Opinion: Implication of Shreya Singhal Judgment on Sedition Law

Few months ago, the media and social networking sites were anxious over what the Supreme Court verdict would be on the vires of the notorious Section 66A of the Information Technology Act 2000.[1] Many scholars[2] have expressed their appreciation for both the conclusion and the reasoning of the Court in holding the provision unconstitutional.

It is this precise and correct reasoning of the Court, a part of which would be the subject matter of this paper, i.e., as to how it would impact on the legal understanding of the sedition law in Section 124A[3] Indian Penal Code. Initially, the paper would trace the colonial history of the sedition law in India and then, how post independence the colonial understanding of the sedition law is altered and harmonised with the Constitution of India under Article 19. In light of this framework, the paper would firstly, deal with the Constitutionally consistent “tendency to affect” test, which was earlier used to determine whether an act of sedition is committed, and then, understand how the Section 66A judgment, alters this test and calls for a renewed understanding to uphold the Constitutional validity of sedition laws.

The full article can be accessed here:

http://slr.oxfordjournals.org/cgi/content/full/hmv041?ijkey=BuiGGHU6snZgwLY&keytype=ref

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[1] Judgment holding Section 66A unconstitutional: Shreya Singhal v. UOI, Writ Petition (Criminal) No. 167 of 2012, MANU/ SC/0329/2015. (hereinafter the judgment, for sake of brevity, would be referred as ‘Section 66A judgment’.

[2] See G Bhatia, Indian Constitutional Law and Philosophy, Last accessed on 1st January 2016 at https://indconlawphil.wordpress.com/2015/03/26/the-striking-down-of-section-66a-how-indian-free-speech-jurisprudence-found-its-soul-again/ (accessed 1 January 2016). See for more related research on this topic- Nivedita Saksena & Siddhartha Srivastava, ‘An Analysis of the Modern Offence of Sedition’, accessible at http://nujslawreview.org/wp-content/uploads/2015/10/Nivedita-Saxena.pdf

[3] See G Bhatia, Indian Constitutional Law and Philosophy, Last accessed on 1st January 2016 at https://indconlawphil.wordpress.com/2015/03/26/the-striking-down-of-section-66a-how-indian-free-speech-jurisprudence-found-its-soul-again/ (accessed 1 January 2016) from where the link between the reasoning in Shreya Singhal and its impact on Sedition law was observed and has been analysed in depth in the present article. Currently, after an amendment in 1898, Section 124A IPC states:

“Sedition- Whoever by words, either spoken or written, or by signs or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India shall be punished with imprisonment for life to which fine may be added or with imprisonment which may extend to three years, to which fine may be added, or with fine. Explanation 1. The expression “disaffection” includes disloyalty and all feelings or enmity. Explanation 2. Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection do not constitute an offence under this section. Explanation 3. Comments expressing disapprobation of the administrative of other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.”

Opinion: Challenge to the Re- Promulgation of Land Acquisition Bill- A Timely Reminder to the Executive

Challenge to the Re- Promulgation of Land Acquisition Bill

There has been quite an interesting political episode being played for the past few months, with massive legal and Constitutional implications. The recent notification of the Right To Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance 2015 (for brevity sake “Ordinance 2015”) on April 3, is now challenged in the Supreme Court for being violative of the Constitutional framework of law making. Already, the political parties are at loggerheads over the form and content of the Bill and seen constantly challenging the other in the Parliament. But now the battle has shifted from the corridors of the Sansad to the annals of the Supreme Court of India. So, lets us understand what the whole legal fuss is all about.

Power to Issue Ordinance

The Constitution of India under Chapter III, under Article 123 provides for the legislative power of the President, which is known as the ‘Ordinance making’ power. It is not a parallel power of legislation, and can be exercised only when both the Houses of the Parliament are not in session, to enable the executive to meet emergent situations. The Constituent Assembly Debates (Vol. 8, Part V, chapter 3, pp. 201-07) also show that the power to issue ordinance was considered as a necessary evil, which should not be used for political ends. An ordinance has a lifespan of six months, but it is valid for six weeks from the date from which the next session of Parliament begins. In other words, a bill corresponding to the ordinance has to be passed by Parliament within the six-week time- frame to sustain it. This power is only to fill the void for the time being, since the democratic principles as enshrined under our solemn document, regard the true and authorized law makers to be the people of India, acting through their elected representatives (legislatures/parliamentarians).

