The Fiat on National Anthem – Fundamental Rights Enforced or Abridged?

     (By B. Premnath, Advocate, High Court of Kerala, Ernakulam)

“And we must remember that there is no higher Court to correct our errors, and that we wear the mantle of infallibility only because our decisions are final. That we sit at the apex of the judicial administration and our word, by constitutional mandate, is the law of the land can induce an unusual sense of power. It is a feeling we must guard against by constantly reminding ourselves that every decision must be guided by reason and by judicial principles” (Justice R.S.Pathak in ((1984) 3 SCC 161).

Supreme Court, the sentinel of the Constitution of India, in Shyam Narayan Chouksey v. Union  of India(W.P.(Civil) No.855/2016) commanded inter alia to play the National Anthem before the film show in cinema theatres and that the audience should stand up during the rendering. The directions were passed in a Writ Petition under Article 32 of the Constitution of India which can be invoked only to enforce the fundamental rights and nothing else.  The directions invade our fundamental rights guaranteed under the Constitution of India.

Supreme Court issued the following directions:

(a) “There shall be no commercial exploitation to give financial advantage or any kind of benefit. To elaborate, the National Anthem should not be utilized by which the person involved with it either directly or indirectly shall have any commercial benefit or any other benefit.

(b) There shall not be dramatization of the National Anthem and it should not be included as a part of any variety show. It is because when the National Anthem is sung or played it is imperative on the part of every one present to show due respect and honour. To think of a dramatized exhibition of the National Anthem is absolutely inconceivable.

(c) National Anthem or a part of it shall not be printed on any object and also never be displayed in such a manner at such places which may be disgraceful to its status and tantamount to disrespect. It is because when the National Anthem is sung, the concept of protocol associated with it has its inherent roots is National identity, National integrity and Constitutional patriotism.

(d) All the cinema halls in India shall play the National Anthem before the feature film starts and all present in the hall are obliged to stand up to show respect to the National Anthem.

(e) Prior to the National Anthem is played or sung in the cinema hall on the screen, the entry and exit doors shall remain closed so that no one can create any kind of disturbance which will amount to disrespect to the National Anthem. After the National Anthem is played or sung, the doors can be opened.

(f)  When the National Anthem shall be played in the Cinema Halls, it shall be with the National flag on the screen.

(g) The abridge version of the National Anthem made by one for whatever reason shall not be played or displayed”.

Later, another order was passed with regard to the physically challenged persons to the effect that “if a physically challenged person or physically  handicapped persons goes to the Cinema hall to watch a film, he need not stand up, if he is incapable to stand, but show such conduct which is commensurate with respect for the National Anthem.” Disability was as defined under Sections 2(i) and 2(t) of the Persons with Disabilities(Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.”

Union Government brought out two circulars dated 6.12.2016 and 21.12.2016 prescribing the guidelines for playing the National Anthem in tune with the order of the Supreme Court. The circular on 21.12.2016 said: “The persons with locomotor disabilities and other wheel chair users having affected lower limbs shall position himself/herself to the extent of maximum attentiveness and alertness with or without the help of appropriate aids and appliances. For example a wheel chair bound person with disability shall make the wheel chair static, position himself/herself maintaining the maximum possible alertness physically”. 

The order of the Supreme Court further shows that the petitioner has averred that sometimes National Anthem is sung in various circumstances which are not permissible and can never be countenanced in law, though the said circumstances are not detailed.

Many questions linger as to the legality of the directions of the Supreme Court.  What is the fundamental right of the petitioner to be enforced that the other people should stand up when the national anthem is being played or that the National Anthem should be played before the screening of every film? The petitioner had no legal right to seek for the issue of writ of mandamus. There was therefore no legal remedy for him. As Blackstone opined: “It is a general and indisputable rule that when there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded”.

The orders of the Court and the circulars that followed offend the fundamental rights guaranteed under Articles 19(1)(a) and 19(1)(g) of the Constitution of India. The direction that physically disabled persons and persons confined to wheel chairs should show maximum alertness, would do violence to them. It violates their fundamental right under Article 19(1)(a)
and their right to privacy which has now been declared as a fundamental right by the Supreme Court in Justice K.S.Puttaswamy (Retd.) v. Union of India (2017 (4) KLT 1 (SC)). The circulars issued are not law at all.  In Bijoe Emmanuel & Ors. v. State of Kerala & Ors. (1986 KLT 1037 (SC)). It was held : “The law is now well settled that any law which may be made under clause (2) to (6) of Article 19 to regulate the exercise of the right to the freedoms guaranteed by Article 19(1)(a) to (e) and (g) must be ‘a law’ having statutory force and not a mere executive or departmental instruction”.

