1989: The occurrence of the accident, the negligence and fault of the truck driver and the consequential liability of the insurance company was never in doubt before the MACT. However, after finding the respondents liable, the Tribunal calculated the income of the deceased to be Rs 600 per month, ¼ of which was deducted as personal expenses, applied a multiplier of 14 and awarded compensation at Rs 75,000.  Devastated at the trivial amount, the claimants chose to file an FAO in front of the High Court. The matter was admitted by the High Court, to be heard on its regular turn.

2011: The regular turn came, after 22 years. Half-hearted attempts to compromise the matter before had been thwarted by counsels on either side. When the matter finally reached well after lunch, it was the 17^th regular matter, the Judge had about 20 more similar matters listed before him. A junior appeared for the claimants, instructed to seek more time to argue the matter. 22 years was however found to be enough time, this request was rejected by the Court. Vague and unprepared arguments followed, that lasted for about two minutes. On the basis of these arguments, the multiplier was increased from 14 to 17, personal expenses were reduced to 1/5^th of the income, and the award was enhanced to about Rs 95,000, with an interest of 6%. The entire process, took about 5 minutes. After 22 years, in 5 minutes the quantum of compensation calculated was enhanced by Rs 20,000. Next case. Similar facts. Similar arguments. Similar judgment. Next case…

These facts reverberate the story of tens of thousands of similar MACT cases languishing in the Higher Judiciary solely on the question of enhancement of compensation, and to me represent a staggering collective failure on part of everyone involved in the Legal System. Justice delayed being justice denied could never have a truer ring to it, to my mind there is absolutely no justification for stalling such simple cases, where immediate relief is really the only way the Courts can provide some solace to the family of the deceased.

The reason why a case of such nature would remain pending in the High Court for decades always eludes me. The law on the question of quantum of compensation in death cases has been settled by the Supreme Court conclusively. The accepted measure of quantifying damage is the pecuniary loss suffered and is likely to be suffered by each dependant as a result of the death .The assessment of damages to compensate the dependants’ works as a rough formula which has to take into account many imponderables. The imponderables to be taken into account include factors like the life expectancy of the deceased and the dependants, the approximate amount that the deceased would have earned during the remainder of his life, assessing the contribution made by him to his dependants, chances of better employment or increased earnings, etc. The annual dependency assessed in this manner is then to be multiplied by the use of an appropriate multiplier.

Considering the lack of uniformity and consistency in awarding compensation by the MACTs, the Supreme Court once again conclusively settled the question of determining quantum in the seminal decision of Smt. Sarla Verma and Ors Vs. Delhi Transport Corporation and Anr, (2009) 6 SCC 121 (found here). The formula to be followed for determining compensation to be paid is pithily summarized by the Supreme Court as follows:

“Basically only three facts need to be established by the claimants for assessing compensation in the case of death : (a) age of the deceased; (b) income of the deceased; and the (c) the number of dependents. The issues to be determined by the Tribunal to arrive at the loss of dependency are (i) additions/deductions to be made for arriving at the income; (ii) the deduction to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference of the age of the deceased. If these determinants are standardized, there will be uniformity and consistency in the decisions. There will lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay.”

Sarla Verma therefore further clarifies the well entrenched formula for determining the correct compensation, a simple task which does not involve complicated questions of fact or law. Yet cases which could be easily and conclusively decided in a matter of minutes are pending disposal for decades. One main reason for such unpardonable delays is the attitude of the Respondent Insurance Companies, which in most cases, approach the table without any intention of compromising the matter. This is more so in cases where the family of the deceased is financially crippled already and not connected enough to approach the right people for getting their claim settled. Another reason is that lawyers are completely desensitized to the plight of their clients, since the stakes involved are not that high, seeking adjournments is taken to be a matter of right.  Further, the sheer number of such cases being filed in the Higher Judiciary is so high that disposal never catches up with filing. Even so, admitting such cases for years leads to completely defeating the rights of the victims as the enormous time delays nullify whatever benefits enhanced compensation may have.

Across jurisdictions MACT cases are settled by way of compromise, where a fair offer is made by the Insurance Company which then has to be acted upon by the claimants. This quick and efficient method fails in India because Insurance Companies refuse to settle matters, knowing that no repercussions follow for delaying and denying justice so blatantly. In such cases, where claims are found to be genuine burdening Insurance Companies with exemplary costs is one method that must be adopted to ensure justice.  This is one suggestion, it is essential that  a solution is found for a predominant chunk of the pendency of cases in the Higher Judiciary could be tackled if only we evolve an efficient way of dealing with these cases.

