Monthly Archives: June 2019

Freedom of Speech and Expression – Creative Work

Literature can act as a medium to connect to the readers only when creativity is not choked or smothered. The free flow of the stream of creativity knows no bounds and imagination brooks no limits. A writer or an artist or any person in the creative sphere has to think in an unfettered way free from the shackles that may hinder his musings and ruminations. The writers possess the freedom to express their views and imagination and readers too enjoy the freedom to perceive and imagine from their own viewpoint. Sans imagination, the thinking process is conditioned.

 Creative voices cannot be stifled or silenced and intellectual freedom cannot be annihilated. It is perilous to obstruct free speech, expression, creativity and imagination, for it leads to a state of intellectual repression of literary freedom thereby blocking free thought and the fertile faculties of the human mind and eventually paving the path of literary pusillanimity. Ideas have wings. If the wings of free flow of ideas and imagination are clipped, no work of art can be created. The culture of banning books directly impacts the free flow of ideas and is an affront to the freedom of speech, thought and expression. Any direct or veiled censorship or ban of book, unless defamatory or derogatory to any community for abject obscenity, would create unrest and disquiet among the intelligentsia by going beyond the bounds of intellectual tolerance and further creating danger to intellectual freedom thereby gradually resulting in “intellectual cowardice” which is said to be the greatest enemy of a writer, for it destroys the free spirit of the writer. It shall invite a chilling winter of discontent. We must remember that we live not in a totalitarian regime but in a democratic nation which permits free exchange of ideas and liberty of thought and expression. It is only by defending the sacrosanct principles of free speech and expression or, to borrow the words of Justice Louis Brandeis, “the freedom to think as you will and to speak as you think” and by safeguarding the unfettered creative spirit and imagination of authors, writers, artists and persons in the creative field that we can preserve the basic tenets of our constitutional ideals and mature as a democratic society where the freedoms to read and write are valued and cherished.

A creative work has to be read with a matured spirit, catholicity of approach, objective tolerance and a sense of acceptability founded on reality that is differently projected but not with the obsessed idea of perversity that immediately connects one with the passion of didacticism or, for that matter, perception of puritanical attitude. A reader should have the sensibility to understand the situation and appreciate the character and not draw the conclusion that everything that is written is in bad taste and deliberately so done to pollute the young minds. On the contrary, he/she should elevate himself/herself as a co-walker with the author as if there is social link and intellectual connect. The feeling of perverse judging should be abandoned. A creative writing is expectant of empathetic reading. It is not averse to criticism but certainly does not tolerate unwarranted protest. N. Radhakrishnan v. Union of India, (2018) 9 SCC 725.

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Inter Se Suitability

In English parlance, the word “suitable” is assigned the meaning as “appropriate, fitted for the purpose or acceptable”. Concise Oxford Dictionary defines the word “suitable” as “well fitted for the purpose; appropriate”. This ordinary meaning is to be given effect to as a general guide, unless this expression is given special meaning in a statute or rule in administrative instructions. In R. (Quintavalle) v. Human Fertilisation and Embryology Authority, (2005) 2 AC 561 : (2005) 2 WLR 1061 : 2005 UKHL 28, the House of Lords remarked that “the word “suitability” is an empty vessel which is filled with meaning by context and background”.

In service jurisprudence, where the word “suitable” is normally examined from the point of view as to whether a particular person is suitable to hold a particular post, it is construed as “fit” to hold that post. It would mean that the job profile and job requirement of a particular post would be seen and then, going by the calibre, competence, attributes, skill and experience of the candidate, it would be ascertained as to whether such a person would be able to discharge the duties of the post i.e. whether he is suited to carry out the functions of the post, to the satisfaction of his employer.

The prefix “inter se” has also to be given some meaning as it cannot be rendered otiose. Therefore, whereas while assessing “suitability”, it has to be seen that a particular officer is not unfit for the post, when it comes to “inter se suitability”, it has reference to assessing the suitability of all eligible officers and thereafter finding who is more suitable to occupy such a post. Union of India v. Manomoy Ganguly, (2018) 9 SCC 65.

