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Bombay High Court Lays Down Guidelines For Abandoned Vessels Under Arrest

5 days ago 0Comments 50Views

By Vikrant Shetty

May 23, 2022

On the last day of Hon’ble Mr. Justice S.J. Kathawalla’s tenure as judge of the Hon’ble Bombay High Court, the Division Bench comprising of him and the Hon’ble Mr. Justice Milind N. Jadhav, provided a huge relief to crew members who remain on abandoned vessels that are under arrest, by providing guidelines that would have to be followed by the owner, arresting party, Sheriff of Mumbai and the concerned P&I Club. In the matter of The Swedish Club vs V8 Pool Inc &Ors. and Pradeep &Ors. Vs. M.T. GP ASPHALT the Hon’ble Court considered the following questions:

Whether crew wages accrued on board a vessel after her arrest by the Admiralty Court would rank as “Sheriff’s expenses”?
Whethera party who has approached theAdmiralty Court for leave to pay the crew their wages can stand in the shoes of the crew members and claim such amounts from the sale proceeds of the vessels as Sheriff’s expenses and / or in priority as a maritime lien?

Brief Background of Facts:

The subject Vessel M.T. GP ASPHALT I was arrested on 22^nd December, 2020, by V8 Pool Inc.

Swedish Club was the Protection and Indemnity Club (“P&I Club”) with which the vessel was entered.On 22^nd December, 2020, after receipt of emails from the crew informing that the vessel supplies were running low, FTI Consulting, the company undertaking restructuring of the owner of the Defendant vessel, arranged for enough supplies to last a month.

On 7^th January, 2021, the Crew addressed an email to the Swedish Club informing them that the salaries for the month of November and December 2020 were overdue and that arrangements would have to be made for food and water. The Swedish Club, on 21^st January, 2021 filed an Interim Application,seeking leave of the Ld. Single Judge to make certain payments in respect of maintenance of the vessel and well-being of the crew and that the same be treated as “Sheriff’s Expenses”, which would allow the amounts to be reimbursed as a first charge from the eventual sale of proceeds from the Vessel. The Ld. Single Judge disallowed the application and held that the Swedish Club was obligated under the Maritime Labour Convention (“MLC”) to make the payment of the wages and was not a Volunteer. The Ld. Judge held that if the Swedish Club makes payment for the expenses post arrest (including wages), it will not be treated as Sheriff’s expenses. The Swedish Club would have to file a suit, for the recovery of the same.

Both the Swedish Club and the Crew Members appealed from the respective orders which were allowed by the Hon’ble Bombay High Court[1].

Guidelineslaid down:

For the benefit of the crew the Hon’ble Court found it necessary to frame some guidelines to be followed in the case of abandoned vessels that are under arrest. However, the Hon’ble Court clarified that these are only guidelines, and the Admiralty Court is at its liberty to use its discretion in any given case.

1. A vessel under arrest / its crew will be considered abandoned if:

a. After the arrest of the vessel, the crew addresses a communication to the owner with a copy to the P&I club, the demise/bareboat charterer (if any), the arresting party and the Sheriff of Mumbai stating that the vessel requires supplies (food/ provisions/ bunkers/ other necessaries)and/ or one or more of the crew’s wages remain unpaid for at least 2 months, with details of when the supplies are expected to run out and of the outstanding wages; and

b. The owner and the demise/bareboat charterer (if any) fails to make the necessary supplies to the vessel and make payment of the said outstanding wages within 10 days or responds stating its inability to maintain the vessel and crew.

2. The arresting party shall bring the crew’s communication to the attention of the Admiralty Court within 4 days of such communication.

a. If the owner of arrested vessel has not entered appearance in the suit, the Admiralty Court shall pass an order calling upon the owner and such demise/bareboat charterer (both) to remain present in court within 3 days. The order shall be communicated to the owner by the arresting party. If the owner remains absent, the Admiralty Court shall record that the vessel and crew have been abandoned.

b. If the owner or demise/bareboat charterer (if any) of the arrested vessel has entered appearance in the suit or appears pursuant to the order above specified, the Admiralty Court shall direct the owner and such demise/bareboat charterer (both) to make the necessary supplies to the vessel and make payment of the said outstanding wages within a further 3 days, failing which the vessel and crew shall be considered abandoned.

3. If the owner or demise/bareboat charterer (if any) of the arrested vessel has entered appearance in the suit or appears pursuant to the order above specified, the Admiralty Court shall direct the owner and such demise/bareboat charterer (both) to make the necessary supplies to the vessel and make payment of the said outstanding wages within a further 3 days, failing which the vessel and crew shall be considered abandoned.

4. If a vessel is so abandoned, and pending the sale of the vessel, any party (including a P&I club which has humanitarian obligations to the crew on board the vessel at the time of abandonment) is desirous of rendering supplies or funding expenses for the safety and/or preservation of such vessel and/or subsistence of the crew and/or payment of wages and/ or repatriation of crew and/ or reducing the crew on board to a skeleton crew and claiming the same as Sheriff’s expenses is required to do either of the following:

a. Approach the office of the Sheriff of Mumbai to urgently file a report to seek directions from the Admiralty Court for such steps to be taken as may be required and for leave of the Admiralty Court to permit that party to put the office of the Sheriff in funds for such steps and for such expenses to be Sheriff’s expenses. The office of the Sheriff shall immediately file a report before the Admiralty Court. All expenses and payments shall be routed through the Sheriff’s office.

b. Approach the Admiralty Court directly with prior notice to the arresting party concerned as well as the office of the Sheriff of Mumbai seeking leave to do any of the above for the safety and/or preservation of the vessel and/or subsistence of the crew and/or payment of wages. In such case all expenses and payments shall be routed through the office of the Sheriff of Mumbai.

c. If such an application is made, the Admiralty Court shall hear the same on an urgent basis and pass necessary orders. Unless there are serious doubts about the expenses, in the interests of the well-being of the abandoned crew members on board the arrested vessel, leave shall generally be granted for such expenses to be Sheriff’s Expenses and recoverable from the sale proceeds on an immediate basis.

d. If such an application is made, the Admiralty Court shall hear the same on an urgent basis and pass necessary orders. Unless there are serious doubts about the expenses, in the interests of the well-being of the abandoned crew members on board the arrested vessel, leave shall generally be granted for such expenses to be Sheriff’s Expenses and recoverable from the sale proceeds on an immediate basis.

5. In case of an emergent situation where the situation on board the vessel is precarious, any party may after giving at least 24 hours’ prior notice in writing to the parties to the suit as well as the office of the Sheriff may render the supplies/ incur expenses for a limited period of time i.e. 7 days. Such party must thereafter at the earliest make an application to the Admiralty Court to declare such payments made as Sheriff’s Expenses and for any further expenses it desires to incur as per the procedure laid out above.

a. Any party seeking reimbursement of such payments made, shall file an application with all relevant documents in support including proof of payments.

b. The Admiralty Court shall refer the claim of such party to the Commissioner for taking accounts or such other officer of the Court to examine and scrutinize the claims. The officer so appointed shall give a hearing to the parties and examine and scrutinize the documentation and shall prepare a Report for the Admiralty Court.