The issue of such ‘Punishment’ transfers came to the forefront recently in the wake of the Justice Dinakaran controversy. The Justice Dinakaran Controversy  snowballed into a crisis-like situation for the Apex Court, with no easy solution at hand. Seeing no way out of the dilemma, the SC Collegium finally (and rather conveniently) decided to transfer the former Chief Justice of the Karnataka High Court, to the Sikkim High Court instead of bringing him to the Supreme Court. However, Justice Dinakaran’s transfer to the Sikkim High Court is not an isolated example. Consider the following transfers:

• Justice BK Roy, Chief Justice of the Punjab and Haryana High Court, was transferred to the Guahati High Court in May 2005, after 25 of the then 28 Judges of the Punjab and Haryana High Court went on a strike against him. Thereafter, on a complaint being filed by 15 Judges of the Guahati High Court against him, the SC Collegium again transferred him to the Sikkim High Court in September 2005.
• Justice B J Sethna of the Gujarat High Court, who was in the eye of the storm for several reasons, including allegations of assaulting another High Court Judge in January 2007 (here), was transferred by the Collegium to the Sikkim High Court in April 2007. He however, chose to resign instead of moving to Gangtok.
• Justice Ajoy Nath Ray, from being the Chief Justice of the Allahabad High Court, the biggest High Court of the Country, was transferred to the Sikkim High Court, the smallest High Court of the Country. The Times of India indicates (here) that he was transferred on account of his unpopularity amongst his fellow High Court judges.
• Justice Nirmal Yadav was transferred from the Punjab & Haryana High Court to the Uttaranchal High Court after her name was involved in the infamous cash at judges-doors scam that surfaced on 2009.
• Justice Sushil Harkauli  and Justice JCS Rawat were transferred out of the Allahabad High Court to the Jharkand High Court after the multi-crore Ghaziabad Provident Fund scam of 2008 surfaced.

This absurd practice of the SC Collegium of transferring controversial Judges by practically dumping them to ‘Punishment’ High Courts, where such judges are allowed to carry on judicial and administrative work, has few supporters amongst the Bar and the Bench. There were massive protests by the Sikkim Bar Association on Justice Dinakaran’s transfer to Gangtok, his oath ceremony was boycotted by the entire Bar. (see here and here).  Even amongst the Judges, such transfers are considered to be a stigma and a punitive measure. Justice BK Roy, in a letter written to the CJI in 2005, responded to his transfer as follows (in fact the entire J. BK Roy controversy was covered in detail by Tehelka, and can be accessed here):

“In the circumstances it is, with respect, surprising that I am now being proposed to be transferred (to the Gauhati HC) in breach of the established convention that no chief justice has ever been transferred without his consent… I regret to convey, as already conveyed to Your Lordship in my meeting on November 28, 2004, that my transfer from Punjab and Haryana High Court appears to be punitive”

This bizarre approach of the SC Collegium in tackling judicial indiscipline, and corruption in the higher judiciary, by conveniently transferring the Judge in question to these ‘punishment’ High courts, defies all logic. The Supreme Court appears to be completely at sea in exercising its Supervisory Powers over the High Courts and seems to be skirting responsibility by conveniently passing the buck to these scapegoat High Courts. In my view, irrationality is writ large in such transfers. Firstly, by virtue of transferring errant and controversial judges to these selected High Courts, the Supreme Court seems to be creating a distinction between different High Courts of the Country. Such transfers indicate that it is justified to send an errant judge to lets say the Sikkim High Court, because it’s a small High Court with limited workload. The justice being dispensed by the Sikkim High Court is therefore less important and it would be acceptable for a controversial Judge to pass judgments on the subjects of the Sikkim High Court. This weapon of transferring judges from one High Court to another as a disciplinary measure then completely defeats the rule of law.

Secondly, it seems incredulous and completely unfair to expect the Bar as well as the people who fall under the jurisdiction of these regional High Courts to accept being governed by allegedly tainted judges. Imagine a surgeon in a major Government hospital of a Metro who has gained notoriety on account of numerous failed surgeries, on account of ignorance or incompetence and has been under the scanner due to protests or complaints lodged against him. Then imagine the validity of the justification of transferring him out to a smaller hospital in a suburb as punishment, where he is given a free reign to conduct his surgeries on the patients of that hospital.   This is the kind of justification that the members and subjects of these High Courts are expected to swallow. If the transfer is being done as a reprimand and as a disciplinary measure, then at a preliminary level at least the Supreme Court seems to be accepting the gravity of charges leveled against an errant judge. In such a situation, it is morally as well as jurisprudentially wrong to impose the authority and power of a tainted judge on the people of a particular regional High Court, over the people of another larger or more important High Court. How can a person not found fit to be a judge of one High Court, be considered fit to be a Judge of another High Court on his transfer? Surely having a lesser pendency or backlog cannot be considered to be an invitation for tainted judges to be posted in that State. It is more than justified for any High Court Bar Association to feel slighted and discriminated over such step-motherly treatment by the Apex Court.

