners argued that when Delhi high court stated the house arrest of the petitioner comes to an end, the main order of the house arrest was not treated as void by the high court and only the transit order was stayed[7]. The counsel argued that the remand order should also be stayed. He further contended that the High Court did not stay the detention but only changed the form of detention due to which petitioner was shifted from police custody to his residence which is also confined .He further argued that even the detention was going to be unconstitutional; this does not mean that the period of detention gets erased. He also argued that the period of detention should include all the intervals either they are continuous or broken interval. Arguments of Respondent The counsel for the National Investigation Agency states that it would be wrong to claim that the petitioner satisfied for the house arrest, also the counsel mentions before the court that the petitioner is not fit in the criteria for the house arrest. Further the counsel for the respondents clearly mentions before the court that the petitioner was involved in many activities which are nefarious in the nature and also was charged under several sections –34, 120B, 121, 121A, 115,124A,505(1) of (IPC)[8] and also sections 38,39,20 of the Unlawful Activities Prevention Act(UAPA). The counsel mentions that his arrest was not considered as void because police has not enough evidence against him. Further the counsel of the respondent states that it was permitted by the Honorable Supreme Court of India that the house arrest of the petitioner has to be done only during the period when decision made against him. Also from this observation, the counsel for the respondents claims that there is Prima Facie[9] evidence against the petitioner and the court should direct the petitioner to surrender before the court (www.main.sci.gov.in). After this, the counsel argued that to not release the petitioner from the custody because there was every possibility that the petitioner can threaten the witnesses of the case and can also tries to tamper the evidence[10]. Judgment In this case, the petitioner lost his case of default bail at the Honorable Supreme Court. The court in its judgment states that under section 167(2) the home arrest cannot be considered as permitted detention. It further mentioned that despite the fact that the petitioner had been brought into custody earlier, this does not mean that his custody begins. His custody only begins from the day of his remand. The Judgment mentions that the period of his house arrest which was from August 28 to October 1st ,should be removed and should not be considered as the period of detention. Ultimately the bench held that the house arrest custody of the accused in this case cannot be treated as authorized custody by the magistrate under section 167(2)[11]. Analysis In this case, that the house arrest of the petitioner should not be considered as the detention under section 167. The case analysis will completely depend on the important issue which is present in this case- whether the custody period spent by the accused during his house arrest constitutes custody for default bail purposes. What I understood from this case and by examining several sections relating to this case is that section 167 (2) of Crpc[12] says that the magistrate has to (authorize) the detention to the police[13]. In this case, the High court of Delhi has stayed the order of transit demand and afterwards set it aside and states that the detention was illegal which ultimately states that there was no authorize detention from the side of the magistrate. Therefore under section 167(2) the petitioner cannot claim the benefit of the default bail. If we further look into the mentioned section, we can conclude that if accused want to claim benefits of the default bail then there is an indispensable requirement that the detention of the petitioner should be authorized by the magistrate. But in this case, authorization itself having been declared illegal so there was no any further doubts that the detention itself should be held illegal. The house arrest involved deprivation of liberty of an individual and shall fall only within the boundaries of section 167 of Crpc. The thing what I understood from this case is that in the decisions of both the courts, the specific boundaries of above mentioned section was not apparent. Also in the present case, the detention was illegal because it was not in terms of the above mentioned section and also it does stop the petitioner to apply for the statutory bail. Conclusion In this case, after examining all the relevant facts, the bench allowed respective courts to order House arrest as a form of custody in particular instances under section 167 of criminal procedural code. The whole argument in this case was of section 167 of CrPC (Joshi) which states that if the police did not complete the investigation within 24 hours of arrest of the accused then the accused has a right to default bail and also in some cases if the investigation has not been completed within a specific time given by the court. As the decision of the court was held against the petitioner and he lost the case but this case make an impact on the decision of the honorable Supreme Court and the court ensure that the future prisoners like the accused in this case should not face these disadvantages.[14] The court also ensured that no person shall be deprived of his liberty.[15] Bibliography 1. Gaurav Thote. (2021, May 30th ). Ba rand Bench. Retrieved December 26th , 2021, from www.barandbench.com . 2. Joshi, M. M. Code of Criminal Procedure. 3. Taneja, S. (2021, June ). lawyers club Inida . Retrieved from www.lawyerscluindia.com. www.main.sci.gov.in. (n.d.). [1] (1989) AIR 2292, 1989 SCR Supl.(1) 315, {2} [2] Art 22(1) in the Constitution of India, 1949 [3] Criminal Procedure Code 1973, s167 [4] Shreya Taneja, Gautam Navlakha vs NIA, (2021), www.layerscludinida.com, 25th December [5] Art 22(2) in the Constitution of Inida ,1949 [6] Unlawful Activites (Prevention) Act,1967 [7] Shreya Taneja, Gautam Navlakha vs NIA, (2021), www.lawyersclubinida.com , 25 December 2021 [8] Indian Penal Code, 1860 [9] 1999(82) FLR 509, (2000) ILLJ 565 Cal ,{5} [10] Prachi Bharadwaj ,Here’s why Gautam Navlakha was not able to make a case from Default Bail before supreme court, (2021), www.scconline.com, 25 December 2021 [11] Shreya Taneja, Gautam Navlakha vs NIA, (2021), www.lawyersclubinida.com , 25 December 2021 [12] (1986) AIR 2130, {7} [13] (1992) AIR 1768, {7} [14] (2021) criminal appeal no. 52. (2020) criminal appeal LVDC no. 143 [15] Art 21 in the Constitution of India,1949

Authored by: Vikash Kumar Date of Judgement: 10 April, 2008 Citation: Writ Petition (civil) 265 of 2006 Bench: Dr. Arijit Pasayat, C.K. Thakker Court: Supreme Court of India Introduction The court discussed how the Indian reservation system is similar to the affirmative action system in the United States. Our constitution says that we should be equal and we should all have the same rights and opportunities. An important part of the Constitution is Chapter 5 of the Constitution of India. In this chapter, the government of India has taken some actions to help people who are economically disadvantaged. India is unique from other countries in the world because it has a lot of different types of people. Facts In 2006, Indian government set aside 27% of the seats in colleges and universities to students from the OBC segment of society. The Indian Parliament passed a law to make an amendment in the Constitution in this area. This was challenged by Ashok Kumar Thakur on the grounds that this was against the "fundamental structure" of the Constitution and that he abbreviated the principle of equality under Article 14 readable with Article 15 of the Constitution. This amendment with the Central Educational Institutions (Reservation in Admission) Act, 2006 (enactment Act 5 of 2007) was challenged on the grounds that the Union of India had failed in its duties towards the citizenry. Issues · Whether the 93rd Amendment of the Constitution is against the “basic structure” of the Constitution? · Whether act 5 of 2007 is constitutionally valid in view of the definition of “Backward Class” and whether the identification of such “backward class” based on “caste” is constitutionally valid? · Whether the creamy layer is to be excluded from the Socially Economically Backward Classes? Arguments of Petitioner 1. The petitioner argued that the provisions of the bill violated Article 14 on the surface, and its legitimacy can only be proved on the basis of compelling national necessity. The degree of compulsion that is needed to prove that something is necessary for society is greater than what is needed to prove that something is necessary for the economy. 2. The Constitution is very important to us. It has rules that are very important to us. If the rules are changed, then it is wrong. It is wrong to change the rules of the Constitution. 3. The petitioners argued that caste cannot be the only criterion to determine who is socially and educationally backward under Article 15(4) and 15(5) of the Constitution, and the test for Article 15(5) includes “operation-cum-income” where caste might or might not be one of the considerations having a nebulous weightage, and alternatively, caste can’t be considered at all when the test is similarity with SC and ST. 4. The petitioners said that admission to educational institutions should be based only on merit and it is unfair for a state to prefer a student with lesser merit over a student who would otherwise be admitted. Arguments of Respondent 1. The petitioners said that the response from respondents who say that the petitioners' arguments against the Constitution and Act 5 of 2007 are not valid and should be thrown away. 2. The preamble of the Indian Constitution says there is a promise to the weaker sections/SEBCs and they need to be taken care of. 3. It said that the validity of the Constitutional Amendment and the validity of plenary legislation have to be decided purely on the basis of Constitutional Law. But it also said that the vote-catching mechanism is inappropriate. Judgement 1. The Court that the Constitution (Ninety-third Amendment) Act,2005 is to be examined in the position as laid down in the Kesavanada Bharati case is the Court that confirmed that the Constitution is India's supreme law. "The decision in the Kesabana da Barati case clearly shows what the basic structure of the Constitution is. The Court also took note of the fact that the majority in Kesavanada Bharati did not hold that all aspects of Article 14 would form a part of the Basic Structure. The court further stated that when the constitutional provisions are interpreted, the basic rule is to consider the preamble to the constitution as a guide and the directive principle of national policy as an "book of interpretation". So the court said that the Ninety-third Amendment to the Constitution does not violate the basic structure of the Constitution as it relates to the state maintained institutions and educational institutions. 