6. In the event, crew on board an arrested vessel have not been paid their wages, all such crew members shall also be entitled to approach the Admiralty Court to treat their wages accrued post arrest as Sheriff’s Expenses. The Admiralty Court shall refer the crew’s claim to the Commissioner for Taking Accounts or such other officer of the Court to examine and scrutinize the crew’s claims. The Commissioner for Taking Accounts or such other officer so appointed shall give a hearing to the parties and shall prepare a Report for the Admiralty Court.

7. There may be situations where the vessel and crew have already been abandoned prior to the arrest. A vessel/ crew will be considered to have already been abandoned before the time of arrest if the crew has addressed a communication to the owner with a copy to the P&I club stating that the vessel requires supplies (food/ provisions/ bunkers/ other necessaries) and/ or one or more of the crew’s wages remain unpaid for at least 2 months, with details of when the supplies are expected to run out and of the outstanding wages and the owner has failed to supply the vessel or make payment of the outstanding wages within ten days thereof or has responded stating its inability to maintain the vessel and crew. If an abandoned vessel is arrested, for all expenses post the arrest, the procedure above said shall be followed.

8. It is expected that the P&I clubs with which such vessels (whether abandoned before or after the arrest) are entered will promptly approach the Admiralty Court for appropriate orders. The same procedure as stated above for reimbursement of payments made above will apply.

9. The Admiralty Court shall, as far as possible, expeditiously pass orders on all applications including for immediate reimbursement of any such payments as above specified first in terms of priority from the sale proceeds of the vessel.

Implication of the Guidelines:

It is yet to be seen whether courts will apply similar principles to those who provide salvage services to arrested vessels. However, the aforesaid guidelines have brought much required clarity with respect to the rights of the crew members of an abandoned vessel under arrest and the steps that can be taken for maintenance of the vessel and its crew, including payment of wages during the period of arrest of such vessel.

The above Article is written by Vikrant Shetty, Partner of DhruveLiladhar& Co. with assistance from Associate Sakina Electricwala.

[1]Order dated 23^rd March 2022, passed in Comm. Appeal No. 108 of 2021 and Comm. Appeal No. 111 of 2021

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On Non-Fungible Tokens (NFTs)

April 23, 2022 0Comments 240Views

By Anand Kumar Rai

April 23, 2022

NFT stands for non-fungible token. An NFT is a digital cryptoasset that represents real-world objects, for example, artwork like music, painting, crafts, videos, game items, etc. They are sold and purchased online, frequently like cryptocurrencies, and they are generally encoded with the same underlying software as many cryptocurrencies.

Cryptocurrencies and physical money are “fungible,” which means they can be exchanged or traded for one another. They’re also equal in value—one dollar is always worth another dollar; one Bitcoin is always equal to another Bitcoin. But, NFTs are different, each NFT has a unique digital signature that makes it impossible for NFTs to be exchanged for each other or equal to one another (hence, non-fungible). For example, two persons A and B having different denominations of notes but having equal value could exchange their money the way we exchange when we need change. But both of them having two different art pieces with different digital signatures cannot exchange the same as both are two different digital tokens having different digital signatures.

Need for NFT:

The next question that arises is – what is the need for NFT?Anyone can view the bulk of images online for free. So why spend millions on something that could easily screenshot or downloaded? The answer is whenever we download or take screenshots, we don’t own the artwork. We don’t have rights over the artwork. NFT allows the buyer to purchase or sellthe ownership of the original item. It contains built-in authentication, which serves as proof of ownership. Collectors value these “digital bragging rights” more than the item itself.So, if we buy an oil painting via NFT, instead of getting an actual oil painting to hang on the wall, we will get a digital file instead.

Regulation and legal position of NFTs in India:

Transactions of NFT is risky business. An NFT’s value is entirely based on what someone else is willing to pay for it. Therefore, demand in the digital market will drive the price rather than the fundamental value of the asset, technical or economic indicators, which typically influence stock pricesover stock exchanges, and at least generally form the basis for investor demand. So, it is not guaranteed that if for example,we buy a piece of artwork for Rs 1000 having a perception that in future we will be able to sell it for a higher price, we will be able to do so, as there is a possibility that we will lose all of our money in case nobody wants to buy that particular artwork.

Since it is a new form of digital trading like cryptocurrency,there is no specific regulation or law that bans the trading ofNFTs in India. Also, there is no explicit definition that classifies NFTs as a type of cryptocurrency or a type of derivative. However, the government is planning to introducea law that will ban private trading of cryptocurrencies which is more focused towards criminalising the possession, issuance, mining, trading and transferring of crypto-assets. India is further planning to build a structure for introducing official digital currency, but it is a long way to go. But, as of now, there is no definition of crypto-assets in Indian legislation, so it’s intricate to decide whether NFTs fit into this category of an asset or not and will be banned along with other cryptocurrencies.

1. NFTs under Securities Contract (Regulation) Act, 1956:

In a parallel opinion, it is suggested that NFTs will be categorised as derivatives under the Securities Contract (Regulation) Act, 1956 (“SCRA“).

Section 2(a)(ac) of SCRA defines derivatives as:

(ac)] “derivative” includes–

(A) a security derived from a debt instrument, share, loan, whether secured or unsecured, risk instrument or contract for differences or any other form of security;

(B) a contract which derives its value from the prices, or index of prices, of underlying securities]]

[(C) commodity derivatives; and]

[(D) such other instruments as may be declared by the Central Government to be derivatives;]

Section 18A of SCRA defines the condition for a derivative trading to be legal as:

18A. Contracts in derivatives

Notwithstanding anything contained in any other law for the time being in force, contracts in derivative shall be legal and valid if such contracts are

(a) traded on a recognised stock exchange;

(b) settled on the clearinghouse of the recognised [stock exchange; or] in accordance with the rules and bye-laws of such stock exchange.]

[(c) between such parties and on such terms as the Central Government may, by notification in the Official Gazette, specify,]

Looking into both the sections, the relevant information we take out is that contracts in derivatives will be valid and legal only if such contracts are traded on a recognised stock exchange and settled on the clearinghouse of the recognised stock exchange, in accordance with the bye-laws of such stock exchange. But in the case of NFT right now these two conditions are not being fulfilled. So, if NFTtrading is deemed to be a contract in derivative for the purposes of SCRA, then it would make the sale and purchase of NFTs in private illegal.

So, if government include the NFTs in the category of Derivatives without having any alternative platform like a recognized exchange or indexes that regulate NFT’s pricing on that particular exchange, then It will become Illegal.

The government has also prepared a draft to regulate the cryptocurrency and is likely to adopt, the ‘Banning of Cryptocurrency & Regulation of Official Digital Currency Bill’ of 2019 in 2021

The draft defines the cryptocurrency under section 2(1)(a) as:

“Cryptocurrency, by whatever name called, means any information or code or number or token not being part of any Official Digital Currency, generated through cryptographic means or otherwise, providing a digital representation of value which is exchanged with or without consideration, with the promise or representation of having inherent value in any business activity which may involve risk of loss or an expectation of profits or income, or functions as a store of value or a unit of account and includes its use in any financial transaction or investment, but not limited to, investment schemes;”

Under the above mentioned definition, it can be analysed that NFTs could be considered to be of the following value:1. Representation of value, which is exchanged with the inherent value in any business activity, for example, a proprietary code could be sold as an NFT to a business.2. As a store of value, for example, buying any artwork/art pieces.

However, there is an exemption to this under Section 3(3) of the bill, as per Section 3(3) – Nothing in this Act shall apply to the use of Distributed Ledger Technology for creating a network to enable the delivery of any financial or other services or for creating value, without involving any use of cryptocurrency, in any form whatsoever, for making or receiving payment.

