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The international trade has increased manifold with infrastructural advancements i.e. transportation from ships, railroads, automobiles to airplanes. With influx of international trade, the bilateral and multilateral trade agreements have increased and so the disputes arising thereof. The disputes arising therein have always been preferred to be resolved through arbitration rather than the routine course of litigation. The parties to the international trade prefer arbitration for dispute resolution. However, there are several conventions and treaties which regulate and enable the enforcement of a foreign award in a signatory country.

A. Historical background and evolution of recognition and enforcement of foreign arbitral award in India

While tracing down the path of development in the field of “enforcement” and “recognition” of foreign arbitral award, India had two statutes i.e. the Arbitration (Protocol and Convention) Act, 1937[1] and the Foreign Awards (Recognition and Enforcement) Act, 1961[2] to deal with it. The Arbitration (Protocol and Convention) Act, 1937 was an offspring of the Geneva Protocol, 1923 and the Geneva Convention, 1927. Whereas, the Foreign Awards (Recognition and Enforcement) Act, 1961 came into picture as a result of the New York Convention, 1958. After the First World War, the need to have a robust mechanism to resolve the disputes arising out of the international trade across the countries was very strongly felt. The International Chamber of Commerce (ICC) formulated an International Convention for smooth implementation of arbitration clause which used to be mentioned in definitive agreements. Thereafter, the Protocol on Arbitration Clauses was ratified by 30 countries on 24-9-1923 which categorically dealt with the arbitral procedure and execution of arbitral awards. Article I of the Protocol provided for recognition with respect to the international agreements between the countries, which were part of the Protocol which shall ensue that any future differences were to be resolved by arbitration[3].

The Government of India adhered to the Geneva Protocol on Arbitration Clauses, 1923 and the International Convention on the Execution of Foreign Arbitral Awards, 1927. The idea was to be included among the countries, which adhered to the abovementioned Protocol and Convention, in order to enable the resolution of commercial disputes through arbitration arising out of various underlying international agreements. However, subsequent to the implementation of the Geneva Protocol on Arbitral Clauses, there were few predicaments which came into light for instance; the beneficiary of the award was required to show to the executing court that award has attained finality in the country in which it was made in the first place. The said procedure was not very effective and was not in lines with the spirit and objective with which the Convention came into picture i.e. speedy and smooth enforcement of an arbitral award.

After several rounds of deliberations, a new International Convention on recognition came into picture for the recognition and enforcement of foreign arbitral awards i.e. the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention, 1958). The Indian Legislature adopted the New York Convention, 1958 and enacted the Foreign Awards (Recognition and Enforcement) Act, 1961, which was enacted with an objective to put in place a robust mechanism, wherein the commercial disputes of contracting countries can be referred to arbitration. It aimed at providing an effective and speedy disposal and consequent smooth enforcement of the foreign awards[4]. The Arbitration (Protocol and Convention) Act, 1937 incorporated the Geneva Protocol and Geneva Convention as First and Second Schedules. The Foreign Awards (Recognition and Enforcement) Act, 1961 similarly embodied the Schedules of the New York Convention, 1958[5].

The United Nation Convention on the Recognition and Enforcement of Foreign Arbitral Awards was ratified by India on 13-7-1960. After the enactment of the Arbitration and Conciliation Act, 1996[6] (“the Arbitration Act, 1996”), the two Acts i.e. the Arbitration (Protocol and Convention) Act, 1937 and the Foreign Awards (Recognition and Enforcement) Act, 1961 were repealed. The Arbitration Act, 1996 was enacted in consonance with the UNCITRAL Model Law and Rules. Note that Part II of the Arbitration Act, 1996, deals with enforcement of a foreign award in India.

B. Definition of “enforcement” and “recognition”

The term “recognition” is more of a defensive mode to secure an arbitral award. The “recognition” secures protection to an arbitral award if the same parties to a convention go for a subsequent arbitration. The contesting party may seek recognition of an arbitral award to set off any other claim qua arbitration between the parties within whom the issues arising therein have already been settled. However, at the same time if, there are new issues which have arisen and which were not a part of earlier round(s) of arbitration, then those issues may be looked into and the very idea to set off while getting the award recognised arrives to a standstill.

“Enforcement” on the other hand is more on an offensive front. A party seeking enforcement of an award not only intends to get the award recognised but also to enforce the same by using appropriate legal sanctions. One may argue that “recognition” and “enforcement” are contemporaries and they act in tandem.

In Brace Transport Corpn. of Monrovia v. Orient Middle East Lines Ltd.[7], the Supreme Court held that:

  1. … An award may be recognised, without being enforced; but if it is enforced then it is necessarily recognised. Recognition alone may be asked for as a shield against re-agitation of issues with which the award deals. Where a court is asked to enforce an award, it must recognise not only the legal effect of the award but must use legal sanctions to ensure that it is carried out.

Now, before going any further, let us try to understand the meaning of “foreign award”. The term “foreign award is defined under Section 44 of the Arbitration Act, 1996[8]. It states that “foreign award means an arbitral award on differences between persons arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India, made on or after 11th day of October, 1960—

  • in pursuance of an agreement in writing for arbitration to which the Convention set forth in the First Schedule applies, and
  • in one of such territories as the Central Government, being satisfied that reciprocal provisions have been made may, by notification in the Official Gazette.”

The New York Convention, 1958 defined an “arbitral award” as “The term ‘arbitral award’ shall include not only awards made by arbitrators appointed for each case but also those made by permanent arbitral bodies to which parties have submitted.”

The High Court of Calcutta in Serajuddin & Co. v. Michael Golodetz[9] observed that the term “foreign arbitration” would also include arbitrations where one of the parties belongs to a country which has not ratified the Geneva Convention. The Court went on to examine the decisions where the terms “foreign arbitration” and “foreign award” were used and concluded that they were used in connection with the following:

  1. arbitrations in foreign lands;
  2. foreign arbitrators;
  3. application of foreign law; and
  4. foreign nationals.

The Court observed that the countries that have ratified the Geneva Conventions have included certain class of such arbitrations and awards within the definitions under the Arbitration (Protocol and Convention) provisions, however, the definitions were not exhaustive. In this case where one party was Indian and the other US citizens, the Court was of the view that even though the arbitration did not fall within the ambit of the Indian Arbitration (Protocol and Convention) Act, 1937[10] and American laws were applicable, it satisfied all the characteristics of foreign arbitration as aforementioned.

The Delhi High Court in GAILv. Spie Capage SA[11] has very beautifully dealt with the evolution of “enforcement” and “recognition” of foreign award as per the provisions of two primitive Acts i.e. the Arbitration (Protocol and Convention) Act, 1937 and the Foreign Awards (Recognition and Enforcement) Act, 1961.

Procedure of “recognition” and “enforcement” of an arbitral award under the Arbitration and Conciliation Act, 1996

The procedure for enforcement and execution of decrees in India is governed by the Code of Civil Procedure, 1908[12] (CPC, 1908) while, arbitral awards in India is primarily governed by the Arbitration Act, 1996. There are specific provisions i.e. Sections 44 and 49[13] dealing with “recognition” and “enforcement” of arbitral awards under the Arbitration Act, 1996.

India is a signatory to the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (New York Convention, 1958) as well as the Geneva Convention on the Execution of Foreign Arbitral Awards, 1927 (Geneva Convention, 1927). If a country, which is a party to any of the Conventions, receives an award to be enforced, then the recognition and enforcement is governed by that particular Convention.

The process of enforcement of a foreign award is basically a three-stage process. Firstly, the party which is seeking to enforce the award shall make an application under Section 47 of the Arbitration Act, 1996 to the court having appropriate jurisdiction. The party or the judgment- debtor thereafter may challenge the enforcement before the court under the grounds such as the agreement not having a valid arbitration clause or failure to give proper notice of the appointment of an arbitrator or the Arbitral Tribunal committed a mistake of law or fact. As it has been held in plethora of judgments that Part I of the Arbitration Act, 1996 is not applicable to foreign-seated arbitrations and therefore, grounds of challenge available under Section 34 of the Arbitration Act, 1996[14] cannot be availed to challenge a foreign award.

The award before getting enforced has to fulfil the essential conditions as enshrined under the Arbitration Act, 1996. Once, the award fulfils the essential conditions of the Arbitration Act, 1996, it gets executed just like a court decree under CPC, 1908. The essentials for the enforcement of an award are enshrined under Section 47[15] of the Act, 1996. The award shall be in original or in the manner as required by the laws of the country in which it is intended to be enforced. Secondly, the agreement out of which the dispute had arisen shall accompany and the agreement shall be in original or a certified copy along with such evidence as may be necessary to prove that the award is a “foreign award”. However, in order to create a more pro-enforcement environment, the Supreme Court in PEC Ltd. v. Austbulk Shipping Sdn. Bhd.[16] held that the word “shall” under Section 47 read as “may” must be restricted only to the initial stage of filing of the application. It means that the applicant might not be necessarily required to file the required documents at the time of making the application. The Court observed that certain courts have taken a strict view with respect to the filing of documents while others have held that non-filling of documents does not necessarily call for ejection of the application.

The requirement of an award being appropriately stamped while executing an award has been a contentious issue. However, as far as stamping of the awards is concerned, the Supreme Court inShriram EPC Ltd.v. Rioglass Solar SA[17] very categorically held that, the stamping in not a mandatory condition. The Supreme Court also held that there is also no such requirement of registration and the award can be enforced as a court decree.

C. Forum for enforcement of foreign award

The Supreme Court in Fuerst Day Lawson Ltd. v. Jindal Exports Ltd.[18] held that while enforcing a foreign award there in no such requirement under the statute to initiate separate proceeding seeking an order to file execution of a foreign award. Relying upon the Supreme Court judgment, the Bombay High Court in Noy Velissina Engineering Spa v. Jindal Drugs Ltd.[19] held that a person seeking execution of a foreign award can execute it as a decree of the court.

 The term “court” is defined under the Arbitration Act, 1996 under Section 2(1)(e)[20] as:

  1. (1)(e).…(i) in the case of an arbitration other than international commercial arbitration, the Principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any civil court, or any Court of Small Causes;

(ii) in the case of international commercial arbitration, the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, and in other cases, a High Court having jurisdiction to hear appeals from decrees of courts subordinate to that High Court.

It was held by the Supreme Court in State of Maharashtra v. Atlanta Ltd.[21] that the award-holder shall file the application for enforcement of a foreign arbitral award before the competent court in whose jurisdiction the assets of the judgment-debtor are located. Also, if in a situation, where assets of the judgment-debtor are located within territorial jurisdiction of multiple courts, the application for execution of the award can be filed simultaneously in all such courts having jurisdiction.

Moreover, the Supreme Court in Sundaram Finance Ltd. v. Abdul Samad[22]  while providing some clarity as to the appropriate court to approach for enforcement of a foreign award held that a foreign award-holder can initiate execution of the award before any court in India having territorial jurisdiction where the assets are located. It is important to note that, after the establishment of commercial courts under the Commercial Courts Act, 2015[23] if the foreign award is of a specified value, the designated commercial court of the appropriate court having the territorial and pecuniary jurisdiction shall have the jurisdiction to enforce the award.

For the awards arising out of India seated arbitration although being an international commercial arbitration, after the introduction of the Commercial Courts Act, 2015 and Arbitration and Conciliation (Amendment) Act, 2015[24], the jurisdiction lies with the Commercial Division of the particular High Court, where assets of the judgment-debtor is situated.

D. Enforcement in case of award passed in reciprocating and non-reciprocating countries

Section 2(6) CPC, 1908[25] defines “foreign judgment” as “foreign judgment means the judgment of a foreign court”. Therefore, any court which is outside the territorial jurisdiction of India and a judgment passed by it shall be deemed to be a “foreign judgment”. The perplexity occurs for a party who is intending to enforce a foreign award in two situations, one when the award is passed by a reciprocating country and one when the award is passed by a non-reciprocating country.

A party seeking enforcement of an award passed by a reciprocating country may do so by filing an execution petition just like an execution of a decree under the court having appropriate jurisdiction under Section 44-A CPC, 1908[26]. As explained above, the execution is filed in a court under whose jurisdiction the assets of the judgment-debtor are located. Also, after the establishment of commercial divisions in various high courts of the country, the execution shall be filed accordingly in the appropriate high court if there is money/claim which is to be realised out of the award passed. Otherwise, place of execution will depend on the location of the assets of the judgment-debtor.

On the other hand, if a party seeking enforcement of an award passed by a non-reciprocating country has to file a fresh suit in the court having appropriate jurisdiction in terms of Orders 5, 6 and 7  CPC, 1908. Thereafter, the suit will run like a routine civil suit wherein written statement would be filed as per Order 8 CPC, 1908, after completion of pleadings the issues would be framed as per Order 9 CPC, 1908 followed by evidence stage i.e. recording of evidence. After hearing the parties, the court will pass a judgment and within 15 days of passing, the court draws a decree. Note that, the limitation period for filing for enforcement in the appropriate court is three years from the date on which the award was made. It is to be further noted that upon filing of a fresh suit, the foreign award annexed with the suit shall be treated as evidence by the court in terms with Section 86 of the Evidence Act, 1872[27].

It is of paramount importance to remember that in both the cases, the execution or suit has to fulfil the essential criteria under Section 13 CPC, 1908[28], which postulates certain conditions which are to be fulfilled in order to hold the foreign judgment to be conclusive. Those conditions are as below:

  1. Where it has not been pronounced by a court of competent jurisdiction?
  2. Where it has not been given on the merits of the case?
  3. Where it appears on the face of the proceedings to be founded on an incorrect view of incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable?
  4. Where the proceedings in which the judgment was obtained are opposed to natural justice?
  5. Where it has been obtained by fraud?
  6. Where it sustains a claim founded on a breach of any law in force in India?

E. Public policy and its evolution through various precedents

The concept of “public policy” has been a contentious issue lately in the Indian judicial diaspora. It is used as one of the grounds for refusal for enforcing an arbitral award. However, in a landmark decision in Bharat Aluminum Co. v. Kaiser Aluminium Technical Services Inc. (Balco)[29] came as a silver lining in the regime of Indian jurisprudence bringing together the age of “pro-enforcement stance”. The Bench of five Judges in Balco case[30] while drawing a clear line between vires of a domestic and foreign-seated arbitration held that Part I of the Arbitration Act, 1996 would not be applicable to foreign-seated arbitration. The judgment also while limiting the quantum of judicial interference, held that a foreign award cannot be challenged under Section 34(2) of the Act, 1996. While, again applying a little restrained approach, the Supreme Court in Renusagar Power Co. Ltd.v. General Electric Co.[31], held that merely a violation of Indian laws would not attract refusal to enforce an award under the ground of “public policy”.

The Supreme Court later on while deviating from a “pro-enforcement stance”, in ONGC v. Saw Pipes Ltd.[32] expanded the test of “public policy” and held that such awards which violate the Indian laws would be held to be “patently illegal” and the same would be held to be against the “public policy” of India. Such an interpretation opened up a Pandora’s box for the contesting party to contest the issues involved in the arbitration again and thereby delaying the entire process of enforcement of the award.

Furthermore, in Phulchand Exports Ltd. v. O.O.O. Patriot[33] the Supreme Court again went ahead and expanded the purview of “public policy” under Section 48 of the Arbitration Act, 1996[34] and interpreted the purview in consonance with Section 34. The Supreme Court after Saw Pipes[35] went two steps backward with the judgment in Phulchand[36] and provided an opportunity to the contesting parties to challenge the finality of the award on merits.

The Supreme Court in ONGC v. Western Geco International Ltd.[37] held that:

  1. …What is important in the context of the case at hand is that if on facts proved before them the arbitrators fail to draw an inference which ought to have been drawn or if they have drawn an inference which is on the face of it, untenable resulting in miscarriage of justice, the adjudication even when made by an arbitral tribunal that enjoys considerable latitude and play at the joints in making awards will be open to challenge and may be cast away or modified depending upon whether the offending part is or is not severable from the rest.

