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The Union Cabinet has approved the signing of a Memorandum of Cooperation between the Government of India and Government of Japan, on a Basic Framework for Partnership for Proper Operation of the System Pertaining to “Specified Skilled Worker”.

Details:

The present Memorandum of Cooperation would set an institutional mechanism for partnership and cooperation between India and Japan on sending and accepting skilled Indian workers, who have qualified the required skill and Japanese language test, to work in fourteen specified sectors in Japan. These Indian workers would be granted a new status of residence of “Specified Skilled Worker” by the Government of Japan.

Implementation Strategy:

Under this MOC, a Joint Working Group will be set up to follow up the implementation of this MOC.

Major Impact:

The Memorandum of Cooperation (MOC) would enhance people-to-people contacts, foster mobility of workers and skilled professionals from India to Japan.

Beneficiaries:

Skilled Indian workers from fourteen sectors viz. Nursing care; Building cleaning; Material Processing industry; Industrial machinery manufacturing industry; Electric and electronic information related industry; Construction; Shipbuilding and ship-related industry; Automobile maintenance; Aviation; Lodging; Agriculture; Fisheries; Food and beverages manufacturing industry and Foodservice industry would have enhanced job opportunities to work in Japan.

Ministry of External Affairs

[Press Release dt. 06-01-2020]

[Source: PIB]

Op EdsOP. ED.

I. INTRODUCTION

The 2019 Amendment Act[1] marks India’s shift towards institutional arbitration. Like previous amendments to the Arbitration and Conciliation Act, 1996[2] (hereinafter “ACA”) one of the objectives of the latest amendment is to make India an arbitration-friendly jurisdiction. This is one of those objectives which the previous amendments have failed to achieve.

As per the latest amendment, the authority to appoint an arbitrator under Section 11 now vests with the arbitral institution. The amendment however does not comment on the ‘Scope of Intervention’ while appointing the arbitrator. Through this article, an attempt has been made to figure out what ‘Scope of Intervention’ would be in tune with the institutional arbitration regime in India.

Section 11 has been one of the most debated subject-matters in Indian arbitration regime and has undergone changes in both the 2015 and 2019 Amendment Acts. This article shall talk about the circumstances leading to these amendments to determine what legislature, judiciary or arbitral institutions need to learn from the past and avoid with regard to Section 11 which would impede the progress of institutional arbitration in India.

II. ARBITRATION AND CONCILIATION ACT, 1996

The legislature wanted to make the arbitration landscape in India more responsive to contemporary requirements. To bring the arbitration law in tune with the prevailing scenario of international arbitration, the 1996 Act was introduced which sought to:

(i) reduce the judicial interference in the arbitral process; and

(ii) expedite disposal of cases

1. Interpretation of Section 11 prior to 2015 Amendment

The Supreme Court in National Insurance Co. Ltd. v. Boghara Polyfab[3] relied on SBP & Co. v. Patel Engineering[4] and categorised the issues which can or cannot be decided by the court concerned while appointing the arbitrator under Section 11:

“22.1. The issues (first category) which Chief Justice/his designate will have to decide are:

(a) Whether the party making the application has approached the appropriate High Court?

 (b) Whether there is an arbitration agreement and whether the party who has applied under Section 11 of the Act, is a party to such an agreement?

 22.2. The issues (second category) which the Chief Justice/his designate may choose to decide are:

(a) Whether the claim is a dead (long barred) claim or a live claim?

 (b) Whether the parties have concluded the contract/transaction by recording satisfaction of their mutual rights and obligation or by receiving the final payment without objection?

22.3. The issues (third category) which the Chief Justice/his designate should leave exclusively to the arbitral tribunal are:

(a) Whether a claim falls within the arbitration clause (as for example, a matter which is reserved for final decision of a departmental authority and excepted or excluded from arbitration)?

 (b) Merits of any claim involved in the arbitration.”

2. ­Thwarting the objectives of the Act

The Court in the aforementioned rulings expanded the scope of Section 11 and appeared to have gone against the intention of the legislature and objectives of the Act. Patel Engineering[5] and National Insurance[6] gave the court concerned power to not only determine the existence of the arbitration agreement but also the power to decide the preliminary issues (second category). Thus, the Court’s role no longer remained that of a ‘facilitator’ resulting in increased court intervention in the arbitral process and the Court’s increased involvement essentially means slow disposal of cases.

The two aforementioned judgments conferred finality in light of sub-section (7) on the issues decided by the Court. Consequently, if a court would decide the existence of the arbitration agreement between the parties, the tribunal will have no power to decide that issue. It might have been the intention of the court to save the tribunal’s time, and preventing it from deciding on the same issue again. However, the decision to confer the power on courts to decide preliminary or jurisdictional issues goes against the express wordings of Section 16 of the Act which recognises the Kompetenz-Kompetenz principle.

III. THE 2015 AMENDMENT ACT

In the wake of the Court’s expanded scope of intervention, the Law Commission of India in its 246th Report[7] suggested amendments to the Act. It sought to introduce Section 11(6-A), the discussion regarding which in the said Report is as follows:

“Section 11(6-A) of the amendment contemplates a two-step process to be adopted by a judicial authority when considering an application seeking the reference of a pending action to arbitration. The amendment envisages that the judicial authority shall not refer the parties to arbitration only if it finds that there does not exist an arbitration agreement or that it is null and void (i.e. invalid). If the judicial authority is of the opinion that prima facie the arbitration agreement exists, then it shall refer the dispute to arbitration, and leave the existence of the arbitration agreement to be finally determined by the arbitral tribunal. However, if the judicial authority concludes that the agreement does not exist, then the conclusion will be final and not prima facie. The amendment also envisages that there shall be a conclusive determination as to whether the arbitration agreement is null and void.”

                                                                                                   (emphasis supplied)

However, Section 11(6-A) as per the 2015 Amendment clarified that the Court’s role under sub-sections (4), (5) or (6) of Section 11 is to “confine to the examination of the existence of an arbitration agreement”. Evidently, the section does not include prima facie “examination of validity” in contrast to the Law Commission’s suggestion that “once the prima facie conclusion is that the agreement does not exist or if it is determined that agreement is null and void, such determination is conclusive”.

The 2015 Amendment Act’s Statement of Objects and Reasons reiterated how interpretation of the provisions has caused delay in arbitral proceedings and encroachment upon the tribunal’s powers. Thus, the intention behind the amendment is to remedy the situation by introducing sections to minimise court intervention and enable swift disposal of cases in user-friendly manner.

We will now look if the interpretation provided by the Courts to Section 11(6-A) was consistent with the 2015 Amendment’s objectives.

1. Scope of Examination under Section 11 post 2015 Amendment

In Duro Felguera, S.A. v. Gangavaram Port Limited,[8] two-Judge Bench of the Supreme Court provided literal interpretation to Section 11(6-A) to confine examination to the existence of an arbitration agreement and enumerated the factors to decide on the existence of such an agreement. The Court stated:

“From a reading of Section 11(6-A), the intention of the legislature is crystal clear i.e. the court should and need only into one aspect – the existence of an arbitration agreement. What are the factors for deciding as to whether there is an arbitration agreement is the next question. The resolution to that is simple – it needs to be seen if the agreement contains a clause which provides for arbitration pertaining to the disputes which have arisen between the parties to the agreement.”

However, in United India Insurance v. Hyundai Engg. & Construction Co. Ltd.,[9] the Court while relying on Duro Felguera[10] came up with a different reasoning and held:

“Suffice it to say that appointment of arbitrator is a judicial power and is not mere an administrative function leaving some degree of judicial intervention; when it comes to the question to examine the existence of a prima facie arbitration agreement, it is always necessary to ensure that the dispute resolution process does not become unnecessarily protracted.”

The Court then in Mayavati Trading v. Pradyuat Deb Burman[11] overruled the judgment in United India Insurance[12]  stating that the judgment does not lay down the correct law and reaffirmed that “Section 11(6-A) is confined to the examination of the existence of an arbitration agreement and is to be understood in the narrow sense as has been laid down in the judgment of Duro Felguera[13].” Further, all the other preliminary objections/questions are to be dealt with by the tribunal.[14]

 2.‘Dual Test’ by the Delhi High Court

In both Jindal Stainless Ltd. v. Damco India Pvt. Ltd.[15] and Ritika Diwan v. Supertech Ltd.,[16] the Delhi High Court reached the same conclusion that “the role of the Courts while considering an application under Section 11 is now confined to examining the existence of the arbitration agreement.”