Bijoe Emmanuel & Ors. v. State of Kerala & Ors.(supra) was a case where three children were expelled from the school for not singing the National Anthem. The children, who were faithful of Jehovah’s witnesses did not sing the  National Anthem as they believed that it is against the tenets of their religious faith.  Supreme Court emphatically held that their expulsion from the school violate their fundamental rights under Article 19(1)(a) and Article 25 of the Constitution of India. 

Article 19(2) exhorts that “Nothing in sub-clause (a) of Clause (1) shall affect the operation of any existing law or prevent the State from making any law in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub- clause in the interest of the Sovereignty and Integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to Contempt of Court, defamation or incitement to an offence”. Thus the fundamental right of speech and expression guaranteed by Article 19(1) (a) is qualified. That has to go through the teeth of Article 19(2). At any stretch, being seated in reverence of the National Anthem does not offend Article 19(2) at all. 

In Shyam Narayan Chouksey v. Union of India(AIR 2003 M.P. 233), a Writ Petition was filed complaining that the National Anthem was dramatised and commercially exploited in the film “Kabhi Khushi Kabhi Gum”. In a scene in the film, a boy starts to sing the Anthem and the audience do not stand up immediately. The audience in the film are taken by surprise. Some of the audience stand up after three lines, some after four lines and some after five lines. The boy forgets the lines and says “sorry.” His mother later fills up the words. While the Court holds that freedom of speech and expression has gained immense significance and its utility by no stretch of imagination can never be marginalised and its importance be reduced, it is also held that dramatisation and commercial exploitation for the benefit of the producer cannot be permitted. Then the Court issued directions inter aliato delete the scene from the film and injuncts the cinema halls and the theatre owners from showing the film with that scene. Later the Supreme Court permitted exhibition of that film without deleting any scenes.

It may be seen that the production and exhibition of films are part of the fundamental right under Article 19(1)(g) of the Constitution which can be curtailed only by virtue of Article 19(6), by imposing reasonable restrictions. The depiction of a scene in a film is part of freedom of expression of its writer and those who projects it on to the silver screen. The freedom of speech and expression can be curtailed only in the situations covered by Article 19(2). None of such contingencies were present for issuing such directions in that case. And for issuing directions (a) and (b) in the present case, no such situations are referred to.

S.Rangarajan etc. v. P.Jagjivan Ram((1989) 2 SCC 574) was a case where S. Rangarajan, produced a Tamil film “Ore Oru Gramathile” and applied for certificate for exhibition of the film. The ‘U’ Certificate granted was revoked by the Madras High Court. It was appealed. Supreme Court held: “The standard to be applied by the Board or courts for judging the film should be that of an ordinary man of common sense and prudence and not that of an out of the ordinary or hypersensitive man”. It was further held: “We want to put the anguished question, what good is the protection of freedom of expression if the State does not take care to protect it? If the film is unobjectionable and cannot constitutionally be restricted under Article 19(2), freedom of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence. That would tantamount to negation of the rule of law and a surrender to black mail and intimidation. It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem. It is its obligatory duty to prevent it and protect the freedom of expression”..........

“The fundamental freedom under Article 19(1)(a) can be reasonably restricted only for the purposes mentioned in Article 19(2) and the restriction must be justified on the anvil of necessity and not the quicks and of convenience or expediency. Open criticism of Government policies and operations is not a ground for restricting expression. We must practice tolerance to the views of others. Intolerance is as much dangerous to democracy as to the person himself”.

The directions issued regarding playing the National Anthem in cinema theatres before the start of the film, violates the fundamental right under Article 19(1)(g). Of course the said right is subject to reasonable restrictions. Article 19(6) permits the State from making any law imposing, in the interests of the general public reasonable restrictions on the exercise of the right conferred by Article 19(1)(g). It also permits the State to make any law relating to the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business, or the carrying on by the State, or by a Corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.  The orders of the Supreme Court and the circulars of the Union Government cannot be termed as “law” under Article 19(6) and are not reasonable restrictions.

The Cinematograph Act, 1952 and the allied rules are made to provide for the certification of cinematograph films for exhibition and for regulating exhibitions for means of cinematographs and for licensing the conduct of the cinema theatres. The guidelines for certification of films for public exhibition shows that there can be no scenes where the sovereignty and integrity of India is called in question, the security of the State is jeopardised or endangered, public order is endangered and further that the national symbols and emblems are not shown except in accordance with the provisions of the Emblems and Names (Prevention of Improper Use) Act, 1950 (Act 12 of 1950). Conditions are also stipulated under the rules for granting licence for the building in which films to be exhibited. Then if a person satisfies all the said conditions and conduct a cinema theatre accordingly and if a film is certified to be fit for public exhibition, the order now issued by the Supreme Court and the circulars issued by the Central Government which are not law, impose unreasonable restrictions on his trade which cannot be justified under Article 19(1)(g) of the Constitution of India. Even if an amendment is carried out to the Cinematograph Act, it can only impose regulations which has a reasonable relation to the object sought to be achieved by it. There has to be a nexus with the object to be achieved. It cannot be disproportionate. Any law passed restricting the fundamental rights guaranteed under Artcile 19(1)(g) cannot be one jeopardising the interest of the general public. It cannot violate any other fundamental right also. 