The judgment in Associate Builders v. DDA[38] followed the preposition set forth in ONGC[39]and held that the term “public policy” shall be interpreted broadly. These judgments were passed with a regressive approach as the Supreme Court conjointly interpreted Sections 48 and 34 of the Act, 1996 thereby allowing the parties to go into the merits of the arbitral award.

Very recently, the Delhi High Court in Campos Brother Farms v. Matru Bhumi Supply Chain (P) Ltd.[40] refused to enforce a foreign arbitral award under the Arbitration Act, 1996. The Court held that, if the arbitrator while passing the award had missed to consider a material issue relating to the maintainability of the arbitral proceedings then such an issue can be a ground to refuse the enforcement of an arbitral award under the ground of “public policy”. It was considered by the court that such an approach would violate the basic principles of justice.

The Supreme Court in National Agricultural Coop. Mktg. Federation of India v.  Alimenta SA[41], observed that enforcement of a foreign arbitral award is subject to the “public policy of India” test. The case can be adjudged to be homage to the parochial attitude regarding quantum of interference in the enforcement of a foreign arbitral award. However, the aforementioned judgment was a major divergence from its earlier judgment in Vijay Karia v. Prysmian Cavi E Sistemi SRL[42] which canvassed a pro-arbitration stance from the Supreme Court.

F. The silver lining in the enforcement of a foreign award: The public policy conundrum

In Shri Lal Mahal Ltd. v. Progetto Grano Spa[43], the Supreme Court brought the purview of “public policy” in lines with the New York Convention, 1958 and overruled the preposition set forth in the judgment of Phulchand[44]. In Shri Lal Mahal[45], the award was challenged under Section 48 of the Act, 1996 on the ground of it being “patently illegal” and thereby violating the Indian laws. The Court held that the ground of the award being “patently illegal” cannot be entailed within the purview of Section 48 of the Act, 1996 and such a ground will only be limited within the purview of Section 34 of the Arbitration Act, 1996. The Court held that while deciding upon the enforcement of a foreign award, the role of the court is very limited and Section 48 of the Arbitration Act, 1996 does not afford an opportunity to review the award on merits.

In the year 2015 by way of an amendment, a Second Explanation was added to sub-clause (b) to sub-section (1) of Section 48, which states that, within the purview of evaluating the prospects of “public policy”, the opportunity given to the enforcing court shall be very minimal. It can very well have understood from the nomenclature used in the said Explanation which stated:

Explanation 2.—For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.”

In Cruz City Mauritius Holdings v. Unitech Ltd.[46] a balancing test to determine the issue of refusal of enforcement of a foreign arbitral award was laid down by the Delhi High Court. It further held that the scope of discretion to refuse a foreign arbitral award is narrow and limited but the same can be done if sufficient grounds exist.

Similarly in Govt. of India v. Vedanta Ltd.[47] a three-Judge Bench of the Supreme Court discarded the regressive stance taken by the Supreme Court in Alimenta case[48] and held that minimal interference shall be exercised by the courts in enforcing foreign arbitral awards.

The Supreme Court in Vijay Karia[49] referred to the “pro-enforcement bias” of the New York Convention, 1958 on which Section 48 of the Act, 1996 was based in its entirety. It was held that under the guise of “public policy”, the enforcing courts cannot enjoy the leeway to interfere with the merits of the award and there should be a narrow scope of interference as contained in the New York Convention, 1958.

Moreover, the Supreme Court in Centrotrade Minerals and Metals Inc. v.  Hindustan Copper Ltd.[50], while allowing the enforcement of an award passed under the rules of the International Chamber of Commerce interpreted Section 48(1)(b) of the Act, 1996. The Supreme Court held that the word “otherwise” cannot be read and interpreted “ejusdem generis” and held that a narrower meaning and interpretation should be afforded keeping in mind the primary object of Section 48(1)(b) i.e. enforcement of a foreign award.

G. Parting thoughts

Indian jurisprudence, especially with respect to dispute resolution has been under perennial evolution. Indian courts have evolved with the change in circumstances owing to opening up of economy, considerable enhancement in international trade and foreign direct investments. For any country which intends to invest in India, the process and feasibility of commercial dispute resolution is of paramount significance. An effective dispute resolution mechanism of a country instils confidence in the foreign investors. A dilapidated and regressive system will only make the entire resolution mechanism crippled.

From the advent of Arbitration and Conciliation Act, 1899 till the present statute i.e. the Arbitration Act, 1996, Indian jurisprudence have had different interpretation of “recognition” and “enforcement” which converged into an attempt of the judiciary to make it work on the lines of the New York Convention, 1958. Despite many judgments passed by the Supreme Court and various High Courts of the country, in our view the battle is only half won. India is still not considered as among the favoured nations when it comes to “recognition” and “enforcement” of a foreign arbitral award.

There has always been a debate over the quantum of interference that the Indian judiciary ought to make while enforcing a foreign arbitral award. There have been judgments where the Indian judiciary has gone into the merits of the award thereby, rehearing the case all over again and compromising the entire process of smooth “recognition” and “enforcement”. Such an act brings back the regressive attitude which was in place when the Arbitration Act, 1940[51] used to govern the dispute resolution mechanism. Also, there is a common problem of various High Courts holding views and passing judgments on the same question of law and facts arising thereby from Arbitration Act, 1996 which further complicates the enforcement process.

The purpose of Section 48 of the Arbitration Act, 1996 is nothing but enabling a smooth enforcement process. It may be noted that Section 48 is in parity with Article V of the New York Convention, 1958. It is important to note that in Section 48 and Article V of the New York Convention, 1958, the words “may be” have been used for refusing the enforcement of an award thereby, making the intention and objective of the section very clear. The judgments passed by various High Courts of India show that the grounds for refusing the enforcement of an award shall be construed narrowly, yet sometimes, the courts have overstepped the guarded wall of interference.

We have tried to summarise the history of commercial dispute resolution in India and the process involved therein in the enforcement of a foreign arbitral award in India. It may not be out of place to state that with modest efforts being made by the Indian judiciary, the entire process of recognition and enforcement is eased down a bit. However, India as a country has to work towards building a pro-enforcement regime while working in consonance with the spirit of Article V of the New York Convention, 1958. The recent decisions in Vijay Karia[52] and Centrotrade[53] are a step forward towards having a more conducive enforcement mechanism in place. Yet, the decisions like National Agricultural Coop. Mktg. Federation of India[54] was an attempt to again dismantle the progress that the Indian judiciary has made to make India a pro-enforcement destination thereby, compelling the “recognition” and “enforcement” mechanism to trawl down in search of a formidable shore.


* Advocate, New Delhi. Author can be reached at ksumit25@outlook.com

**Vth year student, ICFAI Law School, Hyderabad.

[1]Arbitration (Protocol and Convention) Act, 1937. http://www.scconline.com/DocumentLink/b6djW2F4.

[2]Foreign Awards (Recognition and Enforcement) Act, 1961. http://www.scconline.com/DocumentLink/Ye3wnUO3.

[3]Chapter  6.– Enforcement of Arbitral Awards in India; available at <https://shodhganga.inflibnet.ac.in/bitstream/10603/110130/16/16_chapter%206.pdf> (accessed on 27-5-2020).

[4] Recent Developments in Enforcement of New York Convention Awards in India, by Sahil Tagotra and Ishita Mishra; available at<http://arbitrationblog.kluwerarbitration.com/2020/07/06/recent-developments-in-the-enforcement-of-new-york-convention-awards-in-india/?doing_wp_cron=1598853711.0668098926544189453125> (accessed on 27-5-2020)/

[5] Report and the India Resolutions for the 1958 Convention on the Recognition and Enforcement of Foreign Awards by Fali Nariman andMarike Paulsson; available at <https://www.arbitration-icca.org/media/7/92930493591493/indiaresolutions16formatted.pdf>  (accessed on 27-5-2020).

[6]Arbitration and Conciliation Act, 1996. http://www.scconline.com/DocumentLink/QWdt5a4f.

[7]1995 Supp (2) SCC 280, 287.

[8]Section 44, Arbitration  & Conciliation Act, 1996. http://www.scconline.com/DocumentLink/6WVZQ7Gd.

[9]1959 SCC OnLine Cal 196.

[10] Arbitration (Protocol and Convention) Act, 1937. http://www.scconline.com/DocumentLink/b6djW2F4

[11]1993 SCC OnLine Del 561.

[12]Code of Civil Procedure, 1908. http://www.scconline.com/DocumentLink/fW5E2p7z.

[13]Section 49 CPC. http://www.scconline.com/DocumentLink/Qdz3P4AP.

[14]Section 34 of the Arbitration & Conciliation Act, 1996. http://www.scconline.com/DocumentLink/teuo89l3.

[15]Section 47 of the Arbitration & Conciliation Act, 1996. http://www.scconline.com/DocumentLink/kc7Y1ogo.

[16](2019) 11 SCC 620.

[17](2018) 18 SCC 313.

[18](2001) 6 SCC 356.

[19]2006 SCC OnLine Bom 545.  http://www.scconline.com/DocumentLink/Z547En23

[20]Section 2, Arbitration & Conciliation Act, 1996.  http://www.scconline.com/DocumentLink/TA0St4w3.

[21](2014) 11 SCC 619.

[22](2018) 3 SCC 662.

[23]Commercial Courts Act, 2015. http://www.scconline.com/DocumentLink/7566Y3w5.

[24]Arbitration and Conciliation (Amendment) Act, 2015. http://www.scconline.com/DocumentLink/9ajA4z9b.

[25]Section 2 CPC, 1908. http://www.scconline.com/DocumentLink/jadpgT2n.

[26]Section 44-A CPC, 1908. http://www.scconline.com/DocumentLink/Of6WYoXr.

[27]Section 86, Evidence Act, 1872. http://www.scconline.com/DocumentLink/a577IffO.

[28]Section 13 CPC, 1908. http://www.scconline.com/DocumentLink/Mw0TY9U5.

[29](2012) 9 SCC 552.

[30](2012) 9 SCC 552.

[31](1994) Supp (1) SCC 644.

[32](2003) 5 SCC 705.

[33](2011) 10 SCC  300.

[34]Section 48, Arbitration & Conciliation Act, 1996. http://www.scconline.com/DocumentLink/1f9D98bq.

[35](2003) 5 SCC 705.

[36] (2011) 10 SCC  300.

[37](2014) 9 SCC  263, 280.

[38](2015) 3 SCC 49.

[39](2014) 9 SCC  263, 280.

[40] 2019 SCC OnLine Del 8350. http://www.scconline.com/DocumentLink/c63f5U6g

[41] 2020 SCC OnLine SC 381. http://www.scconline.com/DocumentLink/X5L0eClA

[42](2020) 11 SCC 1.

[43](2014) 2 SCC  433.

[44](2011) 10 SCC  300.

[45](2014) 2 SCC  433.

[46]2017 SCC OnLine Del 7810.

[47]2020 SCC OnLine SC 765.

[48] 2020 SCC OnLine SC 381

[49](2020) 11 SCC 1.

[50]2020 SCC OnLine SC 479.

[51]Arbitration Act, 1940. http://www.scconline.com/DocumentLink/3610ik0w.

[52] (2020) 11 SCC 1.

[53] 2020 SCC OnLine SC 479.

[54] 2019 SCC OnLine Del 8350. http://www.scconline.com/DocumentLink/c63f5U6g.

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Introduction

The term “public policy” has not been defined in any Indian statute. In fact, in numerous cases, the Supreme Court itself held that the term “public policy” is like an “untrustworthy guide” or an “unruly horse”. Generally, public policy means the principle that injury to the public good is a basis for denying the legality of a contract or other transaction. We find a reference to “public policy” in the Arbitration and Conciliation Act, 1996[1] (“the Arbitration Act”) specifically under Section 34, whereby an arbitral award can be set aside on the ground of it being in conflict with the public policy of India. This article particularly deals with the interpretation of public policy by Indian courts and further discusses in detail the concept of fundamental policy of Indian law, basic notions of morality and justice, and patent illegality.  

Relevant part of Section 34 of the Arbitration and Conciliation Act, 1996 as amended in 2015[2] to incorporate additions suggested by 246th Law Commission Report[3] 

  1. Application for setting aside arbitral award.— (1) Recourse to a court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3).

(2) An arbitral award may be set aside by the Court only if—

                *                                                                 *                                                       *

(b) the Court finds that—

(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or

(ii) the arbitral award is in conflict with the public policy of India.

Explanation 1.— For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if,—

(i) the making of the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 81; or

(ii) it is in contravention with the fundamental policy of Indian law; or

(iii) it is in conflict with the most basic notions of morality or justice.

Explanation 2.— For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.

(2-A) An arbitral award arising out of arbitrations other than international commercial arbitrations, may also be set aside by the Court, if the Court finds that the award is vitiated by patent illegality appearing on the face of the award.…

(emphasis supplied)

 What is public policy?

Public policy connotes some matter which concerns the public good and the public interest. The concept of what is for the public good or in public interest or what would be injurious or harmful to the public good or public interest has varied from time to time.[4] It has to be shown that there is some element of illegality or that the enforcement of the award would be clearly injurious to the public good or possibly, that enforcement would be wholly offensive to the ordinary reasonable and fully informed member of the public on whose behalf the powers of the State are exercised.[5]

Clause (ii) of sub-section (2)(b) of Section 34 which inter alia provides that the Court may set aside arbitral award if it is in conflict with the “public policy of India”. The phrase “public policy of India” is not defined under the Act. Hence, the said term is required to be given meaning in context and also considering the purpose of the section and scheme of the Act. It has been repeatedly stated by various authorities that the expression “public policy” does not admit of precise definition and may vary from generation to generation and from time to time. Hence, the concept “public policy” is considered to be vague, susceptible to narrow or wider meaning depending upon the context in which it is used. Lacking precedent the Court has to give its meaning in the light and principles underlying the Arbitration Act, Contract Act, 1872 and constitutional provisions.[6]

The public policy violation, indisputably, should be so unfair and unreasonable as to shock the conscience of the Court. Where the arbitrator, however, has gone contrary to or beyond the expressed law of the contract or granted relief in the matter not in dispute would come within the purview of Section 34 of the Act.[7]

In Renusagar Power Co. Ltd. v. General Electric Co.[8], the Supreme Court considered Section 7(1) of the Arbitration (Protocol and Convention) Act, 1937 which inter alia provided that a foreign award may not be enforced under the said Act, if the Court dealing with the case is satisfied that the enforcement of the award will be contrary to the public policy.

  1. Article 5(2)(b) of the New York Convention of 1958[9] and Section 7(1)(b)(ii) of the Foreign Awards (Recognition and Enforcement) Act, 1961[10] do not postulate refusal of recognition and enforcement of a foreign award on the ground that it is contrary to the law of the country of enforcement and the ground of challenge is confined to the recognition and enforcement being contrary to the public policy of the country in which the award is set to be enforced. There is nothing to indicate that the expression “public policy” in Article 5(2)(b) of the New York Convention and Section 7(1)(b)(ii) of the Foreign Awards Act is not used in the same sense in which it was used in Article 1(c) of the Geneva Convention of 1927 and Section 7(1) of the Protocol and Convention Act of 1937. This would mean that “public policy” in Section 7(1)(b)(ii) has been used in a narrower sense and in order to attract to bar of public policy the enforcement of the award must invoke something more than the violation of the law of India. Since the Foreign Awards Act is concerned with recognition and enforcement of foreign awards which are governed by the principles of private international law, the expression “public policy” in Section 7(1)(b)(ii) of the Foreign Awards Act must necessarily be construed in the sense the doctrine of public policy is applied in the field of private international law. Applying the said criteria it must be held that the enforcement of a foreign award would be refused on the ground that it is contrary to public policy if such enforcement would be contrary to (i) fundamental policy of Indian law; or (ii) the interests of India; or (iii) justice or morality.  (emphasis supplied) 

What is included in fundamental policy of Indian law?