However, post Ritika Diwan[17], the Delhi High Court has provided a different interpretation to Section 11(6) in the judgments of Unique Reality Pvt. Ltd. v. RC Infra Developers [18]; Pave Infrastructure Pvt. Ltd. v. WAPCOS Ltd.[19] and Devi Fatehpuria v. Jugal Kishore Shyam Prakash and Co.[20]

In these aforestated three judgments post Ritika Diwan[21], the Delhi High Court has held that the Court has to examine the “existence” and “validity” of an arbitration agreement while deciding on a petition under Section 11(6).

Insofar as the Supreme Court’s interpretation of Section 11 or the ‘Dual Test’ applied by the Delhi High Court is concerned, what remains relevant to note is the inconsistency in judicial precedents. On one hand, the Supreme Court  tends to deviate from ‘only examining the existence of an arbitration agreement’ and on the other Delhi  High Court continues apply the dual test of ‘existence’ and ‘validity’ despite the clarification provided by the Supreme Court  in Mayavati Trading[22].

3.Continued judicial intervention

The following judgments shall demonstrate that judicial intervention continued and the courts seem to have remained oblivious of the Kompetenz-Kompetenz principle:

3.1. Supreme Court Judgments

In both, Oriental Insurance Company Ltd. v. Narbheram Power and Steel Private Ltd.[23] and United India Insurance[24]  the Supreme Court other than identifying the existence of the arbitration agreement, examined whether the conditions stipulated in the contract to give effect to the arbitration agreement have been fulfilled.

In Garware Wall Ropes Ltd. v. Coastal Marine Constructions & Engg. Ltd.,[25] the Supreme Court was of the opinion that an application under Section 11 could be decided only if the arbitration clause or the contract containing the arbitration clause is sufficiently stamped. In light of sub-section (6-A) one could argue that examining the existence of an arbitration agreement does not include examining whether such agreement is sufficiently stamped.

3.2. Delhi High Court Judgments

In NCC Ltd. v. Indian Oil Corporation Ltd.,[26] it was stated that apart from examining the existence of an arbitration agreement, the Court’s power of examination under Section    11(6-A) extends to “correlating the dispute between the parties with the arbitration agreement between the parties”.

In Brightstar Telecommunications v. Iworld Digital Solutions Pvt. Ltd.,[27] the Court took a very similar stance and stated that examination under Section 11(6-A) extends to “relating the existence of arbitration agreement to the disputes, which the parties had anticipated that would arise in connection with and/or in relation to the transactions that they had undertaken.”

In Western Constructions v. Eden Buildcon,[28] the Court went to examine “whether the disputes between the parties fall within the ambit of arbitration clause” and thereby did not refer the parties to arbitration.

In Prime Market Reach Pvt. Ltd. v. Supreme Advertising Ltd.,[29] the Court having examined the validity of the arbitration agreement in detail (as per requirements of Section 7), found it to be invalid and hence, refused to refer the parties to arbitration.

 4. Aftermath of the 2015 Amendment

Two circumstances arose in the aftermath of this amendment:

(i) Courts’ Interpretation of Section 11 of the Act was not consistent.

(ii) Judicial interference in the arbitral process continued as the courts seem to have ignored the Tribunal’s power to rule on its own jurisdiction.

Consequently, the 2015 Amendment failed to achieve its objectives of minimal judicial intervention and user-friendly speedy disposal of cases. India still remains to be seen as an arbitration- unfriendly jurisdiction.

 IV. REFLECTING ON THE ROLE OF THE LEGISLATURE AND THE COURT

The Supreme Court in Vidya Drolia v. Durga Trading Corpn. [30] noted:

“It will be seen that though the 246th Law Commission Report[31] speaks not only of “existence” but also of an arbitration clause being null and void, this has not translated itself into the language of Section 11(6-A).”

It can be argued that despite the legislature’s noble intentions, Section 11(6-A) has not been drafted with clarity or that the provision is not as elaborative as suggested by the Law Commission’s  246th Report or that the provision as suggested by the Law Commission was more in tune with objectives of the amendment.

However, it remains of quintessential importance to discuss the role of the courts when faced with a situation where a defect appears in the provision or that provision has not been drafted with clarity or seems to be going against the intention of the legislature.

Lord Denning once said that in the event when a defect emerges, a Judge should not simply fold his hands and blame the draftsman but must also consider the social conditions and give force and life to the intention of the Legislature. Lord Denning in Seaford Court Estates Ltd. v. Asher[32] said:

“A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the Judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give force and life to the intention of the legislature.”

In a similar vein, the Supreme Court in Collector of Customs v. Digvijaya Singhji Spinning & Weaving Mills[33] resorted to the principle of harmonious construction of the statues and said:

“…where an alternative construction is open, that alternative should be chosen which is consistent with the smooth working of the system which the statute purports to regulate.”

While the 1996 Act or the 2015 Amendment Act might not have been perfectly drafted Act, the Courts did not succeed either in their role to provide an interpretation to  Section 11 which is best suited to give impetus to the intention of the legislature.

V. THE 2019 AMENDMENT ACT

Wary of India’s reputation as arbitration-unfriendly jurisdiction, the Ministry of Law and Justice set up a High Level Committee (HLC) under the Chairmanship of retired Justice of the Supreme Court, Jusice B.N. Srikrishna to suggest measures required for making India a hub of international and domestic arbitrations.

Based on its terms of reference which involved studying the functioning of arbitral institutions and examining the effectiveness of arbitration mechanisms, the Committee was tasked with:

“(a) suggesting measures to encourage Institutional Arbitration in India;

 (b) recommending amendments to the ACA and other laws to encourage international commercial arbitration;

(c) devising an action plan for implementation of the law to encourage speedy arbitrations.”

 Based on the recommendations of the Report submitted by the High Level Committee, Parliament introduced the 2019 Amendment Act. The amendments contained in the Act which are pertinent to our discussion are as follows:

(a) The establishment and incorporation of an independent & autonomous body, namely, the “Arbitration Council of India”;

(b) An amendment to Section 11 of the Act i.e. “Appointment of Arbitrators”.

Through the amendment, sub-sections (6-A) and (7) have been repealed. Since the amendment focused on strengthening institutional arbitration in India, under the amended Section 11(6) of the ACA the appointment of arbitrators shall be done by the arbitral institution:

“…the appointment shall be made, on an application of the party, by the arbitral institution designated by the Supreme Court, in case of international commercial arbitration, or by the High Court, in case of arbitrations other than international commercial arbitration, as the case may be.”

The amendment did not provide clarification on:

(i) What shall be the scope of examination of by the arbitral institution while entertaining an application for appointment of arbitrator?

(ii) Whether the orders passed by the Tribunal shall be amenable to challenge?

Detailed rules are required to be framed regarding these unaddressed issues in the amendment. These open questions pose a serious threat to the step of encouraging institutional arbitration in India. The legislature must clarify the scope of examination and intervention by the arbitral institutions to ensure that the institutions do not interfere with the tribunal’s power.

Earlier, we observed the how confusion regarding the scope of examination under Section 11 led to inconsistency in judicial precedents and increased judicial interference with the arbitral process. While the legislature’s amendment is a step forward to reduce the court interference with arbitral process, the expanded scope of examination by the arbitral institution could still be oblivious of the Kompetenz-Kompetenz principle.

It is crucial to learn from the past and avoid the situations which arose earlier. It is highly important that the scope of examination while appointing the arbitrator must be such which is best suited to strengthen institutional arbitration and improve India’s reputation as an arbitration friendly jurisdiction.

1. Approach of the global institutions

The HLC in its Report referred to the QMUL Survey[34] which had stated that the International Chamber of Commerce Court (ICC Court), the London Court of International Arbitration (LCIA), the Hong Kong International Arbitration Centre (HKIAC), the Singapore International Arbitration Centre (SIAC) and the Arbitration Institute of the Stockholm Chambers of Commerce (SCC) are the five most preferred arbitral institutions worldwide.

To find out the best-suited approach while entertaining an application under Section 11, we will compare the approach or the scope of examination undertaken by these five most preferred arbitral institutions while appointing an arbitrator or registering a case. Apart from these institutions, we shall also see the approach of ICSID which could be guiding factor for BIT arbitrations.

1.1. ICC Arbitration Rules[35]

“Article 6. Effect of the Arbitration Agreement.—

(1)-(3)                            *             *                   *

(4) In all cases referred to the Court under Article 6(3)…The arbitration shall proceed if and to the extent that the Court is prima facie satisfied that an arbitration agreement under the Rules may exist.