It is not a case where there is a vacuum; there is an enactment covering the subject. The Statement of Objects and Reasons to the Prevention of Insults to National Honour Act,
1971 (Act 69 of 1971) may be referred to: “Cases involving deliberate disrespect to the National Flag, the National Anthem and the Constitution have come to the notice in the recent past. Some of these incidents were discussed in both the Houses and Parliament and members expressed great anxiety about the disrespect shown to the national symbols. Government were urged to prevent the recurrence of such incidents. Disrespect to the National Flag and the Constitution or the National Anthem is not punishable under the existing law. Public acts of insults to these symbols of sovereignty and the integrity of the nation must be prevented. Hence the Bill. The scope of the law is restricted to overt acts of insult to and attack on, the national symbols by burning, trampling, defiling or mutilating in public.It is not intended to prohibit honest and bona fidecriticism of the symbols, and express provisions to this effect have been made in the Bill”.                                                    (emphasis supplied)

The “Prevention of Insults to National Honour Act, 1971” makes it an offence under Section 3 where anyone intentionally prevents the singing of National Anthem or causes any disturbance to any assembly engaged in such singing will be punished with imprisonment up to three years or with fine or with both. As can be seen from the object and reasons, the scope of the Act is restricted. Not standing up while the National Anthem is being sung is not made an offence; it cannot be, in the teeth of Article 19(1)(a) and 19(2).

The Government of India, Ministry of Home Affairs issued orders relating to the National Anthem of India. Just like the Flag Code, it is not a statute; thereby the Fundamental Right under Article 19(1)(a) is not regulated. But the orders have to be followed to the extent it provides for preservation of dignity and respect for the National Anthem. In that way direction (c) in the present order of the Court is correct, but it militates against Article 32. Union of India v. Naveen Jindal & Anr.((2004) 2 SCC 510) was a case where a citizen was flying National Flag at the office premises of his factory. He was not allowed to do so by the government officials on the ground that the same is impermissible under the Flag Code of India. Supreme Court held: “(i) Right to fly the National Flag freely with respect and dignity is a fundamental right of a citizen within the meaning of Article 19(1)(a) of the Constitution of India being an expression and manifestation of his allegiance and feelings and sentiments of pride for the nation; (ii) The fundamental right to fly National Flag is not an absolute right but a qualified one being subject to reasonable restrictions under Clause 2 of Article 19 of the Constitution of India; (iii) The Emblems and Names (Prevention of Improper Use) Act, 1950 and the Prevention  of Insults to National Honour Act, 1971 regulate the use of the National Flag; (iv) Flag Code although is not a law within the meaning of Article 13(3)(a) of the Constitution of India for the purpose of Clause (2) of Article 19 thereof, it would not restrictively regulate the free exercise of the right of flying the National Flag. However, the Flag Code to the extent it provides for preserving respect and dignity of the National Flag, the same deserves to be followed. (v) For the purpose of interpretation of the constitutional scheme and for the purpose of maintaining a balance between the fundamental/legal rights of a citizen vis-a-vis, the regulatory measures/restrictions, both Parts IV and IVA of the Constitution of India can be taken recourse to”.

Though the orders relating to National Anthem  gives  a  guideline  as  to  the  occasions  in  which  the  full  version/short version shall be played, that relates to Civil/Military investitures and the State functions where the audience shall stand to attention. The orders relating to the playing of Anthem issued by Union Government state that the short version of the Anthem shall be played when drinking toasts in Messes and the abridged version is detailed therein.  It is stated that the Government can issue special orders listing the occasions which it has to be sung/played but again it should relate to the State functions. Clause V in general states that: “(1) Whenever the Anthem is sung or played, the audience shall stand to attention. However, when in the course of a news-reel or documentary the Anthem is played as a part of the film, it is not expected of the audience to stand as standing is bound to interrupt the exhibition of the film and would create disorder and confusion rather than add to the dignity of the Anthem.  (2) As in the case of the flying of the National Flag, it has been left to the good sense of the people not to indulge in indiscriminate singing or playing of the Anthem.”                    (emphasis supplied)

The order of the Supreme Court to play the National Anthem in Cinema theatres before the film, with the display of National Fag on the screen, making the audience stand up, impedes the very essence of liberty of the life of we, the people.