While discussing the case of ONGC Ltd. v. Western Geco International Ltd.[11], the three-Judge Bench of the Supreme Court comprising of T.S. Thakur, C. Nagappan and  Adarsh Kumar Goel, JJ. elaborated on the expression “fundamental policy of Indian law”.

The Bench in the abovereferred judgment was of the opinion that fundamental policy of Indian law shall include all such fundamental principles as providing a basis for administration of justice and enforcement of law in this country. The Supreme Court relied on:

  1. 35. … three distinct and fundamental juristic principles that must necessarily be understood as a part and parcel of the fundamental policy of Indian law. The first and foremost is the principle that in every determination whether by a court or other authority that affects the rights of a citizen or leads to any civil consequences, the Court or authority concerned is bound to adopt what is in legal parlance called a “judicial approach” in the matter. The duty to adopt a judicial approach arises from the very nature of the power exercised by the Court or the authority does not have to be separately or additionally enjoined upon the fora concerned. What must be remembered is that the importance of judicial approach in judicial and quasi-judicial determination lies in the fact so long as the Court, Tribunal or the authority exercising powers that affect the rights or obligations of the parties before them shows fidelity to judicial approach, they cannot act in an arbitrary, capricious or whimsical manner. Judicial approach ensures that the authority acts bona fide and deals with the subject in a fair, reasonable and objective manner and that its decision is not actuated by any extraneous consideration. Judicial approach in that sense acts as a check against flaws and faults that can render the decision of a court, tribunal or authority vulnerable to challenge.

The Bench further stated that:

  1.  It is neither necessary nor proper for us to attempt an exhaustive enumeration of what would constitute the fundamental policy of Indian law nor is it possible to place the expression in the straitjacket of a definition. What is important in the context of the case at hand is that if on facts proved before them the arbitrators fail to draw an inference which ought to have been drawn or if they have drawn an inference which is on the face of it, untenable resulting in miscarriage of justice, the adjudication even when made by an Arbitral Tribunal that enjoys considerable latitude and play at the joints in making awards will be open to challenge and may be cast away or modified depending upon whether the offending part is or is not severable from the rest. (SCC at p. 280)

What does “basic notions of morality and justice” mean?

The third ground to set aside an arbitral award in conflict with public policy of India is, if an award is against justice or morality. These are two different concepts in law.

“Justice or morality” has been tightened and is now to be understood as meaning only basic notions of justice and morality i.e. such notions as would shock the conscience of the court as understood in Associate Builders v. DDA[12]:

  1.  … An illustration of this can be given. A claimant is content with restricting his claim, let us say to Rs 30 lakh in a statement of claim before the arbitrator and at no point does he seek to claim anything more. The arbitral award ultimately awards him 45 lakh without any acceptable reason or justification. Obviously, this would shock the conscience of the Court and the arbitral award would be liable to be set aside on the ground that it is contrary to “justice”.

The other ground is of “morality”. Just as the expression “public policy” also occurs in Section 23 of the Contract Act, 1872[13], so does the expression “morality”. Two illustrations to the said section are interesting for explaining the scope of the expression “morality”:

(j) A, who is B‘s mukhtar, promises to exercise his influence, as such, with B in favour of C, and C promises to pay 1000 rupees to A. The agreement is void, because it is immoral.

(k) A agrees to let her daughter to hire B for concubinage. The agreement is void, because it is immoral, though the letting may not be punishable under the Penal Code, 1860 (45 of 1860).

What is construed as patent illegality?

If the award is patently against the statutory provisions of substantive law which is in force in India or is passed without giving an opportunity of hearing to the parties as provided under Section 24 or without giving any reason in a case where parties have not agreed that no reasons are to be recorded, it would be against the statutory provisions. In all such cases, the award is required to be set aside on the ground of “patent illegality”.[14]

The expression of “patent illegality” has been discussed elaborately in ONGC Ltd. v. Saw Pipes Ltd.[15]:

 Wider meaning is required to be given so that the “patently illegal award” passed by the Arbitral Tribunal could be set aside. If narrow meaning is given, some of the provisions of the Arbitration Act would become nugatory.

Illustration

 A case wherein there is a specific provision in the contract that for delayed payment of the amount due and payable, no interest would be payable, still however, if the arbitrator has passed an award granting interest, it would be against the terms of the contract and thereby against the provision of Section 28(3) of the Act which specifically provides that “Arbitral Tribunal shall decide in accordance with the terms of the contract.” Further, where there is a specific usage of the trade that if the payment this made beyond a period of one month, then the party would be required to pay the said amount with interest at the rate of 15 per cent. Despite the evidence being produced on record for such usage, if the arbitrator refuses to grant such interest on the ground of equity, such award would also be in violation of sub-sections (2) and (3) of Section 28. Section 28(2) specifically provides that arbitrator shall decide ex aequo et bono (according to what is just and good) only if the parties have expressly authorised him to do so.[16]

Conclusion

As discussed hereinabove, the term “public policy” is not defined in any statute. First time the Supreme Court categorised the meaning of public policy in Renusagar case[17] into three heads viz. (i) fundamental policy of Indian law; or (ii) the interests of India; or (iii) justice or morality. ONGC Ltd. v. Saw Pipes Ltd.[18] further added the fourth category i.e. “patent illegality” to the interpretation of public policy. The 2015 amendment to the Arbitration and Conciliation Act, 1996, introduced these categories as explanation to public policy of India. Based on the abovementioned observation, it can be said that the pigeonhole principle cannot be applied while interpreting the concept of public policy. The Indian courts have interpreted meaning of public policy based on circumstance of various cases. The scope for this principle to evolve further remains intact even after 2015 amendment to the Arbitration Act.


From ILS Law College, currently working as an in-house counsel in an Indian infrastructure company. Author can be reached at rpanganti@gmail.com.

[1]Arbitration and Conciliation Act, 1996.  <http://www.scconline.com/DocumentLink/QWdt5a4f>.

[2] Arbitration and Conciliation (Amendment) Act, 2015. <http://www.scconline.com/DocumentLink/9ajA4z9b>.

[3] Law Commission of India, Report No. 246 on Amendments to the Arbitration and Conciliation Act, 1996 (August, 2014). <http://www.scconline.com/DocumentLink/N7O69Zxv>.

[4] Central Inland Water Transport Corpn. Ltd. v. Brojo Nath Ganguly, (1986) 3 SCC 156 : (1986) 2 LLJ 171.

[5] Deutsche Schachtbau-Und Tiefbohrgesellschaft mbH v. R’as Al-Khaimah National Oil Co., (1990) 1 AC 295 : (1987) 3 WLR 1023 : (1987) 2 All ER 769, 779.

[6] ONGC Ltd. v. Saw Pipes Ltd., (2003) 5 SCC 705, 719, para 16.

[7] McDermott International Inc. v. Burn Standard Co. Ltd., (2006) 11 SCC 181; Centrotrade Minerals & Metals Inc. v. Hindustan Copper Ltd., (2006) 11 SCC 245.

[8] 1994 Supp (1) SCC 644, 682.

[9]Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958. <http://www.scconline.com/DocumentLink/uqd961oJ>.

[10] Foreign Awards (Recognition and Enforcement) Act, 1961. <http://www.scconline.com/DocumentLink/hXK3cb7l>.

[11] (2014) 9 SCC 263, 278.

[12] Associate Builders v. DDA, (2015) 3 SCC 49, 77 : (2015) 2 SCC (Civ) 204.

[13] Contract Act, 1872. <http://www.scconline.com/DocumentLink/dsJF0yn9>.

[14] ONGC Ltd. v. Saw Pipes Ltd., (2003) 5 SCC 705, 724, para 22.

[15] (2003) 5 SCC 705.

[16] ONGC Ltd. v. Saw Pipes Ltd., (2003) 5 SCC 705.

[17] 1994 Supp (1) SCC 644.  http://www.scconline.com/DocumentLink/Dd7RgLrr

[18] (2003) 5 SCC 705.

Advani & Co.Experts Corner

Introduction

The Arbitration and Conciliation Act, 1996 (A&C Act) is based on the 1985 UNCITRAL Model Law and came into force on 25-1-1996. The Indian Legislature recognised the need to honour India’s obligations under 1958 New York Convention and implement the modern arbitration regime to promote comity of nations in the field of international commercial arbitration and to foster international trade. The A&C Act has in Section 5 embodied the policy of minimal judicial interference. Although, the principle of minimised judicial interference is recognised by the most leading arbitration jurisdictions, the national courts of the seat have a supervisory jurisdiction to oversee the arbitration proceedings. Some extent of judicial oversight is considered necessary to ensure that the justice rendered through this private method of adjudication is in conformity with the fundamental principles of law of those nations with which it has a territorial connection. Therefore, the parties to arbitration proceedings must approach the national court of the jurisdiction where it wishes to have the arbitral award enforced and that court has the exclusive power to ensure that the arbitral award is not in contravention with the fundamental principles of law recognised by it and is also in conformity with its idiosyncratic public policies. The term “public policy” is dynamic in nature and is subject to varying interpretations, each depending on the field of law to which it is applied. It is diverse depending on the peculiarities of each jurisdiction. An early comment connoting the complexities of the term “public policy” can be traced back to the opinion of Burrough, J. when he went to warn the courts of law by saying it is a  “very unruly horse and once you get astride it you never know where it will carry you”.[1]

 

The connotation “public policy” in the context of setting aside of an arbitral award should not be confused with a review of the award on merits. It is a recognised principle of arbitration law that an arbitral award is final and binding on the parties and cannot be reviewed by the courts on merits at the setting aside or enforcement proceeding. Section 34(2) of the A&C Act contains seven grounds on which an arbitral award may be set aside and is divided into two parts. The grounds in Section 34(2)(a) are procedural in nature and precise. The grounds in Section 34(2)(b) are substantive and have been subject to judicial controversy over the years. Section 34(2)(b)(ii) of the A&C Act has laid down that a court may set aside an award if the award is in conflict with the public policy of India. The term “public policy” in Section 34(2)(b)(ii) is ambiguous and has been subject to varied interpretations. The present article will be divided into 6 parts each based on a particular phase and will carefully examine the evolution in jurisprudence with regard to the fluctuating boundaries of the term “public policy of India” in the context of an application made under Section 34(2) of the A&C Act.

 

I : From Renusagar to the Saw Pipes Eclipse

 

The decision of the Supreme Court in Renusagar Power Electric Co. Ltd. v. General Electric Co.[2] (Renusagar) was an early decision under the pre-1996 regime where the Supreme Court had the opportunity to expound the concept of public policy of India in the context of the enforcement of a foreign arbitral award. In Renusagar[3], the Court was confronted with elucidating the expression “public policy” embodied in Section 7 of the Foreign Awards (Recognition and Enforcement) Act, 1961 with respect to enforcement of an arbitral award passed by the International Chamber of Commerce. The appellant had raised a number of objections against the award that included a contention that the award is in blatant violation of the Foreign Exchange Regulation Act, 1973. At the time of opining on the invocation of the public policy ground, the Court observed that the said term could be subject to a narrow and a broad meaning. It went on to establish a dichotomy between the application of public policy to the domestic arena and the international arena. It is undoubted that this was the prevailing international standard at the time. The Court observed that the public policy of India should be narrowly construed in the context of private international law while keeping in mind the pro-enforcement bias that was envisaged by the 1958 New York Convention that abolished double exequatur. The Court adopted a narrow interpretation of the term “public policy” and held that a foreign arbitral award would not be refused enforcement only because it is in violation of an aspect of Indian public policy. Applying this criterion, it was held that a foreign award would be refused enforcement by the courts in India only on the ground of public policy if such enforcement would be contrary to (i) fundamental policy of Indian law; (ii) the interest of India; and (iii) justice or morality. The dictum of the Supreme Court in Renusagar[4] was appraised internationally and it became a seminal authority on the rule that an arbitral award must not be reviewed on merits at the enforcement stage. It is in our opinion that this decision was exemplary, well balanced and judiciously nuanced rightly paying heed to the pro-arbitration bias that prevailed in international arena at the time.

 

After the enactment of the A&C Act in 1996, the Foreign Awards (Recognition and Enforcement) Act, 1961 stood repealed. The A&C Act served as a complete code for the practice of arbitration in India. Section 34 in Part I of the A&C Act made provisions of the enforcement of domestic arbitral awards whereas Section 48 in Part II of the A&C Act made provisions for the enforcement of foreign awards in India. The public policy ground to resist enforcement was retained in both Sections 34 and 48. The precedential value of Renusagar[5] was shadowed by uncertainty unless it were to obtain judicial endorsement under the new arbitration regime.

 

The Supreme Court was confronted with this challenge in the year 2003 in the infamous case of ONGC v. Saw Pipes Ltd.[6] (Saw Pipes), where it had to define the contours of public policy in Section 34(2)(b)(ii) of the A&C Act in the context of setting aside a domestic arbitral award. The decision in Saw Pipes[7] appeared to be in polar contrast with the decision in Renusagar[8]. The Court had to decide whether it had the jurisdiction under Section 34 of the A&C Act to set aside an award which was inter alia “patently illegal” or in contravention of the A&C Act or in other words whether the court could review the merits of the award. The Court propounding a meticulous ratio, undoubtedly flawed in many aspects answered this question in the affirmative. The Court held that an Arbitral Tribunal was a creation of the A&C Act and therefore if the Arbitral Tribunal violated the provisions of the A&C Act, it would warrant intervention by the Court. The Court employing the rule that every right should have remedy appears to have ignored the principle that parties to arbitration have the right to contract out of an appeal like recourse against the arbitral award. The Court appears to have forgone the sacrosanct principles of party autonomy and minimal judicial intervention while thwarting the mechanism employed in Section 34(2) that separates procedural from substantive irregularities. The Court conflated jurisdictional with procedural violations and wrongly held that every violation of the A&C Act by the Arbitral Tribunal would amount to a jurisdictional violation. The Court categorically opined that it could act as an appellate and revisional court in a proceeding under Section 34. Further to strengthen the precedential value of Saw Pipes[9], the Court added the ground “patent illegality” to those enumerated by the Court in the Renusagar[10]. It is our opinion that the decision of the Court in Saw Pipes[11] is extremely flawed and is against the true spirit of the 1958 New York Convention and 1985 UNCITRAL Model Law which can be discerned from its travaux préparatoires. Apart from opening the floodgates for proceedings under Section 34(2), another major issue that was brought about by the decision in Saw Pipes[12] was that the criterion adopted therein was to apply to Section 48 of the A&C Act with respect to foreign arbitral awards. It is needless to say that the exemplary approach adopted by the Supreme Court in Renusagar[13] was eclipsed by Saw Pipes[14]. The decision in Saw Pipes[15] received a considerable amount of criticism and therefore warranted attention by the legislature. It is pertinent to note that decision of the Supreme Court in Venture Global Engg. v. Satyam Computer Services Ltd.[16] (Venture Global) worsened the effect of Saw Pipes[17] as it went on to lay down that a foreign award may be challenged under Section 34 of the A&C Act. It is our opinion that that this decision suffered from many infirmities.

 

It is interesting to mention at this juncture, that in spite of the eclipse cast by Saw Pipes[18], there was a school of thought that was cognizant of its deficiencies and insinuated much-needed dissent. In a 2006 often cited judgment of the Supreme Court in McDermott International Inc. v. Burn Standard Co. Ltd.[19] (McDermott International) the Court although following Saw Pipes[20] made succinct observations regarding the restrictive role of courts at the time of hearing applications for setting aside of arbitral awards under Section 34 of the A&C Act. Later in 2012, a similar observation was made in Rashtriya Ispat Nigam Ltd. v. Dewan Chand Ram Saran[21] (Rashtriya Ispat) in polar contrast to the dictum in Saw Pipes[22]. The Court in Rashtriya Ispat[23] laid down with regard to the interpretation of the substantive contract by an arbitrator, that if the view taken by the arbitrator is a possible one it cannot be capriciously subjected to judicial interference even if the contract is capable of two interpretations. It was hoped that these rulings would act as a hint and help the Supreme Court pre-empt more problematic jurisprudence.

