DISQUALIFICATION UNDER THE REPRESENTATION OF THE PEOPLE ACT, 1951: IS THERE A LACUNA?

by Tanuj Agarwal, 3rd year (Batch 2017-2022) B.Com. LL.B. (Hons.), Institute of Law Nirma University, Ahmedabad

Subtitle: Section 8 of Representation of the People Act, 1951 aims to discard candidates convicted of certain offences from contesting an election. However, it raises important concern pertaining to the right to contest election when such a conviction is stayed by the appellate court.

Introduction

The Representation of the People Act, 1951 (hereinafter “RPA, 1951”) is an act enacted by the Indian Parliament to impart the administration of the election of Centre and State legislatures. It lays down disqualifications and qualifications of members for affiliation of those Houses. Further, the act also enunciates corrupt practices and different offences at or regarding elections.

Specifically, Section 8 of RPA, 1951 states the grounds for disqualification on conviction of certain offences pursuant to Section 8 of RPA, 1951, in case the candidate is convicted of certain offences specified under sub-section (1) (2) (3) of Sec. 8 and sentenced to indicated fine or imprisonment, then such a candidate is disqualified from being a member of either house of Parliament or State Legislature from the date of such conviction till the stated time.

Identification of lacuna under section 8 of RPA, 1951

Section 8 of RPA, 1951 indisputably extends to the cases in which the court has convicted a person of certain offence where the sentence of fine or imprisonment has been passed and thereby disqualified him from being a member of the legislature. However, Section 8 of RPA, 1951 does not deal with the condition where there is a stay on the order of conviction by the appellate court. Section 482 of Criminal Procedure Code, 1973 empowers the High Court to order a stay on conviction in exceptional cases. Moreover, in the case of Rama Narang v Ramesh Narang, the court held that section 389 (1) of Cr.P.C also empowers the appellate court to stay the conviction. Thereby, it is undeniable that the court has the power to put the stay on the execution of sentence as well as to stay the order of conviction itself. In the case of Manpreet Kaur and others v. State of Punjab, it is stated that such an order of stay of conviction renders the conviction “non-operative”. The conviction order which is non-operative in nature does not come within the ambit of Section 8 of RPA, 1951 since it only extends to the persons who are convicted and sentenced to prescribed fine or imprisonment.  Consequently, Section 8 of RPA, 1951 does not give effect to subsequent order by the appellate court to put a stay on the order of conviction passed by the lower court. Such subsequent order of stay on conviction restores a presumption of innocence in favour of a candidate which consequently directs the case outside the preview of Section 8 of RPA, 1951. Therefore, there is a lacuna under Section 8 of RPA, 1951 that leads to such a case being in-effectuated by the prescribed disqualifications.

Filling the lacuna under section 8 of RPA, 1951

Since there is a lacuna in RPA, 1951 regarding subsequent order of stay of conviction by the appellate court in case of disqualifications mentioned under Section 8 of the Act, the pertinent concern is as to the effect of a prior order of conviction by the lower court. Whether such an order of stay of conviction applies prospectively or retrospectively from the date of order of conviction. If the subsequent order is applicable prospectively, then the candidate is only eligible to participate in the further election after such an order passed. In the same way, it will disqualify such an elected candidate who is elected after the conviction order passed by the lower court but before such order subsequently stayed by the appellate court.

To resolve such a concern there is a need to deliberate upon the effects of stay of conviction by the appellate court. With that regard, the Supreme Court in the case of Navjot Singh Sidhu v State of Punjab held that:

“The legal position is, therefore, clear that an appellate Court can suspend or grant stay of order of conviction. But the person seeking stay of conviction should specifically draw the attention of the appellate Court to the consequences that may arise if the conviction is not stayed. Unless the attention of the Court is drawn to the specific consequences that would follow on account of the conviction, the person convicted cannot obtain an order of stay of conviction. Further, grant of stay of conviction can be resorted to in rare cases depending upon the special facts of the case.”

Consequently, if the appellate court orders a stay of conviction, there must be special facts in a case. Moreover, in the case of Ravikant S Patil v Sarvabhouma S Bagali, the Supreme Court stated that where there is an order of stay of conviction, the High court has a special reason to believe the innocence of previously convicted candidate. Thereby, the disqualification on the grounds of conviction mentioned under sub-section (1), (2) or (3) of Section 8 of the RPA, 1951 will not operate if the appellate court has passed the order of stay of conviction under Section 389 or Section 482 of Criminal Procedure Code.

As the disqualification is inoperative by way of stay on order of conviction, such an effect should be followed retrospectively from the date of order of conviction by the lower court. In this regard, the Supreme Court in the case of Lok Prahari v. Election Commission of India, held that where there is an order of stay of conviction itself as against a stay of execution of the sentence, the disqualification under Section 8 of the Act becomes “retrospectively inoperative”. Such stay of conviction ensures that conviction on untenable or frivolous grounds cannot cause serious prejudice to the candidate as has been deliberated in the case of Lily Thomas v. Union of India. In the case of Jyoti Basu v. Debi Ghosal, the Right to Contest an Election is recognized as a statutory right in the Indian regime. Moreover, the election procedure must be fair, impartial & fearless. Thereby, frivolous conviction should not cause prejudice by not sanctioning a candidate to contest the election. In case a candidate is held disqualified even if there is a stay on conviction, there will be an evident violation of right to contest election if the conviction came out as frivolous. Therefore, the disqualification under Section 8 of the Act shall be applied retrospectively and cease to operate after the order of stay of conviction.

Admissibility of Illegally Obtained Evidence in International Commercial Arbitration

by Varshini Sunder, 4th-year student, HNLU

Evidence in international commercial arbitration can be admitted at the sole discretion of the Arbitral Tribunal. There are no rules concerning the admissibility of illegally obtained evidence in specific. Generally, the only criteria the evidence must meet is the test of relevance and materiality.[i] While there are no reported instances of commercial arbitrations on illegally obtained evidence, the plethora of decisions in the international investment forum may throw some light on the issue.

However, unlike investment arbitrations, public interest is not a matter of concern in commercial arbitration as both parties are individuals with private interests. Therefore, documents which would tip the scales in the name of public interest and support admission, will not reach the same conclusion in commercial arbitrations.

In the case of Caratube International Oil Company LLP v. Republic of Kazakhstan[ii], the claimant sought to rely on certain privileged documents that were published on a website after the Kazakh Government’s network was hacked. The Tribunal allowed this evidence to be admitted stating that “it should not be deprived of any evidence which is in the public domain.”

This gives us an indication that evidence in the public domain, albeit illegally obtained, can be admitted before Tribunals. However, this gives rise to another notorious question, what constitutes public domain?

While WikiLeaks released several confidential and privileged information into the public domain, one wouldn’t know whether a particular document is, in fact, available on it, unless its entire data is rummaged through. Therefore, although it is in the public domain, in theory, it is not known to the people at large, and therefore is not in the public domain in the real sense. This was the rationale adopted in Wee Shuo Woon v. HT S.R.L.[iii] where the email sought to be admitted was not deemed to be in public domain merely because it was published by WikiLeaks. It stated that,

“Merely making confidential information technically available to the public at large does not necessarily destroy its confidential character. Public media, in particular the Internet, must not be the gateway through which all confidentiality is dissolved and destroyed.”

