Perspectives on Law

I write this post in continuation to an earlier post which introduces the question - whether the decision of the Chief Justice in appointing an arbitrator is a judicial or administrative order? The earlier post may be accessed here. Unlike other issues, where I discuss arguments from one side completely and then the other, for this issue, I would address each argument and its counter argument at the same time. Argument 1: Purpose of Highest Judicial Authority. The major thrust by the majority in the Patel Engineering Case , was that, when a statute confers a power or imposes a duty on the highest judicial authority in the State or in the country, and has made its decision final on matters its decides, then that decision cannot be purely administrative and that the authority has to act judicially. Honb'le C.K Thakker J. gave a dissenting opinion on this argument, and explained that the purpose of selecting the Chief Justice and in conferring upon him the...

In my earlier post , I proposed an argument that, being a remedial statute, the PWDV Act may be applied retrospectively. In this post, I propose an argument based on the wordings/language of the PWDV Act. Though the inhibition against retrospective construction has been applied with less insistence in case of remedial statutes, there is no such rule that all benevolent measures are retrospective. ( G.P Singh, Interpretation of Statutes .) Thus, I present another argument in favour of the retrospective application of the Act. The Supreme Court made an interesting observation in T.K. Lakshmana v. State of Madras , AIR 1968 SC 1489. It held that Section 44-B (2)(a)(i) Madras Hindu Religious Endowments Act, 1926, applies retrospectively because of the use of the words 'has made,' 'has failed,' 'has ceased,' 'has become,' as these words are capable of denoting events happening before or after coming into force of the statute.  Similarly, under the PWDV Ac...

Amongst the many conflicting decisions arising out the application of Protection of Women Against Domestic Violence Act, one of them, is in respect of the operation of the Act. The Andhra Pradesh High Court held that the PWDV Act does not apply retrospectively and that an action under the Act can lie only if the acts of domestic violence are committed on or after 26 Oct 2006, i.e. the date on which the Act came into force. Similarly, a Delhi Metropolitan Court  and a JMFC in Goa also took the view that this Act will not be applicable if the acts complained of have been committed prior to the passing of the Act. On the other hand the Bombay High Court and Madras High Court have taken a different view. They held that, the court is competent to take cognizance of the act of domestic violence committed even prior to the Act came into force and pass necessary protection orders. The Act can be applied retrospectively to take cognizance of the ac...

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...