                                       *                *                  *

  1. In all matters decided by the Court under Article 6(4), any decision as to the jurisdiction of the arbitral tribunal, except as to parties or claims with respect to which the Court decides that the arbitration cannot proceed, shall then be taken by the arbitral tribunal itself.”

1.2.  HKIAC Arbitration Rules[36]

“Article 11 – HKIAC’s Prima Facie Power to Proceed

11.1 The arbitration shall proceed if and to the extent that HKIAC is satisfied, prima facie, that an arbitration agreement under these Procedures may exist. Any question as to the jurisdiction of the arbitral tribunal shall be decided by the arbitral tribunal once constituted.

11.2  HKIAC’s decision pursuant to Article 11.1 is without prejudice to the admissibility or merits of any party’s pleas.”

1.3.      LCIA Arbitration Rules[37]

“Article 23. Jurisdiction and Authority

23.1 The Arbitral Tribunal shall have the power to rule upon its own jurisdiction and authority, including any objection to the initial or continuing existence, validity, effectiveness or scope of the Arbitration Agreement.”

1.4.      SIAC Arbitration Rules, 2016[38]

“Article 28. Jurisdiction of the Tribunal

28.1  If any party objects to the existence or validity of the arbitration agreement or to the competence of SIAC…the Court shall decide if it is prima facie satisfied that the arbitration shall proceed. The arbitration shall be terminated if the Court is not so satisfied. Any decision by the Registrar or the Court that the arbitration shall proceed is without prejudice to the power of the Tribunal to rule on its own jurisdiction.

28.2  The Tribunal shall have the power to rule on its own jurisdiction, including any objections with respect to the existence, validity or scope of the arbitration agreement. An arbitration agreement which forms part of a contract shall be treated as an agreement independent of the other terms of the contract.”

Identical Clauses are present in Article 25 of SIAC Investment Rules, 2017.

1.5.      SCC Arbitration Rules[39]

“Article 11. Decisions by the Board

The Board takes decisions as provided under these Rules, including deciding:

(i)  whether the SCC manifestly lacks jurisdiction over the dispute pursuant to Article 12 (i);

                     *                     *                 *

Article 12. Dismissal

The Board shall dismiss a case, in whole or in part, if:

(i)  the SCC manifestly lacks jurisdiction over the dispute;…”

1.6.      ICSID Convention[40]

“Section 1 Request for Arbitration

Article 36

(1)-(2)     *          *        *

(3) The Secretary-General shall register the request unless he finds, on the basis of the information contained in the request, that the dispute is manifestly outside the jurisdiction of the Centre. He shall forth-with notify the parties of registration or refusal to register.

           *      *        *

Section 3   Powers and Functions of the Tribunal

Article 41

(1) The Tribunal shall be the judge of its own competence.

(2) Any objection by a party to the dispute that that dispute is not within the jurisdiction of the Centre, or for other reasons is not within the competence of the Tribunal, shall be considered by the Tribunal which shall determine whether to deal with it as a preliminary question or to join it to the merits of the dispute.”

2. Similar Approach by global institutions

The ‘scope of examination’ that all of these institutions undertake has two similar facets:

(i) Acknowledgement of the tribunal’s power (Kompetenz-Kompetenz) as all of the aforementioned institutions have given the tribunals the power to rule on their own jurisdiction; and

(ii) Checking whether the institution manifestly lacks jurisdiction or in other words prima facie examination of whether the arbitration should proceed.

 VI.CONCLUSION

The approach followed by these institutions is not entirely new to the Indian arbitration regime. In fact, the scope of examination under Section 11as suggested by 246th Law Commission Report was similar to the approach followed by these institutions while registering or deciding whether arbitral process should move forward. The suggested amendment of Section 11 in 246th Report involved examining whether prima facie arbitration agreement exists – If prima facie no agreement exists, arbitration shall not move forward and if the agreement prima facie exists, the arbitration shall move forward and the tribunal shall have the power to rule on its jurisdiction including the arbitration agreement. This approach while dealing with an application for appointment of an arbitrator is consistent with the intention of the legislature to reduce

Firstly, refusing to appoint an arbitrator if the arbitral institution is not prima facie satisfied that an arbitration agreement exists is plausible conclusion. Certainly, prima facie satisfaction by the appointing authority indicates a lower threshold of scrutiny, lower than what the tribunal would require to satisfy itself of the existence of a valid arbitration agreement when it rules on its jurisdiction. Therefore, it is most plausible to conclude that an arbitration agreement which fails to pass the scrutiny of the lower threshold should not be expected to pass the higher threshold required by the tribunal.

The prima facie satisfaction can be said to be similar to the examination under the English Arbitration Act for appointment of an arbitrator which requires that the court would see if there is “good arguable case” that the tribunal had jurisdiction to hear the issue.[41]

Secondly, the prima facie satisfaction is more consistent with Kompetenz-Kompetenz principle as it gives the tribunal the power to rule on its jurisdiction even when the arbitration agreement has passed the initial lower threshold.

Lastly, the prima facie test would lead to speedy disposal of cases and result in weeding-out the cases which have failed to pass this lower threshold test ultimately saving the tribunal’s time.

* 4th Year, BALLB. (Hons.), Maharashtra National Law University, Nagpur.

[1] Arbitration and Conciliation (Amendment) Act, 2019

[2] Arbitration and Conciliation Act, 1996

[3](2009) 1 SCC 267

[4](2005) 8 SCC 618

[5] (2005) 8 SCC 618

[6] (2009) 1 SCC 267

[7] Law Commission of India, 246th Report on Amendments to the Arbitration and Conciliation Act, 1996

(August 2014)

[8] (2017) 9 SCC 729

[9] (2018) 17 SCC 607

[10] (2017) 9 SCC 729

[11](2019) 8 SCC 714

[12] (2018) 17 SCC 607

[13] (2017) 9 SCC 729

[14] Uttrakhand Kalyan Nigam v. Northern Coal Field Ltd., (2020) 2 SCC 455

[15]2016 SCC OnLine Del 6368

[16]2019 SCC OnLine Del 11255

[17] Ibid

[18]Arb. Petition No. 432 of 2019

[19]Arb. Petition No. 574 of 2019

[20]Arb. Petition No. 339 of 2019

[21] 2019 SCC OnLine Del 11255

[22] (2019) 8 SCC 714

[23](2018) 6 SCC 534

[24] (2018) 17 SCC 607

[25] (2019) 9 SCC 209

[26]2019 SCC OnLine Del 6964

[27]2018 SCC OnLine Del 13071

[28]2019 SCC OnLine Del 11465

[29]Arb. Petition No. 434 of 2019, decided on 17-12-2019.

[30]2019 SCC Online SC 358

[31] 246th Report  on Amendments to the Arbitration and Conciliation Act, 1996

[32][1949] 2 KB 481

[33]1961 AIR 1549

[34] ‘2015 International Arbitration Survey: Improvements and Innovations in International Arbitration’, Queen Mary University of London and White & Case LLP (2015), available at http://www.arbitration.qmul.ac.uk/docs/164761.pdf.

[35] Rules of Arbitration of the International Chamber of Commerce

[36] HKIAC, Procedures for Administration of Arbitration under the UNCITRAL Arbitration Rules

[37] London Court of International Arbitration Rules

[38]Singapore International Arbitration Centre Rules, 2016

[39]Arbitration  Rules  of  the  Arbitration  Institute  of  the  Stockholm  Chamber  of  Commerce, 2017

[40] Convention  on  the  Settlement  of  Investment  Disputes  between  States  and  Nationals  of  Other States

[41]Silver Dry Bulk Co. Ltd. v. Homer Hulbert Maritime Co. Ltd., [2017] EWHC 44 (Comm).

OP. ED.SCC Journal Section Archives

Introduction

The most notable anti-governmental protests have sparked across the streets of “Europe’s Last Dictatorship” as Belarusian citizens have been peacefully demonstrating against the allegedly manipulated August 2020 Presidential elections, rampant police brutality and the inhuman treatment meted out to the detainees by the State machinery. These protests have become one amongst many amplifying demonstrations that various establishments across the world are grappling with along side the constant threat of the coronavirus pandemic. The right to protest is the expression of the protester of showing dissent against the authority.