 

II : Foreign Awards : The Transition from Phulchand Exports to Shri Lal Mahal

 

In Phulchand Exports Ltd. v. O.O.O. Patriot[24] (Phulchand Exports) the Supreme Court had to deliver an opinion on the scope of public policy in Section 48 of the A&C Act. The Court in a rather capricious manner departed from the commonly accepted norm that the public policy filter should be assessed narrowly with respect to foreign awards. Further in blatant ignorance to the comity of nations and the global pro-enforcement bias, it held that the criterion laid down in Saw Pipes[25] would be applicable to foreign awards. This decision was undoubtedly detrimental to the prospect of India becoming an arbitral-friendly jurisdiction as now Indian courts could set aside foreign awards on the unreasonably broad “patent illegality” test laid down in Saw Pipes[26] which was in fact propounded in the context of a domestic award. It is our opinion that this approach was gravely erroneous.

 

However, it was in 2012 where the Constitutional Bench of the Supreme Court made a corrective approach to the attitude of the judiciary when they were confronted with exercise of their supervisory jurisdiction with respect to foreign arbitrations. The Constitutional Bench in Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc.[27] (BALCO) after a rather extensive analysis on the prevailing jurisprudence at the time prospectively overruled the position laid down in Bhatia International v. Bulk Trading SA[28] (Bhatia International) and that held Part I of the A&C Act would not apply to international arbitrations unless otherwise agreed by the parties.

 

In the aftermath of the landmark decision of the Supreme Court in BALCO[29], the Court delivered another much-awaited judgment. In Shri Lal Mahal Ltd. v. Progetto Grano Spa[30] (Shri Lal Mahal) when Lodha, J. was confronted with the enforcement of an arbitral award passed in London, it appeared he was inclined to reconsider his own decision in Phulchand Exports[31] by holding that the public policy criterion in Section 48 would have to be construed in conformity with decision in Renusagar[32] and held that foreign arbitral awards cannot be denied enforcement on the “patent illegality” ground laid down in Saw Pipes[33]. The decision in Shri Lal Mahal[34] undoubtedly remedied the negative effect that Saw Pipes[35] had cast on the international arena, although the menace played by Saw Pipes[36] did not end here.

 

It is pertinent to note the decision of the Constitutional Bench in BALCO[37] had only prospectively overruled the decision in Bhatia International[38] which meant BALCO[39] would apply from the date of the decision and therefore the arbitration agreements entered into before 6-9-2012 would continue to be governed by Bhatia International[40]. This meant that Saw Pipes[41] and Venture Global[42] would continue to be the standard that would be applicable to the arbitral awards rendered in these arbitrations and that foreign awards could be challenged on the ground “patent illegality”. It is also evident that the decisions in Phulchand Exports[43] and Venture Global[44] are the negative repercussions of the perspective adopted by the Supreme Court in Saw Pipes[45] and Bhatia International[46]. Thus, there was considerable anguish in the arbitration fraternity at the time and a much-awaited intervention was desired from the legislature, that came only after the labyrinth was made more complex by two more controversial decisions of the Supreme Court.

 

III: Western Geco and Associate Builders

 

The three-Judge Bench in ONGC v. Western Geco International Ltd.[47] (Western Geco) offset the improvements that were made on the subhead “patent illegality” by laying down a comprehensive exposition of the subhead “fundamental policy of Indian law”. The Court was confronted with an application to set aside an arbitral award passed in an international commercial arbitration that had its seat in India. In Western Geco[48] the parties had entered into an agreement for upgradation of the appellant’s seismic survey vessel by installing hydrophones. The performance could not be completed as the respondent was not able to obtain a licence from the regulatory bodies of the US Government for the sale of hydrophones. Due to this the respondent invoked the force majeure clause, the Tribunal held that the respondent was not entitled to invoke the force majeure clause as the delay that occurred was not solely attributable to the failure of the authorities to furnish the licence. However, the Tribunal also held that the entire period of delay was not attributable to the respondent. The appellant aggrieved by this sought to challenge the award under Section 34 of the A&C Act. Naturally, the respondent contended that these findings of the Tribunal cannot be re-examined by the Court as it would entail a reassessment of the case on merits. At this juncture, it was hoped that the 3-Judge Bench would in the light of all the criticism be inclined to remove the eclipse cast by the decision in Saw Pipes[49] and bring back Renusagar[50]. However, the Court followed Saw Pipes[51] decided to go a step further. The Court noted that the decision in Saw Pipes[52] although laying down the branches of public policy including “fundamental policy of Indian law” did not define their scope. Therefore, it held that it was an appropriate time to exposit the boundaries of “fundamental policy of Indian law”. The Supreme Court laid down that there are three important principles that are fundamentally embedded in Indian law to comprise the “fundamental policy of Indian law”. These are the duty of the judicial forum to follow a judicial approach, to strictly follow the principles of natural justice and be reasonable enough when passing a judgment. It is pertinent to note that the Court’s judgment in Western Geco[53] has permitted an inquiry into the merits of an arbitral award as is evident from a bare reading of the relevant portion of the judgment:

 

(a) A Judicial Approach: “Judicial approach ensures that the authority acts bona fide and deals with the subject in a fair, reasonable and objective manner and that its decision is not actuated by any extraneous consideration. Judicial approach in that sense acts as a check against flaws and faults that can render the decision of a court, tribunal or authority vulnerable to challenge.”[54]

(b) Principles of Natural Justice: “Besides the celebrated audi alteram partem rule one of the facets of the principles of natural justice is that the court/authority deciding the matter must apply its mind to the attendant facts and circumstances while taking a view one way or the other. Non-application of mind is a defect that is fatal to any adjudication.”[55]

(c) The Wednesbury Principle of Reasonableness: “a decision which is perverse or so irrational that no reasonable person would have arrived at the same will not be sustained in a court of law. Perversity or irrationality of decisions is tested on the touchstone of Wednesbury principle of reasonableness”.[56]

 

Thereafter, the Court found it appropriate to divide the delay into four components as against the method adopted by the Tribunal and thereby found that they are unable to agree with the decision of the Tribunal. The Court characterised this as an error resulting in the miscarriage of justice apart from the fact that it failed to appreciate and draw inferences that logically flow such proved facts. It is our opinion that this decision is flawed. Firstly, the Court has allowed an inquiry into the merits under the “fundamental policy of Indian law” violating the true essence of Renusagar[57]. Secondly, the Court has erred by failing to take cognizance of the fact that the test of public policy is to be applied to check whether the enforcement of the award would lead to a violation of public policy and not that arbitral award and the merits of the award. By employing this ratio and without realising its side effects, the Court has inextricably linked the public policy of India with the merits of an arbitral award. It is our opinion that the Court in Western Geco[58] has done exactly what its predecessors had pre-empted 20 years ago in Renusagar[59], where the Court refrained from reviewing the award for the grant of interest in arrears as a violation of the Foreign Exchange Regulation Act, 1973. In addition to this, in Renusagar[60] it was made clear that a court cannot set aside an award just because it disagrees with the reasoning of the arbitrator on law or facts. It is needless to say that court in Western Geco[61] has done the exact opposite and has disregarded the dictum of the judgment in Renusagar[62] in totality while contributing to the menace played by its decision in Saw Pipes[63]. Finally, it is pertinent to note that Court’s exposition of “fundamental policy of Indian law” has led to a duplication of the grounds already enumerated in Section 34(2)(a). The principles of natural justice is already a ground available in Section 34(2)(a)(iii), while following a judicial approach as explained in para 35 of Western Geco[64] would nonetheless entail following the principles of natural justice. Therefore, the procedural irregularities contemplated by Section 34(2)(a) are now also a part of Section 34(2)(b)(ii). This has left room for recalcitrant parties to play mischief by using a backdoor to challenge arbitral awards. It is in our opinion that this decision should have been the wake call for the legislature. However, it was not until another problematic decision, that the Law Commission of India pulled up the legislature.

 

The Division Bench of the Supreme Court comprising Nariman and Gogoi, JJ. in Associate Builders v. DDA[65] (Associate Builders) delivered soon after Western Geco[66] made some laudable observations in its dictum in spite of the precedential burden cast upon it by the decision of the three-Judge Bench in Western Geco[67] that followed and approved Saw Pipes[68]. The decision of the Court in Associate Builders[69] although compelled to follow the earlier judgments undoubtedly had a mitigating effect on the damaging ramifications of the earlier rulings. The Court appeared to be well intentioned and cognizant of the problems in the prevailing jurisprudence and decided to tackle them head on in spite of the doctrine of stare decisis. At first, the Court on a conjoint reading of Section 34 with Section 5 of the A&C Act categorically laid down that the merits of an arbitral award are assailable under Section 34 only when the award is in conflict with the public policy of India. The Court then went on to enumerate and lay down the contours of all the subheads of public policy while imposing some fetters in an attempt to remedy the nuisance created by Western Geco[70] and Saw Pipes[71].

 

At the time of defining the heads of “public policy of India”, the Court followed and elucidated Western Geco[72] and held that “fundamental policy of Indian law” would comprise (i) compliance with the statutes and judicial precedents; (ii) need for judicial approach; (iii) natural justice compliance; and (iv) Wednesbury reasonableness.[73] It is interesting to note here, that the Court found it appropriate to lay an emphasis on Wednesbury reasonableness as it observed with regard to it that where (i) a finding is based on no evidence; (ii) an Arbitral Tribunal takes into account something irrelevant to the decision which it arrives at; and (iii) ignores vital evidence in arriving at its decision, such a decision would necessarily be perverse.[74]

 

Moreover, it is also interesting to note that the Court in Associate Builders[75] endeavoured for the first time to lay down an exposition on the other two heads of “public policy of India” coined in Renusagar[76]. The Court with regard to the subhead “interest of India”, held that an award may be set aside if contrary to the interests of India and that this would entail it if concerns itself with India as a member of the world community in its relation with foreign powers.[77] The Court with respect to the subhead “justice or morality” held that an award can be said to be against justice when it shocks the conscience of the court.[78] Lastly, with regard to “patent illegality” the Court followed and elucidated Saw Pipes[79] in connoting that this would entail (i) contravention of substantive law of India; (ii) contravention of A&C Act, 1996; and (iii) contravention of the terms of the contract.[80]

 

It is evident that the Court has not been able to correct the erroneous duplication of procedural irregularities embodied in Section 34(2)(a) in the sub heads of public policy in India. Although, it has been held that the grounds mentioned in Section 34(2)(a) would strictly not entail a review on merits of the award, it is needless to say that this observation has been made redundant. The duplication of the procedural irregularities contemplated by Section 34(2)(a) are evident in the subheads of “fundamental policy of Indian law” and “patent illegality” as thus there is always a backdoor for parties to misuse the recourse in Section 34 by disguising procedural irregularities as violations of public policy of India and thus vandalising the ethos of the 1985 UNCITRAL Model Law.

 

At this juncture, it is important to observe the positive aspect of the judgment in Associate Builders[81] where in spite of being compelled to follow Western Geco[82] and Saw Pipes[83], the Court was successful in remedying some mischief. The method adopted by the Court to achieve this is worthy of appraisal, as it relied on the dictum of earlier judgments where the courts appeared conscious of their duty to exercise judicial restraint at the time of hearing an application under Section 34. The Court in Associate Builders[84] has tactfully relied on the dictum of McDermott International[85] and Rashtriya Ispat[86] to give primacy to the findings of the arbitrator with regard to interpretation of the contract in spite of having to concede to Saw Pipes[87] that the contravention of the terms of the contract would amount to “patent illegality”. The Court held that if an arbitrator construes a term of the contract in a reasonable manner, it will not mean that the award can be set aside on this ground. It laid emphasis by stating that the construction of the terms of a contract is primarily for an arbitrator to decide and only if the arbitrator construes the contract in such a way that it could be said to be something that no fair-minded or reasonable person could do, that it would warrant judicial interference.

 

The Court relying on three earlier judgments also laid down that when a court is applying the public policy test to an arbitral award it does not act as a court of appeal and consequently errors of fact cannot be corrected, clearly departing from the position adopted in Saw Pipes[88] and Western Geco[89]. It was also noted that a possible view by the arbitrator on facts has necessarily to pass muster as the arbitrator is the ultimate master of the quantity and quality of evidence to be relied upon when he delivers his arbitral award. Moreover, it supplemented this ratio by stating that an award based on little evidence or on evidence which does not measure up in quality to a trained legal mind would not be held to be invalid on this score, provided that it is found that the arbitrator’s approach is not arbitrary or capricious.[90] The judgment in Associate Builders[91] can most definitely be considered as a remarkable one which marked an inception of a more pro-arbitration approach with regard to upholding arbitral awards, in spite of the precedential burden that was cast upon Nariman and Gogoi, JJ.

 

IV : The Law Commission of India admonishes the Legislature : The 2015 Amendment

 

The Law Commission of India published a comprehensive report known as the 246th Law Commission Report in August 2014 suggesting amendments to Section 34 of the A&C Act, heavily criticising judgment in Saw Pipes[92]. The Law Commission also made observations on all the landmark decisions of the Supreme Court in the arbitration domain such as Shri Lal Mahal[93], BALCO[94], Bhatia International[95], etc. while suggesting a reinstatement of Renusagar[96].

 

It is interesting to note that even after the scathing observations that were made in the Law Commission Report with regard to the broad scope of public policy, the 3-Judge Bench of the Supreme Court delivered the judgment in Western Geco[97] in September 2014 only a month after the publication of the Report. It is needless to say that the judgment in Western Geco[98] did exactly what the Law Commission warned the judiciary to refrain from doing. Subsequently, 2 months after this in November 2014 came the decision in Associate Builders[99] reinforcing the broad scope of public policy. In the aftermath of these two controversial decisions that were in blatant disobedience of the 246th Law Commission Report, the Law Commission was too quick to re-join by publishing a strongly worded supplement to the 246th Law Commission Report on 6-2-2015 titled as “Public Policy” – Developments Post Report No. 246. This supplement heavily criticised the judgments in Western Geco[100] and Associate Builders[101] and strongly urged to legislature to implement the amendments recommended by the Law Commission. It is interesting to see the exasperation and anguish expressed by the Law Commission by reproducing a small extract from the supplement where it stated at para 6 “the Supreme Court’s judgment in Western Geco[102] undermines the Commission’s attempts to bring the Act in line with international practices and will discourage the possibility of international arbitration coming to, and domestic arbitration staying in India”[103].

 

Thereafter, the legislature passed the 2015 amendment of the A&C Act incorporating the recommendations made by the Law Commission. The amendments that were made to Section 34(2)(b)(ii) of the A&C Act include two Explanations and an additional ground by insertion of Section 34(2-A). The amendments are reproduced below for better analysis:

 

Explanation 1.– For avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if,–

(i) the making of the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 81; or

(ii) it is in contravention with the fundamental policy of Indian law; or

(iii) it is in conflict with the most basic notions of morality or justice.

Explanation 2.– For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.

(2-A) An arbitral award arising out of arbitration other than international commercial arbitrations, may also be set aside by the court, if the court finds that the award is vitiated by patent illegality appearing on the face of the award:

Provided that an award shall not be set aside merely on the ground of an erroneous application of the law or by reappreciation of evidence.