Then, can a picture of the National Flag be shown in cinema theatres during the playing of the National anthem? The display of the National Flag is governed by the “Prevention of Insults to National Honour Act”, 1971 where the display of the Flag in certain occasions and in certain manner is made an offence. The Flag Code of India brings together the conventions, practices and instructions for the guidance for the display of the Flag. Clause 2.2 states that a member of public, a private organization or an educational institution may hoist/display the National Flag on all days and occasions, ceremonial or otherwise consistent with the dignity and honour of the National Flag. Clause 2.2(i) states that whenever the National Flag is displayed, it should occupy the position of honour and should be distinctly placed. It is inconceivable that the cinema theatre hall with closed doors is a place and a position of honour for the flag.

The orders now passed cannot be issued banking on the fundamental duties enshrined under Article 51-A of the Constitution of India, as Article 51-A cannot be enforced through the Court in view of Article 37, and is only a guide, an aid to interpretation of constitutional and legal issues. It is by virtue of Article 37, applying the principles in Part IV of the Constitution, that “Prevention of Insults to National Honour Act”, 1971 was enacted by the State. Therefore, when the Parliament sought to restrict its scope to overt acts of insult to and attack on, the national symbols by burning, trampling, defiling or mutilating in public, Court cannot add anything further. Even if there is any lacuna or defect in an Act, it cannot be cured under Article 32 ((2008) 5 SCC 511). Fundamental duties under Chapter IV of the Constitution are only reminders to the citizens who enjoy their fundamental rights.  Fundamental duties cannot have primacy over fundamental rights and vice versa.  Constitutional enactment of fundamental duties must be used by Courts as a tool on State action drifting away from constitutional values ((2002) 1 SCC 428). Nothing is discernible from the Order now passed as to the values which were the collective duty of the citizens of this country that drifted away, that prompted the Supreme Court to pass the present directions. At any rate, it could not have been passed in a petition under Article 32; meant to enforce the fundamental rights only.  Even the wide power of the High Courts under Article 226 is not available to the Supreme Court under Article 32. ((2010) 3 SCC 571).

Can the Supreme Court issue such directions under Article 142(1) of the Constitution? A Constitution Bench in Prem Chand  Garg & Anr. v. Excise Commissioner, U.P.& Ors. (AIR 1963 SC 996)held that “An order which the Court can make under Article 142 in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws.  Consequently it would not be possible to hold that Art.142(1) confers upon the Supreme Court powers which can contravene the provisions of Art.32”.

Fundamental rights guaranteed under Part III of the Constitution of India are natural rights.  Natural Laws, jus naturale,are rules based on the primary instincts of man which are inherent in him which the State cannot violate.  It is the rights that shape the man.  Per Rousseau, the right was co related with might, meaning every man had a right to do with everything within his power.  Those rights became restricted with the growth of the society, in the collective interest of the people, paving the way for democracy.  The Magna Carta acknowledged that there were certain rights of the subject which could not be violated even by a Sovereign.  It culminated in the Bill of Rights of 1689 in England which was a testimony to the development of fundamental rights : “It may be declared and enacted, that all and singular the rights and liberty asserted and claimed in the said declaration are the true, ancient and indubitable rights and liberties of the people of this Kingdom.”

On November 26, 1949, we, the people of India, gave unto ourselves the Constitution of India. The fundamental rights guaranteed in our Constitution imbibes the spirits of U.S. Bill of Rights 1791, French Revolution 1789 and the English Revolution 1688 which proclaimed the valuable rights of liberty, equality and freedom of religion. The fundamental rights under Part III of the Constitution of India are inviolable and inalienable rights which cannot be abrogated by the Parliament (Kesavanandabharathi,((1973) 4 SCC 225).

Constitution of India has in fact put a fetter on such natural rights by imposing reasonable restrictions. It is the people who have created the Government and the government is intended to serve the people and not dominate them. In Marbury v. Madison(5 U.S.137(1803) Chief Justice Marshall opined: “That the people have an original right to establish for their future government, such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American Fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which their proceed is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organises the Government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.”

In Texas v. Johnson (491 US 397(1989) the Supreme Court of the United States of America held that burning the U.S. Flag is an act of expression that is intended to convey a message.  The court went on to hold : “If there is a bedrock principle underlying the first amendment, it is that the government may not prohibit the expression of an idea simply because the society finds the idea itself offensive or disagreeable.”  When Article 19(2) of the Constitution of India restricts the State from enacting laws beyond its limit, it is imperative that the power of the State is restricted from enacting laws which foray into the fundamental rights guaranteed under Article 19(1)(a) of the Constitution. 