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“Plain Meaning Rule” and “Strict Interpretation”

“The plain meaning rule” suggests that when the language in the statute is plain and unambiguous, the court has to read and understand the plain language as such, and there is no scope for any interpretation. This salutary maxim flows from the phrase “cum inverbis nulla ambiguitas est, non debet admitti voluntatis quaestio”. Following such maxim, the courts sometimes have made strict interpretation subordinate to the plain meaning rule [Mangalore Chemicals and Fertilisers Ltd. v. CCT, 1992 Supp (1) SCC 21] , though strict interpretation is used in the precise sense. To say that strict interpretation involves plain reading of the statute and to say that one has to utilise strict interpretation in the event of ambiguity is self-contradictory.

In Black’s Law Dictionary (10th Edn.) “strict interpretation” is described as under:

Strict interpretation. (16c) 1. An interpretation according to the narrowest, most literal meaning of the words without regard for context and other permissible meanings. 2. An interpretation according to what the interpreter narrowly believes to have been the specific intentions or understandings of the text’s authors or ratifiers, and no more.

(2). “Strict construction of a statute is that which refuses to expand the law by implications or equitable considerations, but confines its operation to cases which are clearly within the letter of the statute, as well as within its spirit or reason, not so as to defeat the manifest purpose of the legislature, but so as to resolve all reasonable doubts against the applicability of the statute to the particular case.” Willam M. Lile et al., Brief Making and the Use of Law Books 343 (Roger W. Cooley & Charles Lesly Ames eds., 3d Edn. 1914).

“Strict interpretation is an equivocal expression, for it means either literal or narrow. When a provision is ambiguous, one of its meaning may be wider than the other, and the strict (i.e. narrow) sense is not necessarily the strict (i.e. literal) sense.” John Salmond, Jurisprudence 171 n. (t) [Glanville L. Williams (Ed.), 10th Edn. 1947]. Commr. of Customs v. Dilip Kumar & Co., (2018) 9 SCC 1

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Arbitrator – Appointed by Government Department/Company

In Union of India v. U.P. State Bridge Corporation Ltd., (2015) 2 SCC 52, it was held as under:

        “In the case of contracts between Government Corporations/State owned companies with private parties/contractors, the terms of the agreement are usually drawn by the Government Company or public sector undertakings. Government contracts have broadly two kinds of arbitration clauses, first where a named officer is to act as sole arbitrator; and second, where a senior officer like a Managing Director, nominates a designated officer to act as the sole arbitrator. No doubt, such clauses give the Government a dominant position to constitute the Arbitral Tribunal are held to be valid. At the same time, it also casts an onerous and responsible duty upon the persona designata to appoint such persons/officers as the arbitrators who are not only able to function independently and impartially, but are in a position to devote adequate time in conducting the arbitration. If the Government has nominated those officers as arbitrators who are not able to devote time to the arbitration proceedings or become incapable of acting as arbitrators because of frequent transfers, etc., then the principle of “default procedure” at least in the cases where the Government has assumed the role of appointment of arbitrators to itself, has to be applied in the case of substitute arbitrators as well and the court will step in to appoint the arbitrator by keeping aside the procedure which is agreed to between the parties. However, it will depend upon the facts of a particular case as to whether such a course of action should be taken or not. S.P. Singla Constructions (P) Ltd. v. State of H.P., (2019) 2 SCC 488.

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Determination or Order

        The word “determination” has to be contextually determined. In Ashok Leyland Ltd. v. State of T.N., (2004) 3 SCC 1, the Hon’ble Apex Court has reproduced the definition of “determination” from Law Lexicon, 2nd Edition by P. Ramanatha Iyer and Black’s Law Dictionary, 6th Edition. It reads thus:

        “Determination or order.—The expression “determination” signifies an effective expression of opinion which ends a controversy or a dispute by some authority to whom it is submitted under a valid law for disposal. The expression “order” must have also a similar meaning, except that it need not operate to end the dispute. Determination or order must be judicial or quasi – judicial. Jaswant Sugar Mills Ltd. v. Lakshmi Chand, AIR 1963 SC 677.