There is no definite policy in place to deal with judicial impropriety and the process of impeachment of errant Judges in India is perhaps harder than removing the elected Government itself. In such a situation, the best possible solution is perhaps to direct a tainted judge to recuse from all forms of judicial and administrative work, till the time his name is cleared. The investigation into all allegations of judicial impropriety must be swift and prompt. If then, such a Judge comes out clean, there is no need or justification for transferring him out to another Court. If, on the other hand, he is found guilty, immediate action in terms of Constitution must be initiated against him, in order to uphold the integrity of the Courts. However, this stop gap arrangement of transferring ‘tainted’ judges to ‘punishment’ High Courts is indicative of a short-sighted approach, without taking into considerations the long term ramifications of such transfers.

This is not the first time however that the Courts have had to shoulder the responsibility of deciding a religious dispute, in fact either by choice or by lack one, the Supreme Court has often sought to delineate the boundaries of the sacred and the secular. The Constitution does not define the meaning of Secularism and it has therefore been left to the courts to develop a juridical concept of secularism and define its content. The broad contours the Supreme Court has established for itself while delving into the fundamental right of religious freedom are the social welfare content of state action, and distinguishing essential from non essential religious activity. But religion is so omnipresent in every aspect of Indian Society, that the Courts do end up dealing with and even encroaching the realm of religious freedom. While judicial reasoning has often tried to stay from being influenced by faith or religion alone, defining what is ‘secular’ and what is ‘religious’ is where judicial reasoning has proved to be inconsistent in the least, for the parameters of faith and religious belief have often been employed to interpret or misinterpret the meaning of ‘Secular’

While in some cases the court has come out strongly in favour of secularism, in many others the court’s functional definition of secularism has been susceptible to the interests of the majority impinging on the rights of minority communities. A study of these contrasting approaches throws light on how faith has often played a role in determining judicial decisions, and while there are many such examples, I will only be discussing a few cases here. Interestingly, judicial use of the term secularism predates its inclusion in the Constitution. Judges have freely used the term both judicially and extra judicially prior to 1976 (when it was introduced in the Constitution), while explaining the character and nature of the Indian Constitution. In Keshavanand Bharati (1973 (4) SCC 225), the 13 Judge Constitution Bench, in no uncertain terms declared secularism to be the fundamental law of the land. C J Sikri, enumerated “the secular character of the Constitution” as one of its basic features. Secularism was declared to be an unamendable feature of the Constitution as a part of the basic structure of the Constitution. . In S.R. Bommai ((1994) 3 SCC 1) (here), Justice Sawant stated that “any profession and action that go counter to secularism are a prima facie proof of the conduct in defiance of the provisions of the constitution”.

However, the Supreme Court’s definition of Secularism has in many cases been a very tenuous one, finding its meaning in faith and religion.  In Ismail Faruqui v Union of India (1994, 6 SCC, 360) (here) the court seems to have endorsed a concept of secularism that had its rationale in Hindu scriptures. Justice Verma justified a vision of secularism that had its roots in the Yajur Veda, Atharva Veda and Rig Veda and Akbar’s Din Ilahi.  The court seems to have also accepted the claim that secularism in India exists because of the tolerance of the Hindus who are the majority religion. In Suryakant Venkatrao Mahadhik v Smt Saroj Sandesh Naik, 1996, SCC (i) 384 (here), a statement on the necessity to vote for the Shiv Sena for the protection of ‘Hindutva’, which was made amongst a congregation of Hindu devotees during a Hindu religious festival to garner votes on the basis of Hindu religion, was not declared as a corrupt election practice by the Supreme Court, as Hindutva was understood as a way of life or a state of mind and was held to not to be equated with or seen as something religious. In Manohar Joshi v Nitin Rao Bhau Pate, (1996, 1 SCC 169), the Supreme Court  ruled that the promise to establish the first Hindu state in Maharashtra did not amount to appealing for votes in the name of religion.