The constitutional philosophy underlining Part III of the Constitution of India is underlined in Ujjambai v. State of U.P. and in Minerva Mills Ltd. v. Union of India. In Ujjambai v. State of U.P. (1963 1 SCR 778). Per Hidayathullah J., “The people, however, regard certain rights as paramount, because they embrace liberty of action to the individual in matters of private life, social intercourse and share in the Government of the country and other spheres. The people who vested the three limbs of Government with their power and authority, at the same time kept back these rights of citizens and also some times of non-citizens, and made them inviolable except under certain conditions. The rights thus kept back are placed in Part III of the Constitution, which is headed ‘Fundamental Rights’, and the conditions under which these rights can be abridged are also indicated in that Part”.

In Minerva Mills Ltd v. Union of India(1980 KLT 573 (SC) = (1980) 3 SCC 625), Chandrachud C.J., opined: “The edifice of our Constitution is built upon the concepts crystallised in the Preamble. We resolved to constitute ourselves into a Socialist State which carries with it the obligation to secure to our people justice – social, economic and political. We therefore, put Part IV into our Constitution containing directive principles of State policy which specify the socialistic goal to be achieved. We promised to our people a democratic polity which carries with it the obligation of securing to the people liberty of thought, expression, belief, faith and worship; equality of status and of opportunity and the assurance that the dignity of the individual will at all costs be preserved. We, therefore, put Part III in our Constitution conferring those rights on the people...”

The minority view of Justice Khanna in ADM, Jabalpur ((1976) 2 SCC 521) was accepted in Justice K.S.Puttaswamy’s(Retd.)case supra: “Justice Khanna was clearly right in holding  that the recognition to right and personal liberty under the Constitution does not denude the existence of that right, apart from it nor can there be a fatuous assumption that in adopting the Constitution the people of India surrendered the most precious aspect of the human persona, namely, life, liberty and freedom to the State on whose mercy these rights would depend. Such a construct is contrary to the basic foundation of the rule of law which imposes restraints upon the powers vested in the modern State when it deals with the liberty of the Individual”.

Per Justice Chelameswar in Justice K.S.Puttaswamy’s(Retd.)case supra, “I am of the opinion that a better view of the whole scheme of the chapter on fundamental rights is to look at each one of the guaranteed fundamental rights not as a series of isolated points, but as a rational continuum of the legal concept of liberty i.e., freedom from all substantial arbitrary encroachments and purposeless restraints sought to be made by the State.  Deprivation of liberty could lead to curtailment of one or more of freedoms which a human being possesses, but for interference by the State”.

Supreme Court held that the time has come the citizens of India are duty bound to respect the National Anthem. There is no clue from the Order as to what prompted the Court to thrust its importance now. One would feel that the Nation is moving through a phase where things are falling apart, and such respect is to be forced on the people. Is there a clear and present danger? The patriotic spirit is inherent in us. I am a Patriot. That does not mean that I should wear a badge of patriotism as part of my attire. In the words of Adlai E.Stevenson, Governor of Ilinois, in his speech to the American Legion Convention, New York City, 27.8.1952:

 “I venture to suggest that what we mean is a sense of national responsibility which will enable America to remain master of her power — to walk with it in serenity and wisdom, with self-respect and the respect of all mankind; a patriotism that puts country ahead of self; a patriotism which is not short, frenzied outbursts of emotion, but the tranquil and steady dedication of a lifetime.”

History has it that the Father of our Nation remained seated when ‘Vandemateram’ was sung post independence in a prayer meeting in Calcutta, on the firm belief that standing in honour to the National Song is part of Western culture and not inherent in our culture.

 Virginia State Board of Education v. Barnotte(1942-1987 Law Ed.1628) was a case decided by the Supreme Court of the United States of America in which Jehovah’s witnesses claimed that they could not be compelled to salute the flag of the United States while reciting the pledge of allegiance. Justice Jackson opined: “It is also to be noted that the compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind. It is not clear whether the regulation contemplates that pupils forego any contrary convictions of their own and become unwilling converts to the prescribed ceremony or whether it will be acceptable if theysimulate assent by words without belief and by a gesture barren of meaning (emphasis supplied). It is now a common place that censorship or suppression of expression of opinion is tolerated by our Constitution only when the expression presents a clear and present danger of action of a kind the State is empowered to prevent and punish. It would seem that involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence. But here the power of compulsion is invoked without any allegation that remaining passive during a flag salute ritual creates a clear and present danger that would justify an effort to muffle expression. To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual’s right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind.”       (emphasis supplied)

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The Admiralty Act, 2017-- An Overview

(By V.B. Hari Narayan, Advocate, High Court of Kerala, Ernakulam)

Finally the much awaited Act on maritime jurisdiction has seen the day of light when it obtained the Presidential accent on 9^th August, 2017. The Admiralty (Jurisdiction and Settlement of Maritime Claims) Act 2017 was passed by the Parliament paving way for welcoming changes in the Indian maritime regime. The new Act has replaced the Colonial legislations which was followed hitherto by Courts in exercising admiralty jurisdiction. The Act has repealed the archaic laws of the British period including The Admiralty Court Act, 1861; The Colonial Courts of Admiralty Act, 1890; The Colonial Courts of Admiralty (India) Act, 1891 and provisions of Letters Patent, 1865 in so far as it relates to admiralty jurisdiction of three Chartered High Courts and also seeks to consolidate the existing laws on civil matters of admiralty jurisdiction of Courts, admiralty proceedings on maritime claims and arrest of vessels.