The case also stressed on the general duty of confidentiality which is imported when a person receives information he knows to be confidential as elucidated on in the Attorney-General v. Guardian Newspapers (No 2)[iv]. This is reasonable as the confidentiality of a document must be protected as long as it is not entirely stripped of it.

Admitting illegally obtained evidence could have certain implications on the procedural fairness of the proceedings. Therefore, the ethical standards which the tribunal ought to maintain must not be vanquished. A doctrine to validate illegally obtained evidence in arbitrations is the “clean hands doctrine”. According to this approach, the “possible unlawful nature of the disclosure” of the evidence cannot be held against a party which wants to place reliance on such evidence and, was not involved in its illegal disclosure.[v] Therefore, as long as the person who seeks to admit the information was not engaged in its procurement, the evidence must be admitted.

A striking example of lack of clean hands is the Methanex Corp. v. USA[vi] case wherein the Claimant searched through the dumpsters of the office of a lobbying organization to obtain certain notes and correspondence. This case of dumpster diving was held to violate the equality of arms between parties and principles of natural justice and fairness they ought to maintain.

The clean hands approach though reasonable does not absolve the evidence of its illegal source. While the “fruit of the poisonous tree” doctrine is usually adopted in criminal cases, some commentators in recent times have advocated its application to civil cases as well.[vii] Since the evidence is still tainted by some illegality, it could run contrary to the public policy of the country where enforcement is sought, rendering the award unenforceable.

The repercussions of admitting such evidence, are [viii]however, frightening. It could incentivize people to procure more such privileged and confidential information unlawfully should find that their admissibility isn’t problematic. The rationale behind doing away with strict rules of evidence in international commercial arbitrations was to minimize the formalities and increase the tribunal’s efficiency, not to trivialize the law and encourage its transgression.  Therefore, the Tribunals must always weigh and balance the competing conflicting interests cautiously while determining matters of admissibility as its effects are manifold.


Endnotes:

[i] Article 19(2), UNCITRAL Model Law on International Commercial Arbitration (1985 with amendments adopted in 2006).

[ii] Caratube International Oil Company LLP v. Republic of Kazakhstan, ICSID Case No. ARB/13/13.

[iii] Wee Shuo Woon v. HT S.R.L., [2017] SGCA 23.

[iv] Attorney-General v. Guardian Newspapers (No 2), [1990] 1 AC 109.

[v] Blair, Cherie & Gojkovic, Ema Vidak, Wikileaks and Beyond: Discerning an International Standard for the Admissibility of Illegally Obtained Evidence, 33 ICSID Review 235-259 (2018).

[vi] Methanex Corp. v. USA, (2005) 44 ILM 1345.

[vii] Cooper, Nigel, The Fruit of the Poisonous Tree – The Admissibility of Evidence in Civil Cases.

ARBITRATION UNDER A CODE: A COSTLY AFFAIR

by Arpita Satangi, 4th-year student, HNLU

The Supreme Court recently in the case of National Highways Authority of India v. Sayedabad Tea Company and Ors.[i] was faced with the question about the application of Section 11 of the Arbitration and Conciliation Act, 1996[ii] (hereinafter “Act 1996”) in view of Section 3G(5) of the National Highways Act, 1956 (hereinafter “Act 1956”) which provides for appointment of an Arbitrator by Central Government.

Relevant Provisions of the Act 1956.

Section 3D of the Act 1956 empowers the Central Government to acquire property. Moreover, Section 3G of the Act 1956 provides that an amount has to be paid to the other party as determined by the competent authority. Further, Section 3G(5) provides that if the amount is not acceptable to either of the parties, they may file an application for re-determination of the said amount by an Arbitrator as appointed by Central Government.[iii]

Facts of the above case.

The Appellant acquired some property through Section 3D of the Act 1956. The Respondent being dissatisfied with the amount determined filed an application for appointment of an Arbitrator to re-determine the said amount on 8th December 2006. The Central Government did not respond within the prescribed time limit of 30 days as mandated under Section 11(5) of the Act 1996.[iv] Hence, the Respondent filed an application under Section 11(6)[v] of the Act 1996 to the CJ of Calcutta HC to appoint an Arbitrator on 7th March 2007. In the meantime, an Arbitrator was appointed by Central Government in the month of April.

The Calcutta High Court took note of the appointment of Arbitrator by the Central Government and held it to be invalid. The Court held that the right of Central Government to appoint an Arbitrator under the Act 1956 is forfeited by the application of Section 11(6) of the Act 1996.

The appellant, feeling aggrieved filed a review petition in the High Court contending that the Act 1956 is a special enactment laying down a procedure for appointment of Arbitrator. Hence, an application of Act 1996 cannot be allowed. However, the Court did not consider it as a valid ground for a review application.

Hence, feeling aggrieved the appellant preferred an appeal to the Supreme Court of India. The appellant contended that the enactment is a code in itself providing not only for the procedure of acquisition but also for the determination of compensation and as a result, the respondent could not take the help of the Act 1996. It also relied on the judgement of General Manager (Project) National Highways and Infrastructure Development Corporation Ltd. vs. Prakash Chand Pradhan &Ors[vi].,where a similar dispute arose, the Court held that the Act 1996 cannot be applied and appointment of an Arbitrator can only take place via Section 3G of the Act 1956.

The Respondent relied on Section 3G (6) of the Act 1956. The Section provides that subject to the provisions of the Act 1956, the provisions of the Act 1996 shall apply to every arbitration carried out under the Act 1956.[vii] Hence, the Respondent contended that they are empowered to take the help of Act 1996 when no appointment was made by Central Government within 30 days from the filing of application. Therefore, the Central Government forfeits its right of appointment when an application under Section 11(6) of the Act 1996 is made for appointment.

The Decision of the Court.

The Supreme Court relying upon the Judgement cited by the Appellant held that the Act 1956 is a special enactment and a code in itself. Hence, Act 1996 cannot be applied. On the question of the interpretation of Section 3G (6) of the Act 1956, the Court held that use of the expression “Subject to” indicates that the legislature intended to give overriding effect to the Act 1956. Hence, provisions of Act 1996 can be applied to the extent where Act 1956 is silent. Therefore, recourse to Act 1996 cannot be taken for appointment of Arbitrator as Act 1956 clearly stipulates for the same.

The Lacuna of the above Interpretation.

In these circumstances, the question that arises is what remedy does a party have if the Central Government has the sole repository of power to appoint an Arbitrator and it mischievously lingers it for long. On this question the Court held that the only remedy available would be to file a writ directing the Central Government to appoint an Arbitrator. However, it is pertinent to note that writs are costly and all may not afford it. This would lead to a travesty of justice as party would be left either with a costly remedy or none at all.


