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(As originally published in The Print on 19 May 2023)
New Delhi, May 19 (PTI) The Supreme Court on Friday appointed former apex court judge Indu Malhotra as the sole arbitrator to adjudicate disputes arising from the conditions of a tender floated in 2011 by the Ministry of Home Affairs for supply of over 31,000 Glock pistols.
A bench headed by Chief Justice D Y Chandrachud rejected the submissions of the Centre’s counsel that the contracts entered into by the Union of India in the name of the President are immune from provisions that protect against conflict of interest of a party to a contract under section 12(5) of the Arbitration and Conciliation Act, 1996. The bench, also comprising Justices PS Narasimha and JB Pardiwala, delivered its verdict on an application by M/s Glock Asia-Pacific Ltd. under section 11(6) of the Act for the appointment of a sole arbitrator.
In interpreting the Constitution, courts seek to discover the ‘intention of the framers of the Constitution’. This is not a question of fact. ‘Intention of the framers of the Constitution’ like the phrase ‘intention of Parliament’ is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even a majority of individual members of either House. R vs. Secretary of State for Environment, Transport and the Regions[2001] 2 AC 349(HL) (https://publications.parliament.uk/pa/ld200001/ldjudgmt/jd001207/spath-1.htm) . It is a figure of speech, a shorthand expression to indicate the true meaning of an enactment (Justice GP Singh Principles of Statutory Interpretation, Ashok Bhushan J, page 296 para. 343 Maratha Reservations case LL 2021 SC 243 (https://www.livelaw.in/top-stories/maratha-quota-in-excess-of-50-ceiling-limit- unconstitutional-supreme-court-173617) ). In ascertaining the intention of the Constituent Assembly , courts seek to discover from the text of the Constitution, the true meaning of what Constituent Assembly had said and not what Constituent Assembly had intended to say (Black-Clawson International Ltd vs. Papierwerke Waldhof-Aschaffenburg A.G. [1975] A.C. 591, 613 G, 640 5C (HL), MarathaReservations case LL 2021 SC 243 (https://www.livelaw.in/top-stories/maratha-quota-in-excess-of-50-ceiling-limit- unconstitutional-supreme-court-173617) Ravindra Bhat J (page 308 para. 358) and Nageshwara Rao J (page 424 para. 16). Intention of the framers of the Constitution does not refer to the intention which each member of the Constituent Assembly held at the time of framing the Constitution.Therefore, referring to the speeches of individual Constituent Assembly members to interpret the Constitution is wrong in principle. It amounts to the court abdicating its role in interpreting the Constitution.
Individual speeches do not reflect the intention of the Constituent Assembly as a whole
Interpreting the Constitution by reference to the speeches of individual members of the Constituent Assembly is not factual or practical exercise. The Constituent Assembly after partition consisted of 299 members of which 284 members signed the Constitution on 26 November 1949 (D D Basu, Introduction to the Constitution of India, 25th edition chapter 2). These 299 members were not equally articulate. Some of them did not speak at all. Even among those who spoke, many did not speak on all the clauses of the draft Constitution. Secondly, members of the Constituent Assembly came from different backgrounds and had different views on many subjects. Therefore, those who did speak could not be assumed to have reflected the views of the majority of the Constituent Assembly. Thirdly, those who spoke may have differed from each other. As a result, the process behind the majority vote in the Constituent Assembly is largely inarticulate (United States vs. Trans- Missouri Freight Association (1897) 169 US 290, 318; cited in State of Travancore Cochin vs. Bombay Company AIR 1952 SC 366). It is therefore not possible to ascertain intention of the Constituent Assembly by examining and analysing individual speeches of the Constituent Assembly members.
The MarathaReservations case LL 2021 SC 243 (https://www.livelaw.in/top-stories/maratha-quota-in-excess-of-50-ceiling-limit-unconstitutional-supreme-court-173617) which involved interpreting the 102nd amendment to the Constitution demonstrates the pitfalls in relying on parliamentary speeches to interpret the Constitution. Conflicting parliamentary speeches came to the fore. Analysis of parliamentary debates did not yield a single coherent answer ( (file:///C:/Users/Ramakrishnan V/Downloads/downloads/Articles/Article 370 hearing Relevancy of Constituent Assembly speeches.docx)Ravindra Bhat J page 533 para. 139, 535 para. 143). Delving through Constituent Assembly speeches to discover the mythical intention of the Constituent Assembly is to chase ghosts and shadows. Now, more than 70 years after the birth of our Constitution, there is a disturbing trend of courts and lawyers cherry-picking passages from speeches of individual members to support prior conclusions. This is not interpretation but abuse of legal reasoning.