Contrast these cases that seem to tilt in the favor of Hindu Majoritarian religion, with ones in which the Court took upon itself to interpret the minority religion: one such example is the ‘cow slaughter’ cases, where the Supreme Court decreed in the State of West Bengal vs Ashutosh Lahiri (here) and earlier, in M H Querseshi v State of Bihar (here) that Muslims of India could not be given the freedom to kill cows as part of their religious practice. The court contended that the killing of cows was not an essential practice of Muslims. By conducting a scriptural search for a statement making cow sacrifice obligatory, the court concluded that it was optional for Muslims to sacrifice a cow or camel for every seven persons and a goat for one person. Another example is the Court’s controversial interpretation of the Quran in Shah Bano’s case, (AIR 1985 SC 943) case, which subsequently had to be undone by the Legislature by passing The Muslim Women (Protection of Rights on Divorce) Act of 1986. Sometimes the majoritarian religious rhetoric is couched in nationalist terms by the Supreme Court. Consider the observations of Justice Kuldeep Singh  in Sarla Mudgal, (1995 SCC (3) 635) (here), while asserting the need of the Uniform Civil Code:

“the personal law of the Hindus, such as relating to marriage, succession and the like have all a sacramental origin, in the same manner as in the case of the Muslims or the Christians. The Hindus alongwith Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of the national unity and integration, some other communities would not, though the Constitution enjoins the establishment of a “common civil Code” for the whole of India”.

Therefore, decisions of the Supreme Court being influenced by religion (usually the majoritarian religion) and faith is not an uncommon thing, the Ayodhya judgment is not the first and will not be the last in this line of reasoning. However a judicial analysis that derives its rationale from religion and faith alone, subverts secularism. Indian Secularism must not come across only as a tolerant aspect of Hinduism that subsumes other faiths within its philosophy.  By their authority to decide what is religious and what is not, the courts acquire the authority to regulate the meaning of religion. This remarkable power in a country like India must not be used to pander to the majoritarian view of secularism, religion, faith or belief. While a detailed reading of the Ayodhya Judgment may reveal that this is not the case, but if it is, then any political peace brokered on this rationale will be fragile at best because it is based on a flawed judicial reasoning that has dangerous consequences.

One of the main perceived elements of ‘public interest’ behind such and similiar transfers is that the High Court Judge being transferred out has kith or kin practicing in the same High Court.  In fact the issue of transfer of a judge whose relatives/ relations are practicing in the same High Court is not a new one and has been on the forefront for quite a while now. Many High Courts have already sent or have been asked to send to the Supreme Court a list of sitting judges who have their relatives practicing in the same High Court.  Every High Court Bar has always had a fraction of its members clamouring for the transfer of such ‘Uncle Judges’, insinuating bias and favouritism by such or other judges towards their kith or kin (For example, see here and here).

For an issue that concerns and affects lawyers in the higher courts directly, discussion and debate on the subject have raged on without really looking at the law that governs the field.  The Bar Council of India Rules, 1975 in Rule 6, Chapter II mandate that  an advocate shall not enter appearance, act, plead or practise in any way before a court, Tribunal or Authority, if the sole or any member thereof is related to the advocate as father, grandfather, son, grand-son, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law daughter-in-law or sister-in-law. Further, the Supreme Court, in its Full Court Meeting in 1997 had adopted a Charter of ‘The Restatement of Values of Judicial Life’, meant to serve as a guide of judicial conduct for judges.  The aforesaid Charter was subsequently adopted by all the High Courts of the Country.(The full charter has been reproduced in The CPIO, Supreme Court Of India vs Subhash Chandra Agarwal, the famous 2009 Delhi High Court Judgment on Supreme Court-RTI, which can be accessed here ) Rule 4 of the Charter reads:

“(4) A Judge should not permit any member of his immediate family, such as spouse, son, daughter, son-in-law or daughter-in-law or any other close relative, if a member of the Bar, to appear before him or even be associated in any manner with a cause to be dealt with by him.”