[i]2019 SCC OnLine SC 1102

[ii]The Arbitration and Conciliation Act, 1996, §11.

[iii] The National Highways Act, 1956, § 3G(5).

[iv]The Arbitration and Conciliation Act, 1996, §11(5).

[v]The Arbitration and Conciliation Act, 1996, §11(6).

[vi]2018 SCC OnLine SC 3245

[vii]The National Highways Act, 1956, § 3G(6).

A case study on Bulun Bulun Case

by Nikhil Issar

  1. Introduction

The Bulun Bulun Case in the words of Justice Von Doussa represent another step by Aboriginal people to have communal title in their traditional ritual knowledge.[1]

The previous T -Shirts case[2]and the Ten Dollar Note case[3] had established that traditional Aboriginal artwork constituted ‘original’ works for under the Australian Copyright Actand therefore they deserved protection against a breach of copyright. The issue at hand in the Bulun Bulun case involved notions of communal ownership of the material embodied in the artistic work as the artistic work had been derived from the common heritage of the Ganalbingu clan.

  1. Facts

The bark painting Magpie Geese and Water Lilies at the Waterhole created by Mr. John Bulun Bulun was created in inspiration of and in accordance with the traditional customs of the Ganalbingu people and had been blessed with the necessary consent of Ganalbingu elders.

The painting had been reproduced in a fabric print and imported into Australia, thus necessitating a copyright infringement action. Continue reading A case study on Bulun Bulun Case

The Unruly horse of Indian Arbitration: The evolution of Public Policy under sections 34 and 48 of the Arbitration and Conciliation Act 1996.

by Rohit Shankar

 

Introduction

‘Public policy’ has been long regarded as an abstract concept that incorporates within its ambit, considerations of legality under the prevailing laws of the nation as well as factors emerging from the sovereign rights of the nation, such as its interests in the realm of foreign policy, as well as its unique notions of justice and morality; First under common law, and later codified into statues governing contractual relationships, contracts, whose objects are in violation of the State’s public policy are regarded as void[1].

Courts have described the concept as an ‘unruly horse, which could lead anywhere’[2] as well that ‘with a good man at the saddle, the unruly horse can be tamed and jump over obstacles’[3]. Apart from a mild case of overuse of the metaphor, these rulings reflect the almost universal trend of conflicting interpretations as to the nature and scope of the concept of public policy. The choice between a broad and elastic interpretation juxtaposed with a restrictive and narrow interpretation, has been one that most jurisdictions, have struggled with and have never adequately resolved.

Arbitration has always been a means of Alternate Dispute Resolution tracing its origins, according to some authors, to the biblical judgment of Solomon[4]. Today, arbitration has become an internationally recognized method for dispute resolution with inter-state, inter-party and investor-state arbitrations being practiced in various forms both domestically in as well as internationally.

The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958, with over 150 contracting states, provides an international framework within which an arbitral award, regardless of which state the award was passed in. Among the defenses granted to a contracting state to refuse the recognition and enforcement of an award is an instance where the enforcement of the award would be contrary to the public policy of that state[5].

India’s law on arbitration emerges from the Arbitration and Conciliation Act, 1996, which mirrors the provisions of the New York Convention in allowing the refusal of recognition and enforcement of a foreign award, or the setting aside of a domestic award, on public policy considerations[6]. The position in Indian law in this regard has been consolidated through the Arbitration Amendment Act of 2015, which added explanations to the extant provisions, stipulating the scope of what might be considered the ‘public policy’ of India for the purposes of the Act.

Public Policy under common law

English courts have examined the test of public policy in the context of contracts, both to censor a contract between parties and to examine whether it must be enforced. Lord Mansfield laid down the principle that ‘no court will lend its aid to a man who founds his cause of action upon an immoral/illegal act’, thus, in effect, laying the foundations for the refusal to enforce an illegal contract.[7]

The concept of public policy, due to its inherently vague nature has lent itself to two main types of interpretations, a broad interpretation, granting Courts the power to add to its scope and a narrow or restrictive interpretation that fixes the concept to a certain stipulated number of considerations. The conflicting interpretations of the concept could also be characterized as a debate as to whether public policy was a judge-made test or one that was grounded in legislation.

In Egerton v Brownlow, the House of Lords while considering the question, sought the opinions of eleven judges. The opinion in favor of a broad interpretation was given by Justice Pollock, who postulated that even in a case without precedent where a judge had to weigh public good with the caprice of a contracting party, the judge was entitled under common law to make a determination as to the same, in favor of the public good.[8] The converse opinion, provided by Justice Parke was that judges could not create the law and could not speculate as to what could be considered good for the community.[9] The House of Lords, eventually, chose the broader interpretation of public policy, though the debate as to the conflicting interpretations continued.

Notably in the famous case of Richardson v Mellish[10], Justice Burroughs, urging a restrictive interpretation of the concept, held – “I, for one, protest, as my Lord has done, against arguing too strongly upon public policy; -it is a very unruly horse, and when once you get astride it you never know where it will carry you. It may lead you from the sound law. It is never argued at all but when other points fail.” The uncertainty faced in the application of a test of ‘public conscience’, or merely weighing the outcomes of enforcement against its refusal, was observed in Tinsley v Milligan, by the House of Lords[11].

The modern position on the concept is illustrated in a recent judgment by the Queen’s Bench in Parkingeye Ltd. v Somerfield Stores Ltd[12], where three factors were used in making a final decision; they were: –

(i)            Whether the parties had intended at the time of entering into the contract for it to have an illegal consequence.

(ii)          Whether the illegal portion of the contract was central to its execution; and

(iii)         Whether the gravity of the illegality was sufficient to render the contract unenforceable.

Thus, it may be concluded that under the English Arbitration Act 1996, when an arbitral award is refused because its enforcement would violate public policy, the Courts will use factors that are similar to those laid out in Parkingeye. Further, that the Court will seek a compromise between the conflicting interpretations of the concept of public policy under common law.

Public policy under Indian Law

The concept in general

The concept of public policy, while finding its place in numerous statues under Indian Law, such as the Indian Contract Act[13], The Transfer of Property Act[14], The Indian Penal Code[15] etc., has not been conclusively defined. The definition of the concept has arisen out of interpretations by the Indian judiciary, which, like its English counterpart, has juxtaposed a broad interpretation with a narrow interpretation. This lack of a conclusive definition has even been recognized by the Law Commission of India, in its specific recommendations aimed at providing clarity in the context of arbitrations[16].