Secondly, relying on individual speeches of Constituent Assembly members to interpret the Constitution is to permit the dead to control the living. The Constitution is a living document, meant for our citizens of today and for the generations to come. Heeding to the speeches of the departed members of the Constituent Assembly is to silence the voices of the living. India today is vastly different from the India at the dawn of our republic in 1950.
Some of the problems faced by our people today could not have been contemplated by even the most forward-thinking member of the Constituent Assembly. For example, no Constituent Assembly member could have envisaged article 14 as a guarantee against arbitrary action or article 21 as encompassing a right to privacy (JusticeKS Puttaswamy vs. Union of India (https://www.livelaw.in/breaking-right-privacy-fundamental-right- sc/?infinitescroll=1) (file:///C:/Users/sindhu/Downloads/Article 370 hearing Relevancy of Constituent Assembly speeches 29 Aug 2023 1500 hrs.docx)). A Constitution which is not flexible enough to accommodate the aspirations of the living will soon be replaced. This is not an academic statement. If we look at our neighbours, Pakistan has had three constitutions, Nepal seven and Sri Lanka three. Only Bangladesh and India have retained their original constitutions.
Lastly, the Constitution is addressed to the people of India who are to be governed by such provisions. Indian people can be expected to understand the Constitution only from the text of the Constitution. Introducing Constituent Assembly debates as an aid to interpretation will introduce an additional element of uncertainty to the plain language and the text of the Constitution. People will then be required to mandatorily read through the Constituent Assembly debates along with the text of the Constitution. Taken to its logical conclusion, Constituent Assembly debates would be cited in courts on par with statutes or judgments and courts would be called to interpret these debates in the same manner as statutes or judicial precedents. Courts will be persuaded to ignore the text of the Constitution and decide based on the intention of individual members of the Constituent Assembly. Courts will then be asked to interpret not what the Constituent Assembly enacted but what some individual member spoke.
Resolutions of the Constituent Assembly, speeches of the chairman and the members of the Drafting Committee
In contrast to what individual members of the Constituent Assembly spoke, what the Constituent Assembly did are external aids to interpretation of the Constitution. The revised draft constitution was introduced on 4 November 1948. Three readings took place Constitution in which the draft Constitution was examined clause by clause. Many amendments were proposed some of which were approved and the others rejected. A clause or textual amendment rejected by the Constituent Assembly prima facie indicates rejection of a possible interpretation of the clause as finally enacted in the Constitution. Similarly, a clause or a textual amendment accepted by the Constituent Assembly prima facie indicates the acceptance of a possible interpretation of such clause. The rule in using Constituent Assembly debates as an external aid to interpretation of the Constitution is ignore what the members spoke and focus on what the members collectively did (H.M. Seervai, Constitutional Law of India, Fourth Edition page 202, para. 2.62).
Exceptions to the rule are the speeches of Dr Ambedkar the chairman of the Drafting Committee and the speeches of the other members of the Drafting Committee. These speeches were made while moving the reading of the draft Constitution, in replies and explanations during the clause by clause reading of the draft Constitution. Such speeches can be used to interpret the Constitution just as the speeches of ministers in an official capacity propounding a government-sponsored Bill are used for interpretation of statutes. However, a reference can be made to these speeches only if there is an ambiguity in the text of the Constitution but not otherwise (See Kalpana Mehta vs. Union of India (https://www.livelaw.in/summary-of-constitution-bench-judgment-on-parliamentary- standing-committee-reports-read-judgment/); Pepper vs. Hart [1993] AC 593(HL) (https://www.bailii.org/uk/cases/UKHL/1992/3.html)). In any event, these speeches cannot control the interpretation of the Constitution which ultimately lies only with the courts.
(As originally published in Hindustan Times on 20 May 2023)
Defending the Centre, ASG argued that the contract in the case stands on a different footing as it is entered into in the name of the President
The Union of India cannot demand an immunity from the operation of pertinent legal provisions just because a contract is in the name of the President of India, the Supreme Court ruled on Friday.