As a rule therefore, a relative or relation of a Judge cannot and does not appear in front of the Judge in any case or proceedings. In practice, such a relative does not even enter the court of the Judge when the court proceedings are on and the judge is still holding court. However, despite the aforesaid Rules, the argument raised is that there is a bias in favour of the kith and kin of such judges by other judges, in front of whom they regularly appear and get positive orders passed on account of such favouritism.  The 230^th Law Commission report (here) also supports the view of transfer of Judges whose relatives are practicing in the same High Court, and states that:

“Often we hear complaints about ‘Uncle Judges’. If a person has practised in a High Court, say, for 20-25 years and is appointed a Judge in the same High Court, overnight change is not possible. He has his colleague advocates – both senior and junior – as well as his kith and kin, who had been practising with him. Even wards of some District Judges, elevated to a High Court, are in practice in the same High Court. ..the equity demands that the justice shall not only be done but should also appear to have been done… In any case, the judges, whose kith and kin are practising in a High Court, should not be posted in the same High Court. This will eliminate “Uncle Judges…”

In light of these facts, the question that comes to mind is whether this rationale of transferring judges who have relatives or relations practicing in the same court is valid or not? I believe that any transfer based on such reason alone is a misguided and self-defeating endeavour that does not benefit the Higher Judiciary.

As I explained above, a relative of a Judge will never appear, plead or practice in any manner whatsoever in front of him. The objection to a Judge holding office in the same court as his kith and kin are practicing, is then limited to a situation where a Judge is considered to be favouring the relatives/relations of other Judges who can appear in front of him or where Judges are supposed to have colluded amongst each other to obtain inter-se favours for their relatives. The very basis of this presumption is flawed in my view. The foremost criteria for appointing a person as a Judge of the Higher Judiciary, is and should be that he must be a fair, just and honest candidate of the utmost moral and professional integrity and competence. Therefore, when a person is appointed as a High Court or Supreme Court Judge, he, by definition, already satisfies the essential pre-requisites of independence and impartiality. He has been elevated on this constitutional post after extensive verification of his reputation, antecedents and after the disclosure of relatives who are practicing in the same Court. He has been elevated because he already satisfies the requirement of not favouring his or any other Judge’s relatives or relations and deciding every case on the applicable law and merits of the case. The argument here is not that favouritism amongst Judges does not exist, or that bias or prejudice by any Judge in favour of his or anyone’s kith and kin should be condoned in any manner. In fact if any Judge is found guilty of such a practice, then merely transferring him out would be a very inadequate punishment as he would have failed the basic requirements of his office. However, to argue that this logic can extend to transferring out every judge who has a relative practicing in the same court, would be to negate the very basis of the Office and would be a misdirected effort to clean up the judiciary.

Secondly, an accepted opinion amongst most practicing advocates is that it is the lawyers who are directly elevated from the Bar to the Bench that make the best judges. Usually, a lawyer who is directly elevated to the Bench of a particular High Court by the High Court Collegium would have been practicing in that Court for about 20 years at least, and would be a very established and reputed name in his or her field, having a large number of contacts and acquaintances. If the aforesaid rationale for transfer of judges is taken to be correct, then where should one draw the line? Why stop at kith and kin alone then? A judge who has a large number of colleagues, seniors, juniors, associates, friends, acquaintances, school, college and office mates, etc practicing in the same High Court should also be transferred out because the presumption of bias should attach in these cases as well. Conversely, the Court should then also prevent all people associated with a judge before and after his elevation to appear in front of him, including his colleagues, seniors, juniors, associates, friends, acquaintances, school, college and office mates, etc. We don’t adopt this absurd stand because we rightly presume the judge will hold his office with fairness, integrity and impartiality, irrespective of his relations and acquaintances.

Thirdly, there is a reason why a pre condition of immediately transferring out a Judge from his parent High Court on his elevation from the Bar to the Bench does not exist. If such a pre-condition existed, many of the best lawyers who would make the best Judges, would simply refuse to get elevated to the Bench. Elevation to the Bench brings with it a large number of social and professional restrictions that are not easy to imbibe or follow. If elevation brought with it a transfer out of the parent state, where a lawyer would have to leave behind his family and friends, then the best lawyers would simply refuse elevation. It will be the Higher Judiciary that will lose out on quality in the process.

Finally, the assumption that judicial corruption increases because close relatives practise in the same court is unfounded in my view. Both honesty and corruption are individualized concepts. It is absurd to suggest that corruption would reduce by transferring ‘Uncle Judges’ to different High Courts, because an honest judge will be fair and impartial in every Court and a biased judge would be partial and unfair in every Court he presides over. Surely, the values of Judicial Life are not contingent merely on a lack of opportunity.

Therefore, instead of cleaning the image of the Higher Judiciary, such transfers have an opposite effect in the public mind as it legitimizes the presumption that this kind of favouritism for relatives was prevalent before the transfers were ordered. While transfers in the Higher Judiciary might be welcome in many circumstances, the SC must be mindful of the reasons behind these transfers. (In my subsequent posts I will also discuss the absurd practice of transferring controversial or ‘tainted’ judges to what are known as ‘punishment’ High Courts.)