The Supreme Court, in a matter regarding the validity of a wagering contract, expounded upon the doctrine of public policy, holding that- “for want of better words Lord Atkin describes that something done contrary to public policy is a harmful thing, but the doctrine is extended not only to harmful cases but also to harmful tendencies; this doctrine of public policy is only a branch of common law, and, just like any other branch of common law, it is governed by precedents; the principles have been crystallized under different heads and though it is permissible for Courts to expound and apply them to different situations, it should only be invoked in clear and incontestable cases of harm to the public; though the heads are not closed and though theoretically it may be permissible to evolve a new head under exceptional circumstances of a changing world, it is advisable in the interest of stability of society not to make any attempt to discover new heads in these days.”[17]

The Supreme Court’s ruling above, was founded, in addition to the common-law jurisprudence on the subject, upon an analysis of earlier rulings by various Indian High Courts on the matter.[18] In a matter concerning the withdrawal of a letter of resignation submitted by a judge, a five-judge bench of the Supreme Court, affirmed the stand that public policy was a questionable and unsafe ground for a judicial decision and was to be adopted only in instances where there was clear and undeniable harm to the public[19].

The Supreme Court has also recognized that the concept of ‘public good’, upon which the doctrine of public policy is based, is subject to variance with changing times[20]. Through this holding along with several others[21], the Court has leant toward a broader interpretation of the concept, reflecting the ongoing debate as to its scope.

Public policy in arbitrations

The concept of public policy has been a debated issue of interpretation by the Supreme Court of India in various arbitration matters before it. Given that the Indian Arbitration and Conciliation Act 1996, which allows under sections 34 and 48, for domestic awards to be set aside and foreign awards to be refused recognition and enforcement respectively, on public policy considerations, there have been several judgments on the issue.

The first pronouncement regarding the concept was in the case of Renusagar Power Co. v General Electric Co,[22] where the Supreme Court addressed a matter concerning the enforcement of a foreign award, under the Foreign Awards Act 1961 and the Indian Arbitration Act 1940. Section 7(1)(b)(ii) of the Foreign Awards Act 1961, provided that the enforcement of a foreign award could be refused if the enforcement was contrary to public policy. The arbitral tribunal in the matter had awarded interest upon interest owed by a party to the other, as well as providing compensatory damages for the same. The award was challenged on the ground that the awarding of interest on a sum that was owed by way of interest was against the public policy of India as well as the State of New York, which was the seat of the arbitration.

The Court held that the term ‘public policy’ under section 7 of the Foreign Awards Act 1961, meant exclusively the public policy of India. It further went on to hold that since the Act provided that the enforcement of a foreign award may be refused if it violates Indian law or public policy, the separation of the two grounds would indicate that there had to be more than a violation of Indian Law for there to be a contravention of public policy. The Court proceeded to lay down the scope of the public policy consideration as being restricted to: –

(i)            The Fundamental Policy of Indian Law;

(ii)          The interests of India;

(iii)         Justice and Morality.

The above narrow interpretation of public policy was however, broadened in the case of Oil and Natural Gas Corporation Ltd v SAW Pipes Ltd[23]. The Supreme Court relied upon its holdings in Muralidhar Agarwal and Central Inland Water Transport Corporation, to rule that the concept of public policy was subject to changing conceptions of ‘public good’ and that it was the duty of the Court to broaden the concept and add new heads of public policy if the situation called for it. On this basis, it was held that if the award passed by the Tribunal was patently illegal, or in direct conflict with a statutory provision, an enforcement of the award would be contrary to public policy. It thus added a new ground – that of ‘patent illegality’ – under which an award could be set aside under the public policy consideration in section 34. However, the Court stipulated that the illegality was to go to the root of the matter for the award to be termed as violating public policy.

The SAW Pipes judgement has been heavily criticized on account of its enlargement of the ambit of the term public policy. However, on an empirical examination the ruling appears to be founded on strong legal grounds. It is based on the ruling in Central Inland Water Transport Corporation, where contracts that were patently arbitrary or unfair due to unequal bargaining power was held a violation of article 14 of the Constitution of India as well as section 23 of the Contract Act. Further the ruling must be seen as having been made in exercise of the jurisdiction conferred under section 34, therefore not making it an instance of judicial intervention that is not expressly permitted under the Act.

The Supreme Court followed the SAW Pipes judgment while adjudicating the case of McDermott International v Burn Standard[24]. However, it was observed that while there were numerous criticisms regarding the correctness of the earlier judgment, its overruling was left to a larger bench.

While hearing a matter in its appellate jurisdiction concerning the enforcement of a foreign award which was being challenged as being contrary to public policy, the Supreme Court in Phulchand Exports v OOO Patriot, held that the expanded scope of the term provided under the SAW Pipes ruling would apply to Section 48. However, it examined the matter on facts and held that the enforcement of the award would not violate public policy.

The Supreme Court, in a three-judge bench, had the opportunity to revisit the position in Shri Lal Mahal Ltd v Progetto Grano Spa[25]. The Court was presiding over a matter concerning challenge to the enforcement of a foreign award under section 48 of the Arbitration and Conciliation Act 1996. It analyzed the holdings in Renusagar, Phulchand and SAW Pipes, while determining the scope of public policy for section 48. It held that the ruling in Renusagar, where another three-judge bench narrowly interpreted the concept would be applicable, while the ruling in SAW Pipes would apply exclusively to proceedings for the setting aside of domestic awards on public policy considerations. The Court further overruled the Phulchand case stating that for the purposes of enforcement of a foreign award the term public policy would consist of the three components laid down in the Renusagar case.

Another three-judge bench had the opportunity to examine the SAW Pipes judgement – with its now limited applicability – to section 34 proceedings for the setting aside of a domestic arbitral award. The Supreme Court in Oil and Natural Gas Corporation v Western Geco,[26] while examining the ambit of the term public policy, affirmed the SAW Pipes ruling and further held that the ‘fundamental policy of Indian Law’, was a concept that included three basic principles: firstly that a ‘judicial approach’ was adopted in the making of the award, secondly that the principles of natural justice were followed by the Tribunal and lastly, that the award was not so perverse and unreasonable that it offended the conscience of the Court. To test whether the award was unreasonable, the Court applied the test of reasonableness, as was famously propounded in the Wednesbury[27] case. The test laid down by Lord Justice Diplock is that a decision would be considered unreasonable if it was ‘so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question could have arrived at the conclusion’. Continue reading The Unruly horse of Indian Arbitration: The evolution of Public Policy under sections 34 and 48 of the Arbitration and Conciliation Act 1996.

‘Undertaking’ Test for Slump Sale Transactions Under The Income Tax Act: Examining Recent Trends

by Saumya Raizada

What is a Slump Sale?

A Slump sale is a sale/transfer of a business/division of a company that is effected under a normal agreement and can be achieved without going through the court process of a demerger. Under the 2013 Act, the Company needs to obtain an approval from its shareholders constituting super majority, if it needs to dispose an undertaking or a substantial portion of an undertaking.[1]Slump sale remains a popular form of reorganization, by which assets are transferred from one taxpayer to another. Other  than a demerger or share transfer, an “undertaking” is transferred via slump sale. Undertaking, as per Income Tax Act, 1961( “ITA”) includes “any part of an undertaking, or a unit or division of an undertaking or a business activity taken as a whole, but does not include individual assets or liabilities or any combination thereof not constituting a business activity”.