Under the Colonial Courts of Admiralty Act, only the Chartered High Courts were vested with admiralty jurisdiction. It is by virtue of the decision rendered by the Hon’ble Supreme Court in M.V.Elizabethcase (AIR 1992 SC 1018) that the other Coastal High Courts in the Country could exercise admiralty jurisdiction for arrest of ships based on maritime claims. Under the new Act,  8 High Courts namely, Calcutta; Bombay; Madras; Karnataka; Gujarat; Orissa; Kerala; Hyderabad for the State of Telangana and the State of Andhra Pradesh could now invoke admiralty jurisdiction.

Section 3 of the Act specifies that the jurisdiction in respect of all maritime claims shall vest in the respective High Courts and be exercisable upto the territorial waters of their respective jurisdictions. However, the right to extend the admiralty jurisdiction up to Exclusive Economic Zone (EEZ) or any other maritime zone is reserved by the Union Government. The Act has catagorised the claims which come within the ambit of maritime claims, which alone will be subject to exercise of admiralty jurisdiction.

Further, the power of exercise of ship arrest is confined to the territorial limits of the respective High Courts thus preventing the arrest of vessels which are outside the territorial limits. The Act has provided safeguard against wrongful arrest in Section 11 by bringing in a provision for counter security from the claimant if the arrest is found to be wrongful or unjustified or excessive security having been demanded.

The Act has given a wider definition of a vessel under sub-section (i) of Section 2 to include ‘off-shore industry mobile unit’ which could include Oil rigs. It is also made applicable to all vessels irrespective of their flag, registration etc., except naval vessels or those owned and operated by Central or State Government for any non commercial purpose. Thus any vessel whether foreign or Indian to the exclusion of state owned ones could be arrested.

As far as in personamproceedings are concerned, it is interesting to note that proceedings may be instituted only if the cause of action arise either wholly or in part in India, or the defendant ‘actually and voluntarily resides or carries on business or personally works for gain in India’. Further the Act specifically restricts in personamproceedings if the same issues between the same parties are pending before any Court outside India. The Act also provides for the order of priority of maritime claims.

The conferring of admiralty jurisdiction to the 8 High Courts is a welcome change, in as much as the claimants could move the respective High Court where the cause of action has arisen or based on the domicile of party.  The Act seeks to build an admiralty law in line with the modern trends in the maritime sector and in uniformity with prevalent international practices. The jurisdiction of High Courts are thus increased providing for speedy disposal of admiralty related proceedings. Hope the objectives will be achieved.

Some Thoughts on Simplification of Court Procedures

(By Joseph Chirayath, Advocate, Thrissur)

India can be proud of the fact that we have elected governments under a democratic constitution we gave to ourselves. The Constitution of India is the supreme law of the country, the fountain source of law in India.Judiciary is the branch of government that is endowed with the authority to interpret and apply the law, adjudicate legal disputes and otherwise administer justice. Judicial system in India is one of the oldest legal systems in the world today. It is part of the inheritance India received from the British after two centuries of their colonial rule. The Supreme Court and the various high courts have the power of judicial review and have to interfere to protect the fundamental rights of the citizens, decide appeals and involve in special jurisdictions. They have got original, writ and appellate jurisdictions. All other courts including the district courts come under the category of subordinate courts. They are spread in all districts in the length and breadth of the country. It is with the said courts the people are attached with the most as complainant or accused, plaintiff or defendant, surety or witness etc. The subordinate courts are the supreme judiciary for the majority of the people in India. The system prevailing has done well in the past. But today about seven decades after independence are our courts in tune with the times? We have seen advancement in other sectors like roads, railways, telecommunication, education, health etc; but not in the lower courts. The introduction of alternate dispute redressal system may be in the right direction for bringing speedy justice. But what about the existing court system? I think degenerated practices have to be discontinued and some procedures and practices have to be simplified for imparting speedy and fair justice. I am giving below some points which if implemented will improve the system to some extent.

1. When judgement is pronounced a party has to wait for months to get a certified copy. An appeal or execution petition cannot be filed till the copy is received. As and when judgement is pronounced if copies of it are served to the concerned parties/counsel free of cost at the time of pronouncement will go a long way to ameliorate the hardship suffered by parties. Drafting of decree should be dispensed with to avoid delay. The decree holder can be allowed to include the costs etc. in the execution petition which the court can scrutinize later.