 

On a bare perusal of the amendments made to Section 34(2)(b)(ii) it is evident that the legislature has enumerated in Explanation 1 what constitutes a violation of public policy of India while endorsing statutory recognition to the subheads enumerated in Renusagar[104]. The legislature has then in Explanation 2 categorically laid down that a contravention of “fundamental policy of Indian law” shall not entail a review on merits, thereby statutorily superseding the Western Geco[105] and Associate Builders[106]. Moving on to the newly inserted Section 34(2-A) it is clear that the legislature has also statutorily endorsed the mischievous ground of “patent illegality” laid down in Saw Pipes[107]. However, in an attempt to prevent its misuse it has added a proviso disallowing any reappreciation of evidence thereby statutorily superseding Saw Pipes[108] while appearing to converge with the positive aspect of ratio laid down in Associate Builders[109]. The proviso has also protected the fate of awards passed in international commercial arbitrations from being challenged on the ground of “patent illegality” clearly adopting the Court’s opinion in Shri Lal Mahal[110]. It is our opinion, that the 2015 amendment of the A&C Act was long overdue and has correctly imposed fetters on the power of the courts when they are confronted with an application for setting aside of an arbitral award.

 

V : The Post-Amendment Renaissance

 

The 2015 amendment of the A&C Act had a drastic impact on the jurisprudence and the arbitration fraternity witnessed the conscious effort that was being made by the judiciary to correct their approach when they were confronted with Section 34 applications. A few exemplary judgments are briefly discussed in this part.

 

In November 2017, the Supreme Court in Venture Global Engg. LLC v. Tech Mahindra Ltd.[111] observed that an award can be set aside only on the grounds specified in Section 34 and no other grounds. It was further held that the Court is barred from acting as an appellate forum to examine the legality of the arbitral award and is strictly barred from reassessing facts.

 

Soon after this, in Sutlej Construction Ltd. v. State (UT of Chandigarh)[112] it was held that when the arbitrator has taken a plausible and reasonable view, the Court cannot capriciously substitute the view of the arbitrator with its own just because it has a different view or opinion. It was further laid down that setting aside of an arbitral award on the ground of public policy would be limited to a rare situation where the award shocks the conscience of the court and this would not include what the court thinks would be unjust on the facts of the case. It is evident that the Court has followed the legislative mandate and has employed the positive aspect of the ratio in Associate Builders[113].

 

More recently, in Parsa Kente Collieries Ltd. v. Rajasthan Rajya Vidyut Utpadan Nigam Ltd.[114] the Court relying on Associate Builders[115], McDermott International[116] and Rashtriya Ispat[117] has held that if an arbitrator construes a term of the contract in a reasonable manner it will not mean that the award can be set aside on that ground as the construction of the terms of a contract is primarily for the arbitrator. Moreover, it went on to reiterate that when a court is applying the public policy test to an arbitration award it does not act as a court of appeal and therefore the errors on facts cannot be corrected. It is evident that the Saw Pipes[118] and Western Geco[119] regime was abandoned.

 

Lastly, with regard to applicability of the 2015 amendment, it has been held in the landmark decision of the Supreme Court in BCCI v. Kochi Cricket (P) Ltd.[120] (Kochi Cricket) that the 2015 amendment will apply prospectively both to arbitral and court proceedings which have commenced on or after the 2015 Amendment Act came into force unless otherwise agreed by the parties.

 

VI : Ssangyong Engg. and Construction Co. Ltd. v. National Highways Authority of India : The End of Western Geco and Restoration of Renusagar

 

In a recent landmark judgment of the Supreme Court in Ssangyong Engg. and Construction Co. Ltd. v. National Highways Authority of India[121] (Ssangyong Engg.), the Division Bench comprising Nariman and Saran, JJ. made extensive observations on the position after the 2015 amendment of the A&C Act and clarified its interplay with the judgments in Western Geco[122], Associate Builders[123] and Renusagar[124]. The Court held that the broad interpretation of “fundamental policy of Indian law” as propounded in Western Geco[125] and followed in Associate Builders[126] would be improper in the light of the 2015 amendment of the A&C Act. The Court relied on the 246th Law Commission Report and its supplementary and further laid down that the interpretation of the subhead “fundamental policy of Indian law” would now be in line with Renusagar[127]. Further it laid emphasis that this subhead would now entail (i) the contravention of a law protecting national interest; (ii) disregarding the orders of superior courts; and  (iii) the principles of natural justice. Thus, it is evident that the Court has done away with the ground of non-adoption of a judicial approach correctly pre-empting that this would force an entry into the merits of the award which is clearly prohibited by the legislative intervention.

 

The Court then went to make observations with regard to the other species of public policy of India, wherein it held that the head “interest of India” would no longer warrant place in our jurisprudence. However, Nariman, J. found it appropriate to preserve the head “justice or morality” by stating that this head would now have to be construed as a conflict with the “most basic notions of morality or justice” in line with his earlier opinion in Associate Builders[128]. Thus only those arbitral awards that shock the conscience of the Court could attract this ground.

 

The Court then recalibrated the subhead “patent illegality” in the light of its statutory recognition by the insertion of Section 34(2-A) by laying down that there must be “patent illegality” appearing on the face of the award which must mean that such an illegality goes to the root of the matter but excluding an erroneous application of law by the Tribunal or reappreciation of evidence as an appellate court. The Court enumerated the circumstances that would attract a “patent illegality” appearing on the face of the award by conclusively laying down that this ground may be invoked if (i) the arbitrator fails to give reasons in the award in violation of Section 31(3) of the A&C Act; (ii) the arbitrator has taken an impossible view in construing the contract; (iii) the arbitrator transgresses his jurisdiction, and lastly in complete consensus with Associate Builders[129]; and (iv) if the arbitrator has made a perverse finding based on no evidence, overlooking vital evidence or based on documents taken up as evidence without giving proper notice to the parties. The Court also affirmed the findings in Kochi Cricket[130] with regard to the prospective applicability of the 2015 amendment of the A&C Act.

 

It is in our opinion that the judgment in Ssangyong Engg.[131] has definitely been long awaited and the Court has correctly given effect to the intention of the legislature and the Law Commission of India by rectifying the shortcomings in its earlier decisions thus removing the eclipse that was cast by Saw Pipes[132] by reinstating Renusagar[133].

 

In a recent judgment of May 2020 in Patel Engg. Ltd. v. North Eastern Electric Power Corpn. Ltd.[134] (Patel Engg.) the 3-Judge Bench of the Supreme Court has held with regard to the newly inserted Section 34(2-A) affirmed the position laid down in Associate Builders[135] followed in Ssangyong Engg.[136] The Court in Patel Engg.[137] has also affirmed the judgment in Kochi Cricket[138].

 

Conclusion

 

After a concentrated examination of the expansion and contraction of the term “public policy of India” embodied in Section 34(2)(b)(ii) of the A&C Act beginning from the 1994 judgment in Renusagar[139] to the 2019 judgment in Ssangyong Engg.[140], it is apparent that there has been a long-drawn battle between the Supreme Court of India and the “unruly horse” that has lasted more than two decades and which still continues to persist. The Supreme Court has time again had sand thrown into its eyes when it had to construe the term “public policy of India” and has often deviated from giving effect to the essence of the 1958 New York Convention. The Court has diluted the rationales of the pro-enforcement bias and minimum judicial intervention both which are incorporated in the A&C Act.

 

In spite of the far-reaching effects of the judgments in McDermott International[141], Shri Lal Mahal[142], Associate Builders[143] and Ssangyong Engg.[144] there still appears to be room for mischief that could be detrimental to the arbitration landscape in India. It is in our opinion that there is need for a complete overruling of Saw Pipes[145] as its interplay with the other existing and future judgments could be problematic. In addition to this, it is evident that in spite of the efforts made to correct the semantics there still appears to be a duplication of procedural irregularities in the subheads of public policy of India.

 

It is also interesting to note that the term “public policy of India” has shadowed the subject-matter arbitrability of disputes in India for decades until the Supreme Court articulated the rights test in Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd.[146] and more recently by articulating the fourfold test in Vidya Drolia v. Durga Trading Corpn.[147] The Indian courts have also erred by applying the domestic notions of public policy to foreign awards, although the courts have taken cognizance of this error it is in our opinion that this transgression is likely to occur again. In this context, I would like to give credit by citing the remarkable writings of Professor Pierre Lalive where he attempts to demonstrate that there exists a concept of a “truly” international or transnational public policy in the field of international commercial arbitration.[148] Professor Lalive in his writings stresses on the need to recognise the dichotomy between the two types of public policy when he attempts to explain the underlying objective of Article V of the 1958 New York Convention[149]. Professor Lalive says that this automatic assimilation or the confusion between those two kinds of “public policy” is particularly dangerous.[150] He lays emphasis by stressing on the importance of distinguishing domestic arbitration from the specificity of international arbitration by correctly improvising and applying to international arbitration those mandatory rules enacted and conceived for domestic arbitration.[151] It is our opinion that Supreme Court had correctly followed this approach in Renusagar[152] and then later was swayed by the “unruly horse”. Although, Nariman, J. in Ssangyong Engg.[153] has restored Renusagar[154], it is our opinion that there is a need for a more authoritative ruling by the Supreme Court that strictly imposes fetters on the powers of the judiciary thereby preventing it from reading deeper into the term “public policy of India” and thus emerging triumphant in its battle with the “unruly horse”.

 


† Hiroo Advani, Senior Managing Partner at Advani & Co.

†† Manav Nagpal, Associate at Advani & Co.

 

[1] Richardson v. Mellish, (1824) 2 Bing 229, 242 : 130 ER 294.

[2] 1994 Supp (1) SCC 644.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] (2003) 5 SCC 705.

[7] Ibid.

[8] 1994 Supp (1) SCC 644.

[9] (2003) 5 SCC 705.

[10] 1994 Supp (1) SCC 644.

[11] (2003) 5 SCC 705.

[12] Ibid.

[13] 1994 Supp (1) SCC 644.

[14] (2003) 5 SCC 705.

[15] Ibid.

[16] (2008) 4 SCC 190.

[17] (2003) 5 SCC 705.

[18] Ibid.

[19] (2006) 11 SCC 181.

[20] (2003) 5 SCC 705.

[21] (2012) 5 SCC 306.

[22] (2003) 5 SCC 705.

[23] (2012) 5 SCC 306.

[24] (2011) 10 SCC 300.

[25] (2003) 5 SCC 705.

[26] Ibid.

[27] (2012) 9 SCC 552.

[28] (2002) 4 SCC 105.

[29] (2012) 9 SCC 552.

[30] (2014) 2 SCC 433.

[31] (2011) 10 SCC 300.

[32] 1994 Supp (1) SCC 644.

[33] (2003) 5 SCC 705.

[34] (2014) 2 SCC 433.

[35] (2003) 5 SCC 705.

[36] Ibid.

[37] (2012) 9 SCC 552.

[38] (2002) 4 SCC 105.

[39] (2012) 9 SCC 552.

[40] (2002) 4 SCC 105.

[41] (2003) 5 SCC 705.

[42] (2008) 4 SCC 190.

[43] (2011) 10 SCC 300.

[44] (2008) 4 SCC 190.

[45] (2003) 5 SCC 705.

[46] (2002) 4 SCC 105.

[47] (2014) 9 SCC 263.

[48] Ibid.

[49] (2003) 5 SCC 705.

[50] 1994 Supp (1) SCC 644.

[51] (2003) 5 SCC 705.

[52] Ibid.

[53] (2014) 9 SCC 263.

[54] Id.,para 35.

[55] Id., para 38.

[56] Id., para 39.

[57] 1994 Supp (1) SCC 644.

[58] (2014) 9 SCC 263.

[59] 1994 Supp (1) SCC 644.

[60] Ibid.

[61] (2014) 9 SCC 263.

[62] 1994 Supp (1) SCC 644.

[63] (2003) 5 SCC 705.

[64] (2014) 9 SCC 263.

[65] (2015) 3 SCC 49.

[66] (2014) 9 SCC 263.

[67] Ibid.

[68] (2003) 5 SCC 705.

[69] (2015) 3 SCC 49.

[70] (2014) 9 SCC 263.

[71] (2003) 5 SCC 705.

[72] (2014) 9 SCC 263.

[73] Associate Builders, (2015) 3 SCC 49, paras 27-30.

[74] Id., para 31.

[75] (2015) 3 SCC 49.

[76] 1994 Supp (1) SCC 644.

[77] Associate Builders, (2015) 3 SCC 49, para 35.

[78] Id., paras 36 to 39.

[79] (2003) 5 SCC 705.

[80] Associate Builders, (2015) 3 SCC 49, para 42.

[81] (2015) 3 SCC 49.

[82] (2014) 9 SCC 263.

[83] (2003) 5 SCC 705.

[84] (2015) 3 SCC 49.

[85] (2006) 11 SCC 181.

[86] (2012) 5 SCC 306.

[87] (2003) 5 SCC 705.

[88] Ibid.

[89] (2014) 9 SCC 263.

[90] Associate Builders, (2015) 3 SCC 49, paras 32 to 34.

[91] (2015) 3 SCC 49.

[92] (2003) 5 SCC 705.

[93] (2014) 2 SCC 433.

[94] (2012) 9 SCC 552.

[95] (2002) 4 SCC 105.

[96] 1994 Supp (1) SCC 644.

[97] (2014) 9 SCC 263.

[98] Ibid.

[99] (2015) 3 SCC 49.

[100] (2014) 9 SCC 263.

[101] (2015) 3 SCC 49.

[102] (2014) 9 SCC 263.

[103] Supplementary to Report No. 246 on Amendments to the Arbitration and Conciliation Act, 1996 at para 6.

[104] 1994 Supp (1) SCC 644.

[105] (2014) 9 SCC 263.

[106] (2015) 3 SCC 49.

[107] (2003) 5 SCC 705.

[108] Ibid.

[109] (2015) 3 SCC 49.

[110] (2014) 2 SCC 433.

[111] (2018) 1 SCC 656.

[112] (2018) 1 SCC 718.

[113] (2015) 3 SCC 49.

[114] (2019) 7 SCC 236.

[115] (2015) 3 SCC 49.

[116] (2006) 11 SCC 181.

[117] (2012) 5 SCC 306.

[118] (2003) 5 SCC 705.

[119] (2014) 9 SCC 263.

[120] (2018) 6 SCC 287.

[121] (2019) 15 SCC 131.

[122] (2014) 9 SCC 263.

[123] (2015) 3 SCC 49.

[124] 1994 Supp (1) SCC 644.

[125] (2014) 9 SCC 263.

[126] (2015) 3 SCC 49.

[127] 1994 Supp (1) SCC 644.

[128] (2015) 3 SCC 49.

[129] Ibid.

[130] (2018) 6 SCC 287.

[131] (2019) 15 SCC 131.

[132] (2003) 5 SCC 705.

[133] 1994 Supp (1) SCC 644.

[134] (2020) 7 SCC 167.

[135] (2015) 3 SCC 49.

[136] (2019) 15 SCC 131.

[137] (2020) 7 SCC 167.

[138] (2018) 6 SCC 287.

[139] 1994 Supp (1) SCC 644.

[140] (2019) 15 SCC 131.

[141] (2006) 11 SCC 181.

[142] (2014) 2 SCC 433.

[143] (2015) 3 SCC 49.

[144] (2019) 15 SCC 131.

[145] (2003) 5 SCC 705.

[146] (2011) 5 SCC 532.

[147] (2021) 2 SCC 1.

[148] Pierre Lalive, “Transnational (or Truly International) Public Policy and International Arbitration” in Pieter Sanders (ed.), Comparative Arbitration Practice and Public Policy in Arbitration (ICCA Congress Series, vol. 3, Kluwer Law International 1987).

[149] Id., para 9.

[150] Id., para 9.

[151] Id., para 9.

[152] 1994 Supp (1) SCC 644.

[153] (2019) 15 SCC 131.