Continue reading ‘Undertaking’ Test for Slump Sale Transactions Under The Income Tax Act: Examining Recent Trends

Latest trends in passing off

by Nikhil Issar

The concept of passing off has undergone changes. At the outset, it was based on representation that the goods were being marketed as the goods of another.[1] However, the concept has now developed to include profession and non-trading activities and at present it is applicable to various forms of unfair trading where such activities caused damage or injury to the goodwill associated with the activities of another person.[2] Lord Dipock had stated the essential characteristics of a passing off action in the following words:

(i) misrepresentation, (ii) made by a person in the course of trade, (iii) to prospective customers of his or ultimate consumers of goods or services supplied by him (iv) which is calculated to injure the business or goodwill of another trader and (v) which causes actual damage to a business or goodwill of the trader by whom the action is brought or will probably do so.[3]

The Controversy of “Goodwill” vs “Reputation” in the United Kingdom

Lord Dipock had enunciated that a misrepresentation made by a person must be with a motive to injure the goodwill of another trader so as to constitute a ground for a passing off action.[4] It is stated that the concept of “Goodwill” has been recognized distinctly from the concept of “Reputation”. The generally accepted definition of “Goodwill” is “benefit and advantage of the good name, reputation, and connection of a business”.[5] In the United Kingdom, the courts have held that a claimant has to establish a customer base within the UK as a pre-requisite to satisfy the goodwill requirement for the obtainment of a passing off action.[6] Thus, in the United Kingdom, a business which has a reputation overseas but does not possess customers in the United Kingdom, shall not succeed in the institution of a passing off action as they would fail to meet the “Goodwill requirement”.[7] A mere reputation within the jurisdiction is not enough to base a passing off claim. In the words of Lord Neuberger, the rationale for the continuance of this interpretation of goodwill is that a business which has simply gained a reputation in the United Kingdom and has not indulged in any trading has “not done enough to justify an effective monopoly”.[8]

Furthermore, the United Kingdom has a stringent definition of the word “Customer” which as per a recent decision which only includes “Paying Customers” under the category of “Customers”.[9] In the current world of online marketing where most services are available free of cost, the word “customer” cannot be restricted to only a “paying customer”. This rationale had been in fact adopted by the English High Courts but was surprisingly not accepted by the English Supreme Court.[10] The exclusion of non paying customers further raises the bar for achieving the “Goodwill requirement” in order to institute a passing off action.

The Transborder-Reputation approach

In Australia, the reputational approach has been recognized as far back in 1992[11] as it was felt that the English approach of goodwill was not in consonance with the international trade and commerce which had begun to take its roots.

Even in India protection is extended to foreign marks which have acquired a reputation in India by extensive advertisements and publicity even though a business is not trading in India.[12]

However, even this approach has two flaws: First, it provides protection to reputable foreign business that do not intend to trade in the country which follows this approach, Secondly, it is much more difficult to prove the existence of a reputation in contradistinction to goodwill which can be proved through amounts generated via revenue.

Balance between reputational and goodwill approach

The most balanced approach can be noticed in New Zealand. New Zealand has adopted the goodwill approach, however “Goodwill” in New Zealand is established through “sufficient business activity” rather than having customers in the jurisdiction.[13] “Sufficient business activity” obviously includes having customers within New Zealand, however it has also been stretched to encompass negotiations to extend an international brand into the jurisdiction. Thus, businesses intending to enter into the jurisdiction of New Zealand may qualify the criterion of “Sufficient business activity” and therefore they would be able to sue for passing off. Thus, New Zealand is able to give necessary protection to businesses which intend to trade in New Zealand and thereby avoid the risk of indulging in “over-protectionism”.

Conclusion

It is very difficult to choose between the goodwill approach and the trans-border reputational approach. However, it can be safely stated that rigid following of the goodwill approach in today’s globalized world is economically unsound. However, the trans-border reputational approach has the risk of “Over-Protectionism” as it would protect even the reputations of businesses which do not seek to carry on trade within the host nation. Thus, this would stifle the growth of legitimate businesses within the nation. The approach of New Zealand seems to be much more logical as it provides protection to businesses which intend to operate in the host nation. This provides the necessary equilibrium needed to satisfy domestic as well as international economic requirements.

[1] Singer Manufacturing Co. v. Loog, (1880) 18 Ch.D. 395.

[2] Bata India Limited v. M/S Pyare Lal & Co., AIR 1985 All. 242

[3] Erven Warnink B.V. v. J. Townend & Sons (Hull) Ltd., 1980 RPC 31; This judgment had been approved in Cadila Health Care Ltd v. Cadila Pharmaceutical Limited, (2001) 5 SCC 73

[4] Supra Note 3

[5]  IRC v Muller [1901] AC 217.

[6]  Anheuser-Busch Inc v Budejovicky Budvar Narodni Podnik [1984] FSR 413 cited in Starbucks (HK) Limited v British Sky Broadcasting Group PLC [2015] UKSC 31

[7] Starbucks (HK) Limited v British Sky Broadcasting Group PLC [2015] UKSC 31

[8] Ibid

[9] Ibid

[10] Plentyoffish Media Inc v Plenty More LLP [2011] EWHC 2568.

[11] ConAgra Inc v McCain Foods (Aust) Pty Ltd (1992) 106 ALR 465.

[12] Mars Incorporated v. Chanda Softy Ice Cream and Others, AIR 2001 Madras 237

[13] Dominion Rent-A-Car Ltd v Budget Rent-A-Car Systems (1970) Ltd [1987] 2 TCLR 91.

 

ANALYSIS OF THE DOCTRINE OF STRICT SCRUTINY IN INDIA by Gourab Kumar Agarwal, HNLU

The concept of judicial review is one of the basic structures of our Constitution. It gives power to the higher judiciary to review any impugned legislation on the grounds of its constitutionality. It acts as a weapon to restrict arbitrary state intervention in the matters concerning fundamental rights of the individuals.

The stringency with which legislations are reviewed can be measured under three heads. They are the test of rational basis, intermediate scrutiny, and strict scrutiny. This article restricts its scope to just discussing about strict scrutiny.

Strict scrutiny is the peak in terms of intensity of judicial control, over the intermediate scrutiny and rational basis test consisting only of the investigation of whether the contested measure is unreasonable. Strict scrutiny leads the judicial reasoning to a level of substantive evaluation and, respectively, produces such a high burden of proof that the chances of annulment of the impugned measure rapidly increases.

Article 21 of the Constitution of India confers on every person the fundamental right to life and personal liberty. According to Bhagwati, J., Article 21 “embodies a constitutional value of supreme importance in a democratic society” Iyer, J., has characterized Article 21 as “the procedural Magna Carta protective of life and liberty”[i]. But this right is not ideal and absolute. Being far from inalienable, this right exists subject to violation or reasonable restrictions by the state.