2. The court decided that the SEBCs are not just based on caste, so this is not against the Constitution. Therefore, Act No. 5 of 2007 was not invalidated because of this. 3. The court held that the cream layer should be excluded from SEBC. 4. The court ruled that, for purposes of disclaimer, the cream-layer principles did not apply to SC and ST. 5. The Supreme Court ruled it is not futile to argue whether Parliament was not aware of the statistical details of the population of this country and, therefore, that 27% of reservation provided in the Act is not illegal. Analysis To answer the question of whether this violates the Basic Structure, the Chief Justice of the Supreme Court consulted Keshavanada Bharati and distinguished between the concept of abstract equality and concrete equality. If someone tries to change or destroy the idea of the amendment, the amendment is invalid. The Court said that the principles of equality, like Article 14 and Article 15, may be understood as part of the "Basic Structure" of the Constitution and can't be changed, but these rights can be changed within the constraints of the broader principle. The variance of changing circumstances may necessitate modifications in the structure and design of these rights, but the temporary features of formal arrangements must reflect the larger purpose and principles that are the continuous and unalterable thread of constitutional identity. It can be understood that what is important is the level of abstraction at which the mod manipulates and modifies equality. The Indian constitution is different from other constitutions in that it has a concept of "equality". In this case, Article 15(5) was at best a “moderate abridgement or alteration” of the principle of equality, the basic structure challenge failed. Conclusion The judiciary has played an important role in strengthening our constitution values and democratic principle since independence. This Ashoka Kumar Thakur case is one of the examples. The idea of a society without social classes, where no one is better than anyone else, was a dream of the founding fathers of our Constitution. Our country has been divided by caste for a long time. The welfare system has not only harmed society socially but also economically. Some people would like to be included in the Scheduled Caste, Scheduled Tribes, and Other Backward Caste lists. Reservation is the policy of the Indian government which is used to give preference to Dalits, women, and lower caste men. Reservation is a means of raising the weaker part of society for a period of time. If the reservation becomes permanent, it creates a caste-based society permanently. There is no mention of trying to abolish the caste system in our constitution. The Indian Constitution prohibits any kind of discrimination on the basis of caste. The Constitution seeks to make all citizens equal in our country. In the Ashoka Kumar Thakur case, it is clear that the identification of Scheduled Castes or Other Backward Classes can not be solely based on the “caste”. Article 15(4) is important because it only speaks of classes, not about the caste. If Article 15(4) was inserted in the constitution with the purpose of considering “caste” as one of the elements of social and educationally backwardness, it would be mentioned in the Article. The purpose of the constitution is to help in the development of back-country people and put social interest above individual interests or groups that are advanced, both socially and educationally. This ruling helps to clear up any doubt about whether socially and economically disadvantaged castes are recognized by the Indian government. The petitioners considered that this was nothing more than an excessive delegation to the union government. This matters if the discussion. There are both national and state commissions in place to deal with the affairs of Scheduled Castes or Scheduled Tribes. India, with its large variety of people and regions, has different customs and traditions for each region. It is difficult to have a single list of SEBCs or OBCs for all the regions or states. There are many factors that play an important role in determining whether someone is of the upper, middle, or lower caste in that particular state. To solve this problem, both state and national commissions must work together to come up with a number of lists for every state. The union government must delegate some powers to the state government so that they may come up with a completely different solution to solve the problem. If someone thinks something is wrong, they are free to seek judicial review from the court. There are many cases that deal with reservation or caste or any other related matter but one question arises, that is how can a casteless society be achieved with the existence of caste-based reservation. Because the castes are not the starting point for determining the Other Backward Classes, the government must determine how to classify them. At this point in time, no one can be completely sure about the percentage of OBCs or SEBCs in the population of India and this raises the question of how the government decides the percentage of reservation especially in public employment for all the states. It is difficult because we have to analyze the representation of a group of people in the services in order to fix the percentage of reservation and it is a very difficult job because as I mentioned before, the diversity of our country. The Constitution of the United States lays out the rules and regulations that govern society. If you make a reservation, the problem may be solved. India's unique diversity is one of its most distinguishing features among countries in the world. We should not adopt any measures which worked in the past for other countries and may not work in India. India has a constitution that is different from the constitutions of other countries. The Indian constitution provides for a society based on the principle of equality. To live in harmony and reach higher goals, we need to get rid of social evils and praise the idea of our constitution-makers.

Case Commentary by: Takshima Maheshwari Whether any application filed under Section 8 of the Arbitration Act, 1996 will be maintainable if a petition under Section 7 of the Insolvency & Bankruptcy Code is pending? Citation: Civil Appeal No.1070 /2021 @ SLP (C) NO. 8120 OF 2020. Date of judgement: March 26, 2021 Bench: CJISA Bobde, J. AS Bopanna, J. V Ramasubramanian Court: Supreme Court Facts Indus Biotech (Petitioner)filed a petition before the Hon’ble Supreme court of India under Section 11 of the Arbitration and Conciliation Act, 1996 for the formation of an arbitration tribunal to resolve its disputes with Respondent Nos. 1–4. Respondent No. 1 is a Mauritius-based firm, whilst Respondents Nos. 2–4 are Indian companies and sister venture of Respondent-1. The dispute that was sought to be arbitrated originated between the parties under various share subscription and shareholder agreements. Kotak India subscribed to the optionally convertible redeemable preference shares ("OCRPS") issued by Indus Biotech Private Limited in subject to the terms of the share subscription agreement and the shareholders' agreements. Before the QIPO, Indus Biotech company recommended a Qualified Initial Public Offering ("QIPO"), and Kotak chose to convert its OCRPS into equity shares. The parties negotiated the conversion formula and had disagreements that resulted in this litigation with regards to the terms of the Agreements, Kotak eventually exercised its right to seek redemption of the OCRPS. Under Section 7[1] of the Insolvency and Bankruptcy Code, 2016 ("IBC"), Kotak approached the National Company Law Tribunal to begin the corporate solvency resolution procedure. Indus Biotech Private Limited then filed an interim application with the NCLT under Section 8[2] of the Arbitration and Conciliation Act, 1996, requesting that the issue be referred to arbitration in accordance with the dispute resolution system set forth in the Agreements. The NCLT approved the application submitted under the Arbitration Act in an order dated June 9, 2021. As a result, the Kotak petition filed under the IBC was dismissed. As a result, Kotak filed an appeal with the Supreme Court, challenging the Order. Contentions by Petitioner Arguments put forth by Indus Biotech Private Limited are as follows: i. The Respondent contended that the Dispute clearly relates to the valuation of Kotak’s OCRPS, which is arbitrable before the court of law hence their application under section 8 of the Arbitration and Conciliation Act, 1996 must be admitted. ii. According to the petitioner company, the appropriate methodology should be used to determine the actual percentage of paid-up share capital that will be converted into equity shares, as well as any refunds that may be due. There is no need to reimburse the money until an equitable agreement is reached. As a result, there is no 'debt' or 'default,' and the petitioner corporation is not in default. iii. The petitioner claims that because the parties have not resolved the matter, the disagreement must be decided through arbitration by the Arbitral Tribunal. Contentions by Respondent Kotak India’s Contentions were as follows: i. The Existence of any arbitration clause is not relevant in such situation and it is not a factor which must be considered to affect the proceedings under Section 7 IBC. ii. The Non-payment of redemption value of OCRPS is clearly a default in payment of debt on the part of Indus Biotech Private limited and, thus, NCLT should admit the application of the petitioner under Section 7 of the Insolvency and bankruptcy code, 2016. iii. The respondents Nos. 1 to 4 argue that an amount of Rs. 367,08,56,503/­ became due and payable upon redemption of OCRPS. It is claimed that the petitioner firm was in default since the respondents No. 1 to 4 sought the money and the petitioner company did not pay it. iv. It was also contended that because Indus Biotech Private Limited had defaulted, the event triggering the petition under Section 7 of the IB Code had occurred, and the dispute sought to be raised was not arbitrable after the insolvency proceeding had begun, the Tribunal's order admitting the application u/s 8 of the Arbitration Act was invalid. Issue The main issue in this particular case before the supreme court was that should the adjudicating authority rule on the application under Section 8 of the Arbitration and Conciliation Act of 1996 (the A&C Act) before ruling on the application under Section 7 of the Insolvency and Bankruptcy Code of 2016(the IBC)? Secondly, the issue was regarding what shall be the inquiry of NCLT under section 7 of the IBC? Thirdly, the issue was regarding whether the proper procedure for appointment of arbitral Tribunal was followed or not? Judgement The Supreme Court affirmed the NCLT's ruling, holding that an application to initiate the IBC's corporate solvency resolution process is inadmissible till the time parties reach an agreement through the arbitration process as set forth in the Agreements. The Supreme Court noted in the case of Innovative Industries Limited v. ICICI Bank and Others[3] that in order to induce an application under Section 7 of the IBC, prima facie four factors must exist: i) there must be a debt; ii) default must have occurred; iii) the debt must be due to a financial creditor; and iv) the default must have occurred by a corporate debtor. The Supreme Court highlighted that the mere existence of a debt is not a deciding element in evaluating whether or not a default has occurred. The Supreme Court explained how the adjudicating body is