[154] 1994 Supp (1) SCC 644.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dr. DY Chandrachud, L. Nageswara Rao and S. Ravindra Bhat, JJ has expressed serious concerns on the ability of the marginalized members of society between the ages of 18-44 years to avail COVID-19 vaccination, exclusively through a digital portal in the face of a digital divide and has said,

“A vaccination policy exclusively relying on a digital portal for vaccinating a significant population of this country between the ages of 18-44 years would be unable to meet its target of universal immunization owing to such a digital divide. It is the marginalized sections of the society who would bear the brunt of this accessibility barrier. This could have serious implications on the fundamental right to equality and the right to health of persons within the above age group.”

CoWIN Portal and how it works

According to the Union of India,

(i) The CoWIN portal enables one person to register 4 persons using the same mobile number;

(ii) All gram panchayats in the country have Common Service Centres which can effectively enable people residing in rural areas to register online for the vaccination;

(iii) Citizens who do not have access to digital resources could take help from family, friends, NGOs and CSCs;

(iv) Walk-ins cannot be permitted due to the scarcity of vaccines and fears of over-crowding at centres. The online registration requirement counters this fear and also effectively monitors the administration of the second dose. The policy may be re-considered subsequently when more vaccines are available;

(v) Identity proofs are required for the purpose of determining age and keeping a track of persons who are due for the second dose. However, in recognizing the issues arising with the insistence of one of the seven prescribed photo-ID proofs, the Central Government issued an SoP dated 23 April 2021 which enables bulk registration of certain identifiable groups, such as homeless persons, who would be identified and registered by the District Immunization Task Force; and

The Centre clarified that walk-in vaccination facilities will continue for persons over the age of 45 years in separate, designated vaccination centres. This is because vaccinations have been underway for this age group for a while and overcrowding has not been experienced so far.

Data, Drawbacks, and the Digital Divide

In the order, where the Court sought clarification from the Centre on various issues relating to the COVID-19 Vaccination policy, it relied on vaiours reports and surveys that highlighted that:

  • Around 4% of the rural households and 23% of the urban households possessed a computer. In the age group of 15-29 years, around 24% in rural households and 56% in urban areas were able to operate a computer; and
  • Nearly 24% of the households in the country had internet access during the survey year 2017-18. The proportion was 15% in rural households and 42% in urban households. Around 35% of persons in the age group of 15-29 years reported use of internet during the 30 days prior to the date of survey. The proportions were 25% in rural areas and 58% in urban areas.
  • Out of the total population of 1.3 billion, only 578 million people in India (less than 50%) have subscription to wireless data services. The wireless tele density in rural areas is 57.13% as compared to 155.49% in urban areas as on 31 March 2019. The report stated that: “[this] reflects the rural-urban divide in terms of telecom services‟ penetration. Since, the number of wireless data subscribers are less than 50% of the total wireless access subscribers, the number of wireless data subscribers in rural areas would be much lower”.
  • In a few Indian States like Bihar, Uttar Pradesh and Assam the tele density is less than 75%; and
  • The monthly income of persons living below the poverty line in urban areas and rural areas is Rs 1316 and Rs 896, respectively. However, to access internet data services, a minimum tariff plan would cost around Rs 49, which includes 1 GB data every 28 days. This would constitute 4-5% of the month‟s income of such persons accessing data. As such, the report notes that this would bear a considerable cost for persons living below the poverty line.
  • While there are 2,53,134 Gram Panchayats in India, as on 31 March 2020 only 2,40,792 Gram Panchayats are covered with at least one registered Common Service Centres. Hence, approximately 13,000 Gram Panchayats in India do not have a Common Service Centres.
  • The CoWIN platform is not accessible to persons with visual disabilities. The website suffers from certain accessibility barriers. These include:

(i) Audio or text captcha is not available;

(ii) The seven filters, which inter alia, include age group, name of vaccine and whether the vaccine is paid or free, are not designed accessibly. This issue can be addressed by creation of a drop-down list;

(iii) While visually challenged persons can determine the number of available vaccine slots, one cannot find out the day those slots correspond to. This can be resolved by ensuring that table headers correspond to associated cells;

(iv) Keyboard support for navigating the website is absent;

(v) Adequate time should be given to disabled users to schedule their appointment without the possibility of being automatically logged off; and

(vi) Accessibility protocols, such as use of appropriate colour contrasts, should be adhered to

“… there exists a digital divide in India, particularly between the rural and urban areas. The extent of the advances made in improving digital literacy and digital access falls short of penetrating the majority of the population in the country. Serious issues of the availability of bandwidth and connectivity pose further challenges to digital penetration.”

Clarifications sought from the Government:

“It may not be feasible to require the majority of our population to rely on friends/NGOs for digital registrations over CoWIN, when even the digitally literate are finding it hard to procure vaccination slots.”

  • The issue of over-crowding may also arise at CSCs in rural areas where people would have to visit constantly in hope of a vaccine slot opening up.
  • Certain vaccination centres may be earmarked for on-site registrations for the population aged between 18-44 years without the existing conditions prescribed in the circular dated 24 May 2021, potentially with a view to prioritize those with co-morbidities/disabilities/other socio-economic vulnerabilities. Alternatively, whether specific daily quotas may be introduced for on-site registration at each centre or specific centres.
  • This policy may not allay the issue of hesitancy which may arise from approaching a State authority (such as the District Immunization Task Force) to obtain registration for the vaccination. Whether on-site registration with selfattestation of age to ensure widespread vaccination can be provided.
  • The CoWIN platform and other IT applications like Aarogya Setu should be made available in regional languages. The timeline for ensuring the availability of the platform in multiple regional languages.
  • Conducting a disability audit for the CoWIN website and other IT application like Aarogya Setu to ensure that they are accessible to persons with disabilities.

[In re: Distribution of Essential Supplies and Services During Pandemic, 2021 SCC OnLine SC 411, decided on 31.05.2021]


Appearances before the Court

Mr Tushar Mehta, learned Solicitor General

Mr Jaideep Gupta and Ms Meenakshi Arora, learned Senior counsel and Amici

ALSO READ

COVID-19 Vaccination Policy| Supreme Court seeks clarifications from Centre on these five issues

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dr. DY Chandrachud, L. Nageswara Rao and S. Ravindra Bhat, JJ has, in a bid to understand the vaccination policy for COVID-19, has sought clarification from the Central Government on various aspects enumerated below. While doing so, the Court clarified that,

“This Court is presently assuming a dialogic jurisdiction where various stakeholders are provided a forum to raise constitutional grievances with respect to the management of the pandemic. Hence, this Court would, under the auspices of an open court judicial process, conduct deliberations with the executive where justifications for existing policies would be elicited and evaluated to assess whether they survive constitutional scrutiny.”

Vaccine Procurement and Distribution among Different Categories of the Population

Asking UoI to undertake a fresh review of its vaccination policy, the Court has sought clarification on the following:

  • The roadmap of projected availability of vaccines till 31 December 2021;
  • The preparedness with respect to specific needs of children in the event of a third wave of the pandemic in terms of medical infrastructure, vaccination trials and regulatory approval, and compatible drugs;
  • Whether under the policy of the UoI, it is permissible for State/UT Governments or individual local bodies to access vaccine supplies of foreign manufacturers;
  • The number of crematorium workers vaccinated in phase 1. A targeted drive can be conducted for vaccination of the remaining crematorium workers;
  • The State/UT Governments are diverting the vaccines (procured by them at a higher price than Central Government) for the persons in the age group of 18- 44 years to vaccinate persons above 45 years of age, due to a shortage of vaccines being supplied by the Central Government. The manner in which the Central Government will factor this quantity and price differential into their subsequent allocation and disbursal of vaccines to States/UTs for the persons above 45 years of age; and
  • The mechanism for redistribution, if the 25:25 quota in a particular State/UT is not picked up by the State/UT Government or the private hospitals.

Effects of Vaccination by Private Hospitals under the Liberalized Vaccination Policy

“… we are not opposed to the involvement of private hospitals in the vaccination drive. Private health care institutions have an important role as well. The UoI has correctly noted in its affidavit that these hospitals will reduce the burden on government facilities. This was also happening earlier for the vaccination of those above 45 years of age, where the Central Government was providing these hospitals with vaccines and they were allowed to charge patients a nominal fee (Rs 250). However, the issue is about the effect of privatizing 50% of all vaccines available for the 18-44 age group.”

  • The manner in which Central Government will monitor the disbursal of vaccines to private hospitals, specifically those who have hospital chains pan India. Further, whether (i) private hospitals are liable to disburse vaccines pro rata the population of States/UTs; and (ii) the mechanism to determine if private players are genuinely administering the lifted quota in that State/UT alone. The UoI shall place on record any written policy in relation to this.
  • Whether the Central Government conducted a “means-test” of the demographic of a State/UT to assert that 50% of the population in the 18-44 age group would be able to afford the vaccine. If not, the rationale for private hospitals being provided an equal quota for procurement as the State/UT Governments.
  • The manner in which the Centre and States/UTs shall ensure an equitable distribution of vaccines across sections of the society, and how this factors into the rationale of equal apportionment between State/UT Governments and private hospitals.
  • The nature of the intervention with respect to the final, end-user price that is being charged by private hospitals, especially when a cap on procurement by the private hospitals has been set.

Basis and Impact of Differential Pricing

If the Central Government’s unique monopolistic buyer position is the only reason for it receiving vaccines at a much lower rate from manufacturers, it is important for us to examine the rationality of the existing Liberalized Vaccination Policy against Article 14 of the Constitution, since it could place severe burdens, particularly on States/UTs suffering from financial distress.”

While the Court commended the co-operative efforts of the UoI and the private manufacturers in developing and distributing vaccines which are critical to mitigate the pandemic, it sought clarifications on the process of development and augmentation of vaccine production and its pricing for States/UTs and private hospitals.

  • Since the Central Government has financed (officially, Rs 35 crores to BBIL and Rs 11 crore to SII for phase 3 clinical trials) and facilitated the production (or augmentation of production) of these vaccines through concessions or otherwise, it may not be accurate to state that the private entities have alone borne the risk and cost of manufacture. Additionally, the Central Government would have minimized the risks of the manufacturers by granting Emergency Use Authorization to the vaccines, which should factor into its pricing.
  • The manner in which public financing is reflected in the procurement price for the Central Government, which is significantly lower than price for the State/UT Governments and private hospitals. Given that the R&D cost and IP have either been shared between the Central Government and the private manufacturer (in case of Covaxin) or the manufacturer has not invested in R&D of the vaccine (in case of Covishield), the manner in which the pricing of vaccines has been arrived at, with the Central Government refusing to intervene statutorily. The justification for intervening in pre-fixing procurement prices and quantities for States/UTs and private hospitals, but not imposing statutory price ceilings.
  • Comparison between the prices of vaccines being made available in India, to their prices internationally.
  • Whether ICMR/BBIL formally invited contracts for voluntary licensing and if so, whether they have they received viable offers. The manner in which the UoI is independently trying to assist manufacturers for developing BSL3 labs which are essential for Covaxin production.

Vaccine Logistics

  • The manner in which cold storage equipment capacity is being balanced between the Central and State/UT Governments. The manner in which the States/UTs are managing the logistical burden for vaccinating persons aged between 18-44 years, along with persons aged over 45 years.
  • Whether cold storage facilities in India have increased for the COVID-19 vaccination drive; the present numbers, and comparison with the numbers prior to March 2020;
  • Whether the cold storage equipment is indigenously manufactured or is imported. If it is imported, the steps which have been taken to start indigenous manufacturing.
  • The steps being taken to improve the cold storage management for vaccines which may require lower temperature to be stored, compared to the ones which currently have approval in India.

Digital divide

“… there exists a digital divide in India, particularly between the rural and urban areas. The extent of the advances made in improving digital literacy and digital access falls short of penetrating the majority of the population in the country. Serious issues of the availability of bandwidth and connectivity pose further challenges to digital penetration. A vaccination policy exclusively relying on a digital portal for vaccinating a significant population of this country between the ages of 18-44 years would be unable to meet its target of universal immunization owing to such a digital divide. It is the marginalized sections of the society who would bear the brunt of this accessibility barrier. This could have serious implications on the fundamental right to equality and the right to health of persons within the above age group.”

  • It may not be feasible to require the majority of our population to rely on friends/NGOs for digital registrations over CoWIN, when even the digitally literate are finding it hard to procure vaccination slots.
  • The issue of over-crowding may also arise at CSCs in rural areas where people would have to visit constantly in hope of a vaccine slot opening up.
  • Certain vaccination centres may be earmarked for on-site registrations for the population aged between 18-44 years without the existing conditions prescribed in the circular dated 24 May 2021, potentially with a view to prioritize those with co-morbidities/disabilities/other socio-economic vulnerabilities. Alternatively, whether specific daily quotas may be introduced for on-site registration at each centre or specific centres.
  • This policy may not allay the issue of hesitancy which may arise from approaching a State authority (such as the District Immunization Task Force) to obtain registration for the vaccination. Whether on-site registration with selfattestation of age to ensure widespread vaccination can be provided.
  • The CoWIN platform and other IT applications like Aarogya Setu should be made available in regional languages. The timeline for ensuring the availability of the platform in multiple regional languages.
  • Conducting a disability audit for the CoWIN website and other IT application like Aarogya Setu to ensure that they are accessible to persons with disabilities.

Final directions

The Court directed UoI to file an affidavit, with each of the abovementioned issues responded to individually and no issue missed out.

The affidavit should also provide the following information:

  • The data on the percentage of population that has been vaccinated (with one dose and both doses), as against eligible persons in the first three phases of the vaccination drive. This shall include data pertaining to the percentage of rural population as well as the percentage of urban population so vaccinated;
  • The complete data on the Central Government‟s purchase history of all the COVID-19 vaccines till date (Covaxin, Covishield and Sputnik V). The data should clarify: (a) the dates of all procurement orders placed by the Central Government for all 3 vaccines; (b) the quantity of vaccines ordered as on each date; and (c) the projected date of supply; and
  • An outline for how and when the Central Government seeks to vaccinate the remaining population in phases 1, 2 and 3.
  • The steps being taken by the Central Government to ensure drug availability for mucormycosis.

The affidavit is to be filed within 2 weeks.

[In re: Distribution of Essential Supplies and Services During Pandemic, 2021 SCC OnLine SC 411, decided on 31.05.2021]


Appearances before the Court

Mr Tushar Mehta, learned Solicitor General

Mr Jaideep Gupta and Ms Meenakshi Arora, learned Senior counsel and Amici

Op EdsOP. ED.

On 10-3-2021, the Punjab and Haryana High Court, in Moyna Khatun v. State of Punjab[1] dismissed the petition of Ms Moyna Khatun, aged 18 years and Mr Lab Singh, aged 19 years, seeking protection of their life and liberty at the hands of private respondents.

Live-in relationships or relationships in nature of marriage have slowly gained legal and judicial acceptance in the country. Statutorily, the Evidence Act, 1872[2] allows the court to draw a presumption of marriage under Section 114(g)[3] and Section 50[4]. In order to establish the presumption it has to be proved that the man and woman were living together for a long period as husband and wife; and that they projected themselves to the society as a married couple. There is no need to prove the factum of marriage in cases falling under Section 114. This reflects the approach of the law that it assumes in favour of marriage and against concubinage when couples have lived together as husband and wife for a long period of time.

Another statute which recognises live-in relationships is the Protection of Women from Domestic Violence Act, 2005[5] (the PWDVA, 2005), which was passed in keeping with India’s international commitments to address gender specific grievances of women. Section 2(f) of the PWDVA, 2005[6] defines a domestic relationship as a “relationship between two persons who live or have lived together in a shared household when they are related by consanguinity, marriage, adoption or through a relationship in the nature of marriage”.

