Case BriefsHigh Courts

Delhi High Court: Vibhu Bakhru, J., held that the scope of interference with an arbitral award under Section 34 of the Arbitration & Conciliation Act is limited.

Factual Matrix 

Steel Authority of India (SAIL) filed the instant petition under Section 34 of the Arbitration and Conciliation Act, 1996 impugning an Arbitral Award delivered by the Arbitral Tribunal.

Arbitration between the parties was an international commercial arbitration within the meaning of Section 2(1)(f) of the A&C Act and the same was conducted under the aegis of the Delhi International Arbitration Centre.

Respondent JOPL was the claimant and engaged in the business of maritime logistics including vessel operations and chartering.

Charter Party

Parties had executed a Charter Party whereby JOPL agreed to load, carry and discharge cargo of Bulk Coking Coal to ports in India.

Though there was no dispute between the parties as to the amount payable by SAIL under the Charter Party, there was also no dispute that JOPL had duly performed its obligations under the Charter Party.

Contract of Affreightment

However, it was stated that SAIL had withheld the admitted balance amount payable to JOPL for the reason that it had raised a claim of damages against JOPL in respect of another contract – Contract of Affreightment for shipping cargos of limestones.

What was the dispute?

OPL had not provided a vessel under the Contract of Affreightment for the 20th shipment and SAIL was compelled to make alternate arrangements for the same. SAIL claimed that JOPL had breached its obligations under the Contract of Affreightment and raised the claim for damages quantified at the additional expenses incurred by it to arrange for shipment of balance quantity of limestone.

But JOPL disputed the claim and stated that it was not obliged to provide a vessel as the shipment period under the Contract of Affreightment had come to an end.

Hence, disputes between the parties arising as a result of SAIL withholding the admitted amounts due under the Charter Party, were referred to arbitration.

Finding of the Arbitral Tribunal

The Arbitral Tribunal held in favour of JOPL and against SAIL and found that the Charter Party was unconnected with the Contract of Affreightment.

The Arbitral Tribunal found that there was no nexus between the two contracts. Whereas the Charter Party was a standalone contract for one shipment of Coking Coal, the Contract of Affreightment was a contract for multiple shipments of limestones over a period of twelve months.

In view of the above, the Arbitral Tribunal held that SAIL was not entitled to withhold any amount from the amounts as admittedly owed by it to JOPL under the Charter Party. It, accordingly, awarded a sum of USD 515,739.88.

Reasons and Conclusion

SAIL’s entitlement to any equitable set-off was contrary to public policy since Arbitral Tribunal failed to appreciate the same.

Fundamental premise that JOPL had breached the Contract of Affreightment was disputed

Bench added that SAIL had claimed that JOPL had breached the Contract of Affreightment and therefore, it was entitled to seek the performance of the balance obligations at its risk and cost. For the said claim SAIL was required to prove both its entitlement to damages and its measure.

 Whether set off could be claimed is a matter of discretion of the Court adjudicating the claim. SAIL could not claim it as a matter of right and in the given set of facts and circumstances, SAIL was not entitled to claim any set off as there was no ascertained debt owing by JOPL to SAIL.

Court while holding the position that impugned award is an award arising out of an international commercial arbitration and therefore, it cannot be assailed on the ground of patent illegality as contained in Section 34(2A) of the A&C Act.

Supreme Court in the decision of Ssagyong Engineering & Construction Ltd. v. National Highways Authority of India, (2019) 15 SCC 131, wherein it was held that an award arising from an international commercial arbitration can be assailed only on the limited grounds as specified under Section 34(2) of the A&C Act.

Hence, no grounds, whatsoever, to assert that the decision of the Arbitral Tribunal to reject SAIL’s contention falls foul of the fundamental policy of Indian Law.

The onus to prove that SAIL was entitled to withhold the admitted sums against any other claim, rested on SAIL. And it failed to discharge the said burden.

Whether the impugned award was liable to be set aside to the extent that it awards 12% interest compounded with quarterly rests, on the amount due to JOPL?

Court noted that the Statement of Claims filed by JOPL set outs the grounds for claiming the amount of USD 515,739.88.

It was also observed that JOPL had unequivocally stated that the only dispute between the parties was with regard to the payment of balance freight. SAIL did not traverse the said assertion. It was apparent that JOPL had premised its claim for interest and costs on the ground that SAIL had unjustifiably withheld the amounts admittedly payable by it. Thus, compelling JOPL to refer the disputes to arbitration. SAIL had contested the said Statement of Claims only on the ground that it was entitled to recover a sum of USD 1,187,847.318/- which, according to SAIL, was payable as damages by JOPL in respect of the Contract of Affreightment.

High Court opined that the SAIL cannot be permitted to contest the impugned award as contrary to fundamental policy of Indian Law.

Bench found considerable merit in the contention advanced by Mr Shankar that the rate of 12% p.a. interest compounded with 3 monthly rests cannot be held contrary to fundamental policy of Indian Law.

Supreme Court in its decisions noted that the recovery of compound interest would not contravene any fundamental policy of Indian Law, Mr Shankar also pointed that there are a number of legislation that provide for payment of compound interest.

It is also a norm of the banking industry to charge compound interest with either monthly or quarterly rests. Therefore, an arbitral award cannot be held to be contrary to the fundamental policy of Indian law only because one of the parties is awarded compound interest.

In view of the offering that, if SAIL was willing to pay the awarded amount with a lesser interest and put quietus to disputes, JOPL would accept the same and waive its right for receiving the balance interest.

Therefore, Bench adjourned the hearing to enable SAIL’s counsel to take instructions in the above regard. But the said offer was accepted by the Court.

But, considering that public funds are involved, this Court considered it apposite to grant SAIL another opportunity to reflect on the offer made on behalf of JOPL.

High Court held that the present petition was speculative and has been filed by SAIL to only protract litigation. Rs 50,000 costs were imposed.[SAIL v. Jaldhi Overseas PTE Ltd., 2021 SCC OnLine Del 2642, decided on 28-05-2021]


Advocates before the Court:

For the Petitioner: Mr Joy Basu, Senior Advocate with Mr Ashish Rana, Mr Kanak Bose, Advocates.

For the Respondent: Mr Ashwin Shankar and Mr Rishi Murarka, Ms Shweta Sadanandan, Mr Aditya Raj, Mr George Rebello,

Advocate.

COVID 19Op EdsOP. ED.

1. INTRODUCTION

The on-going global Coronavirus disease (“COVID-19”) has affected a countless number of people around the world, businesses and the global economies alike. On March 11, 2020, the World Health Organisation declared COVID-19 a pandemic. In India too, the government has also termed COVID-19 as a pandemic. In testing times like these, India is slowly coming out of an unprecedented nationwide lockdown; which incidentally has been termed to be as one of the biggest lockdown in the world and has resulted in a temporary or partial shutdown of many businesses in India.

The Ministry of Home Affairs (“MHA“) along with various other relevant Indian governmental authorities to safeguard the interests of employees — ­particularly the inter-State migrant workers have come out with a series of notifications, advisories, circulars and orders (collectively referred to as  “the COVID Circulars”), many of which have cast onus on the ’employers’ and companies – whether they be in the industry or shops and commercial establishments,which (broadly) include but are not limited to the following:

(i) making payment of wages to their workers at their workplace, on the due date, without any deduction, for the period their establishments are or previously have been under closure during the lockdown (“MHA Circular”)[1]; and

(ii) ensuring fixed working hours and adequate safety of their employees[2], for the safety measures announced by the relevant governmental authorities, in light of the COVID-19 pandemic. ­

This article seeks to discuss in light of the COVID Circulars and keeping in view the ever-increasing popularity of the appointment of non-executive directors (“NED”) in Indian companies, whether such NEDs can be held liable for non-compliance of the obligations which the COVID Circulars have cast upon companies and employers.

2. ROLE OF NON-EXECUTIVE DIRECTORS WITH REGARD TO COVID CIRCULARS AND APPLICABLE INDIAN LEGISLATIONS  

2.1  Due to the ever-growing participation of private equity and venture capital investments by investors in Indian companies, as a recently evolving trend, such investors in return for their investments have been demanding a board seat of an authorised individual representative of their choice, usually by way of appointing a NED.

2.2 Obligations of Employers with Regard to the COVID Circulars

 As indicated above, several COVID Circulars have cast obligations on ’employers’, especially, when it comes to payment of wages to their workers employed at their workplace, during the period of lockdown. For instance, Labour Departments of States such as Maharashtra and Telangana had even prior to the MHA Circular, directed that during the lockdown period (which was announced by the said States before the nationwide lockdown was announced on March 24, 2020), the employees/workers were to be paid salary and allowances in full, as a paid holiday during such period. As on date, however, there is no clarification from the relevant governmental authorities as to whether a NED will constitute as an ’employer’ and hence, there remains ambiguity regarding whether a NED can be held accountable for any act of non-compliance by a company, in light of the COVID Circulars.

With no ‘explicit’ clarity on the issue of liability of a NED, with regard to COVID Circulars, as a stop-gap measure, guidance on the role and responsibilities, and general actions from the definitions, and cases which have dealt with the said issue in the past, interpretation can be drawn, in terms of the relevant Indian statutes, which include but are not limited to: (i) the  Companies Act, 2013[3] (“the Act”); and (ii) applicable provisions of the Indian labour legislations, which have been analysed (in brief) below.

2.3 Definition and analysis of a NED in line with the Act and the allied Rules made thereunder

 NEDs in India are viewed as a custodian of the company[4]. Under the Act, the liability in case of a default is cast upon the “officer who is in default”[5]. The question which has been repeatedly tested and challenged in the competent court(s) of law is whether a NED in a company can be equated on the same footing as an “officer who is in default”[6]. The extant law, provides a way out for the directors of a company including the NEDs, who can prove that any breach or non-compliance was not intentionaland neither was it an intentional breach by him/her, however, the burden to establish innocence would always lie on the NED. Additionally, the Act provides that a NED should be held liable only in respect of any contravention of any provisions of the Act which had taken place with his knowledge (attributable through board processes) and where he has not acted diligently, or with his consent or connivance[7], a fact which has been reiterated by the MCA, on numerous occasions[8].