required to determine the presence of a default on a case-by-case basis, relying on evidence records. Furthermore, the Supreme Court held that, while the adjudicating authority has the ability to evaluate whether a default has occurred or not, the proceedings only begin on the date of admission of the application and not on the date of filing, and are not subjected to arbitration from that point forward. As per proper procedure of law the Bench clearly stated that the dispute would be completely non-arbitrable if any default is found out, resulting in the admission of the Section 7, IBC plea. Because there was no default and no admission of the Section 7 petition in this case, the Court decided that the matter might be directed to arbitration. Two major points which SC gave in its decision was: (i) Simply filing of an application under Section 7 of the IBC Act does not make the proceeding in rem. It only becomes in rem on the date of admission; and (ii) IBC supersedes all other laws. The Supreme Court also referred to the of Vidya Drolia and Others Vs. Durga Trading Corporation[4], in which a test was established to determine when the subject matter is not arbitrable, and the Supreme Court concluded that acts in rem are not arbitrable after applying the test. Therefore, if there is already an application under Section 8 of the Arbitration and conciliation Act which is pending in a Section 7 IBC Act which has not been admitted, then the adjudicating authority will first decide regarding the application under Section 7 IBC and ascertain if there is any default by the financial debtor. This ensures that a corporate debtor can now prolong the process simply by filing an application under Section 8 of the A&C Act. The application under Section 8, A&C Act shall not be considered separately from the application under Section 7 of the IBC. In the facts and circumstances of the case, the SC justified the NCLT's approach in which it approved Section 8, Arbitration and Conciliation Act application while rejecting Section 7 IBC application as a consequence, and "interpreted in the contrary." Case Analysis The Supreme Court in this case comprising of a bench of CJI SA Bobde, Justices AS Bopanna and V. Ramasubramanian clearly established that in any proceeding which is pending before the Adjudicating Authority under Section 7 of the Insolvency and Bankruptcy Code 2016, such petition if admitted by the Adjudicating Authority by having a satisfactory grounds with regard to the default and the debt being due from the corporate debtor, thereafter any application seeking reference to arbitration under Section 8 of the Arbitration and Conciliation Act made will not be maintainable. The Court determined that if a petition under Section 7 of the Insolvency and bankruptcy code,2016 is rejected, only then there will be no proceedings in rem, and thus an application under Section 8 of the Act will be maintainable. Nonetheless, the decision of this case probably saved the parties years of unnecessary litigation and delays. Furthermore, because the parties had separate arbitration agreements and the substance of the claims was comparable, the Court appropriately followed the ruling in Duro Felguera[5] and established separate arbitral panels, even though members were same. The Supreme Court thus held conclusively that in circumstances where petitions under the IBC have yet to be admitted and an application under Section 8 of the Arbitration Act is made in such proceedings, the adjudicating authority is required to first determine whether default has happened or not, even if the application under the Arbitration Act is kept along for consideration. Thus, the application under the Arbitration Act would suffer as a result of the consideration given therein to the IBC application. In the case at hand, the Supreme Court determined that the valid question is the conversion of the OCRPS and the allotment of equity shares against the OCRPS, in light of the QIPO, which was still a point of discussion between the parties, and thus it was early to ascertain if default had actually happened at the given point in time, based on the correspondences provided to it. If the NCLT determined that there was actually no debt due or that there was not any default on the debt due based on a few specific criteria, such a decision would fall within the scope of adjudication of an application under Section 7 of the IBC, as it is commonly understood. The Supreme Court ruled that Kotak was not authorised to begin a redemption of the OCPRS since it had already started the process of converting the OCPRS into equity shares, which was the subject of a distinct dispute between the parties. The Agreement does not appear to have included such a provision on Kotak, based on a cursory reading of the judgement; thus, it appears that the adjudicatory forums have read this requirement or restriction into Kotak's contractual responsibilities. As a result, the courts have taken a broad approach in determining whether a 'debt' or a 'default' was being claimed by the applicant-party (Kotak) prematurely. Conclusion The decision was based on the notion that "the mere filing of a Section 7 application and its pendency before admission" cannot be viewed as initiating the insolvency process. "The main trigger point is the admission of the application on establishing default, not the filing of the application under Section 7 of the IBC," a bench of Chief Justice SA Bobde, Justices AS Bopanna, and V Ramasubramanian explained. The foregoing decision has resolved an important legal matter, and it is obvious from the decision that an application filed under Section 8 of the Arbitration and Conciliation Act is not maintainable if an insolvency case has begun under Section 7 or Section 9 of the IBC. As a result, the aforementioned ruling is a good step forward for insolvency law, as it would deter frivolous attempts by a corporate debtor to delay IBC proceedings by invoking an arbitration clause despite the fact that there is no disagreement over the debt owed to it and it is a defaulter under IBC. The Court further relied on the fact that board meetings were held with the nominee director of Kotak present, where discussions and decisions on topics relating to the issuance of equity shares were made. The Supreme Court so affirmed the NCLT's conclusion that default could not be proven, and hence considered it necessary to reject the petition under the IBC and allow the petition under the Arbitration Act, at least temporarily. References[u1] · “All that is not right with Indus Biotech v. Kotak | Indus Biotech (P) Ltd. v. Kotak India Venture (Offshore) Fund: A case comment” https://www.scconline.com/blog/post/2021/06/12/indus-biotech-v-kotak/ · “Supreme Court holds that NCLT can consider an application filed under Section 8 of Arbitration Act in a petition under Section 7 of IBC” https://www.amsshardul.com/wp-content/uploads/2021/04/Alert-Arbitration-Issue-70-April-2021.pdf · “Maintainability Of Application Under Section 8 Of Arbitration & Conciliation Act, 1996 In an Insolvency Proceeding” https://www.mondaq.com/india/arbitration-dispute-resolution/1082792/maintainability-of-application-under-section-8-of-arbitration-conciliation-act-1996-in-an-insolvency-proceeding · “SC Expounds: Arbitration Reference Not Maintainable If Filed After Admission Of Insolvency Resolution Petition U/S 7 IBC” https://www.latestlaws.com/latest-news/sc-expounds-arbitration-reference-not-maintainable-if-filed-after-admission-of-insolvency-resolution-petition-u-s-7-ibc-read-judgment/ [1] Insolvency and Bankruptcy Code 2016, s.7 [2] Arbitration and Conciliation Act 1996, s.8 [3] Innovative Industries Limited v. ICICI Bank and Others ((2018) 1 SCC 407) [4] Vidya Drolia and Others Vs. Durga Trading Corporation (2021 2 SCC 1) [5] M/S Duro Felguera S.A vs M/S. Gangavaram Port Limited (2017) 9 SCC 729 Please follow the oscola format citation.

Authored By: Akul Mishra Date of Judgement: 22nd October 2021 Bench: Hon’ble Justice D.Y. Chandrachud, Justice Vikram Nath, and Justice B.V. Nagarathna Court: Hon’ble Supreme Court Of India Citation: Civil Appeal No 6107/6108 of 2021 (Arising from SLP(C) No. 22577 of 2015) Introduction The Supreme Court in the matter of Jalkal Vibhag Nagar Nigham v/s Pradeshya Industrial and Investment Corporation has held that the nomenclature attribute to the tax is not of any relation to its nature or character. The label of the tax chosen will not clarify the nature of the levy. The Bench has held the validity of Sections 52 (1)(a), Section 55(b)(1), and Section 56 of the UP-Water Supply and Sewerage Act and has held that the levy imposed under the Section 52 is not a fee but a tax which falls under the provision of Entry 49 of List II (Taxes on Land and Buildings…). The Supreme Court has further defined and differentiated between levies and taxes and has held that “ The levy of the tax does not depend upon the actual consumption of water by the owner or occupier upon whom the tax is levied” in the jurisdiction of the Jal Sansthan[1] and certain conditions should be followed. Facts Of The Case: The facts of the case commenced with a judgement dated March 7th, 2014 where the division bench at the High Court of Allahabad allowed a petition by the first respondent under Article 226 of the Constitution (Power Of High Courts To Issue Writs..) and induced that the levy charged by the appellant was opposite to law and allowed refund of all the water and sewerage levies and taxes collected under the UP Water Supply and Sewerage Act, 1975 and deduced from the case of Union of India (U.O.I.) v/s State of U.P. and others[2]. The first respondent had constructed a building in Gomti Nagar, Lucknow under the company U.P. Rajkiya Nirman Nigam Ltd and the same finished in 1991 with a change in ownership on 31 May 1991 with the building being renamed as PICUP Bhawan. The appellants had raised a bill no. 12/26 on 5th January 1995 seeking an amount of 46,63,12.50/- as water tax for the duration of October 1986 to March 1995. The respondent had replied with a letter dated 25th January 1995 seeking important details about the tax including whether the water-stations or standpoints were present in the area of the building, the distance between both, and a file for the copy of the notification defining the radius of water tax through facilities under Section 55(b)(i) of the UP Water Supply and Sewerage Act and as a reply the bill was drafted again to raise a demand of 16,45,875/- in terms of Section 52(1). After a further application for clarifications which were cleared, the amount was reiterated. The Respondent had made deposits of 3,46,500/- and 9,41,942.77/- and consequently, a writ petition was filed in the High Court Of Allahabad (Lucknow bench) challenging the levies as there was no facilities or water provided and challenged the validity of Section 52(a), 55(b)(i) and 56(b) of the UP Water Supply and Sewerage Act as they were clashing against Article 265(Taxes not to be imposed save the authority of law) of the Constitution. The High Court Judgement on 7th August 2015 allowed the writ petition and granted the refund. Issues Raised: 1) Whether the taxes levied were fair and under the jurisdiction of the UP Water and Sewages Act, 1975. 2) Whether The State has legislation to levy these taxes. 