Wadhwa Judgment (Dr. D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579)

Perhaps, the most important judgment in context of Ordinance making power of the Executive, where the petitioner was a professor of economics is the Gokhale Institute of Politics and Economics, whose efforts were commended by minds not lesser than that of the great H.M. Seervai in his famous critical commentary of the Constitution of India. The petitioner had challenged the practice which is being followed by the State of Bihar of repromulgating the ordinances from time to time without their provisions being enacted into Acts of the Legislature. For the same, the petitioner conducted a detailed and thorough research on such practice of the State of Bihar, then published in a book entitled “Repromulgation of Ordinances: Fraud on the Constitution of India”, and submitted before the Court to show that the Governor of Bihar promulgated 256 ordinances in the years between 1967 and 1981, out of which many were repromulgated (38 being repromulagted for more than 6 years). The Court, while noting, that the same ordinances which had ceased to operate were repromulgated containing substantially the same provisions almost in a routine manner, held that the “power to promulgate an Ordinance is essentially a power to be used to meet an extraordinary situation and it cannot be allowed to be “perverted to serve political ends.” Terming such exercise of power of repromulgation of an ordinance with substantially the same provisions beyond the period limited by the Constitution (at maximum an ordinance can last for 7 and a half months, unless repromulgated) as a colourable exercise of power on the part of the Executive to continue an Ordinance, the Court sought to make it clear that it is the legislature (representing the people of this nation) that have the authority to make a law and executive should not seek to bypass them through ordinance route.

However, the Court also noted that not every case of repromulgation would amount to commit violence upon the Constitution and envisaged certain circumstances in that regard (i) where it may not be possible for the Government to introduce and push through in the Legislature a Bill containing the same provisions as in the Ordinance, because the Legislature may have too much legislative business in a particular Session or (ii) the time at the disposal of the Legislature in a particular Session may be short.  The Wadhwa case was one under Article 213, i.e., the power of the Governor in a State to issue ordinance, which has a Central counterpart u/Article 123.

Before looking into the factors favoring or aggravating Union’s stance, it is necessary to point out that the Supreme Court also would have to see the extent of its jurisdiction, as to whether it can take into account the legislative proceedings as well, for ascertaining the conduct and intention of the ruling Government in issuing the Ordinance 2015.

Factors Favouring the Union

So, what can be the defences taken by the Union to show that the issuance of the Ordinance 2015, was not intended to subvert the legislative process. One, the Union can distinguish the present situation with the situation prevailing in the Wadhwa case on the basis of purely statistical terms of repromulgation. While in the Wadhwa case there were 197 ordinances kept alive for more than a year, in the present case, this ordinance is the second in succession. Admittedly, just because the Ordinance is only a second one is succession, does not mean that such repromulgation cannot be subverting the Constitutional mandate, but this fact coupled with the subsequent favourable factors, can make a strong case for the Union to advocate for the upholding of the Constitutional validity of the Ordinance. Secondly, the idea of using repromulgation as a complacently carried on as a routine affair, as clearly seen in Wadhwa case seems to be absent in the present case. No one can deny the efforts being made by the ruling Government is securing the passage of the bill during the previous session and it could have even succeeded had it had the requisite majority in the Upper House, whereas in Wadhwa case, the Court noted that at one point there was not even any discussion on the introduction of a bill in the legislature. Third, there have been other bills pending as well, which the government struggled to get passed, for instance, the Insurance Laws (Amendment) Bill 2015 (which was incidentally the first economic bill to have received the crucial opposition’s backing in form of Congress’ in the Rajya Sabha where the Government is in minority), and the Coal Mines (Special Provision) Bill 2015 (where the Government got support from parties like TMC, NCP and the DMK, while Congress and Left protested against it) which got passed on the last days of the first half phase of the Budget session. So, considering this it can certainly be contended by the Union that it could not push through in the Parliament the Bill containing the same provisions as in the Ordinance of 2014 because there was too much legislative business in that particular Session. Lastly, the Union can also contend that even if it is assumed that the government would not be able to muster requisite number to get the bill get cleared in the Rajya Sabha, still, the new session would allow it time to convene a joint sitting of the Houses and consequently, take advantage of the superior numerical strength of the Lok Sabha (as compared to the Rajya Sabha, which is more than double the strength of the latter) where the government is in majority. Therefore, the Union might contend that such impugned Ordinance is notified only to keep up the continuation of legal position, till the next session comes up.

Aggravating Factors Against the Union

On the other hand, the petitioners can make a plausible challenge to the validity of the second successive ordinance on the basis of the Wadhwa judgment. One, the April 2015 ordinance is substantially the same ordinance, that previously was promulgated and which was also in form of the Bill that was introduced in this session (the only major difference is the qualification attached to the industrial corridors, exempted from social impact assessment reports and consent clauses). Secondly, the very struggle of the ruling party to get the bills passed in Rajya Sabha, can also become the reason to believe that the present government would ride on this colourable exercise of power to implement its policy and not comply with the proper route of law making. Thirdly, when the Rajya Sabha previously had not been in favor of passing the bill, then, it is a clear indication that the legislature of this nation does not want this law.