The only problem here with the above section is that it is unable to explicitly define whether NFTs would fall under the scope of services as laid down under the above exemption or not.

2. NFTs under Sale of Goods Act, 1930:

Unless the government doesn’t come up with an explicit definition and regulations defining NFTs, they can be considered as “goods” under the Sale of Goods Act, 1930.

Section 2(7) of the Act defines the Goods as:

(7 ) “goods” means every kind of movable property other than actionable claims and money; and includes stock and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale;

The definition of goods provided under the sales of goods act doesn’t explicitly exclude NFT from its scope. With appropriate regulation from the side legislature in its very right, can include this term under the provisions of this Act.

3. NFTs under FEMA:

Currently, the marketplaces over which NFT transactions are performed are operated by entities established outside India. As the Foreign Exchange Management Act, 1999 (“FEMA”)governs cross-border economic transactions in India, but there are no explicit regulatory guidelines from RBI for crypto-assets or NFTs. If we consider existing provisions of FEMA, crypto-assets and NFTs could be considered as intangible assets like software and intellectual property under FEMA. However, determining the location of an NFT is an open question, the location where its owner resides or where the asset is physically present?

Since most of the NFT’s buyers and sellers as well as the operators of marketplaces are located outside India, Indian participants in the NFT purchase or selling could be seen as performing cross-border transactions. This will put a questionunder FEMA, that whether in these transactions there is an export or import of an intangible asset. Also, for a transaction to fall under the ambit of FEMA the transaction has to have a corresponding remittance of fiat currency done through authorised banking channels. Therefore NFT transactions are in an ambiguous position under FEMA.

4. NFT under Finance Act, 2020:

The Finance Act, 2020 expanded the ambit equalization levy (“EL”) and ensures its applicability on e-commerce operators at a rate of 2 per cent on the consideration received by such e-commerce operators from ‘e-commerce supply or services’ made. Accordingly, the NFT marketplaces may be subject to EL at a rate of 2% on consideration received by them fromtransactions made, if they are also considered as ‘e-commerce supply or services’ made to a person resident in India, a person using an Indian internet protocol (“IP”) address, or a non-resident in certain specified circumstances

But, applying this provision to the purchase of NFTs would lead to certain complications. 1. The definition of an e-commerce operator under the EL provision is very wide and may extend to any electronic service which may facilitate a buyer and a seller to carry out an NFT transaction, including the blockchain operators and not just the NFT marketplace. 2. At no point during the transaction does the NFT marketplace have access to the sale consideration of the NFT. This non-custodial feature results in a situation of impossibility where the marketplace would have to pay 2% of the entire consideration, even when it does not have access to the consideration amount. 3. It is unclear whether the gas fees, which goes neither to the seller nor the e-commerce operator but directly to blockchain miners, would be considered to be part of the tax base for levy of EL in the hands of the NFT marketplace. 4. It may be impractical or unfeasible for the e-commerce operator to keep track of the IP address or the location or residency of each buyer or seller for determining the applicability of EL.

5.NFT under GST:

Having no explicit definition of NFTs under the Indian legislation makes it difficult to levy GST on NFT transactions. Under the Goods and Services Tax (“GST”) regime, the NFT classification is very important to impose GST, it should be clearly classified into intangible assets and goods, as typically, the tax treatment under GST should generally follow from the nature of the underlying asset. For example, whether a digital art as NFT will be treated as an intangible asset or good for levying income tax and Goods and Services Tax (GST). GST applicability will also depend on whether the NFT platform is located in India or outside of India.

The GST regime also obligates an electronic commerce operator to collect tax at source at a specified rate of the net value taxable supplies made through it by other suppliers where the consideration with respect to such supplies is to be collected by the operator (Section 52 of the CGST Act, 2017).In this regard, while the Tax Collected at Source (TCS)obligation under GST may apply to a normal marketplace wherein the consideration for the supply is collected by the marketplace. In the case of an NFT marketplace, the TCS obligation under GST should not apply, as the consideration for the supply is not collected by the NFT marketplace but, directly transferred between the parties through an automated contract.

Way forward:

In India, it is in the developing phase. It is up to the government how they have been regulated, the government has been trying to regulated cryptocurrencies also, similarly,NFTs would also expect to be regulated in a similar fashion. It is yet to see how government will react such instruments. Also, there are no guidelines from RBI for regulating NFTs and their transactions.

As of now NFTs are billed as digital art pieces and there is no particular regulation defining the position of NFTs, so we might have to rely on regular principles of the Indian Contract Act and the Sales of Goods Act, for the sale/purchase of NFTs.

Anand Rai is an associate at Sarvaank Associates. He advises and acts on transactions and corporate commercial work, with a special focus on corporate finance and policy. I

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The Conundrum of doing the right thing and its legality

April 20, 2022 0Comments 121Views

By Siddharth Narula

April 20, 2022

Abstract

With morality at the crux of its arguments this article highlights the issue that is the ethical conundrum faced while making a choice, to do either the right thing, but go against the law, or the legally correct thing and ignore ones beliefs. Using the hypothetical scenario, the ‘trolley problem’, this article attempts at deciphering the correct course of action, while evaluating the difference between past and present opinions in the form of both, laws and ones understanding of what is correct.

Introduction

Most people reading this would probably know of, or have at least heard of the ‘Trolley problem’. For those who are unaware, the problem describes a fictional scenario wherein ‘You’ an ‘onlooker’ sees five people tied to one side of a tram track and one person tied to the other side. Near you is a switch that changes the direction of the main track and approaching from a distance is a tram travelling on those very tracks, heading towards the group of five. The onlooker is left with a decision to make – whether to save the lives of five people by sacrificing the single person tied to the other side, or to let those five die and spare the one.

Majority would conform to the theory of utilitarianism, ie. anything is right if done for the greater good and choose to save the five. Ironically though, if one was to judge this from a legal perspective, the person would be held accountable for manslaughter (culpable homicide) if he were to sacrifice the single individual to save the other five. Despite taking into account the theory, since the person proactively made a choice of killing the one, even if it was to save the others, it would be considered illegal. Under the common law of most English speaking countries such as the U.K and the US, there exists a rule of ‘no duty to rescue’, where a person is not compelled to help anyone in need and is not held liable as such if they fail to provide it.

However, the way this concept is construed varies across countries. It is a legal requirement in some countries to provide assistance unless doing so would prove detrimental to oneself or others. Providing basic aid such as alerting the authorities in cases such as a car crash or a person collapsing due to health issues, is compulsory. For example, under the Danish penal code, ‘all persons are required to provide aid to any person who appears to be lifeless or in mortal danger’ provided, that in acting they would not endanger themselves. Similarly, in France, anyone who fails to render assistance will be found liable before French courts.

Therefore, it is not as though legal systems around the world entirely abandon the concept of morality yet, it must be observed that in none of these examples is the safety of the one assisting or a third party is being jeopardised. And so, when it comes down to the matter of survival between two different parties, no explicit rules have been laid down concerning the required course of action. Even if one side has a larger number of people being put at risk, as law dictates that all subjects before it be treated equally, giving greater weightage to the larger group would tantamount to quantifying the worth of people and so in such scenarios, the legally correct thing would be to not intervene.