The United Nations Human Rights Committee, coincidentally at a propitious time, adopted General Comment No. 37 on Article 21 of the International Covenant on Civil and Political Rights1 (hereinafter, “Iccpr”) that enshrines the right to peaceful assembly. The general comment reinstated the responsibility of law enforcement State agencies to protect and enable these peaceful demonstrations2 and the non-usage of “indiscriminate use of firearms” except a minimal force to curb an escalated tension3. The UN Committee has thus held the right to protest, whether offline or online, as a vital human right4 well protected by the principles of international law, particularly the Iccpr and various other regional human rights conventions.

This article attempts to provide a comparative analysis with respect to the legal principle of the right to protest in two distinctive jurisdictions, India and Belarus as analogous agitations against the ruling dispensation have been observed in both the countries.

To read the full text of the article, click here.

Note: This article was first published in Practical Lawyer (2020) PL (HR) November 71. It has been reproduced with the kind permission of Eastern Book Company.

* BA LLB, 5th year and Student Coordinator

** BA LLB, 2nd-year Member, RGNUL, Centre for Advanced Studies in Human Rights (CASIHR)

Hot Off The PressNews

MEITY issues orders for blocking apps under Section 69A of the Information Technology Act

Ministry of Electronics and Information Technology, Government of India today issued an order under Section 69A of the Information Technology Act blocking access to 43 mobile apps. This action was taken based on the inputs regarding these apps for engaging in activities which are prejudicial to sovereignty and integrity of India, defence of India, security of state and public order. Ministry of Electronics and Information Technology has issued the order for blocking the access of these apps by users in India based on the comprehensive reports received from Indian Cyber Crime Coordination Center, Ministry of Home Affairs.

Earlier on 29-06-2020, the Government of India had blocked access to 59 mobile apps and on 02-09-2020.

118 more apps were banned under Section 69A of the Information Technology Act. Government is committed to protect the interests of citizens and sovereignty and integrity of India on all fronts and it shall take all possible steps to ensure that.

List of apps that have been blocked for access in India today’s order are given as per the annexure attached.

Annexure

  1. Ali Suppliers Mobile App
  2. Alibaba Workbench
  3. AliExpress – Smarter Shopping, Better Living
  4. Alipay Cashier
  5. Lalamove India – Delivery App
  6. Drive with Lalamove India
  7. Snack Video
  8. CamCard – Business Card Reader
  9. CamCard – BCR (Western)
  10. Soul- Follow the soul to find you
  11. Chinese Social – Free Online Dating Video App & Chat
  12. Date in Asia – Dating & Chat For Asian Singles
  13. WeDate-Dating App
  14. Free dating app-Singol, start your date!
  15. Adore App
  16. TrulyChinese – Chinese Dating App
  17. TrulyAsian – Asian Dating App
  18. ChinaLove: dating app for Chinese singles
  19. DateMyAge: Chat, Meet, Date Mature Singles Online
  20. AsianDate: find Asian singles
  21. FlirtWish: chat with singles
  22. Guys Only Dating: Gay Chat
  23. Tubit: Live Streams
  24. WeWorkChina
  25. First Love Live- super hot live beauties live online
  26. Rela – Lesbian Social Network
  27. Cashier Wallet
  28. MangoTV
  29. MGTV-HunanTV official TV APP
  30. WeTV – TV version
  31. WeTV – Cdrama, Kdrama&More
  32. WeTV Lite
  33. Lucky Live-Live Video Streaming App
  34. Taobao Live
  35. DingTalk
  36. Identity V
  37. Isoland 2: Ashes of Time
  38. BoxStar (Early Access)
  39. Heroes Evolved
  40. Happy Fish
  41. Jellipop Match-Decorate your dream island！
  42. Munchkin Match: magic home building
  43. Conquista Online II

Ministry of Electronics & IT

[Press Release dt. 24-11-2020]

Op EdsOP. ED.

Nelson Mandela once remarked, “Only free men can negotiate; prisoners cannot enter into contracts.” Freedom is, universally, considered as one of the most cherished human rights. It is necessary not only for basic sustenance of an individual, rather, indispensable for the progress of a society as a whole. History has witnessed numerous struggles for independence across the world, aimed against apartheid, oppression and several other forms of exploitation. At the same time, there are several illustrations woven into the fabric of time where human endurance and mass movements occasioned into the extermination of several social/societal evils. However, despite the consciousness of the concepts of liberty and independence, unfortunately, even in the present century, a certain section of our society continues to endure a form of slavery and abuse in the form of manual scavenging. This practice which owes its genesis to India’s repressive caste system continues to thrive, notwithstanding almost seventy-three years of our independence. In fact, independence and freedom have continued to remain a mere illusion for the individuals subjected to this archaic, tyrannical and forced form of heroics. Regrettably, such individuals, who are prisoners of their caste, poverty and illiteracy are not in a position to negotiate for their freedom and better lives from those in power and their ‘so-called superiors.’ As per the Ministry of Social Justice and Empowerment’s Survey of Manual Scavengers in Statutory Towns there are approximately[1] 15,000 (fifteen thousand) manual scavengers in India, though, the actual number is estimated to be much higher. Unfortunately, due to lack of proper rehabilitative measures and societal apathy, the size of this group is ever increasing.

Indian judiciary has repeatedly emphasised on the importance of a dignified form of life. In fact, it is a settled law[2] that right to dignity is one of the essential elements of the right to life as provided under Article 21[3] of the Constitution of India (“the Constitution”). In this regard, the Supreme Court in Gian Kaur v. State of Punjab[4], observed,

“[t]o give meaning and content to the word ‘life’ in Article 21, it has been construed as life with human dignity. Any aspect of life which makes it dignified may be read into it but not that which extinguishes it and is, therefore, inconsistent with the continued existence of life resulting in effacing the right itself.”

The Constitution further, inter alia, prohibits any forms of forced labor and employment of children in factories or mine or any other hazardous employment under Articles 23 and 24, thereof.  These constitutional provisions are meant to strike at the core of several unfair practices, which are prevalent in India and in particular, to eradicate slavery in any of its forms. It is trite law[5] that the word “force”, under Article 23 of the Constitution includes not only physical or legal force, rather, also the force arising from the compulsion of economic circumstances. In fact, as per the Supreme Court in People’s Union for Democratic Rights v. Union of India[6],

“where a person provides labour or service to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the words “forced labour” under Article 23.”

Unfortunately, despite these and several other constitutional safeguards, the practice of manual scavenging continues unabated across India. In fact, in an ever-enduring struggle against poverty and lack of free-will; in dingy and poorly lit dungeons, several lives are silently sacrificed and fed to quench the hunger of the ‘manual-scavenging dragon’.

Manual scavenging is generally understood[7] as a process of physical removal of human excreta from dry latrines and sewers. A person so engaged in or employed for manually carrying human excreta is termed as a manual scavenger under Section 2(j) of the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993[8] (“the 1993 Act”). Pertinently, under the 1993 Act it has been acknowledged that despite concerted efforts made to eliminate the dehumanising practice of employing persons for carrying human excreta on their heads or likewise, “the practice still persists in certain parts of the country”. Accordingly, the said Act was enacted, inter alia, with an object to prohibit “employment of manual scavengers as well as construction or continuance of dry latrines”.[9] Significantly, Section 3 of the 1993 Act empowers the State Government to issue notification prohibiting the engagement or employment of any person for manually carrying human excreta or for the construction or maintenance of a dry latrine. Further, Section 5 of the 1993 Act empowers the State Government(s) to appoint a District Magistrate or a Sub-Divisional Magistrate as an Executive Authority to ensure compliance of the provisions of the said enactment. The State Governments have been further empowered to make and notify, inter alia, one or more schemes for regulating conversion of dry latrines into, or construction and maintenance of, water-seal latrines, rehabilitation of the persons who were engaged in or employed for as manual scavengers, under Section 6 of the 1993 Act. Significantly, under Section 14 of the said enactment, failure to comply with or contravention of any of the provisions of the 1993 Act, or the rules or schemes made or orders or directions issued thereunder have been declared to be punishable[10] with imprisonment for a term which may extend to one year or with fine, which may extend to two thousand rupees, or with both. In turn, the provisions relating to the nature of offences, jurisdiction and limitation of prosecution are provided under Sections 16, 17 and 18, respectively of the 1993 Act.