A bench, comprising Chief Justice of India Dhananjaya Y Chandrachud and justices PS Narasimha and JB Pardiwala, interpreted Article 299 of the Constitution to hold that the central government, as a party to a contract, cannot wriggle out of statutory bars by arguing that the contract is in the name of the President of India
Article 299 provides that all contracts in the exercise of the executive power of the union or of a State shall be expressed to be made by the President or by the Governor of the State, and all such contracts will be executed by a person duly authorized in that behalf.
“Having considered the purpose and object of Article 299, we are of the clear opinion that a contract entered into in the name of the President of India, cannot and will not create an immunity against the application of any statutory prescription imposing conditions on parties to an agreement, when the Government chooses to enter into a contract,” held the judgment, authored by justice Narasimha.
The judgment came on an application filed for the appointment of a sole arbitrator by Glock Asia-Pacific Ltd which had a contract with the Union ministry of home affairs (MHA) for the supply of Glock Pistols. Invocation of performance bank guarantee by the MHA caused a rift between the two and the company issued a notice invoking arbitration in July 2022. It nominated a retired judge of the Delhi high court as the sole arbitrator and asked the MHA to accept the nomination. Instead, the MHA replied that a condition of the tender mandated that the dispute had to be referred to sole arbitration of an officer in the Union law ministry, who will be appointed by the secretary in MHA.
Senior counsel R Viraraghavan, assisted by advocates Siddharth Bambha and Shyam D Nandan, argued that appointment of the sole arbitrator as per the MHA’s terms would be contrary to Section 12(5) of the Arbitration Act, which protect against conflict of interest of a party to a contract. The lawyers contended that the Union of India, being a party to the agreement, appointing its own employee in the law ministry as the sole arbitrator is a clear case of conflict of interest.
Defending the Centre, additional solicitor general Aishwarya Bhati argued that the contract in the present case stands on a different footing as it is entered into in the name of the President of India.
The bench, however, rejected the ASG’s arguments, noting that Article 299 only lays down the formality that is necessary to bind the government with contractual liability and does not extend to the substantial law relating to the contractual liability of the government which is to be found in the general laws of the land.
“It is for this reason that, even though a contract may be formally valid under Article 299, it may nevertheless fail to bind the Government if it is void or unenforceable under the general provisions of law,” said the bench, lamenting that the arbitration clause in the present case enables a serving employee of the Union of India, a party to the contract, to nominate a serving employee of the Union of India as the sole arbitrator.
“We have no hesitation in rejecting the submission of the learned ASG that the contracts entered into by the Union of India in the name of the President of India are immune from provisions that protect against conflict of interest of a party to a contract, under Section 12(5) of the Act,” said the court, as it appointed its former judge Indu Malhotra as the sole arbitrator to decide the dispute.
(As originally featured in Live Law on 25 May 2023)
The Supreme Court, while adjudicating an application for appointment of arbitrator, has held that a contract entered into in the name of the President of India, does not create an immunity against the application of any statutory prescription imposing conditions on parties to an agreement, when the Government chooses to enter into a contract.
“We are unable to trace any immunity arising out of Article 299, to support the contention that for contracts expressed to be made by the President of India, the ineligibility of appointment as an arbitrator as contemplated under Section 12(5) of the Act, read with Schedule VII, will be inapplicable”,
Narasimha and Justice J. B. Pardiwala, while adjudicating an appeal M/s Glock Asia-Pacific Ltd. v Union of India, observed that the Union of India is a party to the contract in respect of which arbitration is being invoked. Therefore, the Arbitrator appointed by Union, who is an employee of the Union, is ineligible to be appointed as the Arbitrator as per Para 1 of Schedule VII read with Section 12(5) of the Arbitration and Conciliation Act, 1996.
In 2011, the Ministry of Home Affairs, Government of India (“Ministry”) floated a tender for the purchase of Glock pistols. The Conditions of Tender contained an Arbitration clause as per which the Secretary of Ministry of Home Affairs was to appoint an employee of the Ministry of Law and Justice (Government of India) as sole arbitrator.