Pursuing secularism in India has always been a challenge because basic social fabric and structure of the society and the country has always been inextricably entwined with religion to an extent that even basic reforms have been impossible to bring in without the direct intervention of the State in the otherwise private ‘religious’ realm of the society. Given this fact, the Parliament, political parties, journalists, academics, the Judiciary, and the Constitution have all been active participants in the discourse on secularism. In the background of this complex matrix, the understanding of the concept of secularism in India has always fascinated me, and in part I of this post I will outline the genesis of this concept in the Indian Constitution and the Constituent Assembly Debates.

The Constituent Assembly Debates and the limited readings on them make for fascinating reading (Shefali Jha’s briiliant piece “Secularism in the Constituent Assembly Debates”, 37 (30) EPW (2002) is a good beginning, apart from the original texts). The CA had to discuss the issue of secularism in the bloody aftermath of the partition, if a young India had to survive, the CA had to ensure that something like the partition would never be repeated. Therefore, for a democratic India, secularism was considered to be necessary fait accompli. However, when the preamble to the Constitution was discussed in the Assembly in October 1949, disagreement and acrimonious debate over the inclusion of the principle of secularism took up most of the assembly’s time. The first debate that ensued was when H.V. Kamath moved an amendment to begin the preamble by the phrase, “In the name of god.” Rajendra Prasad argued that this amendment would be against the spirit of religious freedom of the Constitution and that religion was a matter of Individual choice and in this matter the collective will should not be imposed. Kamath’s motion was defeated by a narrow margin of 68 to 41. Strangely enough,  Bajeshwar Prasad’s motion to include the word secular in the Constitution was not even debated properly.  ( The word was later to be included in the Preamble by the 42^nd Amendment in 1976.)

The meaning of a ‘secular India’ was also a cause of immense debate. The CA had to decide whether a state was secular only when it stayed strictly away from religion or did a state that equally respected all religions best capture the meaning of secularism in the Indian context. Supporters of the first notion saw a definite line of separation between the individual and the state. It was solely up to the individual to decide whether he was a believer or not and to chose to adhere to a religion or not. Therefore the preamble could not contain any references to God nor could the Constitution establish links between the State and any religion. The second position also began with a theory of religious liberty, but went on to say that in a society like India where religion was a very important part of everyday life of the masses, the state should not stay away from all religions equally but that it must respect all religion alike. Instead of distancing itself from all religion or considering religion to be a private sphere, such a secular state based its dealings with religion on the basis of an equal respect to all religions (Shefali Jha, supra).

These two point of views clashed constantly in the Constituent Assembly debates as the question of secularism cropped up in the discussions around innumerable articles. . One such debate was the choice between the words “Religious Practice” or the words “Religious Worship”. The initial definition of the right to freedom of religion as defined by the Sub-Committee on Fundamental Rights used the words “Right to freedom of religious worship”. However this was rephrased by the Minorities Sub-Committee to read “…Right to freely profess, practice and propagate religion.” The first view preferred a narrow definition of religion akin to the western notion of secularism, while the second view sought to define religion broadly. Finally the Constituent assembly decided in favour of “Religious Practice”, thus indicating that the assembly was tilting in favour of the second definition of secularism.

On the vexed question of the Uniform Civil Code, Ambedkar’s and Munshi’s draft articles of March 1947 on justiciable rights contained clauses referring to a UCC. However the Fundamental Rights Sub- Committee had decided to make the UCC a Directive Principle. This decision of the Committee was opposed by many, foremost amongst them being Rajkumari Amrit Kaur who believed that one of the main causes of India’s backwardness were personal laws that governed many aspects of life. There were others however who were against the idea of a Uniform Civil Code and some members advocated the right to one’s personal law as a part of the right to freedom. An intermediate position suggested was that the establishment of the Uniform Civil Code must be done slowly, with the consent of all communities.  This of course proved to be pipe dream, the UCC is today an impossibility to achieve.

Therefore,  the Constituent Assembly did agree unanimously on the establishment of a secular state, but ended up defining a secular state as one wherein the state has an equal respect for all religions rather than the state completely disassociating itself from all religion. Thus what emerged from these constitutional endeavors was an accommodating secular compromise at a time when, in the aftermath of partition, such a compromise seemed improbable. In fact, I believe that if India were to start a new Constitution making process afresh today, it is doubtful that a common text would emerge. Given the situation and the circumstances in which we had to draft our Constitution, and given the cultural diversity of India, perhaps there really was no other option for a united India to take other than secularism, but nonetheless the secular character of the Constitution was a remarkable achievement.