Subsequently, noting that the existing laws, “have not proved adequate in eliminating the twin evils of insanitary latrines and manual scavenging”, Parliament enacted the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 (“the 2013 Act”). The said Act, inter alia, aims towards the “prohibition of employment as manual scavengers, rehabilitation of manual scavengers and their families.” The 2013 Act provides for an exhaustive definition of manual scavenger, under Section 2(1)(g) thereof, as

“a person engaged or employed, at the commencement of this Act or at any time thereafter, by an individual or a local authority or an agency or a contractor, for manually cleaning, carrying, disposing of, or otherwise handling in any manner, human excreta in an insanitary latrine or in an open drain or pit into which the human excreta from the insanitary latrines is disposed of, or on a railway track or in such other spaces or premises, as the Central Government or a State Government may notify, before the excreta fully decomposes in such manner as may be prescribed.”

Significantly, persons engaged or employed to clean excreta with the help of such devices and using such protective gear, as the Central Government may notify in this behalf, are exempted from the definition of manual scavenger(s). Provisions regarding prohibition of insanitary latrines and employment and engagement of manual scavenger are provided under Section 5 of the 2013 Act. Section 5(2) thereof further obliges every occupier, at his own cost, to demolish or convert into sanitary latrine; every insanitary latrine existing on the date of commencement of this Act within the notified period[11]. As per Section 6 of the 2013 Act,

“[a]ny contract, agreement or other instrument entered into or executed before the date of commencement of this Act, engaging or employing a person for the purpose of manual scavenging shall, on the date of commencement of this Act, be terminated and such contract, agreement or other instrument shall be void and inoperative and no compensation shall be payable therefor.”

Further, Section 7 of the said enactment prohibits engagement or employment of any person for hazardous cleaning of sewers and septic tanks. Significantly, the contravention of the provisions under Sections 5 and 6 are punishable under Section 8 of the 2013 Act, “with imprisonment for a term which may extend to one year or with fine which may extend to fifty thousand rupees or with both, and for any subsequent contravention with imprisonment which may extend to two years or with fine which may extend to one lakh rupees, or with both.”

Similarly, contravention of Section 7 of the 2013 Act is punishable in terms of Section 9[12] of the said enactment. Pertinently, as per Section 10 of the 2013 Act, all such offences are punishable only on a complaint, “made by a person in this behalf within three months from the date of the occurrence of the alleged commission of the offence.” Procedure of trial of such offences, in turn, is provided under Chapter VI (Sections 21 till 23) of the said enactment. Significantly, the offences under the 2013 Act are declared as cognizable and non-bailable under Section 22 thereof, which, in terms of Section 21 of the 2013 Act, may be tried summarily by the Executive Magistrate, duly empowered.

Chapter IV of the 2013 Act deals with the provisions relating to the identification of manual scavengers in urban and rural areas and for their rehabilitation. Provisions relating to the survey of manual scavengers in urban areas by Municipalities and application by an urban manual scavenger for identification are provided under Sections 11 and 12, respectively, of the 2013 Act. Section 13 of the said enactment, in turn, deals with a few of the measures which may be adopted for the rehabilitation of the manual scavengers. Significantly, such measures may, inter alia, include; issuance of photo-identity card and one-time cash assistance within one month of identification; allotment  a residential plot and financial assistance for house construction; issuance of training in livelihood skills, subsidy and concessional loan for taking up an alternative occupation on a sustainable basis, etc. Implementation and compliance[13] of the provisions of the said Act, including the supervision of the economic and social rehabilitation of manual scavengers may be carried out, inter alia, by the Vigilance Committee, State and Central Monitoring Committee, National Commission for Safai Karamcharis, etc., established in terms of the provisions of the 2013 Act. Pertinently, despite law in place, the practice of manual scavenging has not been eliminated completely, till date.

The judiciary has played a proactive role towards the eradication of manual scavenging practice in India and to ensure rehabilitation of the persons engaged in such tasks. As early as the year 2005, the Supreme Court[14], directed the Union and State Governments to file affidavits regarding the prevalence of manual scavenging in their respective departments or corporations. It was further directed to the said authorities that in case, “manual scavenging is still being resorted to, then that department or corporation to indicate with details what scheme it has for eliminating it and for rehabilitating the persons concerned and within what time-frame.” This order was subsequently[15] clarified to the effect that the “Secretary of Health; Secretary, Ministry of Social Welfare and Justice; Secretary, Ministry of Urban Development and the Department concerned which deals with manual scavenging shall file detailed affidavit after collecting information from the Municipality/corporation concerned or other local department where manual scavenging is carried on in any of the States/corporation/municipality/department.” However, the said directions were elucidated to be not applicable to banks, other public sector undertakings and financial institutions.

Subsequently, considering the material brought on record pursuant to the said directions, the Court[16] observed that “the practice of manual scavenging continues unabated. Dry latrines continue to exist notwithstanding the fact that the 1993 Act was in force for nearly two decades. States have acted in denial of the 1993 Act and the constitutional mandate to abolish untouchability.” Accordingly, the Supreme Court, while acknowledging the need for extermination of the problem of manual scavenging, directed all the State Governments and the Union Territories to fully implement the provisions of the 2013 Act and to “take appropriate action for non-implementation as well as violation of the provisions”.

In another instance, the Supreme Court[17] duly acknowledged that the State and its agencies/instrumentalities cannot absolve themselves of the responsibility to put in place effective mechanism for ensuring safety of the workers employed for maintaining and cleaning the sewage system. As per the Court, “no one would like to enter the manhole of sewage system for cleaning purposes, but there are people who are forced to undertake such hazardous jobs with the hope that at the end of the day they will be able to make some money and feed their family. They risk their lives for the comfort of others” Accordingly, the  Supreme Court, while observing that the human beings who are employed for doing the work in the sewers cannot be treated as mechanical robots, sought compliance from the State instrumentality, of previous directions of the  High Court of Delhi[18]. Pertinently, the High Court of Delhi vide its said order had directed, inter alia, for free medical examination and medical treatment to sewer workers; payment of compensation by State authorities to the family members of deceased sewage workers; placing on record by the said authorities of proposals and plans to phase out manual work and replace it with mechanised sewer cleaning; etc. Regrettably, even such directions have not proved adequate to uproot the weed of manual scavenging, till date.

Significantly, even under the Universal Declaration of Human Rights and the Convention on the Rights of Persons with Disabilities, provisions for eradication of slavery, degrading human treatment, exploitation, etc. and promotion of equality, liberty, non-discrimination, etc., are provided. However, these provisions have not proved to be deterrent enough to exterminate the manual scavenging evil. The High Court of Delhi in Metro Waste Handling v. Delhi Jal Board[19], has observed,

“[u]nseen and forgotten for generations, our society has marginalised manual scavengers to its darkest corners. They are trapped in an eternal caste embrace, with no voice in the society or in any meaningful participation; their children are doomed to the same stereotypical roles assigned to them. The promise of equality, dignity and egalitarianism has eluded them altogether in the march and progress witnessed by the rest of our citizens.”

Regrettably, despite all the judicial directives and law in place, nothing substantial has changed in the years for these marginalised individuals. Irony is such that despite being involved in integral activities for the society, these individuals and their destinies are flushed down the drains without consideration or empathy. A society and the State like ours, which boasts of being a welfare State can no longer feign indifference towards these individuals; for the works that they do, is in no manner menial.

As Gandhi once remarked, “[t]he true measure of any society can be found in how it treats its most vulnerable members.” Therefore, time is ripe to acknowledge and work towards the emancipation towards such individuals. Further, complacency on mere eradication of few societal issues is not a solution where grave issues like manual scavenging persist even in the present century. In fact, it is incumbent to eradicate this social evil for once and for all in order to achieve the overall development of our country.

* Managing Associate, L&L Partners Law Offices

[1] http://mssurvey.nic.in/Private/Report/SurveyReportLocal.aspx (last accessed on 31.07.2020)

[2] National Legal Services Authority v. Union of India, (2014) 5 SCC 438

[3]“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

[4] (1996) 2 SCC 648

[5] People’s Union for Democratic Rights v. Union of India, (1982) 3 SCC 235

[6] (1982) 3 SCC 235

[7]UN rights chief welcomes movement to eradicate manual scavenging in India -UN News – 31.01.2013 (https://news.un.org/en/story/2013/01/431022-un-rights-chief-welcomes-movement-eradicate-manual-scavenging-india)

[8] As per Section 1(2) of the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993, the provisions of this enactment, “in the first instance to the whole of States of Andhra Pradesh, Goa, Karnataka, Maharashtra, Tripura and West Bengal and to all the Union Territories and it shall also apply to such other State which adopts this Act by resolution passed in that behalf under clause (1) of Article 252 of the Constitution”     

[9] Section 2(c) of the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 ‘“dry latrine” means a latrine other than a water-seal latrine;” and Section 2(i) of Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 “latrine” means a place set apart for defecation together with the structure comprising such place, the receptacle therein for collection of human excreta and the fittings and apparatus, if any, connected therewith;

[10] With an enhanced punishment for continued contravention i.e. “an additional fine which may extend to one hundred rupees for every day during which such failure or contravention continues after the conviction for the first such failure or contravention.” (Section 14 of Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993)

[11] Section 4(1)(b) of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013

[12]“Whoever contravenes the provisions of Section 7 shall for the first contravention be punishable with imprisonment for a term which may extend to two years or with fine which may extend to two lakh rupees or with both, and for any subsequent contravention with imprisonment which may extend to five years or with fine which may extend to five lakh rupees, or with both.”