But for a law to have the force to abridge Article 21 and other fundamental right guaranteed under Part III, they must meet some prescribed standards and constitutional benchmarks. Supreme Court in the case of Maneka Gandhi v. Union of India has held that Article 21 does not include any law which has some resemblance of procedure, however arbitrary or fanciful it is to deprive a person of his personal liberty. “The procedure cannot be unfair, arbitrary or unreasonable”. The procedure contemplated by Art. 21 must answer the test of reasonableness in order to conform with Art. 14.[ii]

The role of the judiciary is to determine when an individual’s fundamental right can or cannot be violated in the interest of greater public good. The standard of reasonableness which enumerates the two fold test of intelligible differentia possessing a rational nexus to the object of the legislation for equality analysis has recently come under question. For the purpose of according greater protection to individual rights, the courts have been called upon to adopt standards involving more rigorous evaluation of legislations. The test of strict scrutiny is one such measure which has started to capture the imagination of jurists and has thus found itself in some of the recent decision by the Supreme Court[iii].

 

 

Application of Strict Scrutiny in India

The doctrine of Strict Scrutiny has its origin in American jurisprudence. The Supreme Court of the United States has applied strict scrutiny standards as early as 1886 in Yick Wo v. Hopkins, later confirmed in war-time cases Hirabayashi v. United States and Korematsu v. United States[iv]. The reasoning employed for non-application of the doctrine in India was the presumption of constitutionality that existed in the Indian courts.

The test of reasonableness as used in Indian courts relies on presumption in favor of the constitutionality of the enactment and the burden of proof lies on the person who attacks it to show that there has been a clear transgression of the constitutional principal[v]. On the contrary, doctrine of strict scrutiny subjects laws based on certain suspect classifications or infringing preferred fundamental rights to heightened judicial scrutiny. It requires the classification infringing fundamental rights to be narrowly tailored to achieve a compelling administrative necessity to save the law from the taint of unconstitutionality and the burden is on the state to prove the compelling necessity and narrow tailoring.[vi]

Strict scrutiny can be harmoniously integrated within the current legal framework in so far as it is applied to cases where presumption of constitutionality does not stand. Bhandari, J. in Ashok Kumar Thakur v. Union of India critically notes that “the problem of race (in America) is akin to our problem of caste”.  It is important to note here that in cases of racial discrimination the Supreme Court of United States has applied the strict scrutiny standards as early as 1886.

A strict scrutiny approach may be employed to uphold group rights against undue State interference just as it has been used in other traditions to uphold individual rights.

Thus one can conclusively infer that adopting strict scrutiny, where it can be harmoniously integrated within the current legal framework, would not lead to significant inclusion of a wholly foreign principle but in fact a valuable and sustainable addition to equality analysis in India.

Adopting such a standard of equality analysis carries it with certain inherent benefits. First, the need for a compelling state interest represents a proper standard that condones violation of fundamental right only in cases of larger public interest. Second, as the burden to prove constitutionality is placed on the Government, it ensures that the Government employs greater assessment standards before effecting legislations. Finally, as opposed to common belief, strict scrutiny will not rule out positive discrimination by striking down all legislations[vii].

Ultimately, fundamental rights must remain fundamental. This task is more complex than one might assume. To minimalize the arbitrary state infringement over the fundamental rights it is necessary to adopt stringent measures. Even though the jurisprudence on the subject of strict scrutiny is still at a nascent stage, there have been several judgments dealing with the issue in depth. If these decisions are any indication of the final outcome, the future seems bright. The court must follow through with its initiative in order to truly act as the guardian of rights.

 

[i] http://www.lawctopus.com/academike/article-21-of-the-constitution-of-india-right-to-life-and-personal-liberty/

[ii] M P Jain, Indian Constitutional Law

[iii] Taking Rights Seriously- The Supreme Court on Strict Scrutiny; Raag Yadava

[iv] Affirmative Action Policies and Judicial Review Worldwide; George Gerapetritis

[v] V N Shukla’s Constitution of India; Mahendra Pal Singh

[vi] Ibid note iii.

Judicial Evolution of the Right to Privacy and the Aadhar conundrum by Harish Jayakumar, HNLU

The Industrial Revolution picked up steam at the turn of the 19th century and the world underwent a decisive change forever. Almost 200 years later, the world is similarly being transformed by the Technological Revolution. It has been instrumental in propelling us into the Information Age where the proliferation of knowledge has never been greater. However, while the benefits are numerous and immense in their scale, there are equally vital concerns ranging from privacy to data-protection to which a search for an effective solution is still ongoing. One needs to understand the significance of technology because the current and future notions of privacy hinges on how modern society shapes itself to this technological change. Our right to privacy is not the same definition that existed in the ancient era and is constantly evolving and adapting with the times. Previously, the notion of privacy was restricted to the idea of protecting one’s person and property from torts such as trespass[1]. Now, the right to privacy has evolved completely to encapsulate not just privacy in the physical state but also to privacy in the spiritual and intellectual state as well[2].

In India, defining the right to privacy and its extent is more complicated because the Indian Constitution does not guarantee a specific right to privacy. Though the Supreme Court in various judgements has affirmed indeed that a right to privacy is an inherent right and that it flows naturally from the Right to Life and Personal Liberty, it is still a matter of contention. This has created consternation because the right to privacy is an important and inalienable right inherent to every Indian citizen but this is being offset by the State’s need to balance its national security interests. Most recently, the debate around the right to privacy has arisen around the Aadhaar which is a unique 12-digit identity number exclusive to every Indian[3] which is issued by the central government agency known as the Unique Identification Authority of India (henceforth UIDAI). The purpose of the Aadhaar is akin to what the role is of the social security number in the United States. It qualifies as a valid ID for availing various important government services and to receive government subsidies.

The controversy around Aadhaar is because the UIDAI collects the biometric and demographic data of the residents and stores this in a centralized database. This poses a serious risk to the right to privacy of each individual as it is now possible to categorize everyone in society by analyzing their biometric information. This is notwithstanding the fact that this information is in a centralized database which is a major security concern. The safeguards that have been introduced by the government in order to ostensibly protect the information of the citizens are also wholly inadequate and laughable by international standards. The implementation of the project has not taken place smoothly and has been ridden with a slew of controversies which raises questions regarding the efficacy of the government’s methods. The Aadhaar has been introduced by the government to provide many of their most important services and subsidies through the Public Distribution System (PDS). It is directly transferred to the lower strata of society in order to eliminate the middlemen and the constant leakages that plague the system. Also as of May 2016, almost 101 crore Aadhaar cards have been issued and 97% of adults possess an Aadhaar card[4]. So, it is clear that the project is on its way to its completion. Therefore, there are two very important questions that arise from this. Firstly, is the right to privacy a fundamental right guaranteed under the Constitution and is the UIDAI or Aadhaar in violation of an individual’s right to privacy?