In my subsequent posts, I will discuss the understanding of this sort of ‘secularism’ by our Courts.

Such an arbitration clause seemingly finds its justification and rationale in well established and entrenched principles of contract law- two parties are bound by a mutually agreed contract that they have entered into with their eyes open, after considering the pros and cons of the contract and the arbitration clause. The existing understanding of section 11 of the Arbitration and Conciliation Act also provides no bar to such an arbitration clause. However, on the face of it, an arbitration clause that provides for the appointment of an arbitrator who is intrinsically connected to the subject matter as well as to the parties of the dispute, comes across as an arbitrary and unfair clause. A challenge to the appointment of such an arbitrator under Section 12 and 13 of the Act is not an adequate remedy as such a challenge can only be instituted after the appointment of the arbitrator, and the jurisdiction to decide upon the independence and impartiality of the arbitrator lies with the arbitrator himself.

Is it then possible to read the twin requirements of ‘independence’ and ‘impartiality’ within Section 11 of the Act? Such an interpretation should be possible if we start with the reasonable assumption that no party would submit to the appointment of a partial and biased arbitrator out of retired officers of the department. The sub-clauses to Section 11(6) make it possible to adopt such an interpretation as an application under the Section can be made to the Chief Justice if the parties ‘fail to reach an agreement expected of them under that procedure’ (Sub Clause 11(6)(b)) or ‘fail to perform any function entrusted to him or it under that procedure’ (11(6)(c)). Therefore, the right given for the appointment of arbitrator should be reasonably restricted by the legitimate expectation of appointment of an impartial and independent arbitrator. This is further buttressed from the fact that when the Chief Justice is to appoint an arbitrator under Section 11(8), he is to act on ‘considerations as are likely to secure the appointment of an independent and impartial arbitrator’. The appointment of an arbitrator who can be perceived to have an inherent bias towards the respondent is against any reasonable and legitimate expectation that is expected of the parties under section 11 (6)(b) and (c). Therefore the power to appoint an arbitrator must be read down to include the minimum basic level of independence and impartiality of the person who is to be appointed as arbitration. A ‘reasonable man’ test, for ascertaining whether the relationship of the arbitrator to the parties or the subject matter is close enough to be objectionable should then be adopted while interpreting Section 11 of the Act, as the question is not just whether the arbitrator really is impartial, but whether a reasonable outsider might consider that there is a risk that he is not.

The case law on the subject has largely held that arbitration agreements in government contracts providing that an employee of the Department would be the Arbitrator, are neither void nor unenforceable as no bar under the Act is found for such a clause. However, some support to this aforesaid argument may be found in the decision of the Supreme Court in Northern Railway Administration, Ministry of Railways Vs. Patel Engineering  Company ltd. 2008 3 Arb. L.R. 349 (SC), where the Court stated that Section 11(6) must be read cumulatively with Section 11(8) of the Act to secure the appointment of an independent and impartial arbitrator. The Madhya Pradesh High Court, in Ajay Traders Vs. Birla Jute Industries  Ltd., 2004 (2) RAJ 135 (M.P.), relying on Section 11(8), by relying on the principle of law that a person can not be a judge of his own cause, set aside the appointment of an arbitrator who was directly connected with the contract in question, on reasonable apprehension of bias on his part. A required change in the understanding of section 11 of the Act however is best summarized by Justice Raveendran’s dicta in the recent decision of Indian Oil Corporation Ltd. v. M/s Raja Transport (P) Ltd, 2009 8 SCC 520:

“Before parting from this issue, we may however refer to a ground reality. Contractors in their anxiety to secure contracts from government/statutory bodies/public sector undertakings, agree to arbitration clauses providing for employee-arbitrators. But when subsequently disputes arise, they balk at the idea of arbitration by such employee-arbitrators and tend to litigate to secure an “independent” arbitrator. The number of litigations seeking appointment of independent Arbitrator bears testimony to this vexed problem. It will be appropriate if governments/statutory authorities/public sector undertaking reconsider their policy providing for arbitration by employee- arbitrators in deference to the specific provisions of the new Act reiterating the need for independence and impartiality in Arbitrators. A general shift may in future be necessary for understanding the word “independent” as referring to someone not connected with either party. That may improve the credibility of Arbitration as an alternative dispute resolution process.”