[13] Chapter VII of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013

[14] Safai Karamchari Andolan v. Union of India, (2011) 15 SCC 611; order dated 29.04.2005.

[15] Safai Karamchari Andolan v. Union of India, (2011) 15 SCC 609; dated 14.11.2005.

[16] Safai Karamchari Andolan v. Union of India, (2014) 11 SCC 224; dated 27.03.2014

[17] Delhi Jal Board v. National Campaign for Dignity & Rights of Sewerage & Allied Workers, (2011) 8 SCC 568

[18] National Campaign for Dignity & Rights of Sewerage & Allied Workers v. MCD,  2008 SCC OnLine Del 948

[19] 2018 SCC OnLine Del 9319 

Cabinet DecisionsLegislation Updates

Union Cabinet gave its approval for signing a Memorandum of Cooperation (MoC)  in the field of cybersecurity between India and Japan.

The MoC will enhance cooperation in areas of mutual interest, which in­clude inter-alia, capacity building in the area of cyberspace; protection of critical infrastructure; cooperation in emerging technologies; sharing information on cyber security threats/incidents and malicious cyber activities, as well as best prac­tices to counter them; Developing joint mechanisms for practical cooperation to mitigate cyber threats to the security of Information Communication Technology (ICT) infrastructure etc.

India and Japan commit to an open, interoperable, free, fair, secure and reli­able cyberspace environment and to promote the Internet as an engine of innova­tion, economic growth, and trade and commerce that would be consistent with their respective domestic laws and international obligations, and with their wide-ranging strategic partnership.

Both sides, through the MoC, affirm cooperation in the international arena including in the United Nations; Discussing and sharing strategies and best prac­tices to promote the integrity of the supply chain of ICT products; Strengthening the security of ICT infrastructure through Government-to-Government and Business-to-Business cooperation; Continuing dialogue and engagement in Internet governance fora, and to support active participation by all the stakeholders of the two countries in these fora.

Ministry of External Affairs

Press Release dt. 07-10-2020

Case BriefsForeign Courts

Islamabad High Court: The Bench of Athar Minallah, C.J., Aamer Farooq and Miangul Hassan Aurangzeb, JJ., while observing that the right to a fair trial is the foundation of the rule of law and criminal justice system and its essence is to assure to every party that he or she, would be treated fairly and justly by an impartial and independent judicial forum; held that another opportunity should be extended to the Government of India to consider taking appropriate measures to ensure effective compliance with the judgment of the International Court of Justice wherein it had ordered Government of Pakistan to review and reconsider Kulbhushan Jadhav’s conviction and sentence and provide him with consular access. The Court also extended its assurance to Jadhav that his rights, especially that of fair trial is a vital factor while reviewing his sentence.       

Following the decision of the ICJ, the Govt. of Pakistan had promulgated the International Court of Justice (Review and Reconsideration) Ordinance, 2020 to meet its obligations regarding giving effect to the judgment. As per Attorney General Khalid Javed Khan’s Report, Jadhav had reiterated his earlier stance and has preferred to pursue the remedy of clemency instead of invoking his right under the Ordinance of 2020. Attorney General further reported that the Government of India has been duly informed regarding the proceedings of this Court held on 03-08-2020 in pursuance of which concerned officials gave a detailed briefing to Jadhav regarding his right to avail the statutory remedy provided under the Ordinance of 2020. It was noted that the Govt. of India’s response is awaited.

Perusing the existing the scenario, the Bench observed that, “We are of the opinion that these proceedings and judicial review, on the basis of the judgment of the International Court, may not be meaningful and effective if Commander Jadhav and the Government of India decide not to exercise the course of action highlighted in the judgment of the International Court”. Concluding the Order and fixing the next proceeding on 06-10-2020, the Bench issued following directions to ensure effective review and reconsideration so as to give effect to the judgment of the International Court-

  • Attorney General shall ensure that copy of this order is provided to Jadhav
  • of Pakistan shall once again convey the orders passed in this petition to the Govt. of India to enable the latter to consider taking appropriate measures in order to ensure compliance with the judgment of the ICJ.
  • The Registrar of the Court to send to the learned amici curiae copies of the petition and documents placed on the record, so that they can assist this Court on the status of compliance with the judgment of the ICJ in the event that Jadhav or the Govt. of India decide against availing the remedy provided under the Ordinance of 2020

[Secretary, Ministry of Law and Justice v. Federation of Pakistan, Misc. Petition No. 01 of 2020, decided on 03-09-2020]

Sucheta Sarkar, Editorial Assistant has put this story together

Hot Off The PressNews

The US House of Representatives has passed a bipartisan legislation, urging China to peacefully de-escalate the situation with India along the Line of Actual Control (LAC). The House on Tuesday, had agreed to consider the bipartisan legislation sponsored by Indian-American Congressman, Raja Krishnamoorthi, along with Congressman Ro Khanna and lawmakers Frank Pallone, Tom Suozzi, Ted Yoho, George Holding, Sheila Jackson-Lee, Haley Stevens and Steve Chabot

This is the second legislative action that has been taken by the US on the issue; the first being an Amendment made to the National Defense Authorization Act (NDAA) by the House in which it unanimously slammed China’s  territorial assertiveness in the Galwan Valley in India and also in other disputed areas such as the South China Sea.

Such moves come across as a show of solidarity by the US, which claims to “stand with its allies and partners like India against Chinese military aggression.” The NDAA Amendment Resolution mentioned that, in mere ten days after reaching an agreement with India to de-escalate tension along the Line of Actual Control, China amassed 5000 soldiers and crossed into previously-disputed territory which was settled as Indian land after the 1962 Indo-China War. As a result of the skirmishes, 20 Indian soldiers and an unconfirmed number of Chinese soldiers were killed in Eastern Ladakh, the de facto border between China and India. The Resolution also acknowledged India’s commitment to peaceful methods of dispute-resolution.

                                                                                                Source: The Economic Times

[Image Source: Times of India]

Case BriefsInternational Courts

Permanent Court of Arbitration: In an unanimous decision by the Arbitral Tribunal concerning the “Enrica Lexie Incident”, it was held that Italy has breached Article 87, Paragraph 1, sub-paragraph (a) and Article 90 of the United Nations Convention for the Law of the Sea (UNCLOS) thereby constituting adequate satisfaction for the injury to India’s non-material interests. It was further held that as a result of the breach, India is entitled to payment of compensation in connection with loss of life, physical harm, material damage to property (including to the ‘St. Antony’) and moral harm suffered by the captain and other crew members of the ‘St. Antony’, which by its nature cannot be made good through restitution.

As per the facts, on 15-02-2012, two Indian fishermen were killed off the coast of Kerala, aboard the St. Antony. India alleged that the two Italian marines aboard the Italian-flagged commercial oil tanker MV Enrica Lexie killed the fishermen. The Indian Navy then intercepted MV Enrica Lexie and detained the two Italian marines, therefore giving rise to the instant dispute between India and Italy.

Italy contended before the Tribunal that by directing and inducing the Enrica Lexie to change course and proceed into India’s territorial sea through a ruse, as well as by interdicting the Enrica Lexie and escorting her to Kochi, India violated Italy’s freedom of navigation, in breach of UNCLOS Article 87(1)(a), and Italy’s exclusive jurisdiction over the Enrica Lexie, in breach of Article 92 of UNCLOS and abused its right to seek Italy’s cooperation in the repression of piracy, in breach of Article 300 read in conjunction with Article 100 of UNCLOS. It was further contended that by initiating criminal proceedings against the Italian marines, India violated Italy’s exclusive right to institute penal or disciplinary proceedings against the Marines, in breach of Article 97(1) of UNCLOS. The Indian side however contended that by firing at St. Anthony and killing the fishermen aboard that vessel, Italy violated India’s sovereign rights under Article 56 of UNCLOS and India’s freedom and right of navigation under Articles 87 and 90 of UNCLOS.     

