Competition Law - Presumption in Section 3(3) contd..
Argument 3 – Presumption Irrebuttable
The third factor I see in support of the argument that the presumption is irrebuttable, is the use of words “shall be presumed.” This argument may not be as strong as the Argument 1 and Argument 2 but it can nevertheless be considered.
The Indian law, under the Evidence Act, Section 4 provides for three kinds of presumptions - “may presume,” “shall presume,” and “conclusive proof”. When a court “may presume” a fact, it means that it is at the courts discretion to presume it until it is disproved. In case where the court “shall presume,” it has no option but to presume the fact, until it is disproved and in the case where something is said to be conclusive proof, then under no circumstances will a court allow it to be disproved.
It may be noted that, in other enactments, excluding the Evidence Act, the legislators while creating a presumption use the phrase shall presume/shall be presumed unless the contrary is proved. The words shall presume/ shall be presumed are rarely used alone. They are always accompanied by the expression unless proved to the contrary. For example see
• Cosmetics, Devices and Drugs Act, 1980
“ Section 34 (1) For the purposes of this Act and of any regulations made thereunder- (a) any cosmetic, device or drug found, kept or exhibited in any shop or other place commonly used for the sale of articles shall be presumed until the contrary is proved to be intended for sale…”
• Hindu Adoption and Maintenance Act
“Section 16- Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.”
• Negotiable Instruments Act, 1881
“Section 139 - It shall be presumed, unless the Contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, or any debt or other liability.”
• Customs Act, 1962 (52 of 1962)
“SECTION 11L (3) If at any time, on a verification made by a proper officer, it is found that any specified goods owned, possessed or controlled by a person are lesser in quantity than the stock of such goods as shown, at the time of such verification, in the accounts referred to in sub-section (1), read with the accounts referred to in sub-section (2), it shall be presumed, unless the contrary is proved, that such goods, to the extent that they are lesser than the stock shown in the said accounts, have been illegally exported and that the person owning, possessing or controlling such goods has been concerned with the illegal export thereof.”
• Child Marriage Restraint Act
“Section 6 (2) For the purpose of this section, it shall be presumed unless and until the contrary is proved, that where a minor has contracted a child marriage, the person having charge of such minor has negligently failed to prevent marriage from being solemnized.”
• Prevention of Corruption Act, 1988
“Section 20 (1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted ….to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted … to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7….”
• Companies Act, 1956
“Section 195 - where minutes of the proceedings of any general meeting of the company or of any meeting of its Board of directors or of a committee of the Board have been kept in accordance with the provisions of section 193, then, until the contrary is proved, the meeting shall be deemed to have been duly called and held….”
• Maharashtra Control of Organized Crime Act
“Section 22(2)- In a prosecution for an offence of organised crime punishable under sub-section (2) of section 3, if it is proved that the accused rendered any financial assistance to a person accused of, or reasonably suspected of, an offence of organised crime, the Special Court shall presume, unless the contrary is proved, that such person has committed the offence under the said sub-section (2).”
In these examples, there is no doubt that the presumption is irrebuttable. However, what are the consequences when the legislators create a presumption using the expressions “shall presume or shall be presumed” not followed by “unless the contrary is proved?”
See for example:
• Indian Copyright Act
“Section 19 (6) - If the territorial extent of assignment of the rights is not specified, it shall be presumed to extend within India.”
• Medical Termination of Pregnancy Act
“ Section 3 Explanation 1 - Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.”
• Maharashtra Control of Organized Crime Act
“Section 17(3) - Where it is proved that the accused has kidnapped or abducted any person, the Special Court shall presume that it was for ransom.”
In appears that the presumptions created in these enactments are meant to be conclusive. Thus, the point I am making is that, when the legislators use the word shall presume or shall be presumed they intend to create an irrebuttable presumption and if they do not intend it to be conclusive, they use the words "shall presume/shall be presumed unless the contrary is proved."
Coming to the Competition Act, it may be seen that legislators have used the expression “shall be presumed” only, without adding - " unless proved to the contrary," and thus they intended this presumption to be irrebuttable. If that was not the case, then there would be no need to add a proviso which carves out exceptions that will not be affected by section 3(3). A similar view has been expressed in the blog Law and Legal Developments.