To clear the ambiguity around the issue of liability of a NED, the Ministry of Corporate Affairs (“MCA”) had issued a circular[9] (“the Circular”), wherein it clarified that the liability of a NED (not being a promoter or KMP) under the Act, is only for the acts of omission or commission by a company which had occurred with his knowledge, attributable through the ‘board’ process, and with his connivance or where he had not acted diligently (“the Criteria”). The Circular further states that unless the Criteria is met, a NED (who is not a promoter or KMP), should not be arrayed in any criminal or civil proceedings under the Act. The Circular also discusses the need to examine the Criteria, before serving notices to the NED of a company, for a potential non-compliance and default by him/her.

The MCA, through the said Circular, has also prescribed SOPs (standard operating procedures) for the Registrars, before initiating proceedings against the ‘officers in default’, for offences which include but are not limited to ascertaining the nature of default and officer in default. The MCA has further clarified that in case of any doubts pertaining to the liability of any director for proceedings to be initiated, guidance may be sought from the office of the Director General of Corporate Affairs, MCA, and consequently, such proceedings must only be initiated after receiving due sanction from the MCA. Also note, only where lapse(s) are attributable to the decisions which are taken by the board or its committees which include the NED, adequate care and responsibility must be taken to ensure that unnecessary proceedings are not initiated against such NEDs unless there is evidence to the contrary.

2.4 Definition of ‘Employer’: Guidance from various Indian labour statutes

In light of the COVID-19 Circulars, it appears that most of the advisories seem to be directed towards “employers”, and the roles and responsibilities which would need to be followed during the lockdown. For instance, in light of the hardships faced by the inter-State migrant workers, the MHA Circular called upon all “employers”– whether in industry or in shops and commercial establishments, to make payment of wages of their workers at their workplace on the due date without any deduction in the wages during the lockdown period. On similar lines, relevant State Government authorities of various States, such as (i) Maharashtra; (ii) Uttar Pradesh; (iii) Haryana; and (iv) Karnataka, had issued advisories/orders on similar lines refraining employers from terminating their employees and workers, and/ or to reduce their wages.

As indicated at Point 2.2. above, since the COVID Circulars are silent on who an “employer” is, nor have the relevant governmental authoritiesas on date clarified on who would fall under the definition and ambit of an “employer”, in the interim reliance can be placed on the relevant provisions of the applicable Indian labour laws, where an “Employer” has been defined under various statutes.

For instance, Section 2(7) of the Bombay Shops and Establishment Act, 1948[10], defines an “employer” as a person who owns or has ultimate control over the affairs of an establishment, whereas Section 2(g) of the Industrial Disputes Act, 1947, defines an “employer” to be: ‘(i) in relation to an industry carried on by, or under the authority of any department of the Central Government or a State Government, the authority prescribed in this behalf, or where no authority is prescribed, the head of the department; (ii) in relation to an industry carried on, by or on behalf of a local authority, the chief executive officer of that authority’. Additionally, Section 2(l) of the Code on Wages, 2019, defines an “employer” as: “a person who employs, whether directly or through any person, one or more employees in his establishment”.

Hence, who would fall under the definition of an “employer” would depend on factors such as:

(i) the nature of the business;

(ii) the type of workers employed; and

(iii) the place of operations of a business or an establishment.

3. JUDICIAL PRECEDENTS AND SUBSEQUENT RELAXATIONS BY RELEVANT GOVERNMENTAL AUTHORITIES

3.1 Judicial Precedents

3.1.1 The question of liability of the NEDs has been challenged and discussed upon in the court of law, time and again. Listed below is a brief analysis of the important judicial precedents on this issue, in the recent past:

  • In Chaitan M. Maniar v. State of Maharashtra[11], the Bombay High Court observed that for the acts of a few dishonest people, the NEDs, who were not concerned with the day-to-day functioning of the company will not be held responsible, unless there is valid evidence backed by proof, to prove the active participation of the NEDs in question.
  • In Poonam Garg v. Securities and Exchange Board of India[12],  the appellant (i.e. Poonam Garg) acted in the capacity of a NED in the company and her husband was the promoter, managing director and the compliance officer in the company. The Securities Appellate Tribunal, Mumbai Bench after examining the merits of the case held that: (i) as the appellant’s (i.e. Poonam Garg) husband, was also a promoter/Managing Director/Compliance Officer of the company, the same was sufficient to hold that the appellant (i.e. Poonam Garg) was an ‘insider’ ; (ii) it could be deduced that she was reasonably privy to the PSI or ‘Price Sensitive Information’; (iii) it was not open to the appellant (i.e. Poonam Garg) to feign ignorance of the Prohibition of Insider Trade Regulations; and (iv) take shelter under the violations committed by her husband.
  • For cases pertaining to liability under the Negotiable Instruments Act, 1881, the Supreme Court of India in Pooja Ravinder Devidasani v. State of Maharashtra[13] held that: “a non-executive director is no doubt a custodian of the governance of the company but is not involved in day-to-day affairs of the running of its business and only monitors the executive activity”.

As can be seen from the cases cited above the courts usually examine the liability of a NED, individually on a case-to-case basis, and as such, there is no ‘one size fits all’ formula of the judicial tests, which the judicial courts, examine and has been laid down, to determine the liability of a NED.

3.1.2 Further, as discussed above, several COVID Circulars have imposed various obligations on the “employers” until a few relaxations by the relevant governmental authorities were announced[14]. Additionally, many COVID Circulars, such as the MHA Circular has been challenged by numerous aggrieved parties, before various courts having judicial jurisdiction, primarily on account of the inability of companies to pay wages during the period of lockdown. Listed below is a brief analysis of a few of such cases:

  • The Supreme Court of India in the matter of Hand Tools Manufacturers Association v. Union Of India[15], in its order stated that no coercive action was to be taken against an association of 52 (fifty-two) companies from Punjab for failing to comply with the MHA Circular, wherein the employers were compelled to pay wages to workers during the period of lockdown on account of COVID-19. The Hand Tools Manufacturers Association had challenged the constitutional validity of the Notification dated March 20, 2020, issued by the Secretary (Labour & Employment) and select portion of Clause III of the MHA Circular, both of which compelled payment of full wages to workers and employees during the period of lockdown.
  • The MHA Circular was also  challenged in  Ficus Pax Pvt.    v. Union of India[16], in the Supreme Court of India, wherein the appellant (Ficus Pax Pvt. Ltd. ) approached the Court to quash the MHA Circular directing payment of full wages to workers and employees during the lockdown as  “arbitrary, illegal, irrational, unreasonable and contrary to the provisions of law including Article 14 and Article 19(1)(g) of the Constitution of India.”

3.2  Subsequent relaxations by the relevant governmental authorities at the Central level

 There have been a few relaxations announced by the relevant governmental authorities with regard to the liabilities which the COVID Circulars have placed on the ’employers’.  For instance, the relevant governmental authority on the issue of ‘payment of wages’ to temporary/casual/daily wage workers in light of the lockdown, has clarified that the lockdown period is part of the moral/humanitarian/contractual obligations of all companies irrespective of whether they have any legal obligation for CSR contribution under Section 135 of the Companies Act, 2013, and hence, payment of wages to temporary or casual or daily wage workers during the lockdown period will not count towards CSR expenditure[17].

Additionally, the MHA has by way of issuing an order[18] dated May 17, 2020 (“New Order”) announced various relaxations, wherein the previously issued SOPs, including the MHA Circular, has now been replaced with new guidelines. This would mean that the restrictions which had been imposed by the MCA Circular pertaining to mandatory payment of wages, during the period of lockdown would with effect from May 18, 2020, no longer be applicable and as a result of this move, any termination measures or reduction in wages by an employer would be governed by applicable provisions of the Indian labour statutes.

As on date, however, there appears to be ambiguity regarding the New Order i.e. whether it would apply to establishments which were not operational previously during the period of lockdown, and unless the courts decide otherwise, companies including the employers would be bound by guidelines issued by the MHA Circular from its enforcement (i.e. March 29, 2020), until the day of enforcement of New Order (i.e. May 18, 2020). Additional relaxations in the form of the previously issued standard operating protocol (“SOP”) have been now replaced with the new lockdown guidelines, for instance, it is no longer mandatory for the employer to ensure that its employees have installed the ‘Arogya Setu’ app but the same is to be done by the employer on a ‘best effort basis’ only.

3.3. Subsequent Relaxations by Various State Governments

In light of the COVID-19 pandemic, many State Governments have also provided a few relaxations in the compliance requirement for a few of the applicable labour laws, as a result of which the onus on the part of the employers or the “officer in charge” which may include NEDs by virtue of the role played by them in the company has significantly been reduced. For instance, the State of Uttar Pradesh provided relaxations to the “employers”, by way of issuing an Ordinance[19], in complying with certain requirements of the applicable legislation, such as exemptions from complying with the provisions of the Industrial Disputes Act, 1947 (“IDA”) and the Factories Act, 1948 for 3 (three) years, starting from the date of the said Ordinance.

4. CONCLUSION

4.1 To conclude and to answer whether a NED can be held liable for any non-compliance in light of the  COVID Circulars, the following points provide an overview of the issue:

(i) As discussed above, as on the date of this article, there is no explicit clarity from the relevant governmental authorities, regarding whether a NED would fall under the definition of an “employer”. Hence, the liability of a NED, would need to be determined individually and on a case to case basis, till the time further clarity by a relevant governmental authority is provided.

(ii) In the interim, guidance can be drawn to applicable provisions of the Indian legislations, as discussed in line at Points 2.3 and 2.4 of this article (i.e. the definition of NED and definition of an ’employer’).

(iii) Several petitions challenging the legality of the COVID Circulars, have been filed by affected parties, many of which are still pending to be adjudicated upon by the courts, and are likely to be answered in the coming few days.

4.2 In the interim, in light of the COVID Circulars, to better protect the interest of the NEDs, the following measures should ideally be adopted by the companies:

(i) Obtaining a D&O (director and officer) insurance to better protect the interests of NEDs in a company;

(ii) Indemnification rights as part of the definitive agreements to protect the rights of the NED should be sought by the investors wanting to appoint a NED (i.e. in the form of their representative on the board of a company);

(iii) Clear demarcation of the roles and responsibilities of a NED in the company should be ideally defined and documented; and

(iv) As a stop-gap arrangement, companies may choose to nominate an individual/group of individuals (which may also include NEDs), to oversee the compliance requirements, including the requirements stemming from the COVID Circulars. This may however not be a fool-proof method to safeguard the interest of NEDs, as different courts, may take a different view on this.