The Tribunal comprising of Vladimir Golitsyn, J. (President), Jin-Hyun Paik, Patrick Robinson, JJ., Prof. Francesco Francioni and Dr  Pemmaraju Sreenivasa Rao (Arbitrators) perused the facts and the contentions put forth by the Countries. It was observed that the instant dispute involved the interpretation/ application of the UNCLOS. Determining that the Arbitral Tribunal has jurisdiction over the dispute, it was unanimously held that India’s counter-claims are admissible and that Italy has violated aforementioned provisions of the UNCLOS. However with a ratio of 3:2, the Tribunal also held that the Marines- Chief Master Sergeant Massimiliano Latorre and Sergeant Salvatore Girone, are entitled to immunity in relation to the acts that they committed during the incident, and that India is precluded from exercising its criminal jurisdiction over the Marines. Taking note of Italy’s commitment to resume criminal investigations into the St. Anthony firing incident, the Tribunal directed India to take the necessary steps in order to cease the exercise its criminal jurisdiction over the Marines. [Italian Republic v.  Republic of India, PCA Case No. 2015-28, decided on 02-07-2020] 

COVID 19Hot Off The PressNews

Government of India has undertaken evacuation operations from several countries in the wake of the COVID-19 outbreak to bring back Indian citizens as well as nationals from other countries.

As it became clear that Iran was facing a COVID-19 outbreak, Government of India started to undertake measures to ensure safety and security of its citizens in the country. Indian nationals in Iran include pilgrims, students and fishermen. On 7th March, 108 samples were received from Iran. These samples are being tested at the laboratory of AIIMS. Also, six scientists from the Indian Council of Medical Research (ICMR) have been stationed in Iran. Equipment and reagents have also been dispatched to enable them to setup a lab. The first batch of 58 evacuees from Iran has arrived on 10th March, 2020 with 25 men, 31 women and 2 children on board. All evacuees are asymptomatic at present.

So far, Government of India has evacuated 948 passengers from COVID-19 affected countries. Out of these, 900 are Indian citizens and 48 belonging to different nationalities including Maldives, Myanmar, Bangladesh, China, USA, Madagascar, Sri Lanka, Nepal, South Africa and Peru.

Earlier, as Wuhan city in Hubei province of China became the epicenter of the COVID-19 and there were hundreds of Indians stuck in the city, Air India operated two special flights for the evacuation efforts which brought back 654 passengers that included 647 Indian citizens.

The first batch consisting of 324 Indians were evacuated from Wuhan, China on 1st February. 104 of these were quarantined for monitoring at ITBP Chhawla camp and the rest 220 were housed in the army facility at Manesar. The second batch of 330 passengers (including 7 Maldivian citizens and two Indian Embassy officials who were on the ground to coordinate the evacuation efforts) arrived in India on 3rd February. 300 of these (including 7 Maldivians) were housed at ITBP Chhawla Camp and 30 were shifted to Manesar facility for monitoring.

All of these evacuees were placed in the isolation facilities for 14 days. They were tested twice and were found negative for COVID-19. They were discharged on 18th February, 2020.

On 26th February, Indian Air Force evacuated 112 passengers from Hubei province in China. Among these 76 were Indian citizens. The other nationals evacuated by Indian Air Force  included citizens of Myanmar, Bangladesh, Maldives, China, USA, Madagascar and South Africa. The passengers reached India on 27th February, 2020 and subsequently are housed at ITBP camp for a period of 14 days, as per protocol. They have tested negative for COVID-19 in the first test. The IAF flight had also carried medical supplies which were given as good-will gesture to China.

In addition, for the case involving the Japanese Cruise Ship, Diamond Princess, on 27th February, Air India flight carried an evacuation operation bringing back 124 passengers including 5 foreign nationals from Sri Lanka, Nepal, South Africa and Peru, from Port of Yokohama in Japan. The evacuees are housed at army facility in Manesar. They have tested negative in the first test.

As a measure of prevention, it is reiterated that as per the Travel Advisory issued by Government of India on 10th March, 2020, passengers with travel history to China, Hong Kong, Republic of Korea, Japan, Italy, Thailand, Singapore, Iran, Malaysia, France, Spain and Germany should undergo self-imposed quarantine for a period of 14 days from the date of their arrival, and their employers should facilitate work-from-home for such employees during this period.

[Source: PIB]

[Press Release dt. 11-03-2020]

NewsTreaties/Conventions/International Agreements

With entering the Agreement with Republic of Portugal, it will open avenues for cooperation to promote Maritime Transport between the two countries for better operation of their merchant fleets, cooperation to harmonize and unified their position with International Organization Institution, forums and conferences related to Maritime and Port activities.

It will also help both the countries to coordinate accession to international conventions so that the objectives of this Agreement can be strengthened.

Ministry of Shipping

[Press Release dt. 14-02-2020]

[Source: PIB]

Cabinet DecisionsLegislation Updates

The Union Cabinet was apprised of a Memorandum of Understanding (MoU) signed between India and Iceland in the field of Fisheries.  The MoU was signed on 10-09-2019.

The salient features of the MoU are:

  1. Creation of facilities for exchange of scientists and technical experts and their proper placement, especially in areas of estimating Total Allowable Catches in offshore and deep sea areas;
  2. Provision of training to fisheries professionals from key fisheries institutions in the various management aspects on areas of modern fisheries management and fish processing
  3. Exchange of scientific literature research findings and other information.
  4. Exchange of experts/expertise to study the prospects of fishing.  Processing and marketing of products from high seas fisheries for entrepreneurship development.

The MoU will strengthen the existing friendly relations between India and Iceland and will enhance consultation and cooperation on Fisheries including consultation on bilateral issues.

Cabinet

[Press Release dt. 12-02-2020]

[Source: PIB]

Cabinet DecisionsLegislation Updates

Union Cabinet has given its approval for the Memorandum of Understanding to be signed between Geological Survey of India (GSI), Ministry of Mines of the Republic of India and Geological Survey of Brazil – CPRM, Ministry of Mines and Energy of the Federative Republic of Brazil on “Cooperation in field of Geology and Mineral Resources”.

The MoU will provide an institutional mechanism between the Geological Survey of India, Ministry of Mines of the Republic of India and Geological Survey of Brazil – CPRM, Ministry of Mines and Energy of the Federative Republic of Brazil for cooperation in the field of Geology and Mineral Resources.

[Source: PIB]

[Cabinet]

[Press Release dt. 22-01-2020]

 

Cabinet DecisionsLegislation Updates

Union Cabinet has been apprised of the Agreement on cooperation in polar science between the Ministry of Earth Sciences (MoES), India and the Ministry of Education and Research, Sweden. The Memorandum of Understanding (MoU) was signed on 02-12-2019 during the visit of Their Majesties of the Kingdom of Sweden to India.

India and Sweden are both signatories to the Antarctic Treaty and to the Protocol to the Antarctic Treaty on Environmental Protection. Sweden as one of the eight “Arctic States” is one of the Member states in the Arctic Council whereas India has the Observer Status in the Arctic Council. Sweden has a vigorous scientific program in the Polar Regions, both in Arctic and Antarctic. India likewise, has sustained scientific research programs in both the Polar Regions as well as in the oceanic realm.

The collaboration between India and Sweden in polar science will enable the sharing of the expertise available with both Countries.

Cabinet

[Press Release dt. 08-01-2020]

[Source: PIB]

Cabinet DecisionsLegislation Updates

Union Cabinet has given its approval forsigning a Memorandum of Understanding (MoU) with the Department for International Development (Government of United Kingdom) on 02.12.2019 for Enabling Energy Self-Sufficiency for Indian Railways.