 

The Supreme Court’s stance

 

The evolution of the Right to Privacy did not start out positively in India. The first case before the court which addressed the Right to Privacy was in M.P. Sharma & Others vs. Satish Chandra, District Magistrate of Delhi & Others[5]. The case considered whether there were any constitutional limitations to the government’s search and seizure of people’s homes. Here, the headnote reads, “When the Constitution makers have thought fit not to subject such regulation to Constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it into a different fundamental right by some process of strained construction.” The American Fourth Amendment states that it is the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”[6] An important point to be noted is that this does not pertain to the entire right to privacy. It only deals with a part of it, namely the protection of people against search and seizure. Following this is Kharak Singh vs State of Uttar Pradesh[7] which dealt with the physical surveillance of ‘history sheeters’. In this case also, the right to privacy was not recognized. The judgement begins stating that “as already pointed out, the right to privacy is not a guaranteed right under our constitution.”[8] Though, the saving grace here is “as already pointed out” which refers to an earlier section of the judgement where the Court quotes the US Fourth Amendment, and then declares that the Constitution does not confer any ‘like constitutional guarantee’[9] following the ratio of the M.P. Sharma Case. It is clear that both these cases don’t refer to right to privacy as a whole. The Attorney General, Mr. Mukul Rohatgi provoked a huge controversy when he stated in the Supreme Court that Right to Privacy is not a right provided by the Constitution while defending the claim that the Aadhaar violated the Right to Privacy on the basis of these 2 cases[10]. This was a technical error on the Attorney General’s part as both of these cases deal with the question of whether the US Fourth Amendment can be read into the Indian Constitution and not about the whole right to privacy. The 2 cases discussed above don’t rule out a broad constitutional right to privacy as the right to privacy is a bundle of rights not limited to only surveillance or search and seizure. Also, in the minority judgement of the Kharak Singh case, Justice Subba Rao recognized the need for a right to privacy under Article 21 and set the foreground for shaping the right to privacy under Article 21.

In subsequent years, small bench judges expanded the position of the right to privacy. In Govind vs State of Madhya Pradesh[11] which also dealt with the surveillance of ‘history sheeters’, the Court held that the surveillance by various means is not violative of Article 21 of the Constitution as it was a regulation according to “procedure established by law.”[12] However, it recognized the right to privacy in a limited context and allowed that it should be developed on a case-by-case basis. The true break for the Right to Privacy came with the celebrated Maneka Gandhi[13] case which greatly expanded the ambit of Article 21. In the judgement, Justice Bhagwati observed, “The expression ‘personal liberty’ in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have raised to the status of distinct fundamental rights and given additional protection under Article 19.” Thus, the Court had held Article 21 to be controlled by Article 19 binding the two important rights together. This also meant that the ambit of right to privacy had greatly increased and could now be interpreted in a much more liberal manner. So, following this in R. Rajagopal vs State of Tamil Nadu[14]  the apex court observed, “The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a right to be let alone. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters.[15]” Therefore, these final cases represented a decisive shift in the court’s ratio towards the right to privacy. Previously, the court took a cautious stance and interpreted the law in a positive manner following the text of the Constitution. With the liberalization of the country during the early 90s, the Court also followed suit as observed in R. Rajagopal and took favorable interpretations of the right to privacy.

The Evolution of the Aadhaar Project

The need for issuing every citizen an identity card and number had started during the Vajpayee years itself. It was then taken up the subsequent UPA government which established the UIDAI as an attached office of the Planning Commission in 2009. As stated above, the purpose of the Aadhaar is to issue a unique 12-digit number to all residents of India in the form of the Aadhaar card which will serve as the primary proof of identity anywhere across India. This card would contain their biographic and demographic information such as photograph, ten fingerprints and two iris scans which would then be stored in a centralized database[16]. In the beginning, the Aadhaar was created in order to weed out illegal aliens but this has changed to focus it as a development initiative[17]. In its current form, Aadhaar is part of the government’s flagship JAM Trinity (Jan Dhan, Aadhaar and Mobile Banking) by which the government seeks to provide its services to the people using these as the medium in a more efficient, effective and economical way. Aadhaar is the lynchpin of this program and some of the government programs which can be availed using the Aadhaar card include procuring an LPG connection, subsidized rations from the PDS, and benefits under NSAP pension schemes, obtaining a SIM card or opening a bank account[18]. The importance of the Aadhaar is therefore clear and India needs such an identity card so that the beneficial schemes that the government implement reaches those that need it the most.

Troubling Concerns

The Aadhaar has gone through a slew of controversies since its inception and this has raised many vital concerns. Until March 2016, the Aadhaar did not even have legislative backing and the entire project continued to run only on the basis of an executive order[19]. It was only on March 11, 2016 that the Parliament passed the Aadhaar (Targeted Delivery of Financial and Other Subsidies, benefits and services) Act, 2016. Even this was not without controversy as the Bill was introduced as a money bill in order to bypass the Rajya Sabha where the ruling government did not have a majority.

Another controversy is the so-called “voluntary” nature of the Aadhaar card. In March 2014, the Supreme Court passed an interim order declaring that the Aadhaar is not mandatory and no one should be forced to use it to avail government services[20]. However, the government fosters the illusion that an Aadhaar is absolutely necessary and one must register their bank accounts with their Aadhaar number in order to avail its various facilities. Indeed, it was only after the Supreme Court passed its orders declaring that no one should be denied services for want of an Aadhaar that the government made statements stating that it was voluntary[21]. In fact, some of the government’s most important schemes such as Jan Dhan Yojana, Ration Card & LPG Subsidy and Mobile Numbers don’t even require the use of an Aadhaar. Therefore, it begs the question as to why the government is so focused on promoting it as a mandatory requirement and it raises concerns about their need to profile the citizens.

This leads us to the most important issue regarding Aadhaar which is privacy or the lack of it in the entire Aadhaar project. The main danger is that it opens the door to mass surveillance because Most of the “Aadhaar-enabled” databases will be accessible to the government[22]. This brings to mind the Snowden leaks in 2013 which revealed that the US government was extensively spying on its own citizens in the guise of “protecting national interests”. Another important concern that has been raised is the method and process of data collection. The UIDAI has enlisted the services of several private subcontractors in order to collect the data which greatly increases the possibility of leakages of data occurring[23]. They are also not responsible to Indian law for data collation and this greatly exacerbates the threat to the right to privacy. Lastly, there is the use of the centralized database which keeps the record of all the biometric and demographic information of each citizen. This has been a great concern because of 2 reasons. Firstly, the data is in the hands of the government which can then use it in order to categorize the people in society. Also, there is the possibility that data leaks may arise from this centralized database because there is as yet, no foolproof system in place to guard against breach of data from the private players despite the UIDAI’s claims that it has robust security measures in place[24].

The UIDAI had an opportunity to implement the Aadhaar for the noble purpose of setting up an effective Public Distribution System and also a pan-India identity card for any transaction throughout the length and breadth of the country. While this has ostensibly been done in some respects, it has also come at a great cost. The government has in the background created a big-brother like situation where they are poised to misuse this data for mass surveillance and profile the citizens in the country. In the world’s largest democracy, such a fundamental violation of a natural right is deeply regrettable.