4.3 In continuation to recommendations discussed at Point 4.2 above, NEDs may also make a recommendation to the KMPs or the members of the board of directors (as the case may be) and ensure that the employees are paid their wages on time – in line with the advisories issued by the relevant governmental authorities from time-to-time, and further, written consent of employees stating that the company is complying with the norms laid down by the relevant governmental agencies can be obtained, to protect the interests of the NEDs in a company.


*Lawyer from New Delhi/Mumbai, India. Author can be reached at ‘aseem.sahni@outlook.com’.

[Disclaimer: The content of this article is intended to provide a general guide to the subject. Specialist advice should be sought about your specific circumstances.]

[1] Refer to Order issued by the Ministry of Home Affairs – No. 40-3/ 2020- DM-I (A), dated March 29, 2020.

[2]MHA in its directive issued on May 1, 2020 had made installation of ‘AarogyaSetu’ App mandatory for both private and public sector employees and had called upon the head of the respective organisations to ensure 100 per cent coverage of the app among the employees.

[3] The Companies Act, 2013

[4] Chintalapati Srinivasa Raju  v. Securities and Exchange Board of India, (2018) 7 SCC  443, dated May 14, 2018.

[5] Section 2(60) of the Act defines an “Officer who is in default” and provides a list of officers of a company, who will be held accountable in case of default by the company, which include but are not limited to: (i) whole-time director; (ii) key managerial personnel; or (iii) any person in accordance with whose advice, directions or instructions, the board of directors of the company is accustomed to act, other than a person who gives advice to the board of directors in a professional capacity.

[6]Please refer to Point 3.1 of this article, for a discussion on an overview of the judicial interpretation.

[7]Section 149(12) of the Companies Act, 2013.

[8]Refer to ‘Report of Expert Committee’, available at:http://www.mca.gov.in/Ministry/reportonexpertcommitte/chapter4.html (last visited on May 24, 2020).

[9]Refer to General Circular No. 1 / 2020 (F.No. 16/1/2020-Legal) dated March 2, 2020.

[10]Also referred to as the Maharashtra Shops and Establishment Act, 1948.

[11]2004 SCC OnLine Bom 139

[12]  2018 SCC Online SAT 99.

[13] (2014) 16 SCC  1 

[14]Brief analysis of the relaxations announced by the various relevant governmental authorities in light of the COVID Circulars has been discussed at Point(s) 3.2 and 3.3 of this article.

[15]Writ Petition (Civil) Diary No. 11193/2020, order dated 15-5-2020.

[16] (2020) 4 SCC 810

[17]Ministry of Corporate Affairs  General Circular No. 15/2020 (F. No. CSR-01/4/2020-CSR-MCA), ‘COVID-19 related Frequently Asked Questions (FAQ No. 6) on Corporate Social Responsibility (CSR)’ dated April 10, 2020.

[18]Refer to order issued by the Ministry of Home Affairs – No. 40-3/2020-DM-I(A) – dated May 17, 2020, available at https://www.mha.gov.in/sites/default/files/MHAOrderextension_1752020_0.pdf

[19]Refer to Ordinance entitled “Uttar Pradesh Temporary Exemption from Certain Labour Laws Ordinance, 2020”, dated May 08, 2020. It has since been withdrawn.

Op EdsOP. ED.

The validity of an arbitration agreement in cases of an invalid parent agreement (void, voidable or void ab initio) is riddled with uncertainties in India. To date, the Supreme Court of India (“the Supreme Court”) has not had the opportunity to authoritatively pronounce the law, which furthers the legislative policy under the Indian Law.

It has been widely acknowledged by the courts in India that the parties tend to challenge the arbitration agreement intending to delay the arbitral proceedings or to avoid the mandate of arbitration agreed by them. Before 2015, judgments pronounced by Indian courts have presented only a murky picture relating to the validity of an arbitration agreement in case the main agreement is invalid (void, voidable or void ab initio).

The 2015 amendment has tectonically shifted the legislative policy, leaning in favour of arbitration, which has resulted in a change in the fundamental policy of Indian Law. The said change has been recognised by the Indian courts.[1] Considering the aforesaid change in fundamental policy of Indian Law, judgments rendered before 2015 which tended to hinder and obstruct arbitration in India, would need to be brushed aside, to achieve the legislative intent of the amendments to the Indian Laws.

It has been argued that the doctrine of separability does not save the arbitration clause in the above scenario where the arbitration agreement is invalid because the contract in which it is embedded or to which it relates to, is invalid under Indian law. Parties challenging the validity of the arbitration agreement tend to forget that the doctrine of separability is no more at a nascent stage and it is time to recognise the same considering the tectonic shift in the legislative policy which is pro-arbitration.

The Supreme Court had categorically held that the Arbitration and Conciliation Act, 1996 (“the Act”) should be interpreted to bring in line the principles underlying its interpretation in a manner that is consistent with the prevailing approaches in the common law world. Jurisprudence in India must evolve towards strengthening the institutional efficacy of arbitration.[2] Deference to a forum chosen by parties as a complete remedy for resolving all their claims is but a part of that evolution.[3] Minimising the intervention of courts is again a recognition of the same principle.[4] Therefore, a reference to the international authorities and the judgments pronounced by Courts in other jurisdictions such as Bermuda, USA, UK, and Australia, would be beneficial to understand the prevailing law representing an evolution in the common law world. It would be relevant to mention that the doctrine of separability was recognised with its full rigor in those jurisdiction as early as 1967 in US, 1990 in Bermudan Law, 1993 in English and Australian Law. The principles laid down therein would be attracted while interpreting the Act.

The answer to the issue at hand lies in deeper aspects:

  • Effect of the doctrine of separability on the agreement and pro-arbitration policy in India (Sections 5, 7 read with Section 16 of the Act);
  • Meaning of “in respect of a defined legal relationship, whether contractual or not”;
  • The test applied under Section 45 of the Act. 

International authorities and UNCITRAL Model Law

Redfern and Hunter on International Arbitration (Sixth Edn.), ‘Chapter 2 – Agreement to Arbitrate’ (at pp. 103 and 104, paras 2.103 and 2.104) state that there are, in fact, two separate contracts: the primary or main, contract concerns the commercial obligations of the parties; the secondary, or collateral, the contract contains the obligation to resolve any disputes arising from the commercial relationship by arbitration. The doctrine of separability means that an arbitration clause that forms part of a contract shall be treated as an agreement independent of the other terms of the contract.

Following the provisions of the UNCITRAL Rules, Article 16(1) of the Model Law provides that an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.

Section 7 of the Act defines an arbitration agreement as provided under the Model Law. Under the Model Law, the term “arbitration agreement” is defined along the lines of Article II(1) of the 1958 New York Convention; as more clearly expressed in that Convention, there is an implied guarantee of recognition that goes beyond a mere definition.

An arbitration agreement needs to be in writing though it need not be signed. The fact that the arbitration agreement shall be in writing is continued in Section 7(3) of the Act. Section 7(4) only further adds that an arbitration agreement would be found in the circumstances mentioned in the three sub-clauses that make up Section 7(4). This does not mean that in all cases an arbitration agreement needs to be signed. The only prerequisite is that it be in writing, as has been pointed out in Section 7(3).[5]

Collaborative reading of principles stated by Redfern and Hunter, Article 16 of the Model Law and Section 7 of the Act prima facie establish that the arbitration agreement, whether incorporated as a clause in the main agreement or executed between the parties as a separate agreement, survives and remains valid irrespective of the fact whether the main agreement is void, void ab initio or voidable. The doctrine of separability acts as a veil between the arbitration agreement and the main agreement. All legal systems admit some degree of separability of the arbitration clause from the main contract and the real question to be canvassed is to what extent is the doctrine of separability permitted.

Judgments pronounced in other jurisdictions – Bermuda, USA, UK and Australia on the meaning of ‘defined legal relationship whether contractual or not’, ‘extent of the doctrine of separability’ and ‘true meaning of transaction or contract’

Extent of doctrine of separability

Bermuda/Swiss/German Law:

In Sojuznefteexport (SNE) v. Joc Oil Ltd.,[6] the Court of Appeal of Bermuda dealt with the issue of whether the invalidity of the main agreement taints the arbitration clause. The contention raised by JOC was that the purchase agreement had not been executed by two authorised representatives of SNE and accordingly was void/void ab initio under the Soviet Law. It was submitted that when the contract did not exist ab initio, there could be no dispute between the parties which could come within the terms of the arbitration clause. JOC alleged that, as a consequence, the arbitral tribunal lacked the competence to adjudicate the dispute because the arbitration clause was void. Though the arbitral tribunal held that the main agreement was void ab initio, it upheld the validity of the arbitration agreement and delivered award in favour of SNE based on the doctrine of restitution and unjust enrichment.

The Court of Appeal was of the view that there is pro-arbitration/pro-enforcement bias, both under US Law and English Law, which shall be followed[7] and accordingly, upheld the award. Most systems recognise that an arbitration clause is a separate contract, procedural and ancillary to the main contract and it does not create substantive rights between the parties but provides how the disputes which may arise should be resolved.[8] An arbitration agreement gives rise to collateral primary and secondary obligations of its own.[9]

The Court of Appeal referred to the development of the doctrine of separability in the USA, Swiss Law, German Law, and UK Law. The doctrine of separability of the arbitral clause is referred to as ‘severability‘ in the United States and ‘autonomy‘ in France and the Federal Republic of Germany, each connoting that the invalidity of the main contract does not, in principle, entail the invalidity of the arbitral clause.[10]

Swiss Law makes no material distinction between different kinds of invalidity of the main contract, or between an arbitration clause embodied in the main contract and an arbitration agreement that is contained in a physically separate document.[11]

The German doctrine of autonomy allows arbitrators to decide upon disputes consequent upon the invalidity of the main contract without any material distinction between different kinds of invalidity or between an arbitration clause in the main contract and an arbitration agreement in a physically separate document.[12]

The invalidity of the main agreement for any reason be it non-fulfillment of legal requirements or being contrary to public policy, does not raise any issue as to whether or not the parties agreed to the terms of the contract.[13] It concedes that the parties did, but asserts that their agreement gave rise to no enforceable contractual rights or duties. It raises no issue about the consensus ad idem of the parties.[14]

English Law:

In  Fiona Trust and Holding Corpn v Privalov,[15] the House of Lords authoritatively rejected the orthodox view regarding the doctrine of separability. Concerning the construction of the arbitration agreement and doctrine of separability, it was held that arbitration is consensual. It depends upon the intention of the parties as expressed in their agreement. The meaning which the parties intended to express by the words which the parties used will be affected by the commercial background and the reader’s understanding of the purpose for which the agreement was made.[16] It was further held that in approaching the question of construction, it is necessary to inquire into the purpose of the arbitration clause. The parties have entered into a relationship, an agreement or what is alleged to be an agreement or what appears on its face to be an agreement, which may give rise to disputes.[17] The parties want those disputes decided by a tribunal which they have chosen, commonly on the grounds of such matters as its neutrality, expertise, and privacy, the availability of legal services at the seat of the arbitration and the unobtrusive efficiency of its supervisory law.[18]

There is no rational basis upon which businessmen would be likely to wish to have questions of the validity or enforceability of the contract decided by one tribunal and questions about its performance decided by another, one would need to find very clear language before deciding that they must have had such an intention.[19] Businessmen frequently do want the question of whether their contract was valid, or came into existence, or has become ineffective, submitted to arbitration and that the law should not place conceptual obstacles in their way.[20]

Section 7 was intended to enable the courts to give effect to the reasonable commercial expectations of the parties about the questions which they intended to be decided by arbitration. But Section 7 will not achieve its purpose if the courts adopt an approach to construction which is likely in many cases to defeat those expectations.[21] Therefore, construction of an arbitration clause should start from the assumption that the parties, as rational businessmen, are likely to have intended any dispute arising out of the relationship into which they have entered or purported to enter to be decided by the same tribunal.[22]

The principle of separability enacted in Section 7 means that the invalidity or rescission of the main contract does not necessarily entail the invalidity or rescission of the arbitration agreement. The arbitration agreement must be treated as a distinct agreement and can be void or voidable only on the grounds which relate directly to the arbitration agreement.[23] There may be cases in which the ground upon which the main agreement is invalid is identical with the ground upon which the arbitration agreement is invalid.[24] For example, if the main agreement and the arbitration agreement are contained in the same document and one of the parties claims that he never agreed to anything in the document and that his signature was forged, that will be an attack on the validity of the arbitration agreement.[25] But the ground of attack is not that the main agreement was invalid. It is that the signature to the arbitration agreement, as a distinct agreement, was forged. Similarly, if a party alleges that someone who purported to sign as an agent on his behalf had no authority whatever to agree on his behalf, that is an attack on both the main agreement and the arbitration agreement.[26]

On the other hand, if the allegation is that the agent exceeded his authority by entering into the main agreement in terms which were not authorised or for improper reasons that are not necessarily an attack on the arbitration agreement.[27]

Even if the allegation is that there was no concluded agreement (for example, that the terms of the main agreement remained to be agreed) that is not necessarily an attack on the arbitration agreement. If the arbitration clause has been agreed, the parties will be presumed to have intended the question of whether there was a concluded main agreement to be decided by arbitration.[28]

Section 7 is intended to overcome the arguments that because the main agreement and the arbitration agreement were bound up with each other, the invalidity of the main agreement should result in the invalidity of the arbitration agreement. They must be treated as having been separately concluded and the arbitration agreement can be invalidated only on a ground which relates to the arbitration agreement and is not merely a consequence of the invalidity of the main agreement.[29]

Section 7 reproduces in English Law the principle that was laid down by Section 4 of the United States Arbitration Act, 1925. The validity, existence or effectiveness of the arbitration agreement is not dependent upon the effectiveness, existence or validity of the underlying substantive contract unless the parties have agreed to this.[30] The purpose of these provisions, as the  United States Supreme Court (“USSC”) observed in Prima Paint Corpn v. Flood & Conklin Manufacturing Co.,[31] is that the arbitration procedure, when selected by the parties to a contract, should be speedy and not subject to delay and obstruction in the courts.[32]

The doctrine of separability requires direct impeachment of the arbitration agreement before it can be set aside. This is an exacting test. The argument must be based on facts that are specific to the arbitration agreement. Allegations that are parasitical to a challenge to the validity to the main agreement will not do.[33]

Recently, Fiona Trust was followed by High Court of Justice Queen’s Bench Division Commercial Court[34] (“the High Court”), wherein it was held that an arbitration agreement is to be treated as a distinct and separable agreement from the contract of which it forms part. The mere unenforceability of the contract will not of itself result in the unenforceability of the arbitration agreement. However, an arbitration agreement may be rendered void or unenforceable if it is directly impeached on grounds that relate to the arbitration agreement itself and are not merely a consequence of the invalidity of the underlying contract. If the assumed facts are proved in the arbitration the illegality will be established and the guarantees will not be enforced. This would not be contrary to our obligation of international comity and would, therefore, not offend against the notions of public policy.[35] The policy and purpose of the rule which invalidates the guarantees i.e. main agreement, does not strike down the arbitration provisions.[36]

The requirement that the enforceability of the arbitration agreement is separable from that of the principal contract was explained and illustrated in Harbour Assurance v. Kansa General International Insurance,[37] wherein the Court of Appeal held that the doctrine of separability could apply to preserve the arbitration agreement, even where the principal contract was alleged to be not merely voidable but void ab initio.[38]

US Law:

In Buckeye Check Cashing v. John Cardegna et al.,[39]  USSC relying upon Prima Paint Corp.v. Flood & Conklin Mfg. Co.,[40] and Southland Corp. v. Keating,[41] reiterated three propositions of law. First, as a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract. Second, unless the challenge is to the arbitration clause itself, the issue of the contract’s validity is considered by the arbitrator in the first instance. Third, this arbitration law applies in State as well as Federal Courts. It was further held that the rule of severability establishes how this equal footing guarantee for ‘‘a written arbitration provision’’ is to be implemented.

Buckeye and Prima Paint was recently followed by USSC,[42] wherein it was reiterated that a party’s challenge to another provision of the contract, or the contract as a whole, does not prevent a court from enforcing a specific agreement to arbitrate. As a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract.[43]

Australian Law:

The Federal Court of Australia held that there is no rule of law which prohibits the empowering of an arbitrator to decide the initial validity of the contract containing the arbitration clause.[44] For those who hold a different view, there is no “received doctrine” to this effect.[45] The arbitration clause is regarded as severable from the main contract with the result that, logically, an arbitrator, if otherwise empowered to do so, can declare the main contract void ab initio without at the same time destroying the basis of his power to do so.[46]

True meaning of “contract/transaction – ‘whether contractual or not’, ‘defined legal relationship’[47]

There is no doubt that at the time of entering into an agreement, the parties believe that they are entering into a valid and binding agreement. It is not that the parties never met or never agreed -upon the terms or no consequences flowed from their invalid contract.[48] In the classic terminology of contract, there is undoubtedly consensus ad idem as to the terms of the contract.

It is a well-settled law (India, Soviet, US, and English Law) that the words must be construed as far as possible in their popular meanings. As a matter of everyday usage amongst commercial men, the word ‘contract‘ is used to mean an agreement, document, or bargain, whether legally enforceable or not. As a matter of usage in commercial transactions, the meaning of the word ‘contract‘ is not confined to a legally enforceable contract. Its meaning includes an agreement entered into between the parties, even if the agreement turns out to be invalid.

In reality, a transaction is a legal fact, is not always confined only to the expression of the will of the parties, directed to the achievement of a legal result, but gives rise, in the event of the breach of the requirements of the law, concerning the content and form of the transaction, to other consequences envisaged by the law.

It is necessary that there is a strict delineation of the factual elements lying at the basis of the legal relationships, to the establishment of which the will of the parties is directed, and the legal consequences, which the parties were not able to or did not wish to contemplate but which independently of their will are established by law. Such a delineation very distinctly manifests itself in an invalid transaction, the consequences of which are established by law. Therefore, the assertion is incorrect that an invalid (null and void) transaction does not result in any consequences.[49]

The USSC rejected the contention that the only arbitration agreements to which the provision applies are those involving a ‘‘contract,’’ and since an agreement void ab initio under State law is not a ‘‘contract,’’ there is no ‘‘written provision’’ in or ‘‘controversy arising out of’’ a ‘‘contract,’’ to the provision can apply. The USSC held that it does not read ‘‘contract’’ so narrowly.[50]

The fact that the main agreement is invalid (void, voidable or void ab initio) does not mean that there were no specific legal relationships to which the arbitration agreement could relate to. Both Section 7 of the Act and Article II of the New York Convention expressly refers to defined legal relationships ‘whether contractual or not‘. A relationship which gives rise to a claim for restitution and unjust enrichment is a defined legal relationship.[51] In any event, the reference to ‘defined legal relationship‘ is not limited to a contractual relationship since Section 7 of the Act as well as Article II(1) adds the words ‘whether contractual or not‘. Therefore, the claims framed in tort can be submitted to arbitration since they come within the purview of the arbitration agreement.[52] A claim in restitution is a claim which does arise out of a specific legal relationship.[53]

Effect of the doctrine of separability on the agreement and pro-arbitration policy in India (Section 7 read with Sections 5 and 16 of the Act)

A fresh line must be drawn to ensure the fulfillment of the intent of Parliament in enacting the Act and the 2015 Amendment Act and towards supporting commercial understandings grounded in the faith in arbitration.[54] It appears that a golden triangle i.e. Section 7 read with Sections 5 and 16 of the Act, has been enacted by Parliament which not only recognises the doctrine of separability but also restricts the court from interfering with the arbitrator’s power/ arbitral process.

English and Indian Law acknowledge that the basic principle which must guide judicial decision-making is that arbitration is essentially a voluntary assumption of an obligation by the contracting parties to resolve their disputes through a private tribunal.[55] Where commercial entities and persons of business enter into a transaction, they do so with a knowledge of the efficacy of the arbitral process.[56] The commercial understanding is reflected in the terms of the agreement between the parties.[57] The court has to impart to that commercial understanding a sense of business efficacy.[58]

In Ayyasamy v. A. Paramasivam,[59] the Supreme Court, quoting Russell on Arbitration concerning the doctrine of separability, held that doctrine of separability and Section 7 of the Arbitration Act, 1996 provides a statutory codification of the previous case law on this subject. The relevant extract of the judgment is as under:

54. …In Russell on Arbitration [24th Edn., 2015, para 2-007], the doctrine of separability has been summarised in the following extract:

The doctrine of separability.—An arbitration agreement specifies the means whereby some or all disputes under the contract in which it is contained are to be resolved. It is however separate from the underlying contract:

“An arbitration clause in a commercial contract … is an agreement inside an agreement. The parties make their commercial bargain … but in addition, agree on a private tribunal to resolve any issues that may arise between them.”

