Perspectives on Law

Section 11 of the Arbitration and Conciliation Act, 1996 governs the law relating to Appointment of Arbitrators. It provides that, if the parties fail to appoint an arbitrator or when the two appointed arbitrators fail to decide upon the third arbitrator, then the appointment shall be made by the Chief Justice or any person or institutition designated by him. This provision, empowering the Chief Justice to appoint an arbitrator gave rise to the question whether the order passed by the Chief Justice in appointing an arbitrator is an administrative or a judicial order. Until the Judgment of the Hon'ble Supreme Court in S.B.P. and Co. v. Patel Engineering Ltd. and Anr , the position that prevailed was that the order is an 'administrative order.' However, the SC in  Patel Engineering overruled Konkan Railway Corporation Ltd. and Anr. v. Rani Construction Pvt. Ltd . to hold that, the power exercised by Chief Justice of High Court or India under Section 11of the Arbitr...

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 pres...

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 shal...

This post is in continuation of this and this post. Argument 2 - Irrebuttable presumption Another useful aid of construction is the Parliamentary history which includes the Bill and the Reports of commissions or inquiry committees preceding the introduction of a Bill.( See CIT, MP v. Sodra Devi , AIR 1957 SC 832; Express Newspapers Ltd. v. Union of India , AIR 1958 578; Madanlal F. Dudhediya v. S. Chagandeo Sugar Mills Ltd. , AIR 1962 SC 1543) The recommendations of the Raghavan Committee Report which preceded the passing of the new Competition Act may thus, be looked at. The Report suggested that in general, the rule of reason test is required for establishing that an agreement is illegal. However, for certain kinds of agreements, the presumption is often that they cannot serve any useful or pro-competitive purpose and therefore do not need to be subject to the rule of reason test. They further suggested the following kinds of horizontal agreements to be presumed anti-competi...

In continuation to my last post, which may be accessed here . I will now, first, present arguments from the side that the presumption raised is irrebuttable. Argument 1 - Presumption Irrebuttable While interpreting a statute, the true intent of the legislature has to be gathered having due regard to the language used therein. However, when the language used is ambiguous and unclear, courts may resort to external aids of construction. Thus, while interpreting an Indian Statute, Indian Courts do not hesitate to refer to foreign statutes and foreign decisions of countries which follow the same system of jurisprudence as the Indian jurisprudence. The new competition act has been drawn on the same lines as the competition law of other legal systems such as the U.S, EU etc. and therefore one may refer to these laws to decipher the intention of the legislature in determining whether the presumption raised in section 3(3) is irrebuttable. USA follows two approaches in determining...

Sections 3 and 4 of the Competition Act (India) relating to anti-competitive agreements and abuse of dominant postion, were recently brought into force on May 20, 2009. Section 3 of the Act declares that  anti-competitive agreements will be void and prohibits enterprises and persons from entering into agreements in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services that causes or is likely to cause an appreciable adverse effect on competition in India. Generally agreements are classified into horizontal and vertical agreements for the purpose of competition laws. However, the Indian law doesn't use this terminology. Nevertheless it can be seen that, in substance Section 3(3) covers horizontal agreements, whereas Section 3(4) covers vertical agreements. The importance of this distinction is that normally horizontal agreements relating to price fixing, market sharing etc. are considered to be "per se "anti...

A beautiful legal article has been written by Mr. Neeraj Aarora on the same question discussing in detail the judgments on this point and also analysing the question with the aid of principles of interpretation of statutes. The same may be accessed here . In addition to the argument I have made in the post which may be accessed here , he discusses the principles of interpretation of a "proviso" in greater detail.