The third factor I see in support of the argument that the presumption is irrebuttable, is the use of words “shall be presumed.” This argument may not be as strong as the Argument 1 and Argument 2 but it can nevertheless be considered.
The Indian law, under the Evidence Act, Section 4 provides for three kinds of presumptions - “may presume,” “shall presume,” and “conclusive proof”. When a court “may presume” a fact, it means that it is at the courts discretion to presume it until it is disproved. In case where the court “shall presume,” it has no option but to presume the fact, until it is disproved and in the case where something is said to be conclusive proof, then under no circumstances will a court allow it to be disproved.
It may be noted that, in other enactments, excluding the Evidence Act, the legislators while creating a presumption use the phrase shall presume/shall be presumed unless the contrary is proved. The words shall presume/ shall be presumed are rarely used alone. They are always accompanied by the expression unless proved to the contrary. For example see
• Cosmetics, Devices and Drugs Act, 1980
“ Section 34 (1) For the purposes of this Act and of any regulations made thereunder- (a) any cosmetic, device or drug found, kept or exhibited in any shop or other place commonly used for the sale of articles shall be presumed until the contrary is proved to be intended for sale…”
• Hindu Adoption and Maintenance Act
“Section 16- Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.”
• Negotiable Instruments Act, 1881
“Section 139 - It shall be presumed, unless the Contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, or any debt or other liability.”
• Customs Act, 1962 (52 of 1962)
“SECTION 11L (3) If at any time, on a verification made by a proper officer, it is found that any specified goods owned, possessed or controlled by a person are lesser in quantity than the stock of such goods as shown, at the time of such verification, in the accounts referred to in sub-section (1), read with the accounts referred to in sub-section (2), it shall be presumed, unless the contrary is proved, that such goods, to the extent that they are lesser than the stock shown in the said accounts, have been illegally exported and that the person owning, possessing or controlling such goods has been concerned with the illegal export thereof.”
• Child Marriage Restraint Act
“Section 6 (2) For the purpose of this section, it shall be presumed unless and until the contrary is proved, that where a minor has contracted a child marriage, the person having charge of such minor has negligently failed to prevent marriage from being solemnized.”
• Prevention of Corruption Act, 1988
“Section 20 (1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted ….to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted … to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7….”
• Companies Act, 1956
“Section 195 - where minutes of the proceedings of any general meeting of the company or of any meeting of its Board of directors or of a committee of the Board have been kept in accordance with the provisions of section 193, then, until the contrary is proved, the meeting shall be deemed to have been duly called and held….”
• Maharashtra Control of Organized Crime Act
“Section 22(2)- In a prosecution for an offence of organised crime punishable under sub-section (2) of section 3, if it is proved that the accused rendered any financial assistance to a person accused of, or reasonably suspected of, an offence of organised crime, the Special Court shall presume, unless the contrary is proved, that such person has committed the offence under the said sub-section (2).”
In these examples, there is no doubt that the presumption is irrebuttable. However, what are the consequences when the legislators create a presumption using the expressions “shall presume or shall be presumed” not followed by “unless the contrary is proved?”
See for example:
• Indian Copyright Act
“Section 19 (6) - If the territorial extent of assignment of the rights is not specified, it shall be presumed to extend within India.”
• Medical Termination of Pregnancy Act
“ Section 3 Explanation 1 - Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.”
• Maharashtra Control of Organized Crime Act
“Section 17(3) - Where it is proved that the accused has kidnapped or abducted any person, the Special Court shall presume that it was for ransom.”
In appears that the presumptions created in these enactments are meant to be conclusive. Thus, the point I am making is that, when the legislators use the word shall presume or shall be presumed they intend to create an irrebuttable presumption and if they do not intend it to be conclusive, they use the words "shall presume/shall be presumed unless the contrary is proved."
Coming to the Competition Act, it may be seen that legislators have used the expression “shall be presumed” only, without adding - " unless proved to the contrary," and thus they intended this presumption to be irrebuttable. If that was not the case, then there would be no need to add a proviso which carves out exceptions that will not be affected by section 3(3). A similar view has been expressed in the blog Law and Legal Developments.
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