This is known as the doctrine of separability and Section 7 of the Arbitration Act, 1996 provides a statutory codification of the previous case law on this subject. …”

(emphasis supplied)

 

Given the statutory codification of the doctrine of separability in the Act (and even otherwise) and the interpretative approach adopted by the Indian Court as narrated above, the aforesaid foreign judgments which deal with ‘doctrine of separability and its effect’, ‘defined relationship whether contractual or not’, ‘meaning of transaction/contract’, ‘construction of arbitration agreement’ and ‘vice/public policy attached to the main agreement not affects the arbitration agreement’ would be squarely applicable for strengthening the institutional efficacy of arbitration in India.

To eliminate the vices of unnecessary litigation, Section 5 by a non-obstante clause, provides a clear message that there should not be any judicial intervention for scuttling the arbitration proceedings.[60]

Section 16 empowers the arbitral tribunal to rule upon its jurisdiction, including ruling on any objection for the existence or validity of an arbitration agreement. Section 16(1)(b) stipulates that a decision by the Arbitral Tribunal that a contract is null and void shall not entail ipso jure the invalidity of the arbitration clause. Hence, the invalidity of the contract between the parties does not render the arbitration agreement invalid as a consequence of the law.[61] This recognises as inhering in the arbitrator the jurisdiction to consider whether the main contract (other than the arbitration clause) is null and void.[62] The arbitration agreement survives for determining whether the contract in which the arbitration clause is embodied is null and void.[63]

It would be relevant to mention that even under Part II of the Act (Section 45), the legislature has embedded the doctrine of separability and its implication. In Part II as well, the Court is not to be influenced by the validity of the main agreement, even if the parties contend that the main agreement is not valid for any reason including ab initio invalidity. As long as the arbitration agreement is neither null and void nor inoperative and nor incapable of being performed, the Court would refer the matter to arbitration even though the main agreement is not valid.[64]

Non-applicability of Article 299 of the Constitution of India with the arbitration agreement

One may argue that the aforesaid position of law may be considered to be valid as it relates to the contract between private parties. However, when it comes to the agreement entered into by the State in the exercise of its executive power, non-fulfilment of the requirement of Article 299 of the Constitution of India would render the main agreement as null and void being contrary to public policy and with it, the arbitration agreement must collapse. It may also be argued that such public policy also attaches to the arbitration agreement rendering it null and void.

At first, the aforesaid argument appears to be attractive, but does not stand in law and deserves to be rejected for various reasons. As already explained, the public policy or reason for invalidity attached to the main agreement does not relate to the arbitration agreement. Further, Article 299 corresponds substantially to Article 175(3) of the Government of India Act, 1935. It is not in dispute that the underlying objective behind Article 299 is to ensure that no rights and obligations are created against the State without the blessing of the Governor or the President, as the case may be. There is a substantial and crucial difference between the main agreement and an arbitration agreement:

  • The main agreement provides for rights and obligations of the parties, whereas the arbitration agreement does not provide for any rights and obligations pertaining to the dispute in question. The main agreement deals with the substantive rights of the parties and the consequence thereof. In contrast, the arbitration agreement does not deal with substantive rights and is rather a procedural agreement between the parties;
  • In case of breach of the main agreement, the court may grant various remedies including specific performance thereof. However, in the case of an arbitration agreement, the only remedy available is the specific enforcement of the arbitration agreement.
  • When a contract contains an arbitration agreement, it is a collateral term relating to the resolution of disputes, unrelated to the performance of the contract. It is as if two contracts – one regarding the substantive terms of the main contract and the other relating to resolution of disputes – had been rolled into one, for purposes of convenience. An arbitration clause is, therefore, an agreement independent of the other terms of the contract or the instrument.

The contract not conforming to Article 299(1) is not void in the technical sense that it cannot be ratified. The Supreme Court of India held that there should be nothing to prevent the ratification of the contract by the Government especially if that was for the benefit of the Government.[65] Since the arbitration agreement incorporated in the main agreement neither prescribes any right/obligation nor relates to the performance of the substantive right under the main agreement, it would remain valid even if the rigor of Article 299 may not have been complied with.

Conclusion

 It is evident from above that both in common law as well as in the civil law jurisdictions, the courts have recognised the ambit and extent of principle of separability, which makes it imperative for the Indian Courts to make a fresh start given the adoption of the principle of separability by  Parliament in Section 7 of the Act. This gets further strengthened from the very fact that the aforesaid change in legislative policy requires that any doubts concerning the scope of arbitral issues should be resolved in favor of arbitration and that arbitration clauses should be construed as broadly as possible.[66] The evolution of these foreign jurisdictions as arbitration hubs lies within the pro-arbitration approach adopted therein as early as 1990s. In order to develop India as an arbitration hub, it is imperative for the Indian Courts to adopt such an approach and instil the confidence between the parties.

There is every reason to presume that the parties being consensus ad idem intend to have the defined legal relationships decided by the same tribunal[67] whether contractual or not, and the claims arising therefrom, irrespective of whether their contract is effective or not, since arbitration is intended to be a one-stop method of adjudication for the determination of all disputes.[68]

Therefore, the practice of unnecessary challenges to the arbitration agreement by the parties should be nipped at the bud and the parties must be directed to abide by the arbitration agreement for the same having been consensus ad idem, irrespective of the nature of invalidity attached to the main agreement between them.


*Alumni, National Law University Odisha (Batch of 2009-14), presently working as In-house Counsel at an Indian Conglomerate. Anurag may be reached at anuragnluo@gmail.com. The views expressed herein are personal and do not represent views of any organisation. 

[1]Vijay Karia v. Prysmian Cavi E Sistemi SRL, 2020 SCC OnLine SC 177 (3 Judges-Bench).

[2]Ayyasamy v. A. Paramasivam, (2016) 10 SCC 386, para 53.

[3]Id.

[4]Id.

[5]Caravel Shipping Services Pvt. Ltd. v.  Premier Sea Foods Exim Pvt. Ltd., (2019) 11 SCC 461;

Jugal Kishore Rameshwardas v.  Goolbai Hormusji, AIR 1955 SC 812.

[6]Sojuznefteexport (SNE) v. Joc Oil Ltd., Court of Appeal of Bermuda, Yearbook Commercial Arbitration 1990, Vol. XV [recently cited by Bermuda Supreme Court in Huawei Tech Investment Co. Ltd. v. Sampoerna Strategic Holdings Limited, (2014) SC (Bda) 8 Civ (14 February, 2014)].

[7] R.F. Nairman, J.  reiterated pro-arbitration bias in Vijay Karia v. Prysmian Cavi E Sistemi SRL, 2020 SCC OnLine 177 (3 Judges-Bench).

[8]Supra Note 6.

[9]Lord Diplock, Paal Wilson & Co. v. Partenreederei (sup.), (1983) AC 8541.

[10]Supra Note 6, para 42.

[11]Supra Note 6, para 81.

[12]Supra Note 6, para 84.

[13]Mackender v. Feldia, (1967) 2 QB 590.

[14]Id., supra Note 6, para 105.

[15]Fiona Trust and Holding Corpn v. Privalov, [2007] Bus LR 686 : [2007] UKHL 40.

[16]Id., para 5.

[17]Id., para 6.

[18]Id.

[19]Id., para 7.

[20]Id., para 10.

[21]Id.

[22]Id., para 13.

[23] Id., para 17.

[24]Id.

[25]Id.

[26]Id.

[27]Id., para 18.

[28]Id.

[29]Id.

[30]Id., para 32.

[31]Prima Paint Corpn. v. Flood & Conklin Manufacturing Co., (1967) 388 US 395, 404: 87 SCt 1801.

[32]Supra Note 15, para 32. Fiona Trust and Holding Corpn v Privalov, [2007] UKHL 40.

[33]Id., para 35.

[34]Beijing Jianlong Heavy Industry Group v. Golden Ocean Group Ltd., [2013] Bus LR D 58 : [2013] EWHC 1063 (COMM).

[35]Id., para 41.

[36]Id.

[37]Harbour Assurance Co. (UK) Ltd. v. Kansa General International Insurance Ltd., [1993] 3 WLR 42 : [1993] 1 Lloyd’s Rep 455.

[38]Id.; supra Note 34, para 26.

[39]Buckeye Check Cashing v. John Cardegna et al., 2006 SCC OnLine US SC 14: 546 US 440.

[40]Prima Paint Corp.v. Flood & Conklin Mfg. Co., 1967 SCC OnLine US SC 160 : 388 US 395 : 87 SCt 1801 : 18 LEd 2d 1270.

[41]Southland Corp. v. Keating, 1984 SCC OnLine US SC 19 :  465 US 1 (1984): 104 SCt 852: 79 LEd 2d 1.

[42]Rent–A–Center, West v. Antonio Jackson, 2010 SCC OnLine US SC 78 : 561 US 63 (2010) : 177 LEd 2d 403 (2010).

[43]Id.

[44]QH Tours Ltd v. Ship Design & Management (Aust) Pty Ltd., (1991) 33 FCR 227.

[45]Id.

[46]Id.

[47]Supra Note 6, paras 122 to 124.

[48]Supra Note 6, para 114.

[49]Supra Note 6, para 113.

[50]Buckeye Check Cashing v. John Cardegna et al., 546 U.S. 440 relaying upon Prima Paint Corp.v. Flood & Conklin Mfg. Co., 388 US 395: 87 SCt 1801: 18 LEd 2d 1270 and Southland Corp. v. Keating, 1984 SCC OnLine US SC 19 : 465 US 1 (1984) : 104 SCt 852: 79 LEd 2d 1.

[51]Supra Note 6, paras 94 & 95.

[52]Supra Note 6, para 142.

[53]Supra Note 6, para 143; Sections 70 and 65 of the Contract Act, 1872.

[54]Ayyasamy v. A. Paramasivam, (2016) 10 SCC 386, para 57.

[55] Supra Note 15; Id., paras 48 and 53.

[56]Supra Note 57, paras 48 and 53.

[57]Id.