With the problem from before, if the same scenario would be implemented with a few changes such as replacing the one person with the onlooker’s family member or close relative or even a person of higher stature than the other five, the answers would vastly differ. Though this is not an effective test to determine one’s morality, it does allow us a peek into the inner workings of the mind and understand how people arrange the importance of others such that it does not come into conflict with their ethics.

This, then begs the question— what is the right thing to do? We are only able to exist today as a result of thousands of years of evolution, evolving not only physically but mentally as well, allowing us to think diagonally. The least we can expect is for there to be a clear distinction between what is good and what is bad. It seems that despite the purpose for which law exists— to provide justice, there is still moral uncertainty with regard to the right course of action for such matters. Does law even take morality into account? Well, if it doesn’t, should one discard their morality to be legally correct? After all, the majority would think twice about doing something if they become aware of its illegality, especially in today’s world which pushes people toward a perfect public persona. Where even a single misstep would cause the people to look askance upon them; as a result people have started to tread carefully. They have developed a more self-centered attitude abandoning their already diminishing morality.

Attempting to answer the unanswerable

What is the right thing to do? — this is a tough question. The definition of ‘right’ is far too vague. To even attempt to answer that would require a person to venture deep into the realm of philosophy and the inner workings of the human mind. This subject is something which even great philosophers such as Plato, Aristotle, Socrates and the like have barely scratched the surface of. So, what we can do is merely guess and theorise.

Based off of what can be gathered by observing one’s surroundings, one may notice that the definition of ‘right’ varies from individual to individual. To some, doing the right thing may mean making the other suffer ten times more than the suffering that was caused to them, while to others It may mean the exact opposite. They strive to forgive and forget.

Similarly, in a situation where one has to choose between the survival of two groups, the answer may vary. The opinion on this generally remains divided (albeit unequally), however, if one wants a straightforward answer then doing the correct thing would be to keep losses to a minimum. This is where law is introduced, but it is also where it falls short.

Law acts as a deterrent to conflict arising out of a divided opinion. By codifying opinion in the form of rules, law imposes something common on all. The end result— harmony despite divided opinions. A simple analogy to understand this is imagining law as the ‘good guy’ being forced to play the ‘bad guy’ for the greater good. Laws discourage violence between two groups of thought while setting a common rule for all to follow. Two prominent examples can be laws regarding the freedom of speech and taxation.

Both of the aforementioned laws embody the principle – “For The Greater Good”.

Freedom of speech is a double-edged sword— While laws do allow a person freedom of speech in all forms (oral and in print), it maintains a certain bottom line in this regard.

Article 19(2) imposes certain (reasonable) restrictions on this right which prevents its interference with the state procedures regarding law making, the security of the state, relations with foreign states, public order, or incitement to an offence.

Similarly, taxation, more particularly, the progressive taxation system also falls within the same category. Tax is a universal concept and is imposed on all. However, the way it is imposed differs according to the economic status of those taxed. The wealthy are taxed more while the poor are taxed less.

At a glance it may seem unfair, discriminatory even, to tax the former more. However, this discrimination helps maintain a balance in society. The idea being to patch up the ever widening gap between the rich and the poor.

On the other hand, the rigidity of law can be one of its biggest flaws. Law tries to maintain harmony and functions such that losses occurred are minimal. However, the cost of maintaining this harmony is what some believe to be a clear disregard for morality. To achieve its purpose, law needs to maintain a certain level of neutrality in order to avoid being perceived as partial.

This neutrality can often be construed as a total disregard towards human emotions; emotions being one of the main driving forces behind an individual’s actions. The rationale is to maintain order and minimise the intervention of any third party, but by doing so, it deprives both the victim as well as any third party the chance to receive and/or give any assistance without fear of possible repercussions.

It can be argued that nothing exists without flaws and it is something that is bound to happen, however, this is precisely the reason why simply abiding by the law is not enough. Citizens need to actively participate in the lawmaking process. To be dissatisfied with any law on account of it being outdated or violative of a citizen’s rights is natural, but mere criticism is not enough. The Constitution of our country assures our rights however, it is entirely dependent upon us to assert them and prevent their violation.

The thought behind the action

Even though an action might not be legally correct, to some not doing it might tantamount to abandoning their moral principles. They, thus abide by the ideology of ‘doing the right thing’, and would much rather be punished for doing something illegal, rather than be simply reticent.

As such, it does make one wonder what defences would be available to such an individual. After all, their action was out of honest intentions and if not for the situation before them they would not have had to make such a choice. Having been reduced to making a choice between two evils, one would choose to do what they abhor less, although their feelings towards it may be as extreme as if it were the worse between the two.

Setting aside the fact that an occurrence similar to the trolley problem is nearly impossible, judging it according to the standards mentioned before, the person who acted (regardless of the outcome) will be held liable for his actions. According to the procedure established by law, this person will promptly be produced before the court and will await trial. The only route to absolve him of his crime or at least reduce his sentence is for him to employ necessity as a defence. Section 81 of the IPC states that an act which is likely to cause harm, but done without criminal intent and to prevent harm to another is not an offence. Thus, in accordance with the above, the individual can plead not guilty and based on what the law states, it is most likely that the person will be absolved of his crime. However, as there is no concrete evidence on the outcome of such a trial, one must look to other similar instances. Cases with a common nexus, though they may have facts as different as day and night, share a common rationale.

This can be observed in the earliest recorded case of Regina v. Dudley and Stephens wherein necessity was used as a defence.

The trial of Regina v. Dudley and Stephens, or more famously known as the ‘Mignonette’ trial is one which involves the same principle of necessity with not much difference from the trolley problem. The trial follows the aftermath of four shipwreck stranded individuals who, in order to sustain themselves resorted to cannibalism by killing one of their party members.

This case formed two principles that make necessity inapplicable as a defence for murder. The main principle which formed the cornerstone for the same was the presence of an urgent and immediate threat to life, only following which it could be considered appropriate to carry out an action which might break the law. The second is medical necessity. Similar to the above, any activity may be justified as appropriate or legal if it conforms to the clinical standards of care, provided, that it is proven. The court in this trial found the accused guilty of murder and ruled that cannibalising the person was not urgent. Though there was a threat of starvation, at any moment a ship could have sailed over the horizon to save them, as that was indeed the case. They were originally sentenced to death which was later reduced to just six months in prison. Though the decision in this case is a highly debated one; to decide whether or not it was appropriate, one must examine all factors before forming an opinion.

From a legal standpoint, the decision to punish the group, was the correct one. The rationale of the court, though not entirely convincing did raise some important issues. If the three were to be exempted from punishment merely because their actions were necessary to avoid starvation, it would lead to anarchy and disorder. If people were allowed to feign innocence simply because of the rule that any actions are acceptable as long as one feels that without it they would suffer, it would allow anyone to escape punishment and disregard the severity of their crime. According to this reasoning a poor person could steal without any consequences, simply because they felt they would suffer from malnutrition.

From a moral standpoint however, this decision was incorrect. In order to pass a just ruling, courts must approach the case from a psychological perspective as well. To be fair in their judgment, one must imagine themselves in the other’s place and understand the situation from their viewpoint. Though the three were fortunate enough to survive a shipwreck, what lay before them was only uncertainty. This uncertainty transformed into a fear of death which was constantly looming over their heads. Desperation was only a matter of time.