3) The constitutional validity of Sections 52(a),55(b)(i), and 56(b) of the UP Water and Sewage Act 1975 concerning Article 265. Arguments Raised : Contentions By The Respondent: 1) Ms. Madhavi Divan, Additional Solicitor General of Inia on behalf of the first respondent has stated that the first respondent is ready to pay the sewerage charges but is against the water tax being charged. She has also questioned the constitutional validity of Section 52(1)(a), Section 55(d)(a), and Section 56(b) of the UP Water Supply and Sewerage Act. 2) The challenge to the water tax has been backed up by the fact that the levy charged under Section 52(1)(a) is a fee and not a tax and is not under entry list 49 of List II of the Seventh Schedule of the Constitution. 3) The nature of the levy has to be understood from the primary object and character of the legislation , Section 52(a) only considers the distance limit from the Jal Sansthan, however, regarding the whole provision, the levy will not come under the entry list. 4) Section 56 defines the distinction if the premises is connected with the water supply or not and a distinction between the owner and occupier as made by the stature will clash against Entry List 49. 5) In conclusion, the name as used by the legislation is ‘water tax’ under Section 52(1)(a) but the same is a fee and not a tax, and the nomenclature used is different from the actual levy which is based on water supply or payment of water used itself. Contentions By The Appellant: 1) Senior Counsel Pradeep Kant on behalf of the appellant has constructed the stature of the UP Water and Sewerage Act which contains provisions for establishment, functions, and powers of the Jal Sansthan under Chapter II and III, assets, liabilities, and employees transfer under chapter VI, water supplies under chapter VII and VII and penalties under chapter IX to XI and thus the legislation under Section 52(a) covers levy, imposition for water and sewerage tax which is true for the present factual context. 2) The decision of this court in the case of Union Of India V. State Of U.P. and others do not give the right induced interpretation as in the case, the Railways had raised the levied charge on the basis that the Jal Sansthan was levying a tax violative of Article 285 of the Constitution and the same was rejected by stating the levy was a service charge termed as a fee and was not a tax which is different from the present factual context where the water tax does come under Section 52(a) of the Act. 3) Opposing the submissions of the constitutional validity of Section 52(a), the senior counsel stated that there was a wrong interpretation of the Bench in the case of Union Of India v. State Of U.P. and others where the conclusion was made like a service fee and not a tax, and such was concluded to not be attributed to the exemptions provided in Article 285. 4) The levy of the tax under Section 52(1)(a) is defined with the area or distance of the Jal Sansthan. Thus, the word premises means land or buildings which comes under Entry 49 of List II, and thus, even though the tax is named as ‘Water Tax’, it could be levied on buildings or land within the same mentioned entry list. 5) The tax in itself is not a tax on water but a tax on land and buildings, which is a measurable quantity. The tax is a percentage of the assessable value and must be noticed and paid by both the owner and the occupier. The rate and incidence of the tax are different from the nature of the levy and such has been relied on judgements in the cases Raza Buland Sugar Co. Ltd. v. Municipal Board, Rampur[3] and Nizam Sugar Factory Ltd. v. City Municipality, Bodhan[4]. Analysis By The Court: The court analyzed the statutory provisions under all chapters of the UP Water and Sewage Act, 1975 where they carefully analyzed every chapter of the Act. The characterizations of a tax have been decided repeatedly by the court especially in the case of Govind Saran Ganga Saran v. CST[5] and Commissioner of Income Tax (Central)- I, New Delhi v. Vatika Township Private Limited[6] where it was held that the components of a tax should be clear and defined as well as the rate of tax should be an important part of the tax regime. In Section 52, the tax imposed by the Jal Sansthan is defined to be within its ‘premises’ which is defined under Section 2(18) as Land or Buildings which interprets that the levy charged is solely on Land or Buildings within a considered distance of the Jal Sansthan. The levy charged under 52(a) is not a fee but a tax for the Jal Sansthan to continue its activities and operations to continue providing water. In clause (vi) under sub-section (2), the collection of taxes for operational services is provided and the same raising of the revenue is like tax under Section 52(1)(a). Section 56 of the Act has clearly stated the premises are land and buildings under the area of the Jal Sansthan unless the exception under Section 55 is matched in the context. Sections 52 and 56 have also mentioned that the legislation will collect the levied tax from the occupier of the building if there is a connection with the Jal Sansthan sewerage or from the owner of the building if there is no such connection. Thus, it is induced and concluded that that the payment of the water or sewerage tax is valid if there is a connection or not, covered under Section 56. It is concluded that as long as there is a provision for water or sewerage facilities in the area, the owner or occupier is liable to pay the taxes. The court has also noted how broad the provisions under Section 63 are on recovery of a fee related to a service, the fee can be recovered by several bye-laws as provided which include disconnection, or any other purpose. The court has also deduced that the nomenclature of the levy does not explain or define the nature of the levy charged. The label chosen by the legislation does not define the charge and thus, it must be deduced from the nature and provision given which would be the unit by which the levy is imposed, by Section 52. The court further confirmed that the tax is labeled as a water tax solely due to the reason that it was imposed by the Jal Sansthan but this does not change the fact that the same tax is levied on buildings and land under Entry 49 of List II of the Seventh Schedule. The court also quoted many cases concerning the definitions of Entry 49 of List II including judgements in the cases of V Pattabhiraman v. The Assistant Commissioner of Urban Land Tax, North Madras (North West) Ayanavaram[7]where the Madras High Court held that the Madras Urban Land Tax, 1966 to be within the same entry list and in the case of Ajoy Kumar Mukherjee v. Local Board of Barpeta[8] where the constitutional bench held the validity of a tax imposed upon lands for holding markets created under the Assam Local Self Government Act, 1953. The court also considered the cases Union of India v. HS Dhillon[9] where it was held that the parliament did not have the legislative powers to amend the Wealth Tax Act 1957 and such was different from the Entry 49 List II as taxes under the Entry were on the property and not a personal tax. The court also considered the cases relied on by the appellant where the High Courts have held that the tax even though named as a water tax, is imposed on land and buildings under Entry 49. The court has therefore deduced that there is no doubt that the tax is imposed on land and buildings within the area of the Jal Sansthan. The water and sewerage tax is levied to finance the operations of the Jal Sansthan and the collection depends on the providence of water to the area covered and not onto the premises itself. The court also does not find any merit in the submission of the respondent, where the fee is levied on the supply of water and such cannot be charged when there is no supply. The Court also finds that the difference between tax and fee can be voluntary or involuntary in both and the element of service may not be absent in imposition of a tax. The levy of the tax is held as long as the Jal Sansthan is providing facilities in the area within a considerable radius of the premises and within such, water is made available to the public. The proceeds of the tax thus help the maintenance of the facilities and Thus, the levy is not charged on the amount of water consumed or cost of water supplied defined under Section 59 but as a fixed sum defined under Section 52 and thus is a compulsory exaction under the same section. Thus, the levy is a tax and not a fee and a tax on land and buildings under Entry 49 of List II. The Court also addressed the High Court’s decision and the induce judgement from the case of Union of India v. State of U.P. and others. The levy in the case was challenged because Railways are the property of the Central Government for which service charges are not payable under Article 285. The Jal Sansthan had provided water for the railways in use for a variety of functions and the writ petition was dismissed. The Jal Sansthan contended that the water and sewerage taxes were rather a fee for services while the Union Of India contended the levy of the charge was in nature of a tax hence contending Article 285. The observations by the Bench had made it definitive that it was a charge rendered by the Jal Sansthan on service provided and only taxes on the property of Union Of India is prohibited by Article 285 and services charged are not considered the same factually. The court however found an error in the observations stating that the present facts termed the charge as a fee and not a tax under Section 52. Section 52 provides for taxes and not for fees or charges which are solely mentioned in chapter VI. The provisions of the stature were incorrectly read as the ley was broadly classified as a tax yet was a fee in individuality. There is a defined difference between levied taxes and fees and Section 52 is solely based on taxes charged. Thus, the decision, in this case, has been overruled. Judgement: The Court has concluded that there is no evidence in the constitutional challenge to the validity of Sections 52 (1)(a), Section 55(b)(1), and Section 56 of the UP Water Supply and Sewerage Act. The appeal shall be allowed and the judgement by the Lucknow bench of The Allahabad High Court dated on 7th March 2014 will be set aside. The writ petition by the first respondent will be dismissed and the appellants are entitled to recover the remaining balance of the amount with the notice of the charges levied and such will be charged at an interest of 9 percent per annum. There will be no order to costs and pending applications shall be disposed of. REFERENCES: 1)Reportable, Supreme Court Of India, Civil Appeal 6107 of 2021 (https://main.sci.gov.in/supremecourt/2014/37597/37597_2014_34_1501_30806_Judgement_22-Oct-2021.pdf) pg 3-48 2)Prachi Bhardwaj, “Nomenclature of a Tax does not determine the nature of the levy or its true character: Supreme Court” SCC Online, 25th October 2021. 3)Pankaj Bajpai, “Levy u/s 52 of U.P. Water Supply And Sewerage Act,1975, is in nature of ‘tax’ and not ‘fee’, clarifies Apex Court” LegitEye, 25th October 2021. [1] A government body which provides water and charges fees for the same. [2] (2007) 11 SCC 324 [3] AIR 1962 All 83 [4] AIR 1965 AP 91 [5] 1985 Supp SCC 205 [6] (2015) 1 SCC 1 [7] AIR 1971 Mad 61 (FB) [8] AIR 1965 SC 1561 [9] AIR 1972 SC 1061