[58]Id.

[59] Id., para 54.

[60]Id., para 12.2.

[61]Id., para 34, Swatantra Properties (P) Ltd. v.  Airplaza Retail Holdings Pvt. Ltd., Arbitration and Conciliation Appl. u/S. 11(4) No. 134 of 2017, Allahabad HC (Judgment dt. 28.05.2018).

[62]Id.

[63]Supra Note 57, para 34.

[64]Sasan Power Ltd. v. North American Coal Corpn. (India) (P) Ltd., (2016) 10 SCC 813, paras 49 and 81.

[65]Chaturbhuj Vithaldas v. Moreshwar Parasharan, AIR 1954 SC 236, para 42.

[66]Vijay Karia .v. Prysmian Cavi E Sistemi SRL , 2020 SCC OnLine 177 (3 Judges-Bench); David L. Threlkeld & Co. Inc. v. Metallgesellschaft Ltd. (London), (1991) 923 F 2d 245 (2d Cir).

[67]Supra Note 15, para 14; Federal Supreme Court of the Federal Republic of Germany (Bundesgerichtshof) (1970) 6 Arbitration International 79, 85.

[68]Supra Note 15, para 27.

Op EdsOP. ED.

Abstract

To obtain an identification of the suspect, police uses several modes like visual, audio, scientific and test identification parade. Although numerous jurisdictions have made improvements to their identification procedures in recent years, a large share of jurisdictions have still not made significant reforms. Although some courts have been making better use of the scientific findings on eyewitness identification, most courts are still using an approach that is largely unsupported by scientific findings. This paper focuses on the study of study of how eyewitness evidence is perceived in the criminal justice system. The paper highlights the relevancy and admissibility of identification of the accused in Court, having regard to the criminal burden of proof, the frailties of eyewitness identification evidence and the problems in the line-up procedures employed by the police.

।. INTRODUCTION

The issue of identification is one for you to decide as a question of fact”.[1]

Identification evidence is highly persuasive to triers of fact. There is an intuitive sense that when someone witnesses a stranger commit a crime, he or she should be able to remember that face. After all, we see and remember faces every day. However, more than four decades of research has revealed this assumption to be flawed, there is clear evidence that witnesses often struggle with accurately recognising the face of a stranger perpetrator[2]. Indeed, although eyewitness testimony can be an important and valuable form of evidence, eyewitness identification errors are a leading cause of wrongful convictions in many countries[3].

The evidence which requires particular attention is identification evidence, which resembles confession evidence in being, at the same time, both extremely compelling and potentially unreliable. Witnesses are frequently required to identify persons whom they have only seen fleetingly and often in confused circumstances. The identification of the perpetrator is often the only issue that needs to be determined in a criminal trial[4].

Mistaken identity may often occur in good faith, but the effects can be extremely serious for the defendant and, for this reason, there is an obvious need for caution in relation to such evidence. As with evidence of lies by the defendant, the hazards associated with identification evidence are addressed by means of a Judge’s direction, but there are additional safeguards which apply where the identification has been made by means of a formal procedure conducted under police supervision, such as an identification parade[5].

In its 1993 Report, the Royal Commission on Criminal Justice spoke of the compromise that has to be struck between crime control and due process values, so that “the risks of the innocent being convicted and the guilty being acquitted are as low as human fallibility allows”[6]. There are references to the need to strike a reasonable balance between the protection of a suspect’s rights and allowing the police the freedom to do their job throughout the Report, leaving the reader with the impression that if we could find this rather mystical balance, then all would be well.

II. MEANING OF IDENTIFICATION

‘Identification’ is the proof in a legal proceeding that a person, document, or other thing is that which is alleged to be. Identification is the evidence of identity[7]. Phipson states that “it is often important to establish the identity of a person who a witness testifies that he saw on a relevant occasion. Sometimes, the witness will testify that he had seen the person before, or even know the person well, and therefore recognised the person observed on the relevant occasion”.[8] The identity of a person can be established by the evidence of persons who know him[9].

III. SIGNIFICANCE OF IDENTIFICATION EVIDENCE

Many times crimes are committed under the cover of darkness when none is able to identify the accused. The commission of crime, in those cases, can be proved by establishing the identity of accused. Identification evidence is seen to be inherently fragile. In Alexander v. R[10], Mason, J. stated that:

“Identification is notoriously uncertain. It depends upon so many variables. They include the difficulty one has in recognising on a subsequent occasion a person observed, perhaps fleetingly, on a former occasion; the extent of the opportunity for observation in a variety of circumstances; the vagaries of human perception and recollection; and the tendency of the mind to respond to suggestions, notably the tendency to substitute a photographic image once seen for a hazy recollection of the person initially observed.”

The identification evidence has for some time been regarded as potentially dangerous for the simple reason, that mistakes are easy to make where identification is concerned.[11] Before we notice the circumstances proving the case against the accused and establishing the identity beyond reasonable doubt, it has to be borne in mind that approach required to be adopted by courts in such cases has to be different. The cases are required to be dealt with utmost sensitivity. Further, the evidence is required to be appreciated having regard to the background of entire case and not in isolation.[12]

In another case[13], where the question was raised whether evidence is permitted even in absence of formal proof by the Executive Magistrate concerned? The Court held that the fact that the Executive Magistrate concerned did not prove the Test Identification Parade does not make it inadmissible.

IV. TURNBULL GUIDELINES ON IDENTIFICATION

In response to widespread concern over the problems posed by cases of mistaken identification, the Court of Appeal in R v. Turnbull[14] laid down important guidelines Judges in trials that involve disputed identification evidence.

Where the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused, which the defence alleges to be mistaken, the Judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification(s). The  Judge should tell the jury that:

i. caution is required to avoid the risk of injustice;

ii. a witness who is honest may be wrong even if they are convinced they are right;

iii. a witness who is convincing may still be wrong;

iv. more than one witness may be wrong;

v. a witness who recognises the defendant, even when the witness knows the defendant very well, may be wrong.

The  Judge should direct the jury to examine the circumstances in which the identification by each witness can be made. Some of these circumstances may include:

i. the length of time the accused was observed by the witness;

ii. the distance the witness was from the accused;

iii. the state of the light;

iv. the length of time elapsed between the original observation and the subsequent identification to the police.

V. IDENTIFICATION EVIDENCE UNDER INDIAN LAW

Section 9 of the  Evidence Act, 1872 is concerned with the admissibility of facts which are necessary to explain a fact in issue or relevant fact. The section deals with that kind of evidence which if considered separate and distinct from other evidence would be irrelevant; but if it is taken into consideration in connection with some other facts, proved in the case it explains and throws light upon them[15]. As per Section 9, facts which establish the identity of accused are relevant[16]. This section does not deal with testimonial identity. Circumstantial evidence of identity are dealt within this section[17].

Where the court has to know the identity of anything or any person, any fact which establishes such identity is relevant. Personal characteristics such as age, height, complexion, voice, handwriting, manner, dress, blood group, knowledge of particular people and other details of personal history are relevant facts[18].

Identification proceedings are facts which establish the identity of an accused person as the doer of a particular act, and would be relevant under Section 9; but only if evidence of such identification is given by the witness. On the question of the admissibility of the evidence, the Supreme Court[19] held that “if a Magistrate speaks of facts which establish the identity of anything, the said facts would be relevant within the meaning of Section 9 of the Evidence Act; but if the Magistrate seeks to prove statements of a person not recorded in compliance with the mandatory provisions of Section 164 CrPC, such part of the evidence, though it may be relevant within the meaning of Section 9 of the Evidence Act, will have to be excluded.”

VI. MODES OF IDENTIFICATION

In a case involves disputed identification evidence, and where the identity of the suspect is known to the police, various methods like finger/thumb impression, voice, digital, comparison of writing, identification parade by police are used for the purpose of establishing facts showing identity of accused and properties which are the subject-matter of alleged offence. All the modes are discussed broadly as follows:

(i) Test Identification Parade (popularly known as TIP)

One of the methods used for establishing the identity of a person as the doer of a particular act is by means of identification parades[20]. In a case which involves disputed identification evidence a parade must be held if the suspects ask for one and it is practicable to hold one. A parade may also be held if the officer in charge of the investigation considers that it would be useful, and the suspect consents. The main purpose of an identification parade is to confirm the identity of the accused and help the police in their investigation[21]. The utility of the evidence created by an identification parade was explained by the Supreme Court in  Ramanthan v. State of Tamil Nadu[22]. The Court opined that “Identification parades have been in common use for a very long time for the object of placing suspect in a line up with other persons for identification. It enables the investigating officer to ascertain whether the witnesses had really seen the perpetrator of the crime and test their capacity to identify him and thereby to fill the gap in the investigation regarding the identity of the culprit.”

(a) Procedure of TIP

A crime is reported to the police. Some description might have been given of the suspect. In any event, the police investigate and arrest a particular person as the culprit. Then the complainant is taken to the police station to identify him i.e. to pick him out of a group of persons of similar complexion and stature. If the complainant picks him out then the police know that the witness is telling the truth and also that they are on the right track.

The Magistrate conducting the Test Identification Parade (TIP) is directed to take two photocopies of TIP report under his direct supervision and after certifying the same, hand over one to I O with specific directions that contents of such report should not be divulged to any person till charge sheet under Section 173, CrPC is filed. Second photocopy shall be retained by the Magistrate as “confidential” record in a sealed cover for future requirements, if necessary[23].

To conduct the procedure in an appropriate manner, special rooms for conduct of Test Identification Parade in all the prisons in the State shall be made. Such rooms shall have one side view glass separating those lined up for parade, on one hand and witness and the Magistrate, on the other — Witness and Magistrate should not be visible to those who are lined up, but, suspect and dummies should be visible clearly to the witness and the Magistrate. Enclosure in which the suspect and dummies are lined up shall be illumined and should also have ante room for them to change their attire[24].

(b) Value of TIP

Evidence of Test Identification Parade is not substantive evidence whereas evidence given in the court, is. However, when a witness correctly identified the accused at the parade but not in court the evidence of the Magistrate, who conducted the test parade that the witness correctly identified the accused at the parade, supported by the remarks of the trial  Judge regarding the demeanour of the witness that he was frightened and was unable to recognise the accused at the trial, was sufficient to convict the accused[25].