This desperation to survive is enough for anyone to take impulsive decisions and the decision to kill the fourth member was a result of this impulse to survive. One could argue that they did what they believed was necessary to survive, after all they were not aware when or if they were going to be rescued.

What makes us human?

Many have pondered over this question and have arrived at various conclusions. Some believe that it is our intellect which is the reason humanity was able to flourish. The ability to communicate by creating languages and thus, being able to express our needs allowing us to evolve, much like an infant that uses crying to signal that it is hungry.

Some believe it is the ability to work. Work being the activity around which our life revolves, something which gives us a purpose, without which living would be meaningless. And so, while there are all sorts of conclusions that have been drawn over the decades, there is something that differentiates us from other sentient beings such as apes. It is something incredibly complex, yet, it is something that can be understood even by children.

That is— our morality

As opposed to animals, humans are driven not just by their instincts. All humans are imbued with the gift known as ‘conscience’, allowing them to think for themselves. The small voice at the back of our heads that berates us when we cheat our diet is what separates us from other living organisms. So, if this amazing ability is the reason why we are able to maintain our humanity, is it really worth giving up just to be legally correct?

This question can actually be answered from both points of view.

Law is something that is created by the people and for the people, as such it is not without reason that a particular law exists. The only purpose for its existence is the protection of the rights of the people. It is implemented solely for our benefit. When persons are due reparation for the crimes committed by them, it is the law which acts as an instrument for the aggrieved, allowing them to seek justice. The opinion that laws are exaggerated and often unnecessary is biased. From the point of view of a recalcitrant person, such a statement would be rather appealing. However, laws are a direct reflection of the society and by not acting in accordance there with, we do not hold true to the ideals created by us.

That being said, it is not as though all laws are perfect creations. What is created by the majority may not always be correct. Especially, with the passage of time as a society evolves it becomes more accustomed to accept change. Laws too as a result, need to be amended.

Section 24 of the Hindu Succession Act 2005, where originally the female heir of a coparcener was not entitled to the property in the same manner as the male coparcener; Section 377 of the IPC originally criminalised sexual acts between people of the same gender; are examples of evolution of laws as both of these were eventually amended to meet the changing societal norms.

Therefore, for laws to remain relevant, the process of law making has to be a dynamic one. The principle of dynamism is even reflected in the Constitution. The framers of the Constitution recognized that for drawing up a document that can withstand the changes brought by time, making provisions for constitutional amendments would be desirable even though the same may be made only when absolutely necessary.

Thus, laws that are dynamic as opposed to the those that remain static are able to serve the society well. In this world of ours, where most of the people have been infected by the “fast lane” mentality, if one is not able to keep up they most definitely are left behind, with no one bothering to spare even a single look. In the absence of the ability to amend them, laws risk becoming obsolete and so to avoid such an outcome the need of review by the legislature every decade is of utmost importance.

To conclude…

An effective way for one to improve is to learn from past mistakes and keep evolving. Mistakes, often considered signs of incapability are in actuality, a chance for anyone or anything to bolster their capabilities. As such, it is an especially important tool to assess the interactions between people and the laws that govern them. Our current knowledge is the culmination of centuries worth of trials and errors which have led us to instill in ourselves value for life.

Thus, the moral of the story can be explained in the simplest way possible as, the need to value life in all its forms, more particularly human life. For, it is something that has no equal in worth and must be protected at all costs.

Columns

ETA for delicensed frequencies in India: Adding complexity or ensuring ease of business?

April 14, 2022 0Comments 334Views

By Mayank Grover & Gurleen Kaur

April 14, 2022

Wireless communication involves transmission of information by using electromagnetic waves without wires and cables. The wireless revolution began in the 1990s with the advent of digital wireless networks which sparked a social revolution and switched technology from wired to wireless.

What is ETA?

The Wireless Planning and Coordination Wing (WPC) of Government of India’s Department of Telecommunications (DoT) is the National Radio Regulatory Authority in charge of frequency spectrum management and licensing, as well as catering to the needs of all wireless users. Products with radio and/or wireless functionality which are manufactured in India or imported and function in the de-licensed frequency band / license free radio frequency band must obtain an Equipment Type Approval (ETA) certificate from the WPC under the Indian Wireless Telegraphy Act, 1933 and the Indian Telegraph Act, 1885. This includes devices with bluetooth, wireless local area network technology (Wi-Fi), digital radios (Zigbee technology), radio frequency identification (RFID) tags etc.

Scope of Approval

The scope of ETA from WPC covers mobile phones, RFIDs, Wi-Fi and Bluetooth devices like earphones, speakers, microphones, drones etc. Some frequency bands have been assigned a license-free status and therefore, a license from WPC is not required for products operating in those frequencies. In order to obtain an ETA, a detailed test report of the equipment obtained from a well-recognized laboratory has to be submitted to WPC for evaluation.

Documents required for ETA

Proof of ownership of business and technical literature containing product identification details for preparation and submission of application for ETA to WPC;
A detailed Radio Frequency Test Report from an ISO/IEC 17025 accredited laboratory or any Indian laboratory accredited with the National Accreditation Board for Testing and Calibration (NABL).

Procedure to apply for ETA / WPC License

Application has to be submitted to the concerned WPC Wing, Regional Licensing Office. Suitable product categories need to be selected, in order to avoid rejection of the application.
After the application is submitted, the system generates an Application ID.
In case of online filing, a hard copy of the application has to be submitted thereafter to the WPC office.
WPC verifies the documents and information and then grants the license.

Who can apply for ETA?

Manufacturers/Importers of products with radio, wireless or both features are required to obtain ETA Certificate from WPC and Import License Certificate from the Principal Commissioner of Customs (Import). As per Public Notice No.12/2017 dated 23.08.2017 issued by the Office of the Principal Commissioner of Customs (Import), for import of wireless equipments, the Applicant has to obtain valid import licence after getting ETA.

Devices eligible for ETA

Transceivers, transmitters, receivers, all blue-tooth devices, wireless home appliances, RFID tags and readers, wireless mouse and keypads, wireless headphones, small digital radios, wireless medical products used for patient profiling laptops, mobile phones, digital radios, remote key for entry, wireless music players, wireless remotes and any other radio frequency modules.

Exemption from ETA by filing a self-declaration

The online facility for obtaining ETA through self-declaration is available on the Saral Sanchar portal of DoT. As per Office Memorandum dated 26.02.2019 issued by DoT[1], ETA through self-declaration is permitted for:

Commercial/finished products, such as mobile/computing devices such as mobile handsets, smartphones, electronic notepads, laptops and smartwatches;
Short-range devices including accessories, microphones, speakers, headphones, earphones, printers, scanners, cameras etc.

which operate in license exemption bands as permitted in India.

A self-declaration from an importer/authorized Indian representative is sufficient for wireless equipments operating in license exempt bands with low transmission power for clearance by the Customs and Central Excise Authorities.

ETA through self-declaration is applicable to the products which meet two conditions:

Exempted from import licensing requirements as per the Export and Import (EXIM) Policy of the Directorate General of Foreign Trade (DGFT);
Operate in the de-licensed frequency band(s) as per applicable Gazette Notifications.

These products may be imported by submitting a self-declaration to Custom Authorities and informing WPC via email.

As per another Office Memorandum dated 26.02.2019 of DoT[2], the requirement of ETA is exempted for R&D/ testing/ demo/ prototype/ pre-launch devices in the categories of mobiles, laptops, electronic notepads, smart watches, Short Range devices (including accessories), microphones, speakers, headphones, earphones, printers, scanners, cameras etc. and Test & Measurement equipment operating in license exempt bands as permitted in India.