Authored by: Takshima Maheshwari Bench/Judge: Pushpa V. Ganediwala Court: Nagpur Bench of Bombay High Court Date: 19th January 2021 Citation: Criminal Appeal no. 161 of 2020 Background/ Facts of case The POCSO (Protection of Children From sexual offences) Act 2012, is a law that extends beyond the IPC to provide special protection to the child victims. The purpose of the POCSO Act 2012 is to safeguard minors from sexual assault and harassment while also acknowledging their vulnerability. On the 14th of December 2016, the prosecutrix, who was about 12 years old at the time, went to bring guava but did not return for a long time, prompting her mother to go out and look for her. Their next-door neighbour informed the mother that she had witnessed the accused bringing the prosecutrix to his home and showed her around. When the mother arrived at the house, she inquired about her daughter's location, which the accused denied knowing. The mother became completely suspicious and searched the accused's home. She discovered her daughter screaming in a room that was locked from the outside while checking the first level. She was taken outside by her mother. The prosecutrix was terrified, and she quickly told her mother about how the accused lured her into his house on the guise of giving her guava, touched her inappropriately, and she screamed as he tried to remove her salwar. The Special Court found the accused guilty of outraging a girl's modesty, kidnapping, and unlawful confinement under Sections 354[1], 363[2], and 342[3] of the IPC, 1860, as well as for the sexual assault under Section 8 of the POCSO Act, and sentenced him to three years in prison and a fine of Rs1500. After which the Accused appealed in the High court of Bombay (Nagpur Bench). Then the accused went to the Bombay High Court, within which J. Pushpa Ganediwala acquitted him under section 8[4] of the POCSO Act 2012 but found him guilty of outraging the modesty and wrongfully imprisoning the prosecutrix under sections 354 and 342 of the IPC 1860 and hence he was sentenced 1 year of rigorous imprisonment and a fine of Rs500. In addition to this a non-bailable warrant was served to the accused in this case. The Bombay High Court's controversial verdict in a case under the POCSO Act was quashed by the Supreme Court, which stated that sexual intent, not skin-to-skin contact with the minor, is the most significant factor establishing sexual assault. The Attorney General of India, the National Commission for Women, and the State of Maharashtra filed appeals against the High Court's decision, which were heard by a bench consisting of Justice Uday Umesh Lalit, Justice S Ravindra Bhat, and Justice Bela M Trivedi. Arguments Contention by Appellant · Appellant contended that The Bombay High Court's interpretation of the terms of the POCSO Act would have a detrimental effect on society as a whole. · The appellant also stated that All of the accused's alleged actions, including taking the victim to his residence, removing his salwar, and touching her inappropriately, amounted to 'sexual assault' under Section 7 of the POCSO Act, which is punished under Section 8. · The definition of 'physical contact' as ‘skin to skin contact' is a limited interpretation that undermines the POCSO Act's core aim and object. The principle of ejusdem generis had no place in this case, and it should not be applied where it would negate the statute's entire purpose as contended by the appellant. · The Appellant stated that it is evident that Mens rea (a person's sexual intent) is the most crucial and substantial factor in a case of sexual assault. They also argued that the legislature has used the terms 'touch' and 'physical contact' interchangeably in Section 7.[5] Contention by Respondent · The Learned Senior Advocate appearing for the accused argued that the expression 'sexual intent' cannot be constrained to any predetermined structure, and since the POCSO Act defines the term 'sexual assault,' the definitions of words 'assault' or 'criminal force' as given under the IPC cannot be imported into the POCSO Act. · The respondent contended that the first half of Section 7, touching a child's private parts, may not require skin to skin contact, but the second part, "any other act with sexual purpose that involves physical contact without penetration," must require skin to skin contact and the prosecution has failed to do that. · The accused's lawyer claimed the 'Rule of Lenity,' which states that a court must clarify an ambiguity in a criminal code in the accused's favor by applying a stringent or limited reading. · Finally, Respondent contended that the oral evidence of the appellants contains several inconsistencies, and convicting the accused based on such shaky evidence would be dangerous. Verdict by High Court The learned counsel on behalf of appellant was unable to prove from the evidence that the minor girl's mother and the little girl's evidence could not be accepted or that they were not capable witnesses, according to the Court. The girl's responses to the questions were not irrational. Furthermore, she informed her mother about the incident as soon as it occurred, and the First Information Report was filed as a result. Both the mother's and daughter's testimony are coherent and valid under section 6[6] of the Evidence Act 1872. The Court further reasoned that more proof and more serious claims are required. The Court further observed that it is uncertain whether the accused removed the top of the prosecutrix or inserted his hand inside, indicating that there was no direct physical contact or "Skin-to-Skin" contact between the accused and the victim as defined by section 7 of the POCSO Act 2012. The act perpetrated by the accused appears to come under Section 354 of the Indian Penal Code's definition of "outraging the modesty of a woman”. As a result, the bench acquitted the accused under section 8 of the POCSO Act and found him guilty of outraging the modesty and wrongfully confining the prosecutrix under sections 354 and 342 of the IPC for a year of rigorous imprisonment and a fine of Rs500 for outraging the modesty and wrongfully confining the prosecutrix. Verdict of Supreme Court The Hon'ble Supreme Court, in Attorney General for India v. Satish (2021)[7], overturned a Bombay High Court decision holding that skin-to-skin contact is a need for a sexual assault charge under the Protection of Children from Sexual Offences (POCSO) Act, 2012. Ganediwala's verdict sets a new precedent in which mere touching while clothed will not be considered a sexual assault offence. In 2019, the POSCO code was amended to ensure "the child's healthy physical, emotional, intellectual, and social development." Many human rights activists and organisations were outraged by the ruling. Rekha Sharma, Chairperson of the National Women's Commission, voiced her displeasure, saying: “This decision will not only have a drastic impact on many measures affecting women's safety and security in general, but it will also make all women laughable and devalue the legal requirements put in place by the legislature to ensure women's safety and security”. Later the stay was ordered on the ruling of this case by Chief Justice Sharad Bobde after Attorney General KK Venugopal submitted that the High Court’s decision saying that this case is likely to set a dangerous precedent. Venugopal was also given permission to file a petition against the High Court's decision in the supreme court in addition to the temporary injunction. The Supreme court overturned the decision given by the High Court and the accused was convicted for the offence under POSCO Act. Also, The Supreme Court Collegium then withdrew its proposal to approve Justice Pushpa Ganediwala's permanent status on the state's highest court. The Supreme Court held that any restrictive construction that would negate the purpose of a rule could not be adopted. Interpreting 'physical touch' to mean ‘skin-to-skin contact' would result in an illogical conclusion. Such an interpretation would defeat the statute's purpose and will be extremely harmful. The Supreme Court overturned the Bombay High Court's decision in the case of accused Satish and reinstated the Special Court's decision. The accused was found guilty of violating Section 8 of the POCSO Act as well as Sections 342, 354 and 363 of the IPC. For the offence under Section 8 of the POCSO Act, the accused-Satish was sentenced to three years of rigorous jail and a fine of Rs.500/-. The accused received no separate sentence for the other IPC offences because he was punished for the primary offence under Section 8 of the POCSO Act. Analysis The decision of the additional Judge, J. Pushpa Ganediwala, has sparked an outrage on social media, with many people wondering how it will affect people's perceptions Regarding sexual offences, and whether it will allow the accused of sexual offences to get away with less serious punishment. The Supreme court stated that it is very clear that Section 7of the POSCO Act 2012 begins with the phrase that “whoever, with sexual intent touches”. Here, the term 'touch' does not solely refer to a skin-to-skin contact. As a result, because the accused touched the minor improperly, the offence of sexual assault was established. Furthermore, if the legislature wanted to limit the scope of Section 7, it would have made the necessity of skin-to-skin contact clear. The High court cannot use an interpretive technique to severely limit the punishment's scope of this Section and to demean legal provisions intended to prohibit sexual assault against minor. Therefore, the Bombay High Court's interpretation, the punishment of accused was lowered. Whereas, because the minor is more vulnerable, the accused should have been found guilty and sentenced to penalties under the POCSO Act 2012. The SC also noted that the court's interpretation is not in lines with the statute's essential concept. The interpretation of the Bombay High court with respect to Section 7 of the POCSO Act 2012 that there is essentially a need of "skin to skin" contact as a pre-condition to constitute sexual assault is problematic for a number of reasons. The need of ‘skin to skin' contact is clearly not included in the statute. section 7 states “...or conducts any other act with sexual intention that includes physical contact without penetration is said to commit sexual assault,” The court in this case has interpreted the phrase "physical contact" incorrectly to mean "skin to skin contact." Hence as per the SC, the judgement of this case was a violation of Natural Justice principles, and it is harmful to society's overall interests. Therefore, it was overturned by the SC. The POCSO Act took into account the principles which have been set forth in the United Nations General Assembly's Convention on the Rights of the Child, to which the Indian government has consented on December 11, 1992. Moreover, the SC stated that the bench did not give much importance to the accused's intents while delivering the judgement. In the case of Jagar Singh v State of Himachal Pradesh[8], it was well-established that when two interpretations are possible, the court should select the interpretation that favours children to accomplish the goals of justice. With stringent punishments and a broad scope of sections, the POCSO Act 2012 has established a barrier for offenders, making it harder to the avoid punishments. Conclusion The Preamble of the Protection of children from Sexual offences (POSCO)) Act,2012 has clearly stated that this act has