In my practical experience as well, such an arbitration clause that mandates the appointment of a retired/working official as arbitrator, almost always leads to a failure of the purpose and process of arbitration. This is because, firstly a very expansive interpretation is given to a Section 34 application by the civil courts under the Act, and a challenge to an arbitration award when the arbitrator was a retired or working officer of the State is often sustained. Secondly, the A&C Act of 1996 has a very peculiar characteristic, in that under Section 36 of the Act, there is an automatic stay to the enforcement of the arbitral award, the moment a section 34 application is filed. Often, such an application is filed on the 89^th day, resulting in a automatic stay on the enforcement of the award, leading to massive delays and nullifying the benefits of arbitration. The intention behind the A & C Act, is that it should act as an effective, quicker and feasible alternative to civil litigation in courts.  It is also a reality that both arbitration and enforcement of awards today has become an extremely costly and time consuming activity. Both these objectives are defeated invariably when a Section 34 application is filed.

Therefore this question of an existence of an antecedent bias, where the bias may arise either from a relationship between the arbitrator and one of the parties, or from a relationship between the arbitrator and the subject matter of the dispute, requires a fresh perspective and a fairer interpretation.

One such issue that has resulted in surprising and conflicting interpretations is whether a female can be prosecuted as a ‘respondent’ under the Protection of Women from Domestic Violence Act, 2005.  Section 2 (q) of the PWDVA defines a ‘respondent’ to mean any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act. The proviso to the section however clearly qualifies it by explaining that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.

A literal and purposive interpretation of the Section and the Proviso seems to clearly imply that the definition of ‘respondent’ has been extended to a relative of the husband, which would include women as well. This has been the view of the Rajasthan and Kerala High Courts in Nand Kishore V State of Rajasthan, 2009 (2) RCR (Criminal) 908 and Rema Devi v. State of Kerala, (2009) 1 DMC 297 (Ker) respectively. However, the Madhya Pradesh and Andhra Pradesh High Courts have taken a contrary stand in Ajay Kant v. Alka Sharma, 2008 Cri LJ 264(M.P.) and Menakuru Mona Reddy v. State of A.P. (CRM No 4106 of 2008). The A.P. High Court is of the view that the proviso to the Section could not include what the main Section excluded, while the M.P. High Court has given a very limited meaning to the word ‘complaint’ as used under the PWDVA and concluded that an application can be filed for initiating proceedings against only an adult male person. This question is lying pending before the Punjab and Haryana High Court in a bunch of petitions clubbed together, and I happen to be arguing one of them.

In my view, the interpretation that females cannot be prosecuted as respondents under the PWDVA is clearly wrong, against the legislative intent and leads to dangerous consequences. Firstly, the proviso to the Section, which is explanatory in nature, leaves no room of doubt that a complaint can be filed against a ‘relative’ of the husband or the male partner under the Act. The term ‘relative’ is gender neutral and obviously includes females as well. By restricting the definition of respondent to only an ‘adult male person’, the proviso to the Section 2(q) would be rendered completely nugatory. The definition of ‘Domestic Violence’ is also very wide and includes includes “verbal and emotional abuse” and “economic abuse, and limiting the definition to domestic violence by men alone would defeat the purpose the wide definition seeks to achieve.  Secondly, the intention behind the framing of the PWDVA can never be to protect women only from domestic violence at the hands of ‘adult males’, while leaving them unprotected against domestic violence committed by females. The Act is not based on the impossible and illogical presumption that women cannot commit acts of domestic violence against other women. The Statement of Objects and Reasons of the Act make it clear that the intention behind the Act is to provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. Further, the legislation is a welfare legislation and must be given an expansive interpretation to ensure that the objectives are not defeated. Therefore a logical and purposive interpretation of the Act would lead to the conclusion that the PWDVA offers protection from violence committed by women as well.

This issue is already snowballing into a source of large scale litigation in the lower courts, as numerous complaints under the PWDVA are being rejected against females because of conflicting precedents. One possible practical reason for the clearly erroneous interpretation that women cannot be ‘respondents’ under the PWDVA is the possibility of abuse of the Act. Courts on various occasions have pointed out the abuse of Section 406 and 498-A of the Indian Penal Code, being used as a tool to rope in every family member in a matrimonial dispute. However, the potential of abuse cannot be a cogent reason to defeat the legislative intent of the Act, which is to provide to extensive protection to women from all possible means and sources of domestic violence. It is therefore important that this issue attains finality as soon as possible by correctly and purposefully interpreting Section 2(q) of the PWDVA.