Conclusion

No matter what the decision of the Court maybe, what is certain that the mischievous practice of issuing ordinances and repromulgating would be nipped in the bud before it blows itself out of the proportion, especially, in the present circumstances when the President of this nation had to warn the ruling government against resorting to the method of ordinance issue, when the proper way should be to go to the Parliament. Now, the Supreme Court is faced with the task of again preserving the Authority of the Constitution and the democratic principles enshrined in it.

Guest Post: Composition of an Arbitral Tribunal: Inconsistencies in Lohia Case

Composition of an Arbitral Tribunal: Inconsistencies in Lohia Case

Arbitration, not only internationally but domestically as well, is now becoming a highly preferred means to resolve disputes in a private forum. One of the primary reasons for introducing this Alternative Dispute Resolution Mechanism was to provide for justice in a speedy, efficacious and cost-effective manner. It is in pursuance of this object in terms of avoiding a ‘hung arbitration’, the Legislature, in its wisdom, incorporated a provision with respect to the composition of the Arbitral Tribunal in Section 10 of the Indian Arbitration and Conciliation Act, 1996 (hereinafter ‘The Act 1996’), which states:

“Number of arbitrators: (1) The parties are free to determine the number of arbitrators, provided that such number shall not be an even number.”[2]

Though seemingly unambiguous in its meaning and object, this provision has been a subject of constant debate as issues have been raised regarding the soundness of the judicial discourse relating to it. The Supreme Court of India  in the case of Naryan Prasad Lohia v Nikunj Kumar Lohia[3] had held the aforementioned provision to be a derogable provision.

This post is its restricted scope aims to analyse the reasoning used therein and present conclusions.

Lohia Case and its Analysis

In the Lohia case, the appellants and the respondents belonged to a single family unit and had decided to take recourse to arbitration for resolving disputes relating to family business and properties. An arbitral tribunal consisting of two arbitrators was constituted to adjudicate on the disputes. The said tribunal delivered a unanimous award, against which one of the parties filed objections under Section 34 of the Act 1996. The objector prayed for setting aside the arbitral award on the ground that the statutory provision under Section 10 of the Act, 1996 was non-derogable and, therefore, non-compliance thereof had rendered the award nugatory. The High Court accepted the plea, which resulted in the award being set aside. The aggrieved party thereafter approached the Apex Court by way of Special Leave Petition. The Supreme Court, after consideration of the law and precedents on this issue, set aside the High Court judgment, by holding that objections regarding non-compliance of Section 10 was a jurisdictional issue, which necessarily had to be raised in the first instance before the Arbitral Tribunal under Section 16 of the Act 1996,[4] and since Section 16 itself stipulated a time frame within which the objection relating to the jurisdiction could be raised, i.e. before the submission of statement of defence, the Supreme Court held that once the stipulated period had elapsed, the party could not plead absence of jurisdiction at a later stage.  Accordingly, the Supreme Court arrived at the conclusion that the provision was derogable.[5]

Inconsistencies in the Lohia case

It is most respectfully submitted that the Lohia judgment suffers from many inconsistencies, which are being amplified hereinafter.  Firstly, keeping in view the legislative intent and the plain language of Section 10 and other provisions of the Act 1996, the interpretation of Section 10 of the Act 1996 seems to be erroneous. Sub-clause (1) of Section 10 vide its proviso imposes a restriction on the parties vis-a-vis the number of arbitrators, i.e. the number should not be an even number, whereas, the Supreme Court in the Lohia case has rather validated composition of an even-member arbitral tribunal if none of the parties objects to the same within the time frame provided in Section 16 of the Act 1996. In fact, a bare reading of Section 10 would reveal beyond even an iota of doubt that the Legislature consciously provided for an uneven numbered arbitral tribunal to ensure finality of the decision by majority, even if there was disagreement amongst the members.

 On the aspect of legislative intent, it is interesting to also note the words used in Sections 15(1) and 15(2) of the English Arbitration Act, 1996[6] which read as under:

“The arbitral tribunal. (1) The parties are free to agree on the number of arbitrators to form the tribunal and whether there is to be a chairman or umpire.