been specifically enacted for the protection of children from ‘offences relating to sexual assault, sexual harassment and pornography, and it also provided for the establishment of the special courts which can specifically deal with the trial of such offences. Therefore, the goal of the act is to provide minor children with an additional layer of protection in all the matters concerning sexual offences which fall beyond the loopholes which existed in the pre-existing criminal law which regulated sexual offences. In this case, the Supreme Court made precedent by overturning the Bombay High Court's controversial decisions, which were widely criticised for being unconstitutional. However, High Court should not have ignored the POCSO Act's legislative history and the essential goals it aims to achieve. To sum up, Hon'ble Justice Ravindra S. Bhatt while delivering the judgement observed, "It is no part of any judge's duty to stretch the simpler terms of a statute beyond recognition and to the point of destruction, and hence rejecting the cry of the times that children urgently need the assurance of a law intended to protect their autonomy and dignity, as POCSO does." References: 1. “India Supreme Court suspends Bombay High Court judgment on definition of sexual assault” https://www.jurist.org/news/2021/01/india-supreme-court-suspends-bombay-high-court-judgment-on-definition-of-sexual-assault/ 2. “Incorrect application and interpretation of POCSO Act in light of recent judgments of Bombay High Court” https://blog.ipleaders.in/incorrect-application-interpretation-pocso-act-light-recent-judgments-bombay-high-court/ 3. “Satish Ragde vs State of Maharashtra: Misconceived interpretation of Section 7 of the POCSO Act contrary to the legislative intent” https://thedailyguardian.com/satish-ragde-vs-state-of-maharashtra-misconceived-interpretation-of-section-7-of-the-pocso-act-contrary-to-the-legislative-intent/ 4. “Nagpur bench of Bombay HC overturns man’s conviction under POCSO” https://www.thehindu.com/news/national/other-states/nagpur-bench-of-bombay-hc-overturns-mans-conviction-under-pocso/article33650284.ece [1] Indian Penal Code 1860, s.354 [2] Indian Penal Code 1860, s.363 [3] Indian Penal Code 1860, s.342 [4] Protection of children from sexual Assault Act 2012, s.8 [5] Protection of children from sexual Assault Act 2012, s.7 [6] The Indian Evidence Act 1872, s 6 [7] Attorney General for India v. Satish (2021), Special Leave Petition (CRIMINAL) Diary No(s). 2286/2021 [8] Jagar Singh v State of Himachal Pradesh Cr. MP(M) No. 1112 of 2014

Authored By: - S Ashwath Citation: 2021 SCC Online SC 226 Date Of Judgment: 20th April 2021 Bench: Rohinton Fali Nariman, B.R. Gavai, Hrishikesh Roy Court: Supreme Court Of India INTRODUCTION The Indian Supreme Court emphasised in PASL Wind Solutions v. GE Power Conversion India that two Indian parties can choose a foreign arbitral seat and that parties to such foreign seated arbitrations can seek interim relief from Indian courts. The Supreme Court's judgment resolves a significant legal issue while preserving party autonomy. It also provides much-needed clarification on these concerns to firms operating in India, especially foreign enterprises with local subsidiaries. Even if the subject matter of their contracts and counterparties are fully within India, these organisations can now choose foreign arbitral seats in their arbitration agreements, such as London, Dubai, Singapore, and Hong Kong. This document provides background on the PASL case before summarising the Supreme Court's key findings and the ramifications of the decision for Indian parties and foreign subsidiaries in India. FACTS OF THE CASE[1] A disagreement emerged between two Indian parties about the supply of particular converters and their warranties. Both the appellant and the respondent, PASL Wind Solutions Pvt. Ltd. (PASL) and GE Power Conversion India Pvt. Ltd. (GE), are corporations incorporated under the Companies Act, 19563, with registered offices in Ahmedabad, Gujarat and Chennai, Tamil Nadu, respectively. GE is also a wholly owned subsidiary of General Electric Conversion International SAS, France, which is a subsidiary of the General Electric Company, USA. When the parties' disagreements developed, PASL filed a request for arbitration with the International Chamber of Commerce, as stipulated in Cl. 6 of the settlement agreement. GE raised a preliminary objection to the arbitration's seat, but the arbitrator determined that the arbitration's seat is Zurich, Switzerland. GE recommended Mumbai as a cost-effective location for holding arbitration hearings. The plan was met with opposition from PASL. The Tribunal, however, agreed to the notion and decided that, while the seat would be in Zurich, all proceedings would take place in Mumbai. The arbitrator ruled in GE's favour. After the final award was given, GE ordered that PASL pay the amounts awarded under the aforementioned award; however, PASL refused, and GE commenced enforcement actions in the High Court of Gujarat, where the appellant's assets were located, under Sections 47 and 49 of the Arbitration Act. At this point, PASL contested the arbitral ruling's implementation, contending that the seat of arbitration was Mumbai, where all of the arbitral sessions were held. PASL's argument was rejected by the Gujarat High Court, which affirmed the arbitral award's execution, prompting PASL to seek a special leave appeal with the Supreme Court. ISSUES OF THE CASE ⮚ Is it possible for two Indian parties to choose a foreign arbitral seat? ARGUMENTS ⮚ Contentions by the Appellant 1.Section 23 of the Contract Act of 1872 (the Contract Act) would be in violation, as would Sections 28(1)(a) and 34(2-A) of the Arbitration Act. 2.Parties would be allowed to opt out of India's substantive law by choosing a foreign seat, which would be counter to the country's public policy. 3.Foreign awards, as defined by Part II of the Arbitration Act, can only be obtained through international commercial arbitration. The definition of "international commercial arbitration" in Section 2(1)(f) of the Arbitration Act (Part I) was cited, according to which at least one of the parties to the arbitration is a foreign national, a company incorporated in a country other than India, an association whose central management or control is outside India, or a foreign government. 4.As there was no foreign element involved and the dispute between the two parties originated out of a contract to be fulfilled only in India, the seat of the arbitration would have to be Mumbai and not Zurich, according to the closest connection test. ⮚ Contentions by the Respondent 1.Parts I and II of the Arbitration Act are mutually exclusive, and so the definition of international commercial arbitration (ICA) cannot be transferred from Part I of the Act into Section 44 via the words "unless the context otherwise requires." 2.Nationality, domicile, or residence of parties are irrelevant for the purposes of applying Section 44 of the Arbitration Act, unlike the concept of "international commercial arbitration" in Section 2(1)(f) of Part I. 3.The choice of a foreign seat in arbitration is not mandated under Sections 23 or 28 of the Contract Act. In reality, the Contract Act's exception to Section 28 clearly exempts arbitration from Section 28, which is an unambiguous approval of party autonomy and the foundation of the Arbitration Act. 4.The arbitration clause in the settlement agreement, along with the arbitrator's procedural rules, designated Zurich as the seat and Mumbai simply as a convenient location, which all parties acknowledged and must control the arbitral procedures in this case. JUDGMENT[2] In PASL v. GE, the Supreme Court upheld party autonomy, ruling that two Indian parties can choose a foreign arbitration seat. In this way, it came to the same conclusion as the Supreme Court in Atlas on this legal matter, despite the fact that the bench in Atlas had only looked at the topic from the standpoint of section 28 of the Contract Act. Basically, In reaching its verdict, the court respected the autonomy of the parties. The respondent failed to cite any statute prohibiting two Indian parties from arbitrating in a foreign country. The court reviewed the above-mentioned definition of a "foreign arbitral award" under section 44 of the Act and concluded that all of the requirements were met. It went on to say that section 44 of the Act is the sole repository for determining whether an award is a foreign award, and that it fully addresses all factors that go into making that determination. Finally, it said that the parties' nationality had no influence on whether or whether Part-II of the Act was relevant. This decision will be made entirely on the basis of the arbitration agreement's seat. PRECEDENTS MENTIONED Bharat Aluminum Company v. Kaiser Aluminum Practical Services Inc[3]. - The court had jurisdiction to hear the case since the respondent's assets, which were the subject of the enforcement action, were located within the Court's jurisdiction. Atlas Exports Industries v. Kotak and Company[4]- It was stated that Indian law did not prohibit Indian parties from choosing a foreign seat for arbitration and that such an Act would not be contrary to Indian public policy. TDM Infrastructure (P) Ltd. v. UE Development (India)(P) Ltd[5]- "The legislature's goal appears to be clear: Indian nationals should not be allowed to deviate from Indian law." This is part of the country's "Policy at the national level." (It was later argued that the judgement would not be binding because it was made by a single judge.) Sasan Power Ltd. v. North American Coal Corp. (India)(P) Ltd.[6]- A number of decisions regarding the applicability of Parts I and II of the Arbitration Act, as well as party autonomy, were examined. Centrotrade Minerals and Metal Inc. v. Hindustan Copper Ltd.