Conclusion

 

Let us be clear that an absolute right to privacy is impossible in this day and age. It is a fact that somehow, somewhere, we are bound to be identified and categorized in some respect. With technology pervading and becoming an intrinsic part of our lives, it is not possible to truly enjoy a complete right to privacy. However, this does not mean that the right to privacy should be made inviolable to allow mass surveillance by a government. There are still certain fundamental tenets about the right to privacy that must be respected and protected at all costs. Therefore, this presents a new question to the social contract: Does a citizen forsake one’s right to privacy in order to safeguard national security interests? The answer is undoubtedly no because this is a right that is an essential constituent of personal liberty and also to enjoy a free and fruitful life. The Supreme Court is currently deliberating over whether the Right to Privacy constitutes a fundamental right and one only hopes that they declare a positive affirmation firmly entrenching it so. This is important because going forward technology is going to play an even more important role in lives of people. Therefore, stringent declarations protecting the rights of people in case of data protection and privacy violations will become all the more important. By setting a precedent right now, it will help the future generations to expand upon the doctrine. Laying ironclad precedents also sends a message to the government to not tamper with the rights of citizens from the start and conduct their policies respecting these principles. It also ensures that projects such as Aadhaar which are in danger of grossly violating an individual’s right to privacy are never again conducted in the manner that they have been. The Aadhaar is currently poised to be one of the government’s most successful initiatives considering the amount the government has saved plugging leakages in the PDS and directly helping the people who are below poverty line. However, the government is the caretaker of the people and they should be providing the best possible safeguards if they are undertaking any measure that may compromise on an individual’s right. It is regrettable that the same cannot be said of the Aadhaar which stands as a threat to the right to privacy of every citizen. So, it is up to the people to put pressure on the courts and the Parliament alike so that they can take cognizance of the needs of the people and the need of the law to adapt to changing times and their responsibility to ensure that it happens in the free and democratic tradition that this country was founded upon.

 

[1] Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4(5) HARVARD LAW REVIEW 193, 193 (1890).

[2] Hinailiyas, Right to Privacy under Article 21 and the Related Conflicts (January 22, 2014), LEGAL SERVICES INDIA, available at http://www.legalservicesindia.com/article/article/right-to-privacy-under-article-21-and-the-related-conflicts-1630-1.html (Last visited on June 2, 2016).

[3] V Nalinakanthi, All you wanted to know about the Aadhaar Bill, THE HINDU BUSINESS LINE (March 21, 2016), available at http://www.thehindubusinessline.com/opinion/columns/all-you-wanted-to-know-about-aadhaar-bill/article8381808.ece (Last visited on June 9, 2016).

[4] UIDAI (2009), Aadhaar Generation Progress in India, Aadhaar by Ages & Gender, and Aadhaar by Trend (Bar Graph) available at https://portal.uidai.gov.in/uidwebportal/dashboard.do (Last visited on April 30, 2016).

[5] M.P Sharma & Others v. Satish Chandra, District Magistrate of Delhi & Others, AIR  1954 SC 300 (Supreme Court of India).

[6] Amendment IV, THE CONSTITUTION OF THE UNITED STATES OF AMERICA, 1787.

[7] Kharak Singh vs State of UP, AIR 1963 SC 1295

[8] Id., at 13.

[9] Chinmayi Arun, A Basic Right is in Danger, THE HINDU (July 31, 2015), available at http://www.thehindu.com/opinion/op-ed/a-basic-right-is-in-danger/article7482874.ece (Last visited on June 9, 2016).

[10] PTI, Right to Privacy cannot be a Fundamental Right: Centre Tells Supreme Court, ECONOMIC TIMES (July 23, 2015), available at http://articles.economictimes.indiatimes.com/2015-07-23/news/64773078_1_fundamental-right-attorney-general-mukul-rohatgi-privacy (Last visited on June 7, 2016).

[11] Govind vs State of Madhya Pradesh, (1975) 2 SCC 148 (Supreme Court of India).

[12] Id., at Para 176.

[13] Maneka Gandhi vs Union of India, (1978) 2 SCR 621 (Supreme Court of India).

[14] R.Rajagopal vs State of Tamil Nadu, (1994) 6 SCC 632 (Supreme Court of India).

[15] Id., at 26.

[16] TNN, Learning with the times: What is Aadhaar?, THE TIMES OF INDIA (4th October  2010), available at: http://timesofindia.indiatimes.com/india/Learning-with-the-Times-What-is-Aadhaar/articleshow/6680601.cms (Last visited on June 9, 2016).

[17] Tusha Mittal, Falling between the barcodes, TEHELKA (20th August 2009), available at http://www.tehelka.com/2009/08/falling-between-the-barcodes/?singlepage=1 (Last visited on June 9, 2016).

[18] Seetha, There is a Privacy Issue with the Aadhaar Card, SWARAJAYA (July 29, 2015), available at  http://swarajyamag.com/politics/there-is-a-privacy-issue-with-the-aadhar-card (Last visited on June 9, 2016).

[19] Ruhi Tiwari, Aadhaar legal, valid under Constitution: Centre tells SC, THE INDIAN EXPRESS (February 12, 2015), available at http://indianexpress.com/article/india/india-others/aadhaar-legal-valid-under-constitution-centre-to-tell-sc/ (Last visited on June 9, 2016).

[20] Krishnadas Rajagopal, Don’t insist on Aadhaar, warns SC, THE HINDU (March 16, 2015), available at http://www.thehindu.com/news/national/aadhaar-not-mandatory-sc-reiterates/article6999924.ece (Last visited on June 9, 2016).

[21] Dhananjay Mahapatra, Aadhaar use will be voluntary, says government, THE TIMES OF INDIA (October 15, 2015), available at http://timesofindia.indiatimes.com/india/Aadhaar-use-will-be-voluntary-says-government/articleshow/49366557.cms (Last visited on June 9, 2016).

[22] Jean Dreze, The Aadhaar Coup THE HINDU (March 15, 2016), available at http://www.thehindu.com/opinion/lead/jean-dreze-on-aadhaar-mass-surveillance-data collection/article8352912.ece (Last visited on June 9, 2016).

[23] Rajeev Chandrasekhar, A Shaky Aadhaar INDIAN EXPRESS (October 1, 2015), available at http://indianexpress.com/article/opinion/columns/a-shaky-aadhaar/ (Last visited on June 9, 2016).

[24] Usha Ramanathan, Who Owns the UID Database? MONEYLIFE (April 30, 2013), available at http://www.moneylife.in/article/aadhaar-who-owns-the-uid-database-ndashpart-ii/32440.html (Last visited on June 9, 2016).

Killer Robots: The Future Of Lethal Autonomous Weapons

by Akhil Deo

Introduction

In march 2016, an artificial intelligence (AI) programme defeated a professional player at a complex board game called Go.[1] Such a feat was previously considered impossible for several years to come and was hailed as an important milestone in AI technology. Already AI is slated to be the next big step in terms of technological advancement. All major technology giants such as Google, Apple, Uber, and Amazon are currently developing AI technology in diverse fields such as automobile, personal computing, drones, medical technology etc. Continue reading Killer Robots: The Future Of Lethal Autonomous Weapons