(2) Unless otherwise agreed by the parties, an agreement that the number of arbitrators shall be two or any other even number shall be understood as requiring the appointment of an additional arbitrator as chairman of the tribunal...” (Emphasis supplied)

Section 10 of the Act 1996 uses the words ‘provided that such number shall not be an even number’, which expressly renders nugatory an even numbered arbitral tribunal even if the same is provided for in the agreement between the parties, unlike the English Arbitration Act as mentioned above. Thus, the deliberate deviation from the English Arbitration Act clearly evinces the intention of the Legislature to provide for an odd-member arbitral tribunal in all arbitrations, without any exception.

Now adverting to the Act 1996, it is apparent that in case the Legislature intended to uphold composition of an even number of arbitrators by way of an agreement between the parties, Section 10 of the Act 1996 would have been worded as ‘unless agreed by the parties’ or the type as provided by the Legislature in various other provisions of the Act 1996. For instance, Section 3 of the Act 1996 which opens with the words ‘unless otherwise agreed by the parties’. On comparing the words used in Section 3 and Section 10 of the Act, 1996, it is submitted that had the intent of the Legislature been to leave the number of arbitrators to the agreement of the parties, specific words to that extent would have been mentioned expressly. There would have been a saving provision in the Section itself.

Secondly, the Apex Court has not reasoned out the application of test for derogability. The Supreme Court held that Section 10 was derogable in nature merely because an objection that the composition of the arbitral tribunal was not in accordance therewith had not been raised before the submission of first statement of defence, and since such an objection had not been raised within the prescribed time mentioned,[7] the right to object stood waived off[8].

In this context, it would be pertinent to understand the meaning of Section 4 of the Act 1996, which has been succinctly explained in the case of Smt. Veena W v Seth Industries Limited[9] (hereinafter referred as the Veena case). Section 4 stipulates the circumstances in which the party, who knowingly fails to object the non-compliance of any non-mandatory provisions of Part-I or any requirement under the arbitration agreement by the other party, is deemed to have waived his right to object. This Section is based on general principles of law such as "estoppel" or "venire contra factum proprium". The intention of this provision is to prevent any bottlenecks in the smooth and efficient proceedings before the arbitral tribunal. If there is non-compliance of any non-mandatory provision of Part I or of any requirement of the arbitration agreement by a party to an arbitration agreement of which the other party to the agreement has the knowledge but does not object without undue delay, or if a time limit is provided for stating that objection and no objection is taken within that period of time, such a party later on can neither raise objection about that non-compliance of any provision of Part I nor any requirement of the arbitration agreement since such party shall be deemed to have waived its right to object. Though, in order to apply the doctrine of waiver by invoking Section 4, the first condition is that the non-compliance must be of non-mandatory provision of Part I of any requirement under the arbitration agreement, certain mandatory provisions of the Act also provide for a grant of waiver in the event of failure to object, e.g. sub-sections (2) and (3) of Section 16 of the Act 1996. Section 16(2)  provides that a plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence. Section 16(3)  provides that a plea that the Arbitral Tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings."[10]

An analysis of Section 4 of the Act would reveal that there are two conditions to be fulfilled in order to waive off a party’s right to object: (a) the provision must be derogable; and (b) the objection has to be raised within the stipulated time or without undue delay. The first condition of Section 4 of the Act 1996 not been clearly reasoned in the Lohia case. The Supreme Court in the Lohia case held that as an objection regarding the jurisdiction of the arbitral tribunal could be raised under Section 16 of the Act 1996 within a stipulated time frame as [Section 16(2)] and since no such objection had been raised, it would render Section 10 to be derogable in nature and thus, would amount to waiver. The Court, in its judicial wisdom, did not take notice of the test of derogability and various factors that needed to be taken into account for arriving at the conclusion that Section 10 was derogable. The Supreme Court has taken the second condition hereinabove to prove the first, which is against the letter of law. It has to be understood that only if sub-section (a) [or (b), irrelevant for present purpose] of Section 4 of the Act 1996 is satisfied i.e. ‘parties may derogate has not been complied with’ that the provisions following thereafter would come into play. The reasoning for second condition also appears to be flawed as Section 16 can only be invoked before a validly constituted arbitral tribunal.  In other words, the Supreme Court did not provide for any basis or mechanism of testing and proving that the provision was actually derogable in nature. Thus, there exists a huge void in proving a waiver of right to object.

Thirdly, Section 10 of the Act 1996 is, in fact, a provision from which one cannot derogate. Section 10(1) is a mandatory provision because: (a) an illegally constituted arbitral tribunal cannot clothe itself with jurisdiction merely because any party has not raised any objection;, and (b) the mandate of an arbitrator(s) of an illegally constituted arbitral tribunal stands terminated forthwith.

