Competition Law - Presumption in Section 3(3) contd..
I have in my earlier posts,(here, here and here) proposed argumets which may be made in favour of the the presumption being irrebuttable. I will now present the arguments from the other side.
Argument 1- Presumption Rebuttable.
One of the principles of Interpretation of Statutes is that another statute may be referred to while interpreting a statute when the two are similar i.e. when they are statutes in pari materia ( Harshad S. Mehta v. State of Maharashtra, (2001) 8 SCC 257)
It has been held by the Supreme Court in State of Madras v. A Vaidyanath Aiyer, AIR 1958 SC 61, that it is not necessary that the entire subject-matter in the two statutes should be identical before any provision in one may be held to be in pari materia with some provision in the other. In this case, Section 4 of the Prevention of Corruption Act, 1947 which directs that on proof that the accused has accepted any gratification other than the legal remuneration, it shall be presumed unless the contrary is established by the accused, has been held to be in pari materia with the subject- matter dealt with by the Indian Evidence Act, 1872. Thus the definition of 'shall presume' in the Indian Evidence Act has been utilised to construe the words 'it shall be presumed' in section 4 of the Prevention of Corruption Act.
In subsequent cases also, the court has used the definition of 'shall presume' in the Evidence Acr to construe the meaning of the words 'it shall be presumed' in other legislations. For example in Kumar Exports v. Sharma Carpets, AIR2009SC1518 and also Satish and Ors. v. State of U.P. and Ors., JT2009(9)SC479.
In Union of India v. Pramod Gupta, AIR2005SC3708, the Supreme Court categorically stated that when a Statute uses the expression it shall be presumed then regard must be had to the expression 'shall presumed under the Evidence Act and that, 'shall be presumed' cannot be considered symonymous with 'conclusive proof'
Thus having regard to these judgments of the Hon'ble Supreme Court, one will be tempted to say that the expression 'shall be presumed' used in Section 3(3) of the Competition Act is rebuttable.
Argument 2 - Presumption Rebuttable.
Usually, a presumption will be irrebuttable only when - for the advancement of justice, the law assumes a fact and does not allow it to be disproved. For example, a man cannot dispute his paternity over a child, if the child born is born in the wedlock.
It may be noticed however, that the legislators nowadays rarely make a presumptions irrebuttable and modern courts are slow to recognize presumptions as irrebuttable. Moreover, they are disposed to rather restrict than to extend their number.
Thus, it is arguable that if there is ambiguity in Section 3(3) of the Competition Act regarding the nature of presumtion, the courts should lean in favour of its rebuttability. Whether advancement of justice requires this presumption to be irrebuttable is however, a matter that can be best left to the judgment of the adjudicators.
Argument 1- Presumption Rebuttable.
One of the principles of Interpretation of Statutes is that another statute may be referred to while interpreting a statute when the two are similar i.e. when they are statutes in pari materia ( Harshad S. Mehta v. State of Maharashtra, (2001) 8 SCC 257)
It has been held by the Supreme Court in State of Madras v. A Vaidyanath Aiyer, AIR 1958 SC 61, that it is not necessary that the entire subject-matter in the two statutes should be identical before any provision in one may be held to be in pari materia with some provision in the other. In this case, Section 4 of the Prevention of Corruption Act, 1947 which directs that on proof that the accused has accepted any gratification other than the legal remuneration, it shall be presumed unless the contrary is established by the accused, has been held to be in pari materia with the subject- matter dealt with by the Indian Evidence Act, 1872. Thus the definition of 'shall presume' in the Indian Evidence Act has been utilised to construe the words 'it shall be presumed' in section 4 of the Prevention of Corruption Act.
In subsequent cases also, the court has used the definition of 'shall presume' in the Evidence Acr to construe the meaning of the words 'it shall be presumed' in other legislations. For example in Kumar Exports v. Sharma Carpets, AIR2009SC1518 and also Satish and Ors. v. State of U.P. and Ors., JT2009(9)SC479.
In Union of India v. Pramod Gupta, AIR2005SC3708, the Supreme Court categorically stated that when a Statute uses the expression it shall be presumed then regard must be had to the expression 'shall presumed under the Evidence Act and that, 'shall be presumed' cannot be considered symonymous with 'conclusive proof'
Thus having regard to these judgments of the Hon'ble Supreme Court, one will be tempted to say that the expression 'shall be presumed' used in Section 3(3) of the Competition Act is rebuttable.
Argument 2 - Presumption Rebuttable.
Usually, a presumption will be irrebuttable only when - for the advancement of justice, the law assumes a fact and does not allow it to be disproved. For example, a man cannot dispute his paternity over a child, if the child born is born in the wedlock.
It may be noticed however, that the legislators nowadays rarely make a presumptions irrebuttable and modern courts are slow to recognize presumptions as irrebuttable. Moreover, they are disposed to rather restrict than to extend their number.
Thus, it is arguable that if there is ambiguity in Section 3(3) of the Competition Act regarding the nature of presumtion, the courts should lean in favour of its rebuttability. Whether advancement of justice requires this presumption to be irrebuttable is however, a matter that can be best left to the judgment of the adjudicators.
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