The need to include relationships in nature of marriage was recognised in the Report of the Parliamentary Standing Committee on the Protection from Domestic Violence Bill, 2002[7]. The Committee acknowledged that there are many instances in India where a man and woman, though not legally married, still live together as husband and wife and have social sanction for it as well. Therefore, these relationships need to be included within the framework of the law to ensure that such women who are victims of any kind of violence that occurs within the family are protected. Relationship in nature of marriage is defined as analogous to common law marriage[8] i.e. the couple has to hold themselves out to the society as being akin to spouse; have to be of legal age to marry; have to be otherwise qualified to enter into a marriage, including being unmarried; and have to voluntarily cohabit for a significant period of time.

Landmark cases such as D. Velusamy v. D. Patchaiammal[9] and Indra Sarma v. V.K.V.  Sarma[10] have recognised and given contour to the factors that need to be established for proving live-in relationships. The Courts, have also generally been sensitive towards partners of live-in relationships. For instance, in Nandakumar v. State of Kerela[11], the Supreme Court allowed an underage couple to live together. It recognised that the concept may be socially unacceptable, but in law, it could not be looked down upon. Similarly, in a Gujarat High Court decision of 2020, the Court ordered the police to extract the documents of the girl from her father so that she could subsequently solemnise marriage with her live-in partner.[12] The Punjab and Haryana High Court has also ordered police protection to live-in couples in cases like Simran Kaur  v. State of Punjab[13] and Sukhbir Singh v. State of Punjab[14], Soniya v. State of Haryana[15], Priyapreet Kaur v. State of Punjab[16], Pardeep Singh v. State of Haryana[17] as also the Allahabad High Court in Kamini Devi v. State of Uttar Pradesh[18].

The case of Moyna Khatun v. State of Punjab[19] is a unique case of live-in relationships. The female partner, aged about 18 years and the male partner, aged about 19 years, entered into a live-in relationship deed, which they settled by way of mutual consent. Through the contractual live-in-relationship, both parties agreed their relationship will not be a marital relationship; that they will fully cooperate with each other without any dispute and will not claim anything against each other; and if either party backs out from the aforesaid deed, the other party will have a right to approach a competent court of law for implementation of the same. Further, the parties will be entitled and will be at liberty to terminate the deed at any time after giving one month’s notice to the other party. Additionally, on attaining marriageable age, the parties agreed to solemnise marriage. It was also submitted by the counsel for the parties that the deed was executed by the parties in Patiala.

This is the first time that a case of such nature has come before any court in India. The Hon’ble Judge dismissed the petition on the ground that the terms and conditions of the deed, especially stating that it is not a marital relationship, is nothing but the misuse of the process of law as it cannot be morally accepted in society. This brings the author of this piece to the larger question of whether deeds of live-in relationships are void ab initio, or they have some merit in the law and can be executed in certain circumstances.

In countries such as the United Kingdom and the United States of America, live-in partners can enter into cohabitation contracts. These contracts are primarily used to protect the rights of the cohabiting partners upon dissolution of the relationship, either by death or dissolution. These generally include, but are not limited to, disclosure of each partner’s assets and liabilities. With respect to property of the partners, the agreement must specify how the parties intend to deal with property owned before the relationship as well as that acquired afterwards. Matters other than property that can form part of such an agreement are support, custody or visitation rights for children born during the relationship and payment of debts before and during the relationship. Inclusion of such clauses will make the agreement holistic and truly lead to protection of the rights of live-in partners.

When cohabitation contracts, or live-in relationship deeds are so framed, the next point of enquiry becomes whether such deeds are opposed to public policy. Not only in India, but in USA and UK as well, cohabitation contracts have been challenged on the ground of violating public policy. There are two public policy aspects implicit in the proposition of legally accepting the validity of cohabitation contracts – the execution of such contracts can lead to dissolution of the institution of marriage, and an increase in cohabitation; and, these contracts may be based on meretricious agreements. The latter was discussed in the landmark case of Marvin v. Marvin[20]:

Adults who voluntarily live together and engage in sexual relations are nonetheless as competent as any other persons to contract respecting their earnings and property rights. Of course, they cannot lawfully contract to pay for the performance of sexual services so long as the agreement does not rest upon illicit meretricious consideration, the parties may order their economic affairs as they choose, and no policy precludes the courts from enforcing such agreements.[21]

On the question of whether cohabitation agreements discourage marriage, the enquiry will lie in determining whether encouraging marriage is a matter of public policy, or, does it fall within the realm of private lives of people? Historically, marriage has been said to hold a place of extreme significance, both for the individuals as well as for the State. It was considered as the basic unit of society, a constituent element in determining the political theory, and consequently the functioning of the State.[22] It creates strong ties of identity, kinship, mutual interdependence and responsibility[23] and … brings with it a psycho-physical intimacy[24]. Marriage also serves as the backbone for the principle of legitimacy, since human children require a long duration of caring and it is in their benefit that they can associate to an identifiable mother and father as nurturers.[25]

Over the years, marriage has taken an institutional form, acceptable both in society and in religion. This is evident from the sacrosanct status to marriage given under the Hindu Law, wherein it has been considered to be a samskara. Similarly, in Islam, marriage is considered to partake elements of both ibadat i.e. worship and muamlat i.e. daily affairs of men. In Christianity as well, marriages have to be officially validated by a priest and clandestine living together or informal marriages are not accepted.[26]

The social significance placed upon marriage by legitimising it through religious and ceremonial practices reflects the notion of “marriage as a status”. Gradually, however, as with the movement of all States from “status” to “contract”, marital relationships have also moved from “status” to “contract”.[27] As a result of this, people have found the legal space to exercise their option of entering into non-marital unions. Live-in relationships are a form of intimate partner living.

A live-in relationship or cohabitation does not require proof of the couple being akin to spouses. It is thus, an alternate form of living together and founding a family. These relationships find their basis in the will theory of contract.[28] The prime reasons for the growth of live-in relationships have been the freedom associated with this living arrangement, test of emotional and physical compatibility and rejection of restrictions and inequalities that have come about in the institution of marriage.[29] At the same time, cohabitation relationships often involve incidents of marriage such as emotional and physical exclusivity of partners; expectations of a permanent relationship; stability and similar phenomena. Some partners may even comingle their assets, incomes, financial burdens and have children.[30] The main criticism against acceptance of cohabitation relationships is its duration and often impermanence. However, with increasing divorce rates, this argument may not hold tight. In India, the number of divorces has doubled over the past two decades. Though only 1.1 per cent of women are divorced, those in urban areas make up the largest proportion.[31]

In India marriage is the dominant form of intimate partner relationship. Living together, though socially unacceptable is legally acceptable. However, not every relationship qualifies as a live-in relationship, and the strict interpretation laid down by the courts has to be complied with in order to get the protection of the law. Presently, the law provides only limited rights to partners who live together. Maintenance is one such right that has been secured for the female partner, through a catena of judgments. Upon dissolution of the relationship due to separation or death of a partner, the law is silent on property rights, or even the matters of custody of children who are born during the relationship. If live-in deeds provide for the management of property, they will indeed secure rights of both parties, especially when this cannot be achieved by the succession laws of the country.  It will ensure that the partner with lower earnings has an income to rely on upon dissolution; and, the higher earning partner is not exploited eventually. Providing for child custody will also reduce unnecessary litigation and provide a harmonious environment for the upbringing of the child. The arrangement can however, be challenged in the court if it is found to not be in the best interest of the child. Mere mentioning of the relationship as a live-in relationship should also not be considered as a ground for rejecting the contractual arrangement if it can be established by the parties that their relationship is equivalent to a de facto marriage. It is here that the tests laid down by the Supreme Court will be useful. It will also exclude the possibility of the relationship being a meretricious one, as was cautioned in Marvin v. Marvin.[32]

Public policy is an unruly horse, but must change with the changing times. The same can even be said about immorality as a ground for not executing a contract. The aim of public policy is to preserve public welfare, wherein, individual freedom is restricted to ensure the general good of the society. Immorality too aims to protect the larger societal good. In light of this, it is imperative to note that the Parliamentary Standing Committee itself recognised the existence of live-in relationships in India. The author submits that merely mentioning that a relationship is a live-in relationship and not a marital relationship should not be considered immoral. Further, when the live-in relationship deed provides for protection of property, financial and custody and guardianship rights, it must be executed, subject to the principles of property and guardianship laws.


*Assistant Professor of Law, Institute of Law, Nirma University. Author can be reached at shreya.srivastava@nirmauni.ac.in

[1] 2021 SCC OnLine P&H 920.

[2] Evidence Act, 1872.

[3] Ibid, Section 114 (g).

[4] Ibid, Section 50.

[5] Protection of Women from Domestic Violence Act, 2005.

[6] Ibid, Section 2(f).

[7] Department-Related Parliamentary Standing Committee on Human Resource Development on the Protection from Domestic Violence Bill, 2002 (Report No. 124).

 [8] D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469.

[9] Ibid.

[10] (2013) 15 SCC 755.

[11] (2018) 16 SCC 602.

[12] Bhakhodiya Ashokbhai Rameshbhai v. State of Gujarat, 2020 SCC OnLine Guj 2984

[13] 2017 SCC OnLine P&H 5409.

[14] 2015 SCC OnLine P&H 20771.

[15] CRWP No.4533 of 2021, decided on 18-5-2021.

[16] 2020 SCC OnLine P&H 2340.

[17] 2021 SCC OnLine P&H 921.

[18] Writ C No. 11108 of 2020, decided on 23-11-2020.

[19] 2021 SCC OnLine P&H 920.

[20] (1976) 18 Cal 3d 660.

[21] Ibid.

[22] Elizabeth Brake, Marriage and Domestic Partnership, Stanford Encylopaedia of Philosophy (12-3-2021, 10:00 a.m.) <https://plato.stanford.edu/entries/marriage/#:~:text=The%20state%20arises%20from%20component,theory%20(Politics%2C%201264b)>.

[23] Marriage and the Public Good: Ten Principles (Princeton, New Jersey, 2006), [Philosophy (12-3-2021, 10:30 a.m.)] < http://www.laikos.org/PublicGood.pdf>.

[24] E.O. James, Marriage and Society, (Hutchinson University Press, London, 1952)

[25] Kris Franklin, A Family Like any Other Family: Alternative Methods of Defining Family in Law, 18 NYU Rev. L. & Soc. Change 1027, 1033 (1990).

[26] Lord Hardwicke’s Marriage Act of 1753 declared that all marriage ceremonies must be conducted by a Minister in a Parish, Church or Chapel of the Church of England to be legally binding.

[27] Janet Halley, What is Family Law?: A Genealogy Part I, 23 Yale JL & Human, 52, 56 (2011)

[28] Ibid.

[29] State v. Manu Gopal, SC No. 456/2017, decided on 5-1-2019 (Delhi District Court).

[30] See Newcomb, Cohabitation in America: An Assessment of Consequences 43 (3) J. Mar & Fam. (1979); Glick & Norton, Marrying, Divorcing, and Living Together in the US Today, 32(5) Population Bulletin 32 (1977).

[31] UN Women Report on Progress of the World’s Women 2019-2020: Families in a Changing World, United Nations in India, <https://in.one.un.org/un-press-release/progress-worlds-women-report-2019-2020/> (13-3-2021, 9:30 p.m. )

[32] (1976) 18 Cal 3d 660.

Op EdsOP. ED.

Swiftness of the Coronavirus induced disruptions surely would have prevented any viable pre-preparation on part of those most affected. Resultantly, almost all businesses/industries/manufacturing units are likely to, as many already do, face unprecedented upheavals and alterations in their supply chains/workforce/expansion. It is in this background that industrial and manufacturing units, regardless of functioning via a written agreement or not, must prime themselves vis-à-vis the laws of frustration, contingency and force majeure.

In India, the law pertaining to contingency[1] and frustration[2] must be treated  as rules of positive law that oblige and outline specific rights and obligations thereof. On the other hand, force majeure is a derivation of civil law, particularly French Law, whereby it pertains to any supervening event or happenstance as may obviate and affect the ability of a party to the agreement from performing it. In India, ‘force majeure’ usually finds place in a contract thereby allowing for a certain degree of flexibility and play in contractual relations thereof. Though a lot is dependent on the actual language and construction of the said clause, the courts in India have leaned in favour of placing ‘force majeure’ within the umbrella of contingency.

The courts have in their wisdom expounded upon force majeure as an exclusionary clause being part of a mutual agreement between parties thereof. In such a scenario, operation of such a clause is to be found under, and has been limited to (albeit incorrectly as per me), the chapter dealing with ‘contingency’ rather than ‘frustration’.[3] It is conceded that the presence of a ‘force majeure’ clause clearly postulates that the parties were in the know of an event or several events (being exclusively a function of that particular clause) and agreed upon the same so as to render the agreement non-performable thereof. Contingency in a contract rests on (1) agreement between parties, (2) postulated upon a future uncertain event(s)/condition(s), (3) being collateral to the contract thereof, and (4) happening (or not) of such event/condition.[4] Therefore, having regard to the same, one would be hard-pressed to disagree with the law as laid down in the seminal judgment of Satyabrata Ghose v. Mugneeram Bangur and Co. [5] when it adjudges that:

“In cases, therefore, where the Court gathers as a matter of construction that the contract itself contained impliedly or expressly a term, according to which it would stand discharged on the happening of certain circumstances the dissolution of the contract would take place under the terms of the contract itself and such cases would be outside the purview of Section 56 altogether….In such a scenario it would be a derivative of Section 32.”

Though the Supreme Court has labelled ‘force majeure’ as a function of contingency, it is my submission that in essence such a clause is ex abundati cautela and in that it traverses the thin grey area between contingency and frustration. Furthermore, it has authoritatively been held that the presence of such a clause as specifies conditionalities vide which parties would stand discharged of their contractual obligations dispenses with application of the positive law rule enshrined in Section 56.[6] However, this is where I stand in disagreement with the law as laid down in Satyabrata Ghose (1954) and followed thereafter in Energy Watchdog (2017).

In effect, both the judgments as cited herein above have given primacy to the rule of construction premised on ‘intention of parties’ whereby, regardless of Section 56, a party may agree (albeit devoid of any undue influence and coercion) to honour a contract despite occurrence of circumstances as may fundamentally alter its scape; effectively allowing the contracting parties to override a statutory enactment in going ahead with their commitment despite disappearance/obliteration/fundamental alteration of the very object thereof. Surely such a construction leads to an anomalous situation whereby the statutory scope of ‘subsequent impossibility’ is smothered.

Take for instance Illustration (e) to Section 56 as per the Act, 1872;

“(e) A contracts to act at a theatre for six months in consideration of a sum paid in advance by B. On several occasion A is to ill to act. The contract to act on those occasions becomes void.”

 Evidently, as per this illustration, A’s illness is considered to be serious enough such as to excuse performance on the basis that it fundamentally alters the object of the said contract. Collating the said illustration to the situation prevailing currently whereby say ‘A’ is suffering from COVID-19 induced illness and is mandated by policy to isolate and quarantine for a certain time period. In this background, suppose the contract between ‘A’ and ‘B’ consists of a ‘force majeure’ clause such as to exclude an illness from rendering the contract void. As per the law contained in the above cited judgments, said clause would override Section 56 impossibility and despite the COVID-19 induced SARI, ‘A’ would be held liable to for breach.

The above approach, albeit in accordance with the law as at present, is not in harmony with public policy in such aberrant times. On the other hand it may be worth considering that if ‘A’ can prove that COVID-19 fundamentally prevents him/her from carrying out the object of the contract, then the lower threshold of the ‘force majeure’ clause must fall through in the face of an express statutory obligation and frustration induced discharge ought to follow. In conclusion, having regard to the above noted averment, ‘force majeure’ cannot and must not be treated as solely a function of contingency simply because of the argument resting on intention of parties and ensuing foreseeability (or not) of the event thereof.


*Author is a practising Advocate in Delhi

[1] See Chapter III, Contract Act, 1872

[2] See Chapter IV, Contract Act, 1872

[3] Energy Watchdog  v. CERC , (2017) 14 SCC 80

[4] See Section 30, Act 1872

[5] 1954 SCR 310

[6] Satyabrata Ghose v. Mugneeram Bangur and Co., 1954 SCR 310; followed thereafter in Energy Watchdog v. Central Electricity Regulatory Commission , (2017) 14 SCC 80

Op EdsOP. ED.