2. Execution shall follow the same suit proceeding. If the decree is to be executed in the same court no separate notice to the judgement debtors is necessary if they were not ex parteon the original side.

3. Process fee should be abolished. So also court fee for interlocutory applications. Work load of advocate clerks and court staff can thereby be reduced. The party approaching the court is paying a hefty court fee now. So it is not fair to ask him to pay for these charges.

4. In recent years courts are not issuing cheques and refund orders to advocates. They are not even handing over cheques and refund orders issued in favour of parties to advocates. The reason stated is that some advocate somewhere has committed foul play. But that is a one in a million case and  the remedy is not this. Stringent action has to be taken by the court against the delinquent under the criminal law and his practice itself can be terminated by the Bar Council. It is a pitiable sight to see very old, sick and lame people dragged to MACT verandas.  The alternative is direct transfer to the bank account of the recipients. Until that system is introduced the best way is to reinstate the practice of issuing cheques in the names of parties and handing them to the concerned advocate/s.

5. When calling cases the name of the advocate should also be mentioned. Mistakes happen when calling case numbers alone or when the numbers are not properly heard and comprehended. Sometimes suits are dismissed or defendants called ex parteor in criminal cases accused are ordered to be arrested or acquitted. It is true some bench clerks do mention the name of the advocate. But many do not. There should be general guideline.

6. Most of the court halls are congested and parties are waiting in the verandas and court yards. In congested court halls public address system should be introduced when calling cases with loud speakers put outside so that the parties can hear when their cases are called. We need larger court halls, more staff and more photostat machines. After all courts generate a good amount of revenue to the government by way of court fee and fine. Justice is not free! Many leaders have been lamenting of the fact that the justice delivery system has no speed. The general public also shares with the view. But the Kerala High Court has pitied on the “frugal budgetary support to the judicial system” (2016 (1) KLT 838). The government must understand that administration of justice is a paramount responsibility of the government.

7. For some time some courts have been publishing list of cases to be taken up on that day. But it seems it is discontinued now. It is good that it is restored. Also, steps should be taken to publish it in the court website on the previous day.

8. Often it is seen that when advocates, parties, witnesses come to court ‘no sitting’ sticker is pasted on the door of the court. There is no necessity to say that it causes much inconvenience to all. In majority of cases the presiding officers can co-operate by intimating absence beforehand which they often do not.

9. The presiding officers should be punctual. Commencement of the work should be at the appointed time both in the morning and in the afternoon sessions. If there is a likely delay in the starting of the work in the afternoon that should be informed in the open court before the court recess at noon. Some judges are doing fine well. It is necessary that there is a general guideline.

10. There is a trend that many new cases are posted to distant dates. It is not fair to drag such cases to far off dates. The person who has filed the suit must have the satisfaction that his adversary knows as early as possible that a suit has been filed against him. After the steps are completed they can be posted in the special list on a convenient date.

11. Receipt system should be introduced in courts. When a document is filed or when a payment is made there should be issued a receipt. Sometimes quarrels arise in courts about filing of vakalat, written statement etc. Along with the respective documents a receipt filled up by the concerned advocate should be got sealed by the court office.

12. When an ex partestay is granted by an appellate court, the appellant shall immediately inform the fact to the respondent by registerd post and file the acknowledgement in court.

13. When court sale is conducted one fourth of the purchase money has to be deposited at the time of sale and the balance and the value of stamp paper have to be deposited within 15 days from the date of sale. It will be better that balance and the value of stamp paper are insisted within 15 days of confirmation of sale but before issuance of sale certificate.

14. When warrants of arrest or attachment of movables are ordered the amins are deputed in most cases on the penultimate date of return of process. Unscrupulous judgement debtors just abscond temporarily on that day escaping the clutches of law thereby defeating the decree holders. That should change. “Every warrant for the arrest of a judgement debtor shall direct the officer entrusted with its execution to bring him before the Court with all convenient speed,...” as mandated by the C.P.C.

Recently, there is a computerisation drive in the courts. That will have good results if implemented responsibly. Let us hope the government wakes up to the reality and in consultation with the High Court try to develop a reformed vibrant subordinate judiciary.

How the Resolution of any Conflict between the (English) Arbitration Act 1996

and the Companies Act 2006 can Assist in the Application of Section 8 of the (Indian) Arbitration

and Conciliation Act 1996 as Amended

(By Lawrence Jacobson, In-House Barrister, Zaiwalla & Co LLP, London)

In broad terms, S.8 of the (Indian) Arbitration and Conciliation Act 1996, as amended, appears to have a similar mandatory effect to that of Section 9 (read together with S.4¹) of the Arbitration Act 1996 (the “Act”)² Act. Accordingly, it is hoped that the methods and analysis briefly mentioned below, may be of some assistance to our Indian colleagues.