Identification of the accused made in court, is substantive evidence, where as identification of the accused in test identification parade is though a primary evidence but not substantive and the  same can be used only to corroborate the identification of accused by the witness in court[26].

Further, it is pertinent to note that the holding of TI parade is not compulsory. Where the witnesses were well acquainted with the accused and the incident was also widely covered by media, it was held that non-holding of TI parade was not fatal to the prosecution case[27]. As to when an identification parade may be necessary was explained by the Supreme Court in Jadunath Singh v. State of U.P.,[28]  that “ Of course, if the prosecution fails to hold an identification parade on the plea that the witnesses already knew the accused well and it transpires in the court of trial that the witnesses did not know the accused previously, the prosecution would run the risk of losing its case. It seems to us that if there is any doubt in the matter, the prosecution should hold an identification parade”.

In a case[29], where identification parade was held after an inordinate delay of about five weeks from the arrest of the accused, the explanation for the delay was not trustworthy. Plea as to the non-availability of a Magistrate in a city like Bombay though the investigating agency was not obliged to get the parade conducted from a specified Magistrate, was not accepted. It was held that the accused was entitled to benefit of doubt.

Thus, the identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact[30].

(ii) Video Identification

In the paper-based world, law assumes a process which is mutually understood and observed by all the parties. Almost without thinking, a four-part process takes place, involving acquisition, identification, evaluation and admission. When we try to apply this process to digital evidence, we see that we have a new set of problems[31]. Nowadays, in most countries live parades have now been largely replaced by video parades, an innovation that has been made possible by the development of sophisticated computer systems used to compile video images from a standardised database of moving video clips[32]. In Britain, two different IT systems are in widespread use to provide video identification: VIPER (Video Identification Parade Electronic Recording) and PROMAT (Profile Matching). Each system has its own database of images. VIPER lineups are prepared in a standardised format comprising approximately 15-second clips of each person shown in sequence one after another. The sequence starts with a head and shoulders shot of the person looking directly at the camera, who slowly turns their head to present a full right profile followed by a full left profile. Finally, the person returns to looking directly into the camera in a full-face pose. Each image is checked for quality control by the centralised National VIPER Bureau.

The relevancy of identification of the suspect by a witness who was not present at the scene of the crime, but knew the suspect and recognised him on video recording depends upon whether the witness needed for this purpose special skills and experience[33].

(iii) Visual/Eyewitness Identification

An eyewitness is one, who saw the act, fact or transaction to which he testifies. A witness is able to provide graphic account of the attack on the deceased can be accepted as eyewitness[34].  Identification of an accused in court by an eyewitness is a serious matter and the chances of false identification are very high[35].

In cases involving eyewitness identification evidence, the logical starting point is the integrity principle, which “states that the agents of law enforcement should not use, and the courts should not condone, methods of investigating crime that involve breaches of the rules”.[36] This promotes fairness to defendants and a moral consistency from the State: in responding to law-breaking the State should follow its own laws and rules.

Eyewitness evidence is usually the main type of evidence on which convictions are based[37]. There seems to be a general assumption by lay triers of fact that eyewitness testimony is one of the safest bases for any identification; there have certainly been convictions based on very weak visual-identification evidence[38]. In fact visual-identification evidence is often unreliable, and is therefore a potentially hazardous way of connecting a person to an offence. The classic example is where a witness testifies that he saw the offence being committed by a stranger some distance away, for a relatively short period of time, in far from ideal conditions. But it is not just such `fleeting glance’ identification evidence which can lead to miscarriages of justice.

The reliability of the witness’s opinion depends entirely on the reliability of the visible features of the first image which were actually seen and mentally recorded by him (which in turn depends on the extent to which he was paying attention, his physical and psychological powers of perception at that time and his memory) together with the reliability of his comparison of the stored image with the visible features of the second image.

Identifying witnesses may focus on broad impressions or features which stimulate their own subjective preferences rather than on the multitude of specific physical details, so markedly different facial characteristics between the offender and the accused may go unnoticed while vague similarities may be given undue weight. The problem becomes even more acute when the identifying witness and the identified person (the offender) are from different racial groups or generations. Another problem, which may arise in a case of purported recognition, is that of `unconscious transference’ where the witness confuses the offender with a different person seen in some other context. Conversely, if the witness claims never to have seen the offender before, the reliability of his identification is likely to decrease with time as his memory fades[39]. the eyewitness may be honestly mistaken but sincerely convinced that his identification is correct. In R v. Fergus[40] for example, the sole prosecution witness was said to have felt an `invincible conviction in the correctness of his identification’ of the accused even though the witness had poor eyesight, did not take much notice of the offender’s face and first described the offender as 5′ 11” tall with a light complexion and stubble, when the accused was 5′ 7” tall, dark-skinned and had not yet started shaving.

The conventional forensic tool for revealing weaknesses in testimony is cross-examination, but where visual-identification evidence is concerned this tool may be singularly ineffective and, ironically, may indirectly buttress the witness’s testimony.

Alarmingly, research shows “that approximately 40% of eyewitness identifications are mistaken”.[41]” Further, “it is estimated there may be more than 10,000 people a year wrongfully convicted, most of whom were convicted as a result of mistaken identification.”[42] This has led many in the criminal justice system to finally realise what others concluded long ago: eyewitness identification evidence is “hopelessly unreliable.” Unreliability, in turn, leads to a dual problem: not only is an innocent person likely to be convicted, but the true perpetrator necessarily goes free, often to commit additional crimes.[43]

Despite its hopeless unreliability, eyewitness identification evidence has proven to be an extremely powerful tool for the prosecution. The reality is that jurors are “unduly receptive to identification evidence and are not sufficiently aware of its dangers.”[44] Nothing is more convincing to jurors than a live witness who takes an oath and confidently proclaims that he saw the defendant commit the crime. In fact, the level of confidence exhibited by an eyewitness has been found to be the most powerful predictor of guilty verdicts.

In a case, where it was not certain that the visual recognition of the appellants by the complainant on a fateful night was unhindered and unhampered especially when he was fired at first and allegedly saw the occurrence under stress of a threat, the court acquitted the appellants of the charge by extending them the benefit of doubt[45].

Thus, the appreciation of the evidence of eyewitness depends upon[46]:

– The accuracy of the witness’s original observation of the events which he described, and

– The correctness and extent of that he remember and his veracity.

(iv) Forensic Identification

When false eyewitness identifications and wrongful convictions are discovered, they are usually exposed through post conviction DNA testing. However, in the vast majority of criminal cases, DNA evidence has either been destroyed[47] or, more commonly, never even existed in the first place[48]. This, of course, poses a significant problem for the innocent defendant convicted based primarily on eyewitness evidence.

Erroneous eyewitness identifications have plagued our criminal justice system since its inception. When DNA evidence became a prevalent tool for law enforcement in the 1980s, not only did it assist prosecutors in obtaining convictions, but it also reopened prior convictions that were obtained based primarily on eyewitness testimony. Studies now reveal that erroneous eyewitness identifications “are the single greatest cause of wrongful convictions in the United States, and are responsible for more wrongful convictions than all other causes combined.”[49] In fact, in 80% of the first one hundred post conviction DNA exoneration, the underlying wrongful convictions were based primarily, if not solely, on false identifications.[50]

In these DNA exoneration cases, the DNA evidence proved to a scientific certainty that the defendant did not commit the crime charged and had been wrongfully convicted. But even today, most innocent defendants do not have the luxury of DNA evidence to prove their innocence. For example, in some cases the police do not collect or properly preserve the available DNA evidence.[51]

(v) Voice Identification

Voice itself may be an issue in a criminal case, inasmuch as it may itself be a personal characteristic upon which an identification of a criminal depends. It thus seems appropriate that we have in recent years seen the coining of the word ear-witness for the witness who heard, rather than saw[52], something:

In obscene phone calls, bomb hoaxes, ransom demands, hooded rape, robberies, muggings, or in crimes committed in darkness, the perpetrator’s voice may be the only definite piece of evidence available to aid police investigation and court conviction. That most research into witness testimony and identification has been conducted in the visual realm reflects the fact that most identification situations involve a witness using visual cues. The preponderance of such research serves to obscure the fact that in many instances both visual and verbal information is available and in many others only verbal cues exist. The awareness of the existence of the last two types of criminal situation dictates that research into human abilities to recognise voices should not be neglected but rather be rapidly pursued.[53]

With visual-identification evidence, however, there is the very real possibility of error on account of the circumstances surrounding the witness’s initial perception of the offender’s voice (and the medium through which it was heard), the witness’s ability to remember the way the offender spoke and, in particular, his ability accurately to compare the offender’s voice with that of the accused[54].

It was recognised by New Zealand’s Court of Appeal in R v. Waipouri[55],  that voice-identification evidence is generally less reliable than visual-identification evidence and that even greater caution is required when relying on it. In R v. Roberts[56] the Court of Appeal received expert evidence to the effect that a voice identification is more likely to be wrong than a visual identification, that ordinary people are as willing to rely on identification by ear-witnesses as they are on identification by eye-witnesses and that the identification of a stranger’s voice is a very difficult task, even if the opportunity to listen to the voice was relatively good. Accordingly, in cases where the prosecution is permitted to adduce such evidence the jury must be given a direction analogous to that established for visual-identification evidence in  R v. Turnbull[57] .

Further, by analogy with the position for visual-identification evidence where the jury compares a photographic image of the offender with the accused, the jury should be given an appropriate warning when they are asked to compare a recording of the offender’s voice with the accused’s voice[58].

In an Indian case[59], where the witnesses were not closely acquainted with the accused, they claimed to have identified him from his short replies such evidence was held to be unreliable. In another case[60], in a charge of conspiracy for murder, the voice of the accused was recognised by the witness as he demanded money and he was already acquainted with the voice from earlier time. The evidence was held to be relevant.

Recently, the Supreme Court in Dola  v. State of Odisha,[61] observed that it is true that the evidence about the identification of a person by the timbre of his voice depending upon subtle variations in the overtones when the person recognising is not familiar with the person recognised may be somewhat risky in a criminal trial.

(vi) Previous Identification

Where, in criminal proceedings, a witness gives evidence identifying the accused as the person who committed the offence charged, evidence of a previous identification of the accused by that witness may be given, either by the witness himself or by any other person who witnessed the previous identification[62], for example a police officer who conducted a formal identification procedure such as a video identification or an identification parade, as evidence of consistency[63].