A self-declaration from an importer/authorized Indian representative is sufficient for clearance by the Customs and Central Excise Authorities permitting 1000 units per model. The importer is also required to undertake that after completion of test/prototype exercise, equipments would either be exported back to the country of origin or destroyed as per destruction guidelines of WPC and may not be sold in the Indian market.

Thus, ETA clearance is required for wireless equipments which operate in license exempt frequency bands in India. With the introduction of self-declaration mechanism and exemption for prototypes, the process to obtain ETA license has been simplified by WPC to expedite launch of new devices and ensure ease of doing business in India.

[1]https://dot.gov.in/sites/default/files/ETA%20through%20Self%20declaration%20for%20Certain%20Categories%20of%20Wires%20Equipment%20dt%2026-02-2019_0.pdf

[2]https://www.tuv.com/content-media-files/master-content/rs/Attachments/1075_WPC%20Notification_Exemption%20ETA-Test-Prototype%20dt%2026-02-2019.pdf

Mayank Grover is a Partner and Gurleen Kaur is an Associate at Seraphic Advisors, Advocates & Solicitors in New Delhi.

Columns

Sec. 34 of the Arbitration and Conciliation Act, 1996: Appellate proceedings in substance?

March 3, 2022 0Comments 285Views

By Kumar Shashwat

March 3, 2022

In this article, I argue a proposition that a challenge to an arbitral award under Section 34 of the Arbitration and Conciliation Act, 1996 [“the Act”] though not inform, but in substance assumes the flavour of appellate proceedings.

Section 34(2) (a) of the Act mentions certain grounds on account of which the Court can set aside the arbitral award, if the party proves that:

a party was under some incapacity,
the arbitration agreement is not valid in accordance with the Law to which the parties to the Agreement have subjected it
no proper notice of the appointment of the arbitrator or the proceeding had been given to it
the dispute dealt by the arbitral award does not fall within the terms of the submission to arbitration, or the award contains a decision beyond the scope of the submission to arbitration.
the composition of the tribunal was not in accordance with the agreement of the parties.

Moreover under section34(2)(b) of the Act the court may set aside the Award if:

the subject matter of the dispute cannot be settled by means of Arbitration
the Arbitral award is in conflict with the public policy of India.

Despite specific grounds mentioned in Section 34 of the Act,the proceedings under the said section assumes the nature of an appellate court. The reasons in support of this argument are elaborated herein below:

Reasoning:

In support of my argument, I have relied upon three classes of cases on propositions that (i) the qualitative nature of the appreciation of the material on record in an adjudication under Section 34 of the Act, (ii) instance where the Arbitration Court has upheld a minority Award of the Ld. Arbitrator Tribunal, and (iii) permissibility for the Arbitration Court to examine material not propounded before the Ld. Arbitrator.

The proceedings under Section 34 of the Act being of a first instance before a Court is only legal fiction since the same assumes existence of Arbitral Award, arrived at, at least theoretically, pursuant to a rigorous judicial process, akin to a civil trial, which is the first marker of an appellate proceeding.

The qualitative nature of appreciation of the Award, as well as pleading and material relied upon therein, i.e., of award being arbitrary, capricious or perverse, or when the conscience of the Court is shocked, or when the illegality is not trivial but goes to the root of the matter is when interference of the Court is warranted. Though the burden to discharge may be high, however, the qualitative nature of appreciation of material is no different from appreciation in appellate proceedings.

Ordinarily, the appellate court assumes the jurisdiction as the court of first instance in the manner of appreciation of evidence, facts, law, etc.

While, the Arbitration Court under Section 34 of the Act undertakes the same qualitative nature of analysis. However, statutorily, its jurisdiction is limited to arrive at only a singular finding that the Award is liable to be set aside.

In fact, curiously Courts have departed from the outcome mandated under Section 34 of the Act of setting aside the majority Award and have upheld award of the minority of the Tribunal.(Ssangyong Engineering And Construction Co. Ltd v. National Highways Authority Of India). This was premised on the logic under the scheme of Section 34 of the Arbitration Act, the disputes that were decided by the majority award under challenge would have to be referred afresh to another arbitration once the said award would be set aside, the Court held that adopting the said procedure would cause considerable delay. It was further observed that the same would be contrary to the objectives of the Act, namely, speedy resolution of disputes by the arbitral process.

However, in ONGC Ltd v. Interocean Shipping (India) Pvt. Ltd., 2017;ONGC Ltd v. Schlumberger Asia Services Ltd, the High Courts also adopted the course of setting aside the majority Award and upholding award of the minority, but sans any reasoning adopted for such course of action.

The Courts have also adopted a course of action, though as an exception rather than rule that ordinarily it will not examine material beyond the record of the Ld. Arbitrator. However, in the event that there are facts not stated in such record, and are relevant to the determination of issues, the Court may permit the parties to bring such facts on record by way of affidavits, wherein cross examination of persons swearing to the affidavits should not be allowed unless absolutely necessary, as the truth will emerge on a reading of the affidavits filed by both the parties (Emkay Global Financial Services Ltd v. Girdhar Sondhi)

Similarly, if certain facts were concealed, having a causative link with the facts constituting or inducing the award, such facts become relevant for the purpose of deciding adjudication under Section 34 of the Act proceedings. If such facts are discovered after the filing of challenge proceedings (underSection34),they maybe brought on record by way of amendment. (Venture Global Engineering v. Satyam Computer Services ltd and Ors.)

Thus, proceedings under Section 34 of theActhave the colour of appellate proceedings.

Conclusion

In view of the fact that (i) the Arbitration Court under Section 34 of the Act is a Court of First Instance but only as a result of a legal fiction since it assumes existence of ‘judicially’ arrived at Award (ii) the qualitative nature of the proceedings in terms of appreciation of evidence, pleadings, Award, etc, (iii) the assuming of jurisdiction to uphold “minority view” of the Tribunal, while setting aside the “majority view” (iv) permissibility of the parties to bring fresh material on record before the Arbitration Courts, germane for the issues in the Award, leads to a conclusion that a proceeding under Section 34 of Act is though not inform, but in substance, in the nature of appellate proceedings.

Kumar Shashwat is Partner, Kumar & Singh Associates, New Delhi.

Interviews

Interviews, Trending

Time for judiciary to introspect and see what can be done to restore people’s faith – Justice Lokur

February 3, 2020 0Comments 1815Views

Justice Madan B Lokur, was a Supreme Court judge from June 2012 to December 2018. He is now a judge of the non-resident panel of the Supreme Court of Fiji. He spoke to LegitQuest on January 25, 2020.

Q: You were a Supreme Court judge for more than 6 years. Do SC judges have their own ups and downs, in the sense that do you have any frustrations about cases, things not working out, the kind of issues that come to you?

A: There are no ups and downs in that sense but sometimes you do get a little upset at the pace of justice delivery. I felt that there were occasions when justice could have been delivered much faster, a case could have been decided much faster than it actually was. (When there is) resistance in that regard normally from the state, from the establishment, then you kind of feel what’s happening, what can I do about it.

Q: So you have had the feeling that the establishment is trying to interfere in the matters?