[7]- The Court found that the idea of party autonomy is basically the backbone of arbitrations while supporting the parties' entitlement to a two-tier arbitration. CASE ANALYSIS The Supreme Court's ruling is significant on multiple levels. First[8], it acknowledges the principle of party autonomy and emphasizes that Indian law does not prohibit two India-domiciled parties from choosing a foreign site of arbitration. Second[9], it sets to rest various contradictory High Court and Supreme Court judgments on the subject. In Sasan Power Ltd. v. North American Coal Corpn. (India) (P) Ltd.11 ("Sasan Power"), the Madhya Pradesh High Court correctly evaluated this issue for the first time, holding that Indian parties are free to pick a foreign site of arbitration. The Madhya Pradesh High Court considered the case of Atlas Exports Industries v. Kotak & Company12, in which the Supreme Court held that the fact that the arbitration was held in a foreign country was not enough to nullify the arbitration agreement that the parties had entered into on their own volition. The Bombay High Court, on the other hand, took the opposite stance in Aadhaar Mercantile Private Limited v. Shree Jagdamba Agrico Exports Pvt. Ltd.14. It cited TDM Infrastructure Pvt Ltd v. UE Development India Ltd.,15 ("TDM Infrastructure"), which concluded that two Indian parties couldn't agree on a foreign arbitration seat. On the other hand, in the Madhya Pradesh High court, they stated that there was a binding precedent with the atlas case. There was no clarity on the applicability of Atlas or TDM Infrastructure on this legal issue as a result of these contradicting decisions. In this case, the Supreme Court decided that TDM Infrastructure's ruling could not be relied upon since it was issued under Section 11 of the Arbitration Act and did not have binding power. Furthermore, the Supreme Court cited Atlas, stating that it is a binding precedent. While the Supreme Court did not address whether two Indian parties could choose a foreign arbitration seat, it did dismiss the challenge to the arbitral judgment on the grounds that it was valid under Indian law. Third[10], the verdict has created the way for parties to pick a foreign seat of arbitration, as well as enabling the losing party to have 'two bites at the cherry' following the award, namely, contesting the award in foreign courts as well as resisting the foreign award's execution in India. Furthermore, such arbitrations will continue to be eligible for relief under Section 9 of the Arbitration Act. Finally, the question of Indian parties' ability to choose a foreign seat was significant for international firms with operations in India (such as GE France and GE USA in this case). For a variety of commercial reasons, such foreign companies have preferred to have disputes between Indian subsidiaries and other Indian parties adjudicated outside of India, including neutrality, efficiency in the supervision of arbitration proceedings by courts at the seat, and speed of resolution in courts at the seat should an arbitration award be challenged. The current decision gives parties the freedom to negotiate and implement agreements to choose a foreign seat of the arbitration under Indian law. The Court declared, "The decks have now been cleared to give effect to party autonomy in arbitration," the Court declared. "The dominating and directing spirit of arbitration has been recognised as party autonomy." CONCLUSION The Supreme Court's decision is a positive step toward making India an arbitration-friendly country, as it maintains the fundamental principles of party autonomy and contract freedom, which are at the heart of arbitration. The Supreme Court has previously upheld party autonomy with respect to various aspects of the arbitration, as evidenced by the judgments discussed in the preceding paragraphs. However, this is the first time the Supreme Court has been asked to decide whether party autonomy under the Arbitration Act is unrestricted enough to allow two Indian parties to choose a foreign seat for arbitration. This decision will have far-reaching implications because there are several cases before the Supreme Court and the High Court that deal with comparable issues. This is due to the fact that once arbitration proceedings begin, courts lose their ability to review the arbitrator's decision. The courts' competence is strictly limited to procedural matters under Section 34 of the A&C legislation, which forbids a review of the judgment on its merits. As a result, merging Indian curial and substantive law would have a minimal practical impact, but the Arbitration & Conciliation Act does just that (even though that it is not the place of the court to alter the interpretation of section 28 of the Contract Act merely for these reasons).PASL v. GE narrows the scope of this peculiarity's application and upholds the idea that two Indian parties can arbitrate a dispute that is not governed by Indian law. REFERENCE PASL Wind Solutions (P) Ltd. v. GE Power Conversion (India)(P) Ltd. [2021] SCC Online SC 226. ‘India: Party Autonomy Trumps! SC Allows Two Indian Parties to Choose Foreign Seat of Arbitration’ (Natlawreview.com) < https://www.natlawreview.com/article/india-party-autonomy-trumps-sc-allows-two-indian-parties-to-choose-foreign-seat> accessed 2nd January 2022 Abhi Udai Singh Gautam and Mustafa Rajkot Wala, ‘Indian Parties without an Indian Court: The Verdict in PASL Wind Solutions’ (Indiacorplaw.com) accessed 2nd January 2022 Bharat Aluminum Company v. Kaiser Aluminum Practical Services Inc [2012] 9 SCC 552 Atlas Exports Industries v. Kotak and Company [1999] 7 SCC 61 TDM Infrastructure (P) Ltd. v. UE Development (India)(P) Ltd [2008] 14 SCC 271. Sasan Power Ltd. v. North American Coal Corp. (India)(P) Ltd. [2016] 10 SCC 813. Centrotrade Minerals and Metal Inc. v. Hindustan Copper Ltd. [2017] 2 SCC 228. Lakshmi Subramaniam Iyer and Aishwarya Dash, ‘Party Autonomy or Contracting out of Indian Courts -Analysis of PASL Wind Solutions (P) Ltd. v. GE Power Conversion (India)(P) Ltd.’ (SCC Online) accessed 3rd January Wilmer Hale, ‘ PASL Wind Solutions Pvt Ltd v. GE Power Conversion India Pvt Ltd: The Indian Supreme Court Clarifies that Two Indian Parties Can Choose a Foreign Arbitral Seat’ (Jdsupra.com) accessed 3rd January 2022 [1] ‘India: Party Autonomy Trumps! SC Allows Two Indian Parties to Choose Foreign Seat of Arbitration’ (Natlawreview.com) < https://www.natlawreview.com/article/india-party-autonomy-trumps-sc-allows-two-indian-parties-to-choose-foreign-seat> accessed 2nd January 2022 [2] Abhi Udai Singh Gautam and Mustafa Rajkotwala, ‘Indian Parties without an Indian Court: The Verdict in PASL Wind Solutions’ (Indiacorplaw.com) accessed 2nd January 2022 [3] Bharat Aluminum Company v. Kaiser Aluminum Practical Services Inc [2012] 9 SCC 552 [4] Atlas Exports Industries v. Kotak and Company [1999] 7 SCC 61 [5] TDM Infrastructure (P) Ltd. v. UE Development (India)(P) Ltd [2008] 14 SCC 271. [6] Sasan Power Ltd. v. North American Coal Corp. (India)(P) Ltd. [2016] 10 SCC 813. [7] Centrotrade Minerals and Metal Inc. v. Hindustan Copper Ltd. [2017] 2 SCC 228. [8] Lakshmi Subramaniam Iyer and Aishwarya Dash, ‘Party Autonomy or Contracting out of Indian Courts — Analysis of PASL Wind Solutions (P) Ltd. v. GE Power Conversion (India)(P) Ltd.’ (SCC Online) accessed 3rd January [9] Wilmer Hale, ‘ PASL Wind Solutions Pvt Ltd v. GE Power Conversion India Pvt Ltd: The Indian Supreme Court Clarifies that Two Indian Parties Can Choose a Foreign Arbitral Seat’ (Jdsupra.com) accessed 3rd January 2022 [10]

Authored By: S Ashwath Citation: [2021] 3 SCC 731 Date Of Judgement: 1st February 2021 Bench: CJI N.V. Ramana, Justice Surya Kant Court: Supreme Court Of India INTRODUCTION Social evil practices or actions have always existed in society, dating back to the dawn of time. The innocent are often the ones who suffer the most. Given the fact that terrorism exists in the globe and the need to combat it, India has enacted a number of laws. Some have since been repealed, while others remain in place. The Unlawful Acts (Prevention) Act 1967 is the focus of this article. The Supreme Court's recent decision in Union of India v. K.A. Najeeb is being hailed as a victory for numerous defendants detained under the draconian Unlawful Activities (Prevention) Act. This Instance shows that constitutional rights are not meant to be toyed with. FACTS OF THE CASE[1] The fact of the above case is that there was a radical organization called the popular font of India(PFI). K.A. Najeeb, the primary accused, is from this radical organization . The victim of the case is T.J Joseph. The respondent in this case considered a question posed by the victim offensive and believed that the question was purposefully aimed at a certain religion. As a result, the respondent and other members of the organization prepared an attack on the victim to revenge their religious views. For a petty issue which involves an objectionable question, the victim got grievously injured. To make it worse the org, bombed the bystanders to avoid the aiding of victim. Hence, an FIR was filed and the NIA (National Investigation Agency) when found that there was involvement of dangerous weapons, they stated that UAPA should be applied to all the offenders involved. The accused was declared fugitive and the co-accused was given imprisonment for 6-8 years and the fugitive was in custody for 5 years. During his time in prison, the respondent sought for bail several times but was consistently denied by the NIA special court since there was prima facie evidence against him. Furthermore, he was ineligible for bail under Section 43D(5), and the standard bail conditions do not apply under UAPA. The respondent decided to ask for bail in the High Court after being frustrated by his NIA special court efforts. The court overturned the NIA special court's decision and granted the respondent bail. The court felt the trial had been carrying on for far too long without reaching a decision. As a result, NIA filed an appeal, claiming that the court's bail decision was incorrect. As a result, this situation has come about. ISSUES OF THE CASE Is it possible for a violation of Article 21 to override the statutory rigours imposed by Section 43D(5) of the UAPA? Is the court obligated to deny bail when the suspect is presumed guilty? Is it possible to dispute the court's decision to grant bail without any particular grounds? ARGUMENTS ⮚ Contentions by the Appellant The first argument given by the appellant is that the bail granted to the respondent does not align with Section 43(D)(5) of the UAPA as it flawed. The other argument they stated was that the counsel emphasized that where the accused is prima facie guilty, the courts are obligated to deny bail. It was also argued in this instance that the fact that the respondent had been a fugitive for years made it clearer for the courts to deny bail. The last argument given by them were that in response to the trial's delay, the lawyers in this case claimed that NIA had filed an extra affidavit to interrogate 276 witnesses. ⮚ Contentions by the Respondent The first argument given by this side was that the almost most of the co-accused have been either acquitted or convicted for less than 8 years. Following that the respondent stated that the respondent has already been imprisoned for more than 5 years, which is a constitutional violation under Part III of the Constitution's equal access to justice and right to a prompt trial provisions. Furthermore, the respondent's attorney made the position that if the High Court has granted bail to the accused, the Supreme Court should not intervene unless there are exceptional circumstances. Finally, the counsel pointed out that there is a violation of right to freedom and liberty by detaining the accused without any trial in the present case. JUDGEMENT[2] This case was led by N.V. Ramana with the support of Surya Kant. Before giving the verdict, the bench did careful research and made sure not to give a hasty decision. The Supreme Court confirmed the High Court's ruling, this is because the court was aiming to strike a balance between the appellant's ability to present any evidence it wants in order to prove the accusations beyond a reasonable doubt and the respondent's rights provided under Part III of the Constitution. As a result, the appellant's SLP was deemed unmaintainable. In other words, even though the accused has been found prima facie guilty by the NIA, the Supreme Court concluded that the accused is entitled to bail under Section 43D(5) of the UAPA. However, courts can grant bail if the provisions of any legislation contradict the accused's constitutional rights, and in this case, the facts made it evident to the Hon'ble Supreme Court that the accused's 'right to a quick trial' had been breached. Furthermore, the fact that the trial is unlikely to be completed very soon. Furthermore, Section 43(d)(5) does not impose any restrictions on the accused's ability to conduct another offence, and it is simply another reason to reject bail. As a result, the Supreme Court upheld the decision of the High Court and determined that the special leave petition was unmaintainable. PRECEDENTS MENTIONED 1. Puran v. Rambilas[3] - It was reiterated that while determining on a bail application, reasons must be recorded, even if the evidence is not being evaluated on its merits. 