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EMERGENCY ARBITRATION, WHETHER VALID IN INDIA UNDER ARBITRATION ACT,1996?

September 9, 2021

This interesting issue came up before Delhi High Court in Amazon.Com Nv Investment vs Future Coupons Private Limited & ors passed on 18 March, 2021 Three important questions arose for consideration before Delhi High Court :- What is the legal status of an Emergency Arbitrator i.e. whether the Emergency Arbitrator is an arbitrator and whether the interim order of the Emergency Arbitrator is an order under Section 17 (1) and is enforceable under 17(2) of the Arbitration and Conciliation Act? Observed: Section 2(8) of the Indian Arbitration Act 1996 expressly provides that where Part I of the Indian Arbitration Act 1996 refers to an ―agreement of the parties‖, such agreement shall include the arbitration rules referred to in the parties’ agreement. In this way, the Indian Arbitration Act 1996 provides that any arbitration rules agreed to by the parties are incorporated into the arbitration agreement. Unless expressly excluded, it is trite that the parties cannot resile from the terms of their arbitration agreement, including their agreement to allow either party to request the appointment of an emergency arbitrator. Further, Section 17 of the Indian Arbitration Act 1996, which empowers an arbitral tribunal to grant interim reliefs, does not preclude or intimate that parties cannot agree to institutional rules which allow recourse to emergency arbitration. In the absence of a mandatory prohibition contained in the Indian Arbitration Act 1996 or public policy constraints, the parties may agree to any arbitral procedure. Whether the Emergency Arbitrator misapplied the Group of Companies doctrine which applies only to proceedings under Section 8 of the Arbitration and Conciliation Act? Held The Indian Arbitration Act 1996, does not preclude parties from agreeing to arbitrate under institutional rules that allow either party to request appropriate reliefs from an emergency arbitrator. The Respondents’ references to the 246th Law Commission Report do not assist its submissions on this issue in a meaningful way. It is just as plausible that Parliament, in its wisdom, did not consider it necessary to amend the Indian Arbitration Act 1996 to make a specific reference to emergency arbitrators because it was legally unnecessary – that is to say, it might have been an instance of the Law Commission making a suggestion to gild the lily. There was no need for statutory recognition if the courts and case law did not find this a problematic issue. Indeed, given the prevalence, even then, in the employment and use of this useful procedure internationally, this is likely to have been the case. It is also noteworthy that the power to appoint an emergency arbitrator is currently recognized in a number of domestic Indian arbitration institution rules, including (a) the Delhi International Arbitration Centre of the Delhi High Court; (b) the Mumbai Centre for International Arbitration; and (c) the Madras High Court Arbitration Centre, all of which include, under their rules, provisions for emergency arbitration and set out the appointment process, applicable procedures, and timing as well as the powers of an emergency arbitrator. Emergency Arbitrators are recognised under the Indian Arbitration Framework The Claimant rightly asserts that the Respondents’ insistence that the notion of emergency arbitration is […]

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WHY CENTRAL GOVERNMENT RELUCTANT TO IMPOSE PRESIDENT RULE IN WEST BENGAL?

May 5, 2021

Let us see various provisions of the Indian Constitution. Article 352 in The Constitution of India Proclamation of Emergency (1) If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion, he may, by Proclamation, made a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation Explanation A Proclamation of Emergency declaring that the security of India or any part of the territory thereof is threatened by war or by external aggression or by armed rebellion may be made before the actual occurrence of war or of any such aggression or rebellion, if the President is satisfied that there is imminent danger thereof  Note: This power was exercised in the year 1977 Article 355 casts duty on the state to provide safety and security. Duty of the Union to protect States against external aggression and internal disturbance It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution. 44th Amendment: The Forty-fourth Constitutional Amendment substituted “armed rebellion” for “internal disturbance” in Article 352. “Internal disturbance” is, therefore, no longer a ground for taking action under that Article. Further, it cannot, by itself, be a ground for imposing President’s rule under Article 356(1), if it is not intertwined with a situation where the government of a State cannot be carried on in accordance with the provisions of the Constitution. What is Internal Disorder: ( Source Sarkaria Commission Report) 6.3.04 It is difficult to define precisely the concept of ‘internal disturbance’. Similar provisions, however, occur in the Constitutions of other countries. Article 16 of the Federal Constitution of Switzerland uses the expression “internal disorder”. The Constitutions of the United States of America and Australia use the expression ‘domestic violence’. The framers of the Indian Constitution have, in place of this term, used the expression ‘internal disturbance’. Obviously, they have done so as they intended to cover not only domestic violence, but something more. The scope of the term ‘internal disturbance’ is wider than ‘domestic violence’. It conveys the sense of ‘domestic chaos’, which takes the colour of a security threat from its associate expression, ‘external aggression’. Such a chaos could be due to various causes. Large-scale public disorder which throws out of gear the even tempo of administration and endangers the security of the State, is ordinarily, one such cause. Such an internal disturbance is normally man-made. But it can be Nature-made, also. Natural calamities of unprecedented magnitude, such as flood, cyclone, earth-quake, epidemic, etc. may paralyse the government of the State and put its security in jeopardy. Instances: Gujarat.—(9-2-1974) The anti-price-rise agitation in Gujarat turned into a mass movement with demands for removal of the Ministry and dissolution of the Assembly. Army had to be called in at some places to deal with violence. […]