A: No, not interfering in matters but not giving the necessary importance to some cases. So if something has to be done in four weeks, for example if reply has to be filed within four weeks and they don’t file it in four weeks just because they feel that it doesn’t matter, and it’s ok if we file it within six weeks how does it make a difference. But it does make a difference.

Q: Do you think this attitude is merely a lax attitude or is it an infrastructure related problem?

A: I don’t know. Sometimes on some issues the government or the establishment takes it easy. They don’t realise the urgency. So that’s one. Sometimes there are systemic issues, for example, you may have a case that takes much longer than anticipated and therefore you can’t take up some other case. Then that necessarily has to be adjourned. So these things have to be planned very carefully.

Q: Are there any cases that you have special memories of in terms of your personal experiences while dealing with the case? It might have moved you or it may have made you feel that this case is really important though it may not be considered important by the government or may have escaped the media glare?

A: All the cases that I did with regard to social justice, cases which concern social justice and which concern the environment, I think all of them were important. They gave me some satisfaction, some frustration also, in the sense of time, but I would certainly remember all these cases.

Q: Even though you were at the Supreme Court as a jurist, were there any learning experiences for you that may have surprised you?

A: There were learning experiences, yes. And plenty of them. Every case is a learning experience because you tend to look at the same case with two different perspectives. So every case is a great learning experience. You know how society functions, how the state functions, what is going on in the minds of the people, what is it that has prompted them to come the court. There is a great learning, not only in terms of people and institutions but also in terms of law.

Q: You are a Judge of the Supreme Court of Fiji, though a Non-Resident Judge. How different is it in comparison to being a Judge in India?

A: There are some procedural distinctions. For example, there is a great reliance in Fiji on written submissions and for the oral submissions they give 45 minutes to a side. So the case is over within 1 1/2 hours maximum. That’s not the situation here in India. The number of cases in Fiji are very few. Yes, it’s a small country, with a small number of cases. Cases are very few so it’s only when they have an adequate number of cases that they will have a session and as far as I am aware they do not have more than two or three sessions in a year and the session lasts for maybe about three weeks. So it’s not that the court sits every day or that I have to shift to Fiji. When it is necessary and there are a good number of cases then they will have a session, unlike here. It is then that I am required to go to Fiji for three weeks. The other difference is that in every case that comes to the (Fiji) Supreme Court, even if special leave is not granted, you have to give a detailed judgement which is not the practice here.

Q: There is a lot of backlog in the lower courts in India which creates a problem for the justice delivery system. One reason is definitely shortage of judges. What are the other reasons as to why there is so much backlog of cases in the trial courts?

A: I think case management is absolutely necessary and unless we introduce case management and alternative methods of dispute resolution, we will not be able to solve the problem. I will give you a very recent example about the Muzaffarpur children’s home case (in Bihar) where about 34 girls were systematically raped. There were about 17 or 18 accused persons but the entire trial finished within six months. Now that was only because of the management and the efforts of the trial judge and I think that needs to be studied how he could do it. If he could do such a complex case with so many eyewitnesses and so many accused persons in a short frame of time, I don’t see why other cases cannot be decided within a specified time frame. That’s case management. The second thing is so far as other methods of disposal of cases are concerned, we have had a very good experience in trial courts in Delhi where more than one lakh cases have been disposed of through mediation. So, mediation must be encouraged at the trial level because if you can dispose so many cases you can reduce the workload. For criminal cases, you have Plea Bargaining that has been introduced in 2009 but not put into practice. We did make an attempt in the Tis Hazari Courts. It worked to some extent but after that it fell into disuse. So, plea bargaining can take care of a lot of cases. And there will be certain categories of cases which we need to look at carefully. For example, you have cases of compoundable offences, you have cases where fine is the punishment and not necessarily imprisonment, or maybe it’s imprisonment say one month or two month’s imprisonment. Do we need to actually go through a regular trial for these kind of cases? Can they not be resolved or adjudicated through Plea Bargaining? This will help the system, it will help in Prison Reforms, (prevent) overcrowding in prisons. So there are a lot of avenues available for reducing the backlog. But I think an effort has to be made to resolve all that.

Q: Do you think there are any systemic flaws in the country’s justice system, or the way trial courts work?

A: I don’t think there are any major systemic flaws. It’s just that case management has not been given importance. If case management is given importance, then whatever systematic flaws are existing, they will certainly come down.

Q; And what about technology. Do you think technology can play a role in improving the functioning of the justice delivery system?

I think technology is very important. You are aware of the e-courts project. Now I have been told by many judges and many judicial academies that the e-courts project has brought about sort of a revolution in the trial courts. There is a lot of information that is available for the litigants, judges, lawyers and researchers and if it is put to optimum use or even semi optimum use, it can make a huge difference. Today there are many judges who are using technology and particularly the benefits of the e-courts project is an adjunct to their work. Some studies on how technology can be used or the e-courts project can be used to improve the system will make a huge difference.

Q: What kind of technology would you recommend that courts should have?

A: The work that was assigned to the e-committee I think has been taken care of, if not fully, then largely to the maximum possible extent. Now having done the work you have to try and take advantage of the work that’s been done, find out all the flaws and see how you can rectify it or remove those flaws. For example, we came across a case where 94 adjournments were given in a criminal case. Now why were 94 adjournments given? Somebody needs to study that, so that information is available. And unless you process that information, things will just continue, you will just be collecting information. So as far as I am concerned, the task of collecting information is over. We now need to improve information collection and process available information and that is something I think should be done.

Q: There is a debate going on about the rights of death row convicts. CJI Justice Bobde recently objected to death row convicts filing lot of petitions, making use of every legal remedy available to them. He said the rights of the victim should be given more importance over the rights of the accused. But a lot of legal experts have said that these remedies are available to correct the anomalies, if any, in the justice delivery. Even the Centre has urged the court to adopt a more victim-centric approach. What is your opinion on that?

You see so far as procedures are concerned, when a person knows that s/he is going to die in a few days or a few months, s/he will do everything possible to live. Now you can’t tell a person who has got terminal cancer that there is no point in undergoing chemotherapy because you are going to die anyway. A person is going to fight for her/his life to the maximum extent. So if a person is on death row s/he will do everything possible to survive. You have very exceptional people like Bhagat Singh who are ready to face (the gallows) but that’s why they are exceptional. So an ordinary person will do everything possible (to survive). So if the law permits them to do all this, they will do it.

Q: Do you think law should permit this to death row convicts?

A: That is for the Parliament to decide. The law is there, the Constitution is there. Now if the Parliament chooses not to enact a law which takes into consideration the rights of the victims and the people who are on death row, what can anyone do? You can’t tell a person on death row that listen, if you don’t file a review petition within one week, I will hang you. If you do not file a curative petition within three days, then I will hang you. You also have to look at the frame of mind of a person facing death. Victims certainly, but also the convict.

Q: From the point of jurisprudence, do you think death row convicts’ rights are essential? Or can their rights be done away with?

A: I don’t know you can take away the right of a person fighting for his life but you have to strike a balance somewhere. To say that you must file a review or curative or mercy petition in one week, it’s very difficult. You tell somebody else who is not on a death row that you can file a review petition within 30 days but a person who is on death row you tell him that I will give you only one week, it doesn’t make any sense to me. In fact it should probably be the other way round.

Q: What about capital punishment as a means of punishment itself?