Interpretation of Public Policy

A three-Judge Bench of the Supreme Court in Shri Lal Mahal Ltd. v. Progetto Grano SpA,[1] passed a landmark judgment, wherein the Court established a difference between the scope of Section 48 of the Arbitration and Conciliation Act, 1996 (the Act) concerning the enforceability of a foreign award in international commercial arbitration under the New York Convention Awards on the one hand and challenges to set aside an award under Section 34 of the Arbitration and Conciliation Act, 1996 on the other hand when the “seat” of arbitration is in India. The Supreme Court held that the expression “public policy” under Section 48(2)(b) would not include the ground of “patent illegality” and the judicial dictum of Renusagar Power Co. Ltd. v. General Electric Co.,[2] must apply to the expression “public policy” of Section 48(2)(b). In Renusagar,[3] the court narrowed “public policy” doctrine to a fundamental policy of Indian law, justice and morality, interests of India and thereby limiting the scope of judicial intervention in the foreign arbitral award. The Supreme Court added that the applicability of “public policy” of India doctrine for the purposes of Section 48(2)(b) is limited and narrow in cases involving conflict of laws and matters involving a foreign seated arbitration. Again, the Supreme Court in ONGC Ltd. v. Saw Pipes Ltd.,[4] held that “public policy” of India under Section 34 was required to be interpreted in the context of the jurisdiction of the court where the validity of the award is challenged before it becomes final and executable in contrast to the enforcement of an award after it becomes final. Therefore, public policy in Section 34 of the Act requires a wider meaning and so “patent illegality” was added as a new category for setting aside the arbitral award. Hence, the law laid down in Saw Pipes[5] would govern the scope of Section 34(2)(b)(ii) for setting aside an award under Section 34 of the Arbitration and Conciliation Act, 1996.

Precedents on “Public Policy”

The precedent laid down in Shri Lal Mahal case[6] was an important step forward in the right direction towards minimum judicial interference in arbitration process and thereby granting higher sanctity to foreign arbitral awards by laying down limited grounds under “public policy” based on which courts can refuse enforcement of foreign arbitral awards under Section 48 of the Act. Such was the necessity because the Supreme Court in Bhatia International v. Bulk Trading SA,[7] laid down that Indian courts would have jurisdiction in international commercial arbitrations irrespective of the seat of the arbitration. It led to a situation where foreign arbitral awards were challenged on the grounds of “patent illegality” in Indian courts. The scope of the expression “public policy” under Section 48 of the Act was further expanded in Phulchand Exports Ltd. v. O.O.O. Patriot,[8] wherein the Supreme Court held that expression “public policy” under Sections 34 and 48 of the Act are the same and added that a party could resist enforcement of a foreign award on grounds of “patent illegality”. Thus, it widened the scope of “public policy” under Section 48 of the Act and increased the chances of judicial intervention in international commercial arbitration but the decision of Phulchand[9] was ultimately overruled in Shri Lal Mahal[10] by Hon’ble Supreme Court.

Critical Analysis of Public Policy of India Under Section 48(2)(b)

In 2014, the Supreme Court of India clarified that expression “public policy of India” under Section 48(2)(b) is narrow and limited to the extent of[11]:

(i) Fundamental policy of Indian law.

(ii) Interests of India.

(iii) Justice and morality.

However, the Arbitration and Conciliation (Amendment) Act, 2015 with regard to enforcement of foreign awards added Explanation to Section 48(2)(b) and thereby clarifying when an award shall be considered to be in conflict with “public policy of India”. The Explanation states:

(i) That the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 81.

(ii) In contravention with the fundamental policy of Indian law.

(iii) In conflict with basic notions of morality or justice.

The above explanation of “public policy of India” in Section 48(2)(b) is not in consonance with the judicial pronouncement laid down in Shri Lal Mahal case[12]. The Supreme Court has categorically limited the context of “public policy” to fundamental policy of Indian law, justice and morality, and in the interests of India. The Court also refused to give a wide import to the meaning of “public policy” under Section 48 of the Act and rejected “patent illegality” as a ground under public policy for non-enforcement of a foreign arbitral award. The Arbitration and Conciliation (Amendment) Act, 2015 by adding the words “fraud or corruption or in violation of Section 75 or Section 81” instead of “interest of India” as a ground under “public policy” has blatantly violated the judicial principles laid down in Shri Lal Mahal Ltd. case[13].

 Furthermore, in Associate Builders v. DDA,[14] the Supreme Court while interpreting the term “patently illegal” has held that under the Explanation to Section 34(2)(b), an award is said to be in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption. Therefore, the Arbitration and Conciliation (Amendment) Act, 2015 by including the words “the making of the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 81” in Explanation 1 of Section 48(2)(b) has widened the scope of judicial review by impliedly inferring “patent illegality” within the expression “public policy of India” in complete disregard to the law laid down in Shri Lal Mahal case[15].

 Moreover, similar explanation of “public policy” in both Sections 34(2)(b)(ii) and 48(2)(b) is in violation of the precedent laid down in ONGC Ltd. v. Saw Pipes Ltd.[16] The Supreme Court in Saw Pipes[17] agreed to the subtle distinction in the concept of “enforcement of foreign award” as per Section 48 of the Act and “jurisdiction of the court in setting aside the award” as per Section 34 of the Act and held that the expression “public policy” in Section 34 requires a wider meaning and so the court added “patent illegality” as a category for setting aside the award. An arbitral award induced by fraud or corruption can be declared as patently illegal as it is so unfair and unreasonable that it shocks the conscience of the court. Therefore, Arbitration and Conciliation (Amendment) Act, 2015 by adding exactly similar explanation to the expression “public policy” in Section 48 of the Act which deals with enforcement of foreign awards and Section 34 which deals with setting aside of arbitral awards when the “seat” of arbitration is in India either domestic or international commercial arbitration, the Arbitration and Conciliation (Amendment) Act, 2015 left no scope for distinction between the two sections and had completely ignored the judicial pronouncements laid down on public policy.

It is pertinent to note that for arbitration regime to succeed in India it is important that limited grounds are laid down for judicial review in the enforcement of foreign arbitral awards in international commercial arbitration. Hence, explanation 1 of Section 48(2)(b) of the Act which states that “the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 81” should be replaced by the words in the “interest of India” under explanation of  “public policy”.

Conclusion

The decision of Shri Lal Mahal[18] and other cases on “public policy” has limited the scope of judicial interference of Indian courts regarding enforcement of foreign awards under Section 48 of the Arbitration and Conciliation Act, 1996 and has provided a ray of hope to help India establish as an international commercial arbitration destination. However, the Arbitration and Conciliation (Amendment) Act, 2015 which included “fraud or corruption” instead of “interest of India” has expanded the scope of “public policy” under Section 48 of the Act in violation of the judicial decision laid down in Shri Lal Mahal case[19]. Moreover, precedents show that courts have interpreted “fraud or corruption” as “patent illegality” which was rejected as a ground under “public policy” in Section 48 of the Act. Hence, Parliament should bring a further amendment in Section 48 of the Act by substituting the words “interest of India” in place of “the making of the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 81” which would limit the scope of judicial review in enforcement of foreign arbitral awards.


2nd-year law student, National University of Study and Research in Law, Ranchi (NUSRL), e-mail: soumyajitsaha02@gmail.com.

[1]  (2014) 2 SCC 433.

[2]  1994 Supp (1) SCC 644.

[3]  Ibid.

[4]  (2003) 5 SCC 705, para 22.

[5]  Ibid.

[6]  (2014) 2 SCC 433.

[7]  (2002) 4 SCC 105.

[8]  (2011) 10 SCC 300.

[9]  Ibid.

[10]  (2014) 2 SCC 433.

[11]  Shri Lal Mahal Ltd. v. Progetto Grano Spa, (2014) 2 SCC 433, para 29.

[12]  (2014) 2 SCC 433.

[13]  Ibid.

[14]  (2015) 3 SCC 49, para 40.

[15]  (2014) 2 SCC 433.

[16]  (2003) 5 SCC 705.

[17]  Ibid.

[18]  (2014) 2 SCC 433.

[19]  Ibid.

Case BriefsForeign Courts

Singapore High Court (Family Division): A Three-Judge Bench comprising of Sundaresh Menon, CJ.,  Judith Prakash, JA., and  Debbie Ong, J., allowed an adoption order in the favor of a same-sex couple.

The facts of the case are that the appellant was a gay man.  He wanted to adopt his biological son who was conceived through in-vitro fertilization and was born in the US by a surrogate mother. She was paid by the appellant for her services. She then abdicated her parental rights over the child, whom the appellant and his partner then brought to Singapore.  In these circumstances, the principal question was whether an adoption order would serve the best interests of the child considering the parenting arrangement and the ethics of the means by which his birth was procured.  The court focused on the difficult interplay between law and public policy in the determination of this question. Here the court answered the question that whether or not the appellant should be allowed to adopt his son. It also discussed the appropriate methodology to be applied in determining and weighing the material considerations of public policy that may bear on this particular issue.

The court gave an adoption order in the favor of the appellants.  The Court, while doing this, held that in determining this question the main concern should be the welfare of the child. Attention must be given not only to his psychological and emotional development but also to the environment within which his sense of identity, purpose and morality will be cultivated. The Court held that the welfare of a child refers to his well-being in every aspect, that is, his well-being in the most exhaustive sense of that word. It refers to his physical, intellectual, psychological, emotional, moral and religious well-being. It refers to his well-being both in the short term and in the long term. The inquiry under the Adoption of Children Act requires an assessment of the impact of making an adoption order on the child’s welfare, and if the court is not satisfied that the impact of such an order would be for the child’s welfare, then the Court cannot make the order. The welfare of the child ought to define the scope of the inquiry.

The Court also held that the adoption of a child clearly concerns his “upbringing”, and therefore, an adoption proceeding must be a proceeding concerning the upbringing of a child within the meaning of Section 3 of the Act. Section 3 was said to apply “whatever the proceedings, as long as within such proceedings an issue of the custody or upbringing of a child arises”, such that the consideration of the child’s welfare is the “ubiquitous” standard by which all such proceedings are to be guided.

The Court next addressed the appellant’s submission that an adoption order should nevertheless not be made because it would be in violation of public policy. In the Court’s view, there was a legal basis, in Section 3(1) of the Act, for the Court to take public policy considerations into account in arriving at its decision in this case. In evaluating this submission, the first question that was addressed was whether there was any legal basis for the Court to take public policy considerations into account in arriving at its decision in this case. The Court held that there was both a statutory basis and a common law basis for doing so, although, having regard to the specific public policies that the appellant relies on, it is the statutory basis that was applied here.

The Court attributed significant weight to the concern not to violate the public policy against the formation of same-sex family units on account of its rational connection to this dispute and the degree to which this policy would be violated should an adoption order be made.

The Court said that neither of these reasons were sufficiently powerful to enable it to ignore the statutory imperative to promote the welfare of the child, and to regard his welfare as first and paramount. The welfare of the child should always be kept before public policy consideration. Thus the Court concluded that an adoption order ought to be made in this case. [UKM v Attorney-General, [2018] SGHCF 18, decided on 17-12- 2018]

Law School NewsOthers

The Republic Day marks the day when the Constitution came into effect. Today, the Constitution is often used as an instrument for progressive change, or seen as an aspirational document of what the State should be. While it is both of them in limited capacities, it’s fundamental role is to pose a set of constraints–to establish separation of powers, a system of checks and balances and to constrain the scope of legislation, among other things.
The document has been remarkable in ensuring peaceful transitions of power, protection of linguistic minorities, women’s and dalits’ rights and in constraining majoritarianism. At the same time, government policy has shaped its interpretation in such a way that it has failed to effectively constrain the State from intervening in citizens’ lives. The Indian state’s long conflict with individual liberties is manifest in constitutional cases like Champakam Dorairajan (1951), Golaknath (1967), Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 and K.S. Puttaswamy v. Union of India (Privacy-9 J.), (2017) 10 SCC 1. The Directive Principles of State Policy and Fundamental Rights raise some fundamental contradictions inherent in the Constitution.
These issues are not of mere academic interest. On the contrary, government intervention continues to weigh heavy on India’s growth story. There are a ‘million mutinies’ across the country, on issues such as land rights, reservation in education and jobs, the unemployment crisis, religious freedom and others whose roots lie in an unrestrained state which acted as an arbiter of privilege for one section over the other.
On this Republic Day, join us as we attempt to understand the role of the constitution in India’s history and the future that lies ahead. Seats are limited.
Program Highlights:
 A 2-day certificate course in law and public policy. The course will explore the various ways in which the constitution remains the fundamental determinant of government policy, and what implications it has had on India’s policy success and failures.
Program Date: 26-27 January
Application deadline: 16 January 2019
Venue: Mumbai & Delhi
Course Fee: Rs. 2,000/-

Selection: Since the seats are limited and the candidates will be selected on a rolling basis, those who apply earlier will have a higher chance of selection.

To apply click here
For any queries, send an mail at reeta@ccs.in
Conference/Seminars/LecturesLaw School News

Symbiosis Law School, NOIDA and the Outreach and Training Division of the Centre for Civil Society, New Delhi (CCS Academy) collaborated to conduct a Three day Certification Course on Public Policy, called “ipolicy” on July 20-22, 2018 . The Course focused on liberal approaches to public policy, aspects of individual liberty and institutional accountability.  

Over the past several years, CCS Academy has the privilege of conducting the said programs in leading Indian colleges like IIM Ahemdabad, FMS, IIT-Delhi, IIT Madras, IIT Mumbai, ISB-Hyderabad, Delhi School of Economics, National Law School-Bangalore, St Stephens-Delhi and St Xaviers-Mumbai, to name a few.

The resource person for the course were Mr. Parth J. Shah, President, Centre for Civil Society,  Mr. Shubho Roy,Legal Consultant, National Institute of Publica Finance and Policy (NIPFP) and Mr. Yugank Goyal, Founding Faculty Member, O P Jindal Global University

About the resource persons

Mr. Parth J. Shah, President, Centre for Civil Society 

Mr. Parth’s research and advocacy work focus on the themes of economic freedom (law, liberty and livelihood campaign), choice and competition in education (fund students, not schools), property rights approach for the environment (terracotta vision of stewardship), and good governance (new public management and the duty to publish). He has published extensively in international and Indian journals, on various topics from currency regulation to education policy. He holds a PhD in Economics from Auburn University, and taught at the University of Michigan.

Mr. Shubho Roy, Legal Consultant, National Institute of Publica Finance and Policy (NIPFP)

Mr. Shubho is a Legal Consultant at National Institute of Public Finance and Policy. He is a member of the research team for the Financial Sector Legislative Reforms Commission. This involves research support to one of the largest legislative redrafting projects India has undertaken to revamp the regulation of the financial sector. Previously, he has served as a law clerk to a judge at the Supreme Court of India.

Mr. Yugank Goyal, Founding Faculty Member, O P Jindal Global University 

Mr. Yugank Goyal received his Ph.D. in Economics and Law from University of Hamburg, Erasmus University Rotterdam and University of Bologna as Erasmus Mundus Fellow. He has an LL.M. from University of Manchester and Bachelor of Technology from NIT Surat, India.

Mr. Yugank is a founding faculty member of OP Jindal Global University. In addition to helping establish the University, he spearheaded several institution building initiatives, including designing curriculum and academic policies of the University in its formative stage. Between 2009 and 2012, Mr. Yugank was the Assistant Professor and Assistant Dean (Research & International Collaborations) at Jindal Global Law School. In his capacity as Assistant Dean, he cultivated research architecture of the law school and led its collaboration with world’s leading law schools and think tanks around the world.