Dispute arose between the Parties. On 20.07.2022 the Applicant issued a notice invoking arbitration and nominated a retired Judge of the Delhi High Court as the Sole Arbitrator. However, the Ministry opposed the appointment on the ground that as per Conditions of Tender an officer of Ministry of Law, appointed by the Secretary of Ministry of Home Affairs has to become an arbitrator.
The Applicant, being a foreign company, filed an application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (“Arbitration Act”) before the Supreme Court.
The Section 12(5) of the Arbitration Act enumerates the grounds of challenge for appointment of an arbitrator. If the arbitrator is an employee, consultant, advisor or has any other past or present business relationship with a party, then he/she is ineligible to be appointed as an Arbitrator.
The Applicant placed reliance on the judgment in Perkins Eastman Architects DPC and Another v. HSCC (India) Ltd., (2020) 20 SCC 760, wherein it was held that any person having an interest in the outcome of the dispute would be ineligible to be an arbitrator. It was contended that if Union of India beingefa-border a party to the Contract, appoints its own employee as the Sole Arbitrator, then it would violate Section 12(5) of the Arbitration Act.
Contract entered into in the name of the President of India, does not create an immunity against application of any statutory prescription
The Article 299 of the Constitution of India provides that all contracts made in exercise of the executive power of the Union shall be expressed to be made in the name of the President.
While placing reliance on the judgment in Chatturbhuj Vithaldas Jasani v Moreshwar Parashram & Ors., (1954) SCR 817, the Bench opined that contract, where the Government is a party, must be formed by its agents in conformity with form given by Article 299(1) of the Constitution. Otherwise, such contract cannot be enforced at the instance of any contracting party.
The Bench observed as under:
“It must be emphasized that Article 299 only lays down the formality that is necessary to bind the government with contractual liability. It is important to note that Article 299 does not lay down the substantial law relating to the contractual liability of the Government, which is to be found in the general laws of the land. It is for this reason that, even though a contract may be formally valid under Article 299, it may nevertheless fail to bind the Government if it is void or unenforceable under the general provisions of law.”
On the issue of whether a contract entered into in the name of President would entail any immunity against the application of statutory prescription, the Bench held as under:
“Having considered the purpose and object of Article 299, we are of the clear opinion that a contract entered into in the name of the President of India, cannot and will not create an immunity against the application of any statutory prescription imposing conditions on parties to an agreement, when the Government chooses to enter into a contract. We are unable to trace any immunity arising out of Article 299, to support the contention that for contracts expressed to be made by the President of India, the ineligibility of appointment as an arbitrator as contemplated under Section 12(5) of the Act, read with Schedule VII, will be inapplicable.”
The Bench rejected the contention that the contracts entered into by the Union of India in the name of the President of India are immune from provisions that protect against conflict of interest of a party to a contract, under Section 12(5) of the Act.
(As originally published in Lexpeeps on 12 August 2022)
The Hon’ble Supreme Court of India on Monday in the case of Varsha Garg vs State of Madhya Pradesh and Ors. ruled that Section 311 empowers the trial court to summon witnesses to arrive at a just decision.
The decoding registers, according to the bench of Justices Dhananjaya Y Chandrachud and AS Bopanna, are a pertinent evidence piece to establish the co-relationship between both the accused’s location as well as the cell phone tower. In this case, the appellant is the wife of an advocate who’d been brutally murdered outside his office on November 18, 2015, around 23:30 hrs. An FIR was filed under Section 302 read in conjunction with Section 34 of the IPC.
The CD which was produced during the trial was found to be corrupted hence an application was made to the trial court for the requisition of the copy CD which was available at the police station. An application was preferred for requisition of the said CD but this application was rejected by the trial court. A Single Judge of the High Court granted the appellant’s petition to challenge the trial court’s order, noting that the CD was a crucial piece of evidence that was provided to all of the accused along with the charge sheet.
This order of the trial court was challenged before the High Court by the appellant under Section 482 CrPC dismissing the second application which has been called into question in these proceedings.
The submission urged by the Counsel of Appellant was that in any event, there was no bar in law to the filing of an application under Section 311 even after the closure of evidence.
The submission which has been urged by Counsel for Respondent is that given the bar contained in Section 301 CrPC, it is not open to the appellant who is the spouse of the deceased to pursue these proceedings.