R v. Christie[64], is the leading authority that when a witness gives evidence identifying the defendant as the offender, evidence may also be given that he has previously identified the accused. In principle, the previous identification could fall foul of three exclusionary rules – the hearsay rule, the rule against self-serving statements and the rule against non-expert opinion evidence.

Till date, no case has fully examined and explained the reasons for the admissibility of evidence about previous identifications. The most comprehensive examination was in Christie, but that is authority only for the proposition that the credibility of a witness who identifies the accused in court may be supported by evidence that he has identified him previously. It does not allow evidence of the prior identification unless the identifier gives evidence identifying the accused[65].

The Indian Supreme Court[66] observed that identification evidence of accused cannot be relied upon, especially when identification in court is not corroborated either by previous identification in identification parade or any other evidence, conviction of accused cannot be based upon it.

VII. VALUE OF IDENTIFICATION EVIDENCE

A statement identifying someone as the offender may be admissible as a dying declaration, or as a part of the res gestae, or as a previous inconsistent statement, provided the conditions for admissibility of evidence under those principles are satisfied. It is well settled that the substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine[67].

In a recent judgment, the Court observed that test identification parade is not a substantive evidence. Its purpose is only to help the investigating agency ascertain as to whether the investigation in the case is heading in the right direction or not. There is no provision in CrPC which obliges the investigating agency to hold or confer a right on the accused to claim a test identification parade. Absence to hold it would not make inadmissible the evidence of identification in court[68].

VIII. CONCLUSION AND SUGGESTIONS

Thus, where the prosecution case depends solely on the identification of a single witness, it is particularly important to give a general, clear and simple direction on burden and standard. However, concerning the admissibility of identification evidence, it has been found that although there may be rare occasions when it will be desirable to hold a voir dire (an investigation into the truth or admissibility of evidence), in general the  Judge should decide on the basis of the depositions, statements, and submissions of counsel. Finally, failure on the part of the police to observe the provisions may be taken into account by the court when deciding whether to exclude identification evidence when assessing the weight of such evidence.


* Assistant Professor, Law, KIIT School of Law, Prasanti Vihar, Patia, Bhubaneshwar – 751024; Email:  sarvesh.shahi@kls.ac.in

[1] R v. Donnini, [1973] VR 67.

[2]. Gary L. Wells & Nancy K. Steblay, “Eyewitness Identification Reforms: Are Suggestiveness -Induced Hits and Guesses True Hits?”, Journal of Applied Psychology, 799, 835–844 (2011).

[3]. Heather L. Price, “Judicial Discussion of Eyewitness Identification Evidence” 49 CJBS 209–220 (2017).

[4]. S v. Mdlongwa, 2010 (2) SACR 419 (SCA).

[5]. Chris Taylor, Law Express Evidence, (Pearson, Chennai, 4th Edn., 2009).

[6]. The Royal Commision on Criminal Justice Report (“The Runciman Report”) (1993 London: HMSO)

Cmnd 2263, 2.

[7]. S.R. Myneni, Law of Evidence 84 (Asia Law House, Hyderabad, 3rd  Edn., 2019).

[8]. Phipson, Phipson on Evidence (Sweet & Maxwell, Thomson Reuters, 17th  Edn. 2015).

[9]. Dr. Avtar Singh, Principles of The Law of Evidence  66 (Central Law Publications, Allahabad, 22nd  Edn., 2018).

[10]. (1981) 145 CLR 395 at 426.

[11]. Alan Taylor, Principles of Evidence, 139 (Cavendish Publishing Limited, London,  2nd  Edn,. 2007).

[12]. Visveswaran v. State,  (2003) 6 SCC 73

[13]. Shiv Murat Kol v. State of M.P.,  2018 SCC OnLine MP 336.

[14]. [1977] QB 224.

[15]. Monir, M. Textbook on the Law of Evidence 66 (Universal Law Publishing, Delhi, 11th Edn,. 2018).

[16]. Ram Babu v. State of Uttar Pradesh(2010) 5 SCC 63.

[17]. Batuk Lal, The Law of Evidence 73 (Central Law Agency, Allahabad) 19th Edn., 2012).

[18]. Ashok K. Jain, Law of Evidence 44 (Ascent Publications, New Delhi,  6th Edn,. 2015).

[19]. Deep Chand v. State of Rajasthan,  (1962) 1 SCR 662.

[20]. Vepa P. Sarathi, Law of Evidence 56 (Eastern Book Company, Lucknow, 6th Edn., 2008).

[21]. Gade Lakshmi Mangaraju v. State of A.P., (2001) 6 SCC 205.

[22](1978) 3 SCC 86 at page 96.

[23]. 2017 Cri LJ 5011.

[24]. Ibid.

[25]. Dana Yadav v. State of Bihar, (2002) 7 SCC 295.

[26].Ibid at page 301.

[27]. R. Shaji v. State of Kerala, (2013) 14 SCC 266.

[28].  (1970) 3 SCC 518.

[29].  (1999) 8 SCC 428.

[30]. Malkhan Singh v. State of M.P., (2003) 5 SCC 746.

[31]. Swati Mehta, “Cyber Forensics and Admissibility of Digital Evidence” (2011) 5 SCC J-54.

[32]. Amina Memon, “A Field Evaluation of the VIPER System: a New Technique for Eliciting Eyewitness Identification Evidence” 17 Psychology Crime & Law 711 (2011).

[33]. Jowett, Christian, 2002 NLJ 152: Current Law (Jan) 2003.

[34]. Vishnu Narayan Moger v. State of Karnataka, 1995 SCC OnLine Kar 291.

[35]. Glanville Williams, Proof of Guilt 630 (Harvard Law Review , 3rd Edn 1963).

[36]. Ashworth, A., The Criminal Process: An Evaluative Study (1994 Oxford: Clarendon), 32; see also

Zuckerman, A.A.S., The Principles of Criminal Evidence (1989, Oxford: Clarendon).

[37]. Meintjes van der Walt L ” Judicial Understanding of the Reliability of Eyewitness Evidence: A Tale of Two Cases” PER / PELJ 2016(19).

[38]. R v. Mattan (Deceased) (1998) The Times 5.3.98 (97/6415/S2) (CA) and R v. Ross [1960] Crim LR 127 (CCA).

[39]. Raymond Emson, Evidence 360 (Palgrave Macmillan, 2nd Edn., 2004).

[40].  (1993) 98 Cr App R 313 (CA).

[41]. Amy Luria, “Showup Identifications: A Comprehensive Overview of the Problems and a Discussion of Necessary Changes” 86 Neb. L. Rev. 515, 516 (2008).

[42].  Suzannah B. Gambell, Comment, The Need to Revisit the Neil v. Biggers

Factors: Suppressing Unreliable Eyewitness Identifications, 6 WYO. L. REV. 189 (2006), at 190-91 [discussing Elizabeth F. Loftus & James M. Doyle, Eyewitness Testimony: Civil and Criminal? 4-1 (3rd Edn., 1997)].

[43]. Keith A. Findley, “Toward a New Paradigm of Criminal Justice: How the Innocence Movement Merges Crime Control and Due Process” 41 Tex. Tech L. Rev. 133 (2008).

[44]. Suzannah B. Gambell, Comment, “The Need to Revisit the Neil v. Biggers Factors: Suppressing Unreliable Eyewitness Identifications” 6 Wyo. L. Rev. 189 (2006).

[45]. Mian Sohail Ahmed v. State, (2019) SCC OnLine Pak SC 12.

[46]. Sir John Woodroff & Syed Amir Ali’s Law of Evidence 461. (Butterworths, Allahabad, 17 Edn., 2001).

[47]. Cynthia E. Jones, “The Right Remedy for the Wrongly Convicted: Judicial Sanctions for Destruction of DNA Evidence” 77 Fordham L. Rev. 2893 (2009). (Discussing how poor handling of evidence has resulted in premature destruction in thousands of cases, including in States in which laws have been enacted mandating evidence preservation.).

[48]. Barry Scheck, “Closing Remarks to Symposium, Thinking Outside the Box: Proposals for Change” 23 Cardozo L. Rev. 899 (2002).

[49]. State v. Dubose, 699 N.W.2d 582, 592 (Wis. 2005) (citing Gary L. Wells et al., “Eyewitness Identification Procedures: Recommendations for Lineups and Photo spreads” 22 Law & Hum. Behav. 603,605 (1998).

[50]. Calvin Ter Beek, “A Call for Precedential Heads: Why the Supreme Court’s Eyewitness Identification Jurisprudence is Anachronistic and Out-of-Step with Empirical Reality” 31 Law & Psychol. Rev. 21 (2007).

[51]. People v. Cress, 645 N.W.2d 669, 692 (Mich. Ct. App. 2002).

[52]. Bethany K. Dumas, “Voice Identification in a Criminal Law Context, American Speech”, 65 Duke University Press, 341-348 1990).

[53]. Ray Bull, “Earwitness Testimony” 39 Med. Sci. Law 120-127 (1999).

[54]. Supra note 3.

[55]. [1993] 2 NZLR 410.

[56].  [2000] Crim LR 183 (99/0458/X3).

[57]. [1976] 3 WLR 445 (R v. Hersey [1998] Crim LR 281 (CA), R v. Gummerson, [1999] Crim LR 680 (CA), R v. Chenia, [2003] 2 Cr App R 83 (CA)). .

[58]. Bulejcik v. R, (1996) 185 CLR 375 (HCA), R v.O’Doherty, [2003] 1 Cr App R 77 (NICA).

[59]. Inspector of Police v. Palanisamy,  (2008) 14 SCC 495.

[60]. Mohan Singh v. State of Bihar,  (2011) 9 SCC 272.

[61]. (2018) 18 SCC 695

[62]. For the difficulties which arise where the witness fails to identify the accused in court, having previously identified him outside court, see R v. Osbourne and R v. Virtue, [1973] QB 678, CA. 295 (See Ch 10).

[63]. R v. Burke and Kelly, (1847) 2 Cox CC.

[64]. [1914] AC 545.

[65]. Rosamund Reay, Evidence 311 (Old Bailey Press, 3rd Edn., 2001).

[66]. Dana Yadav v. State of Bihar, (2002) 7 SCC 295.

[67]. Malkhan Singh v. State of M.P., (2003) 5 SCC 746.

[68]. Raju Manjhi v. State of Bihar, (2019) 12 SCC 784.