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THE FOURTH ESTATE : THE POLICE (INCITEMENT TO DISAFFECTION) ACT, 1922 PARALLEL INVESTIGATION AND THE VIEWS OF COURTS

October 28, 2020

The term Fourth Estate or fourth power refers to the press and news media both in explicit capacity of advocacy and implicit ability to frame political issues. Though it is not formally recognized as a part of a political system, it wields significant indirect social influence. Article 19(1) (a) grants every citizen Freedom of Speech and Expression. We hear in News Channel debate that in Mumbai police is using British Era Act. That is The Police (Incitement to Dissatisfaction) Act,1922 ( the said 1922 Act) It was a news for any lawyer. Justice M.C.Chagla had said, there are so many laws in India , that we also come to know when it is argued by an Advocate before us. This was relating to Rationing Law. Under the circumstances its necessary to read and understand the views of the Courts after Independence.  Its relevant for us to study and understand the law and its effectiveness. 1. Short title, extent and commencement.— (1) This Act may be called the Police (Incitement to Disaffection) Act, 1922.  [(2) It extends to the whole of India, except [the territories which immediately before 1st November, 1956, were comprised in Part B States].] (3) It shall come into force in any State or part of a State on such date as the State Government may, by notification in the Official Gazette, direct. State amendments Andhra Pradesh.—In sub-section (2) of section 1, after the expression ‘except the territories which immediately before the 1st November, 1956 were comprised in Part B States’ add ‘other than the territories specified in sub-section (1) of section 3 of the States Reorganisation Act, 1956’. [Vide Andhra Pradesh Act 23 of 1958, sec. 3 and Sch. (1-2-1960)] Madhya Pradesh.—In section 1— (i) in sub-section (2), after ‘Part B States’, add ‘other than the Madhya Bharat and Sironja regions of the State of Madhya Pradesh’; (ii) for sub-section (3), substitute the following:— “(3) It shall be in force in all such areas in Madhya Pradesh in which it was in force immediately before the commencement of Madhya Pradesh Second Extension of Laws Act, 1961 (40 of 1961), and shall come into force in other areas, on such date as the State Government may, by notification, appoint”. [Vide Madhya Pradesh Act 40 of 1961 First Schedule, Part A, Item 5.] Maharashtra, Gujarat.—In its application to the State of Maharashtra in section 1.— (i) To sub-section (2), add the following proviso:— “Provided that on the commencement of the Police (Incitement to Disaffection) (Bombay Extension and Amendment) Act, 1958, it shall extend to the Saurashtra and Hyderabad areas of the State of Bombay”. (ii) To sub-section (3), add the following proviso:— “Provided that on the commencement of the Police (Incitement to Disaffection) (Bombay Extension and Amendment) Act, 1958, it shall come into force in that part of the Saurashtra area of the State of Bombay in which the Police (Incitement to Disaffection) Act, 1922, as modified and applied to that area by the State of Saurashtra (Application of Central and Bombay Acts) Ordinance, 1948, was in force immediately before such commencement.” [Vide Bombay Act 77 of 1958, sec. 3 (7-10-1958): Act 11 of 1960, sec. 87 (1-5-1960)] (Meghalaya) —In […]

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Indian Preamble to Constitution can be amended?

January 30, 2020

It is a very valid question that arise in mind in today’s scenario. When a State Government orders recitation or Preamble that it is incumbent Duty and responsibility of the Government to teach the correct status and history of our PREAMBLE. The draft Preamble was considered by the Assembly on October 17, 1949. Shiva Rao observes that “the object of putting the Preamble last, the President of the Assembly explained, was to see that it was in conformity with the Constitution as accepted. “Once the transfer of power had taken place the question of British Parliament’s subsequent approval which was visualised in the British Cabinet Commission’s original plan of May 1946 could no longer arise. The sovereign character of the Constituent Assembly thus became automatic with the rapid march of events without any controversy, and the words in the Preamble “give to ourselves this Constitution” became appropriate. The Preamble was adopted by the Assembly without any alteration. Subsequently the words and figure “this twenty-sixth day of November 1949” were introduced in the last paragraph to indicate the date on which the Constitution was finally adopted by the Constituent Assembly. Regarding the use which can be made of the preamble in interpreting an ordinary statute, there is no doubt that it cannot be used to modify the language if the language of the enactment is plain and clear. If the language is not plain and clear, then the preamble may have effect either to extend or restrict the language used in the body of an enactment. “If the language of the enactment is capable of more than one meaning then that one is to be preferred which comes nearest to the purpose and scope of the preamble.” (see Tbibhuban Parkash Nayyar v. The Union of India) [1970] 2 S.C.R. 732- 737.As Sir Alladi Krishnaswami, a most eminent lawyer said, “so far as the Preamble is concerned, though in an ordinary statute we do not attach any importance to the Preamble, all importance has’ to be attached to the Preamble in a Constitutional statute”. (Constituent Assembly Debates Vol. 10, p.417). Our Preamble outlines the objectives of the whole Constitution. It expresses “what we had thought or dreamt for so long. The original 1947 Preamble of Indian Constitution is as under WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN  DEMOCRATIC REPUBLIC and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation; in Behram Khurshed Pasikaka v.The State of Bombay [1955] 1 S.C.R. 613 at p. 653. After referring to Part III, Mahajan, C.J.observed: We think that the rights described as fundamental rights are a necessary consequence of the declaration in the preamble that the people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of […]

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