        A “determination” is a final judgment for purposes of appeal when the Trial Court has completed its adjudication of the rights of the parties in the action. Thomas Van Dyken Joint centure v. Van Dyken, 27 NW 2d 459.

          The said test clearly means that the expression of determination signifies an expressive opinion. Union of India v. Hardy Exploration and Production (India) Inc., 2019 (132) ALR 263.

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Suspension – In contemplation of Enquiry

The purpose of suspension of an employee in service jurisprudence is two fold. The traditional and dominant purpose of suspension is to aid and assist a disciplinary enquiry against an employee. Suspension in such cases is not a punishment. The second known purpose of suspension is to impose it as a punishment.

        When suspension is made in contemplation of a disciplinary enquiry, certain prerequisites have to be satisfied. An enquiry should be contemplated or underway into charges of misconduct. The charges of misconduct, if proved, should be serious enough to warrant a major penalty.

        The order of suspension should be passed after due and independent application of mind. The suspension should not be made as a matter of routine resulting from a suspension syndrome.

        At the stage of suspension the veracity of the charges cannot be ascertained and the merits of the defence cannot be examined. However, the order of suspension should disclose a prima facie act of misconduct.

        Suspension in contemplation of an enquiry, is made to aid the process of enquiry. Suspension takes out the delinquent employee from his domain of influence. This ensures that the enquiry is independent and fair.

        Suspension also takes off the charged employee from his regular duties. This enables the employee to join the enquiry proceedings and give fulsome cooperation to the enquiry officer. It also gives him adequate time to prepare his defense. Continuing the employee on regular duties, with an enquiry on foot, would not be in institutional interests either. The official work would suffer and the enquiry proceedings would be impeded. The suspension in such cases is not a punishment. Deepika Shukla v. State Of U.P., 2018 (6) AWC 6050.

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Accident – Meaning of

A line of precedents, have dealt with the meaning of the expression “accident”. In Union of India v. Sunil Kumar Ghosh, (1984) 4 SCC 246 it was held that:

“An accident is an occurrence or an event which is unforeseen and startles one when it takes place but does not startle one when it does not take place. It is the happening of the unexpected, not the happening of the expected, which is called an accident. In other words, an event or occurrence the happening of which is ordinarily expected in the normal course by almost everyone undertaking a rail journey cannot be called an “accident”. But the happening of something which is not inherent in the normal course of events, and which is not ordinarily expected to happen or occur, is called a mishap or an accident.”

In a subsequent decision in ESI Corpn. v. Francis De Costa , 1993 Supp (4) SCC 100, the expression “accident” was defined as follows:

“The popular and ordinary sense of the word “accident” means the mishap or an untoward happening not expected and designed to have an occurrence is an accident. It must be regarded as an accident, from the point of view of the workman who suffers from it, that its occurrence is unexpected and without design on his part, although either intentionally caused by the author of the act or otherwise.”

The same principle was adopted in Jyothi Ademma v. Plant Engineer , (2006) 5 SCC 513, where it was held as under :

“The expression “accident” means an untoward mishap which is not expected or designed.”

P. Ramanatha Aiyar’s Law Lexicon, 3rd Edn., 2012, defines the expression “accident”:

“an event that takes place without one’s foresight or expectation; and event that proceeds from an unknown cause, or is an unusual effect of a known cause, and therefore not expected, chance, causality, contingency.”

The above Law Lexicon, relying on Lovelace v. Travelers’ Protective Assn., 47 Am St Rep 638 : 126 Mo 104 (1894), defines the expression “death by accident” as:

“Death from any unexpected event which happens, as by chance, or which does not take place according to the usual course of things.”