Implementation Strategy and targets

The   MoU   signed   by   Ministry   of   Railways   with   Department for   International Development (Government of United Kingdom) for Enabling Energy Self-Sufficiency for Indian Railways with the following understanding: –

a.  The Parties agree on the scope of activities to be undertaken as a part of the endeavor for enabling energy efficiency and energy self-sufficiency for the Indian Railways.

b.   Each Participant will, subject to the laws, rules, regulations and national policies fromtime to time in force  governing  the  subject  matter  in  their  respective  countries, endeavour to take  necessary steps to enable energy efficiency and  energy  self-sufficiency for Indian Railways.

c.   The parties agree for Energy planning for Indian Railways i.e. Solar & Wind Energysector, Adopting energy efficiency practices, Enabling Fuel efficiency, Electric Vehiclecharging infrastructure deployment, Battery operated Shunting Locomotives. Capacitydevelopment like training programmes, industrial visits, field visits etc. or any other form co-operation may be approved in writing by the Participants.

d.  The Participants will coordinate the activities, as appropriate, under this MoU. Nothing in this MoU will be construed to prejudice existing or future arrangements for co­operation between the participants.

e.   Blither participant may request in writing a revision, modification or amendment to all or any part of this MoU. Any revision, modification or amendment approved by the Participants will form part of the revised MoU. Such revision, modification or amendment will come into effect on such date as may be determined by the Participants.

f.   This Memorandum of Understanding shall come into force on its signing by the duly authorized representatives of the Parties and any of the Party may terminate this MoU by written communication addressed to the other, in which case, termination of MoU shall take effect six months after receipt of such written communication.

g.  The termination of this MoU will not affect the implementation of ongoing projects and / or programmes which have been agreed before the date of the termination of this MoU. Necessarily, areas of cooperation and forms of cooperation will continue to be enforced for ongoing projects and programmes which have been agreed before the date of the termination of this MoU.

h.  Any dispute or difference between the Parties shall be settled through mutual consultations and negotiations between the participants.

Background:

Ministry of Railways have signed MoUs/ MoCs for co-operation covering technical, policy, research & commercial aspects in field of development of energy sector. The objective of the programme is to support structural reforms and the integration of renewable energy into the electricity grid. To be more specific, it aims to achieve more sustainable and inclusive economic growth, better energy security and reduced carbon emissions.

The MoUs/ MoCs provide a platform for Indian Railways to interact and share the latest developments and knowledge in the railway sector. The MoUs/ MoCs facilitate exchange of technical experts, reports and technical documents, training and seminars/workshops focusing on specific technology areas like Renewable Energy and other interactions for knowledge sharing.

Cabinet

[Press Release dt. 08-01-2020]

[Source: PIB]

Cabinet DecisionsLegislation Updates

The Union Cabinet has given its approval for an Agreement between Government of the Republic of India and Government of Mongolia on Cooperation in the Exploration and Uses of Outer Space for Peaceful and Civilian Purposes.

The Agreement was signed at New Delhi on 20 September 2019 during the state visit of the President of Mongolia to India.

Details:

  • This Agreement shall enable pursuing the following potential interest areas of cooperation such as space science, technology and applications including remote sensing of the earth; satellite communication and satellite-based navigation; Space science and planetary exploration; use of spacecraft and space systems and ground system; and application of space technology.
  • The Agreement would lead to set up a Joint Working Group, drawing members from DOS/ISRO and Communications and Information Technology Authority of the Government of Mongolia, which will further work out the plan of action including the time-frame and the means of implementing this Agreement.

Financial Implications:

The financial arrangements to cover expenses for the co-operative activities undertaken within the framework of this Agreement will be jointly decided by the respective Participants on a case-by-case basis subject to the availability of funds.

Benefits:

Cooperation with and the Government of Mongolia through this Agreement would lead to develop a joint activity in the field of application of space technologies for the benefit of humanity. Thus all sections and regions of the country will get benefited.

Implementation Strategy and Targets:

The signed Agreement would lead to concluding specific implementing Arrangements and setting up of Joint Working Group, to work out the plan of action including the time-frame and the means of implementing this Agreement.

Impact:

The signed Agreement will provide impetus to explore newer research activities and application possibilities in the field of remote sensing of the earth; satellite communication; satellite navigation; space science and exploration of outer space.

Background:

  • Department of Space (DOS) and the Mongolian Ministry of Infrastructure signed an ‘Agreement for cooperation in space science, technology and applications’ on January 15, 2004. Apart from training of Mongolian officials on space technology application, no major cooperative activities have been taken up. When our Embassy in Mongolia was contacted for reviving the cooperation, it is understood that the Mongolian Ministry of Infrastructure is abolished and the space activities are presently handled by the Communication and Information Technology Authority (CITA) of Mongolia.
  • The embassy has further mentioned that, b high-level delegation from Mongolia is expected to visit India during September 2019 and space cooperation would be one of the agenda. Embassy requested ISRO to share a draft Agreement on space cooperation for further taking up with CITA. Accordingly, a draft Agreement for India-Mongolia Space cooperation was drafted and shared with

Embassy, with approval of Chairman, ISRO/ Secretary, DOS. Subsequently, the Mongolian side has given its concurrence and both sides have arrived at workable versions and proposed to sign the agreement during high-level delegation visit from Mongolia.

Department of Space

[Source: PIB]

[Press Release dt. 08-01-2020]

Cabinet DecisionsLegislation Updates

Union Cabinet has given ex-post facto approval on an Agreement between the Ministry of Home Affairs of the Republic of India and the Ministry of Internal Affairs of the Republic of Uzbekistan on Cooperation in the field of Combating Transnational Organized Crime and International Terrorism, that was signed by Union Home Minister and the Minister of Internal Affairs, the Republic of Uzbekistan at New Delhi on 20-11-2019 during the visit of Hon’ble Minister of Internal Affairs of Republic of Uzbekistan to India.

The agreement aims to improve the effectiveness of both countries in prevention and suppression of crimes including crime relating to terrorism and its financing, organized crime and to establish a framework for enhancing cooperation between the officials of intelligence and law-enforcement agencies of the two countries, in line with domestic laws and international obligations.

Cabinet

[Source: PIB]

[Press Release dt. 24-12-2019]

Cabinet DecisionsLegislation Updates

The Union Cabinet has given ex-post facto approval on an Agreement on Security Cooperation between the Government of the Republic of India and the Government of the Kingdom of Saudi Arabia that was signed on 29-10-2019 during the visit of Hon’ble Prime Minister to Saudi Arabia.

The Agreement aims to improve the effectiveness of both countries in the prevention and suppression of crimes including crime relating to terrorism and its financing and organized crime and to establish a framework for enhancing cooperation between the officials of intelligence and law-enforcement agencies of the two countries, in line with national and international obligations.

Cabinet

[Press Release dt. 24-12-2019]

[Source: PIB]

NewsTreaties/Conventions/International Agreements

The Union Cabinet has given approval for the Memorandum of Understanding (MoU) between India and Myanmar on bilateral cooperation for the Prevention of Trafficking in Persons; Rescue, Recovery, Repatriation and Re-integration of Victims of Trafficking.

The MoU aims:

  • To strengthen the bonds of friendship between the two countries and to increase bilateral cooperation on the issues of prevention, rescue, recovery and repatriation related to human trafficking.
  • To strengthen cooperation to prevent all forms of human trafficking and to protect and assist the victims of trafficking
  • Ensure speedy investigation and prosecution of traffickers and organized crime syndicates in either country.
  • To strengthen immigration and border controls cooperation and implementation of strategies with relevant Ministries and Organizations to prevent trafficking in persons.
  • Setting up Working Groups/ Task Force to make efforts to prevent human trafficking
  • Develop and share database on traffickers and victims of trafficking in a safe and confidential manner and exchange information through designated focal points of India and Myanmar
  • Capacity building programmes for the agencies concerned of both countries.
  • Formulation and adoption of Standard Operating Procedures for Rescue, Recovery, Repatriation and Integration of the victims of trafficking.

Background:

Human Trafficking has national as well as international ramifications. The complex nature of human trafficking calls for a multidimensional strategy in tackling it at domestic, regional and international level. Being global in scope, international cooperation and collaboration is essential to check trafficking in persons.

Strengthening cooperation between border control agencies and the establishment of direct channels of communication between India and Myanmar can be an effective tool in countering trafficking in persons and promoting cross-border and regional cooperation.

Cabinet

[Source: PIB]

[Press Release dt. 27-11-2019]

Cabinet DecisionsLegislation Updates

The Union Cabinet has given approval for the MoU between India and Guinea in the field of Renewable Energy.

Objective:

          The objective of the MoU is:

  1. To establish the basis for a cooperative institutional relationship
  2. To encourage and promote bilateral technical cooperation in the field of renewable energy on the basis of mutual benefit, equality, and reciprocity between the Parties.
  3. Areas of cooperation include Solar Energy, Wind Energy, Bio-energy, and Waste to energy, Small Hydro Storage and Capacity Build.

The Memorandum of understanding will also help in strengthening bilateral cooperation between the two countries.

Cabinet

[Press Release dt. 06-11-2019]