Section 10 of the Act 1996 is, undoubtedly, a machinery provision, but it cannot be said that it is a derogable provision in the light Section 16 of the Act 1996. Section 16(1), which imbibes in it the concept of the arbitral tribunal ruling on its own jurisdiction, comes into operation only when the composition of the tribunal is legal and with due jurisdiction. As a natural corollary thereof, it can be safely said that an arbitral tribunal which has been illegally constituted would have no jurisdiction or power to decide on the question of its inherent lack of jurisdiction.[11] Thus, Section 16 would be applicable only before an odd-member arbitral tribunal. In fact, on a proper and harmonious interpretation of Section 16 read with Section 10, would lead to the logical conclusion that rather than making Section 10 derogable, Section 16 acts as a rider to it. Moreover, an important point which has been discussed by the Bombay High Court in the case Atul R.Shah v Vrijlal Lalloobhai & Co.[12] is that if an arbitral tribunal has not been not properly constituted but no objection has not been raised by the aggrieved party before the Tribunal, it cannot result in the arbitral tribunal exercising jurisdiction if its constitution by its very inception was in contravention of Section 10 of the Act,1996.[13] Hence, there can no waiver of the right even if the parties have not objected to it, stating it to be a mandatory provision.

Alternate View

The reasoning employed to hold s 10 derogable as above seen seems to suffer from various inconsistencies. An alternative view could be to invoke Section 14(1)(a) of the Act 1996 which states that an arbitrator who is a part of an illegally constituted arbitral tribunal is de jure restrained from carrying out his/her function. Thus, applying this to every arbitrator of such a tribunal, consisting of even number, would result in termination of the arbitral tribunal as a whole, till a new one is constituted (irrespective of the same being a part of it) or the arbitral proceedings itself are vitiated by the party. This has been highlighted by the Bombay High Court in the case of Ashalal S Lahoti v Hiralal L Tiladhar[14]. The Bombay High Court rejected the contention that no petition would lie before the Court as there was no award which could be challenged under Section 34 or for that matter an order passed under sub-sections (2) or (3) of Section 16, which is appealable under Section 37 of the Arbitration and Conciliation Act, 1996. The Court has held in clear and categorical terms that if an arbitral tribunal is constituted contrary to Section 10 of the Act of 1996, the arbitrators de jure would not be able to perform any function.[15]

Thus, in the Lohia case, the arbitral tribunal admittedly said to be in contravention of Section 10 of the Act 1996, could be said be illegal ab inito, and not possessing requisite jurisdiction to proceed  in the matter. Hence, the view of the Apex Court in Lohia case being contrary to the statute, cannot be said to have laid down the correct law in holding Section 10 to be derogable in nature. It is hoped that the Supreme Court would remedy the anomalous situation sooner rather than later.

Conclusion

In view of the aforementioned statutory provisions and judicial precedents, it is submitted that Section 10(1) should be held to be a mandatory provision and non-compliance thereof can be cured by having recourse to Section 10(2), i.e. by appointing a sole arbitrator. In the humble submission of the author, the Lohia case incorrectly interprets the law, resulting in many even numbered arbitral tribunals now adjudicating as a matter of common practice.

The post is based on a paper titled 'Composition of the Arbitral Tribunal' published in Statute Law Review.[1]

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[1] By Eshna Kumar, Final Year Student, Faculty of Law, University of Delhi

[2] Section 10, The Act 1996.

[3] AIR 2002 SC 1139. (hereinafter ‘Lohia case’)

[4] Section 16, The Act 1996.

[5] Lohia case, para 6.

[6] Section 15(1) and 15(2), English Arbitration Act 1996

[7] Sub-section (2) of Section 16 of the Act 1996.

[8] Section 4 of the Act 1996 states:

“Waiver of right to object- A party who knows that-a)any provision of this Part from which the parties may derogate,or b)..has not been complied with and yet proceeds with the arbitration without stating his objection to such non-compliance without undue delay or, if a time limit is provided for stating that objection, within that period of time, shall be deemed to have waived his right to so object.”

[9] Arbitration Petition No. 180 Of 2007, In The High Court Of Judicature at Bombay

[10] Smt. Veena W v Seth Industries Limited, Arbitration Petition No. 180 Of 2007, In The High Court Of Judicature at Bombay

[11] Submission of Mr. Venugopal for the respondent in Lohia case

[12] AIR 1999 Bom 67: 1999(2) Arb LR 54 Law

[13] Relating to Arbitration and Conciliation, Dr. P.C. Markanda, 8^th Edition 2013.

[14] (1999) 1 Bom LR 241

[15] Para 10 , Ashalal S. Lahoti v Hiralal L. Tiladhar( 1999) 1 Bom LR 241