A: There has been a lot of debate and discussion about capital punishment but I think that world over it has now been accepted, more or less, that death penalty has not served the purpose for which it was intended. So, there are very few countries that are executing people. The United States, Saudi Arabia, China, Pakistan also, but it hasn’t brought down the crime rate. And India has been very conservative in imposing the death penalty. I think the last 3-4 executions have happened for the persons who were terrorists. And apart from that there was one from Calcutta who was hanged for rape and murder. But the fact that he was hanged for rape and murder has not deterred people (from committing rape and murder). So the accepted view is that death penalty has not served the purpose. We certainly need to rethink the continuance of capital punishment. On the other hand, if capital punishment is abolished, there might be fake encounter killings or extra judicial killings.

Q: These days there is the psyche among people of ‘instant justice’, like we saw in the case of the Hyderabad vet who was raped and murdered. The four accused in the case were killed in an encounter and the public at large and even politicians hailed it as justice being delivery. Do you think this ‘lynch mob mentality’ reflects people’s lack of faith in the justice system?

A: I think in this particular case about what happened in Telangana, investigation was still going on. About what actually happened there, an enquiry is going on. So no definite conclusions have come out. According to the police these people tried to snatch weapons so they had to be shot. Now it is very difficult to believe, as far as I am concerned, that 10 armed policeman could not overpower four unarmed accused persons. This is very difficult to believe. And assuming one of them happened to have snatched a (cop’s) weapon, maybe he could have been incapacitated but why the other three? So there are a lot of questions that are unanswered. So far as the celebrations are concerned, the people who are celebrating, do they know for certain that they (those killed in the encounter) were the ones who did the crime? How can they be so sure about it? They were not eye witnesses. Even witnesses sometimes make mistakes. This is really not a cause for celebration. Certainly not.

Q: It seems some people are losing their faith in the country’s justice delivery system. How to repose people’s faith in the legal process?

A: You see we again come back to case management and speedy justice. Suppose the Nirbhaya case would have been decided within two or three years, would this (Telangana) incident have happened? One can’t say. The attack on Parliament case was decided in two or three years but that has not wiped out terrorism. There are a lot of factors that go into all this, so there is a need to find ways of improving justice delivery so that you don’t have any extremes – where a case takes 10 years or another extreme where there is instant justice. There has to be something in between, some balance has to be drawn. Now you have that case where Phoolan Devi was gangraped followed by the Behmai massacre. Now this is a case of 1981, it has been 40 years and the trial court has still not delivered a judgement. It’s due any day now, (but) whose fault is that. You have another case in Maharashtra that has been transferred to National Investigating Agency two years after the incident, the Bhima-Koregaon case. Investigation is supposedly not complete after two years also. Whose fault is that? So you have to look at the entire system in a holistic manner. There are many players – the investigation agency is one player, the prosecution is one player, the defence is one player, the justice delivery system is one player. So unless all of them are in a position to coordinate… you cannot blame only the justice delivery system. If the Telangana police was so sure that the persons they have caught are guilty, why did they not file the charge sheet immediately? If they were so sure the charge sheet should have been filed within one day. Why didn’t they do it?

Q: At the trial level, there are many instances of flaws in evidence collection. Do you think the police or whoever the investigators are, do they lack training?

A: Yes they do! The police lacks training. I think there is a recent report that has come out last week which says very few people (in the police) have been trained (to collect evidence).

Q: You think giving proper training to police to prepare a case will make a difference?

A: Yes, it will make a difference.

Q: You have a keen interest in juvenile justice. Unfortunately, a lot of heinous crimes are committed by juveniles. How can we correct that?

A: You see it depends upon what perspective we are looking at. Now these heinous crimes are committed by juveniles. Heinous crimes are committed by adults also, so why pick upon juveniles alone and say something should be done because juveniles are committing heinous crimes. Why is it that people are not saying that something should be done when adults are committing heinous crimes? That’s one perspective. There are a lot of heinous crimes that are committed against juveniles. The number of crimes committed against juveniles or children are much more than the crimes committed by juveniles. How come nobody is talking about that? And the people committing heinous crimes against children are adults. So is it okay to say that the State has imposed death penalty for an offence against the child? So that’s good enough, nothing more needs to be done? I don’t think that’s a valid answer. The establishment must keep in mind the fact that the number of heinous crimes against children are much more than those committed by juveniles. We must shift focus.

Q: Coming to NRC and CAA. Protests have been happening since December last year, the SC is waiting for the Centre’s reply, the Delhi HC has refused to directly intervene. Neither the protesters nor the government is budging. How do we achieve a breakthrough?

A: It is for the government to decide what they want to do. If the government says it is not going to budge, and the people say they are not going to budge, the stalemate could continue forever.

Q: Do you think the CAA and the NRC will have an impact on civil liberties, personal liberties and people’s rights?

A: Yes, and that is one of the reasons why there is protest all over the country. And people have realised that it is going to happen, it is going to have an impact on their lives, on their rights and that’s why they are protesting. So the answer to your question is yes.

Q: Across the world and in India, we are seeing an erosion of the value system upholding rights and liberties. How important is it for the healthy functioning of a country that social justice, people’s liberties, people’s rights are maintained?

A: I think social justice issues, fundamental rights are of prime importance in our country, in any democracy, and the preamble to our Constitution makes it absolutely clear and the judgement of the Supreme Court in Kesavananda Bharati and many other subsequent judgments also make it clear that you cannot change the basic structure of the Constitution. If you cannot do that then obviously you cannot take away some basic democratic rights like freedom of assembly, freedom of movement, you cannot take them away. So if you have to live in a democracy, we have to accept the fact that these rights cannot be taken away. Otherwise there are many countries where there is no democracy. I don’t know whether those people are happy or not happy.

Q: What will happen if in a democracy these rights are controlled by hook or by crook?

A: It depends upon how much they are controlled. If the control is excessive then that is wrong. The Constitution says there must be a reasonable restriction. So reasonable restriction by law is very important.

Q: The way in which the sexual harassment case against Justice Gogoi was handled was pretty controversial. The woman has now been reinstated in the Supreme Court as a staffer. Does this action of the Supreme Court sort of vindicate her?

A: I find this very confusing you know. There is an old joke among lawyers: Lawyer for the petitioner argued before the judge and the judge said you are right; then the lawyer for the respondent argued before the judge and the judge said you’re right; then a third person sitting over there says how can both of them be right and the judge says you’re also right. So this is what has happened in this case. It was found (by the SC committee) that what she said had no substance. And therefore, she was wrong and the accused was right. Now she has been reinstated with back wages and all. I don’t know, I find it very confusing.

Q: Do you think the retirement age of Supreme Court Judges should be raised to 70 years and there should be a fixed tenure?

A: I haven’t thought about it as yet. There are some advantages, there are some disadvantages. (When) You have extended age or life tenure as in the United States, and the Supreme Court has a particular point of view, it will continue for a long time. So in the United States you have liberal judges and conservative judges, so if the number of conservative judges is high then the court will always be conservative. If the number of liberal judges is high, the court will always be liberal. There is this disadvantage but there is also an advantage that if it’s a liberal court and if it is a liberal democracy then it will work for the benefit of the people. But I have not given any serious thought onthis.

Q: Is there any other thing you would like to say?

A: I think the time has come for the judiciary to sit down, introspect and see what can be done, because people have faith in the judiciary. A lot of that faith has been eroded in the last couple of years. So one has to restore that faith and then increase that faith. I think the judiciary definitely needs to introspect.

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