In order to constitute an accident, the event must be in the nature of an occurrence which is unnatural, unforeseen or unexpected.     National Insurance Co. Ltd. v. Mousumi Bhattacharjee, (2019) 5 SCC 391

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Appointment of Arbitrator – No Claim Certificate Obtained by Fraud, Coercion, Duress or Undue Influence

In Union of India v. Master Construction Company, (2011) 12 SCC 349, it was held as under:

            “In our opinion, there is no rule of the absolute kind. In a case where the claimant contends that a discharge voucher or no claim certificate has been obtained by fraud, coercion, duress or undue influence and the other side contests the correctness thereof, the Chief Justice/his designate must look into this aspect to find out at least, prima facie, whether or not the dispute is bona fide and genuine. Where the dispute raised by the claimant with regard to validity of the discharge voucher or no – claim certificate or settlement agreement, prima facie, appears to be lacking in credibility, there may not be a necessity to refer the dispute for arbitration at all.”

            From the proposition which has been laid down by the Hon’ble Apex Court, what reveals is that a mere plea of fraud, coercion or undue influence in itself is not enough and the party who alleged is under obligation to prima facie establish the same by placing satisfactory material on record before the Chief Justice or his Designate to exercise power under Section 11(6) of the Arbitration and Conciliation Act, 1996 which has been considered by the Hon’ble Supre Court in New India Assurance Co. Ltd. v. Genus Power Infrastructure Ltd., (2015) 2 SCC 424 as below:

            “It is therefore clear that a bald plea of fraud, coercion, duress or undue influence is not enough and the party who sets up a plea, must prima facie establish the same by placing material before the Chief Justice/ his Designate.”

            It is true that there cannot be a rule of its kind that mere allegation of discharge voucher or no claim certificate being obtained by fraud/coercion/undue influence practiced by other party in itself is sufficient for appointment of the arbitrator unless the claimant who alleges that execution of the discharge agreement or no claim certificate was obtained on account of fraud/coercion/undue influence practiced by the other party is able to substantiate the same, the correctness thereof may be open for the Chief Justice/his Designate to look into this aspect to find out at least prima facie whether the dispute is bona fide and genuine in taking a decision to invoke Section 11(6) of the Arbitration and Conciliation Act, 1996. United India Assurance Co. Ltd. v. Antique Art Exports Pvt. Ltd., (2019) 5 SCC 362.

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Corruption – Meaning of

Corruption has various shades and many a times it is not a mere give and take money in cash but it can be practiced in a variety of ways. Normally, it is difficult to prove corruption by direct evidence unless one is caught red handed accepting undue advantage. Though in a civilized society, corruption has always been viewed with particular distaste to be condemned and criticized by everybody but still one loves to engage himself in it if finds opportunity, ordinarily, since it is difficult to resist temptation. It is often, a kind, parallel to the word ‘bribery’, meaning whereof in the context of the politicians or bureaucrats, induced to become corrupt.

            The Greek Philosopher Plato, in 4th Century B.C. said, “in the Republic that only politicians who gain no personal advantage from the policies they pursued would be fit to govern. This is recognized also in the aphorism that those who want to hold power are most likely those least fit to do so.”

            While giving speech before the House of Lords William Pitt in the later half of 18th Century said, “Unlimited power is apt to corrupt the minds of those who possess it.”

            Corruption is a term known to all of us. Precise meaning is illegal, immoral or unauthorized act done in due course of employment but literally it means “inducement (as of a public official) by improper means (as bribery) to violate duty (as by committing a felony).” It is a specially pernicious form of discrimination. Apparently its purpose is to seek favourable, privileged treatment from  those who are in authority. No one would indulge in corruption at all if those who are in authority, discharge their service by treating all equally.

            Corruption also violates human rights. It discriminates against the poor by denying them access to public services and preventing from exercising their political rights on account of their incapacity of indulging in corruption, of course on account of poverty and other similar related factors. Corruption is, therefore, divisive and makes a significant contribution to social inequality and conflict. It undermines respect for authority and increases cynicism. It discourages participation of individuals in civilized society and elevates self interest as a guide to conduct. In social terms it can be said that corruption develops a range bound field of behavior, attitude and beliefs.

            Corruption is antithesis of good governance and democratic politics, It is said, when corruption is pervasive, it permeates every aspect of people’s lives. It can affect the air they breathe, the water they drink and the food they eat. Shailendra Kumar Upadhyay v. State of U.P., 2019 (134) ALR 347.

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