2. Gurcharan Singh v. State[4] - This Court held that a trial court's grant of bail may only be revoked by the same court if new circumstances/evidence arose; otherwise, an appeal to a higher court with appellate jurisdiction would be required. 3. Shankar Raghuman Rohida v. State of Maharashtra[5] - When the accused had been in jail for a long time and there was little chance of a speedy trial, the court increased their bail. The legitimacy of strict bail conditions under such special legislation has thus been principally argued on the basis of expedited trials to safeguard innocent civilians. 4. Legal Aid Committee Representing Undertrial Prisoners v. Union of India[6] - Undertrials cannot be held indefinitely until trial, the court said. In an ideal world, no one should incur negative consequences as a result of their actions unless they are proven in front of an impartial arbitrator. 5. National Investigation Agency v. Zahoor Ahmad Shah Watali[7] - It was stressed that bail processes under the special enactment were separate, and that courts were required to deny release if the defendant was found to be guilty prima facie. It was also argued that the fact that the respondent had been missing for years made suspicions about his bail all the more valid. CASE ANALYSIS Seeing the facts and issue of the case, it is important to analyse the case properly as well. Before analysing it though, it is important to note what the court had to say on the issues of the case mentioned above. As for the first issue which is if it is possible for a violation of article 21 to override the statutory rigours imposed by Section 43D(5) of the UAPA? Well, Undertrials cannot be held indefinitely until trial, the court said. In an ideal world, no one should incur negative consequences as a result of their actions unless they are proven in front of an impartial arbitrator. To support the statement the court stated that the legislative policy against bail is expected to be respected by courts, but the rigours of such provisions will be tested if there is little chance of a speedy trial and the length of jail already served has exceeded a significant portion of the authorized sentence. This approach would prevent rules like Section 43D (5) of the UAPA from being utilised as the primary criterion for denial of bail or wholesale violations of the constitutional right to a speedy trial[8]. As for the next issue, Both the statute's restrictions and the powers promised to the Supreme Court under constitutional authority can be adequately reconciled, it was added. Despite the fact that the accused was prima facie guilty, the judges, while recognising the severity of the offences, took into account the time the respondent had spent in custody. The High Court's decision to grant bail was warranted, considering the "unlikelihood of the trial being finished anytime soon." The court observed, "An endeavor has been made to strike a balance between the appellant's ability to lead evidence of its choosing and establish the charges beyond a reasonable doubt, while also ensuring that the respondent's rights granted under Part III of our Constitution are effectively preserved." As for the last issue, both the statute's restrictions and the powers promised to the Supreme Court under constitutional authority can be adequately reconciled, it was added. Despite the fact that the accused was prima facie guilty, the judges, while recognizing the severity of the offences, took into account the time the respondent had spent in custody. The High Court's decision to grant bail was warranted, considering the "unlikelihood of the trial being finished anytime soon." The court observed, "An endeavor has been made to strike a balance between the appellant's ability to lead evidence of its choosing and establish the charges beyond a reasonable doubt, while also ensuring that the respondent's rights granted under Part III of our Constitution are effectively preserved. It's worth noting that Section 43(D)(5) of the UAPA is being closely scrutinized, as it grants the NIA special court unique authority to reject bail if it's judged appropriate. What's important to note here is that neither the Act nor any judgement have defined the term "necessary." As a result, the investigating authorities may abuse this section. It can also be witnessed in the current case, where the accused was denied bail many times by the NIA special court before receiving it from the High Court." TADA (Terrorist and Disruptive Activities 1987) and POTA ( Prevention of Terrorism Act 2002) were severely condemned and subsequently repealed in the last thirty years for their strict and "anti-people" features. This, however, proved ineffective because the anti-terror laws that succeeded these older regulations had the same provisions verbatim, but with a broader scope of abuse. This scope is evident in the current case, as the threshold set forth in this section is significantly lower than that set forth in previous anti-terror statutes or 'regular' criminal law. UAPA was created with the declared goal of stopping individuals from acting in a way that was "prejudicial to state aims," and was quickly dubbed "advanced" POTA. In a complicated web of rules that must be scrutinised from every angle, UAPA's original goal was to relieve the criminal justice system's load during extraordinary circumstances. This was quickly replaced by a toy governed by the executive's whims. In recent years, there has been a considerable increase in the abuse and application of extraordinary legislation. Draconian prohibitions justified in the name of the "exceptional" are rapidly becoming part of common law. As a result, the distinction between temporary provisions for unusual situations and laws under legislative review is becoming increasingly blurred. The need for special legislation was argued on the grounds of ensuring "closer and faster delivery of justice" and lowering the conviction rate. The current situation, as is well known, runs counter to the spirit of 'exceptional' laws, and the rate of convictions has risen dramatically as a result of the Act's expanded reach. The conclusions of the Malimath Committee Report, which revealed a disturbing amount of 'exceptional' provisions being applied for ordinary offences in the name of 'simplifying the system,' were emphasized by a well-known author[9]. Various proposals have been made to amend the criminal code in order to allow for extraordinary provisions that frequently obliterate fundamental human rights. This not only goes beyond the theoretical scope of the laws, which should be limited to exceptional circumstances, but it also undermines the CrPC's current procedural laws. In actuality, the UAPA has gone beyond its own limits, as it is frequently used to suppress dissent and freedom of expression. The State has the authority under Section 43D (5) of the UAPA to deny bail whenever it deems it appropriate. The criterion for what is judged "essential" is so low that it is vulnerable to manipulation and power abuse by investigative agencies. It's also worth noting that, according to data from the National Crime Records Bureau (NCRB)[10], just 2.2 percent of those arrested under the UAPA are convicted by the courts. As a result, holding the accused in custody for a prolonged period of time may appear to be questionable. Longer custody, on the other hand, has an obvious link to fundamental rights. It was apparent in this case as well that the accused had violated his constitutional rights by imprisoning him for more than five years without being tried. It was also noted by the Supreme Court, and the accused was given bail as a result. At the 'interlocking of ordinary and special legislation,' the infringement of Article 21 of the Constitution, which safeguards individual liberty and the freedom to protest, is frequently neglected. In this scenario, the same thing has happened. Now the main problem that could be observed in Section 43D (5) of UAPA is that State prosecutors have frequently exploited Section 43D (5) of the Unlawful Activities (Prevention) Act and its harsh provisions as a weapon, making it nearly hard for anyone indicted under UAPA to obtain bail. CONCLUSION Reading this far, a hazy picture should have arisen about this case and why the case came about. There were a lot of subjective opinions, but this paper is not about which thoughts are right but to make the reader know the issue behind this case and how it can be analysed. The Unlawful Activities Prevention Act of 1967 (UAPA) was created to assist the government in putting a stop to rising terrorist activity and relieving the criminal justice system of its burden. In light of such incidents, it is safe to conclude that, in addition to combating terrorist activities, UAPA has been infringing on individual constitutional rights, which cannot be taken away from citizens when the country is in an "emergency." Instead of feeling frightened, the government should strive to establish a balance between strict regulations and fundamental rights, so that citizens feel empowered rather than threatened. REFERENCE Union of India V. K.A. Najeeb [2021] SCC 731 Shivangi Banerjee, ‘Union of India vs K.A. Najeeb: A Trial Without a Trial’(lawoctopus 3 march 2021) accessed 21st December 2021 Ibid (1) Puran v. Rambilas (2001) 6 SCC 338 Gurcharan Singh v. State 1978 AIR 179 Shankar Raghuman Rohida v. State of Maharashtra 2003 (4) MhLj 520 Legal Aid Committee Representing Undertrial Prisoners v. Union of India (1994) 6 SCC 731 NIA v. Zahoor (2019) 5 SCC 1 Abhishek Bhardwaj, “Anatomization of the Draconian Unlawful Activities (Prevention) Act” (2021) 2(3) accessed 22nd December 2021 Ujjwal Kumar Singh. (2004). State and Emerging Interlocking Legal Systems: ‘Permanence of the Temporary’. Economic and Political Weekly, 39(2), 149-154. from http://www.jstor.org/stable/4414494, p 3 Diganth Raj Sehgal, ‘The status of UAPA undertrials in the light of Union of India v. K.A. Najeeb’ (blogipleaders 17 July 2021) accessed 23rd December 2021 [1] Shivangi Banerjee, ‘Union of India vs K.A. Najeeb: A Trial Without a Trial’(lawoctopus 3 march 2021) accessed 21st December 2021 [2] Ibid (1) [3] Puran v. Rambilas (2001) 6 SCC 338 [4] Gurcharan Singh v. State 1978 AIR 179 [5] Shankar Raghuman Rohida v. State of Maharashtra 2003 (4) MhLj 520 [6]Legal Aid Committee Representing Undertrial Prisoners v. Union of India (1994) 6 SCC 731 [7] NIA v. Zahoor (2019) 5 SCC 1 [8] Abhishek Bhardwaj, “Anatomization of the Draconian Unlawful Activities (Prevention) Act” (2021) 2(3) accessed 22nd December 2021 [9] Ujjwal Kumar Singh. (2004). State and Emerging Interlocking Legal Systems: ‘Permanence of the Temporary’. Economic and Political Weekly, 39(2), 149-154. from http://www.jstor.org/stable/4414494, p 3 [10] Diganth Raj Sehgal, ‘The status of UAPA undertrials in the light of Union of India v. K.A. Najeeb’ (blogipleaders 17 July 2021) accessed 23rd December 2021