In a relatively recent decision of a County Court in England³ it was held, among other things, rejecting the Defendant’s application for a stay under S.9 of the Respondent’s claim for audited accounts under S.476 of the Companies Act 2006, that a shareholder who might have been entitled to audited accounts under an arbitration agreement was also entitled to audited accounts outside the parameters of the arbitration agreement under S.476.

The decision of that court, while not binding because it is not a court of record, nevertheless may be of persuasive authority in any future proceedings on an application for a stay concerning matters provided for in an arbitration agreement. Furthermore, the decision may influence the determination of any court as to whether S.9 of the Act has primacy over the statutory rights of any counterparty to an arbitration agreement.

So far as material for the purposes of examining the cogency and efficacy of the County Court decision, the facts of the case are that the Claimant and the Defendant compromised legal proceedings, in which the Claimant had claimed damages based on the alleged market value of his shares in the Defendant Company. Previously, the Claimant had also made various requests for audited accounts to the Defendant Company under S.476 of the Companies Act 2006. No reasons are prescribed by statute for which any qualifying shareholder might make a request to a company.

The Settlement Agreement provided, among other things, that the mechanism for the valuation of the Claimant’s shares would be referred to an arbitrator for determination. It was further provided that once the shares had been valued in accordance with the terms of the agreement the Claimant, forthwith would transfer his shares to a named third party on payment of the valuation price. The parties failed to agree or to refer the matter to arbitration and the Claimant issued proceedings to enforce his request for audited accounts. In response the Defendant issued an application under S.9 to stay those proceedings in order to give effect to the arbitration clause in the Settlement Agreement. The Defendant reasoned that it was highly likely that in determining the mechanism of valuation, the arbitrator might well direct the preparation of audited accounts. In the circumstances, the Defendant formed the view that the Claimant’s claim related in whole or in part to a referred matter in the arbitration.

The Judgment comprised, among other things, the following primary finding:

The arbitration clause in the Settlement Agreement was not sufficiently widely drafted so as to exclude the Claimant’s right to bring the proceedings under S.476.

To what extent is the Judgment consonant with authority?

The Court of Appeal inFulham Football Club (1987) Ltd v. Richards⁴found that there were no express provisions in either the Act or the Companies Act 2006 which excluded arbitration as a possible means of determining disputes involving unfair prejudice to members of a company (S.994 of the Companies Act 2006). Precisely the same can be said of matters under S.476. Furthermore, it held that the Act clearly gave primacy to rights under an arbitration agreement by making a stay of court proceedings relating to the same dispute mandatory. ⁵The Court of Appeal went on to state that:”…the combined effect of an arbitration agreement which covers the dispute and Section 9(4) of the [Act] is that the agreement to refer the dispute to arbitration will exclude the parties’ right to bring or continue legal proceedings covering the same subject matter unless one of the exceptions contained in Section 9(4) is established..”⁶ Fulham Football Club is therefore authority for the proposition that where the arbitration agreement covers the dispute, S.9 has primacy over Sections 994 and 476 of the Companies Act 2006.

Moreover, an arbitration agreement remains binding and effective even if the parties agree to refer to arbitration only certain disputes that might arise from their relationship⁷.

The legal proceedings, as a whole, may be “in respect of “a referred matter although those proceedings concern both that and other matters. In those circumstances, the whole proceedings may need to be stayed if it cannot be determined without consideration of the referred parts.⁸

While it was accepted in the Judgment, that, objectively, one of the primary functions of the audited accounts was that it could be used in connection with the mechanism for valuation, it failed to take into account that such a purpose could not be severed from those functions unrelated to the arbitration agreement. In failing to do so, the Court may well have erred in fact and in law in not giving primacy to S.9 of the Act over S.476 of the Companies Act 2006 as in Fulham Football Club. It is therefore unlikely that this Judgment will be followed.

As none of the exceptions in S.9(4) was relevant, the Court, as expressly required by Parliament, firstly ought to have granted an immediate stay of the legal proceedings while the issue was referred to an arbitral tribunal and then secondly to have resumed the proceedings when the issue had been resolved in accordance with the parties’ agreement ⁹.

Foot Note:

1.     Section 9 has mandatory effect notwithstanding any agreement to the contrary.

2.     “9(1) A party to an arbitration agreement against whom legal proceedings are brought …in respect of a matter which under the agreement is to be referred to arbitration may ….apply to the court in which the proceedings have been brought to stay the proceedings so far as they concern that matter….(4) On an application under this section the court shall grant a stay unless satisfied that the arbitration agreement is null and void, inoperative or incapable of being performed….”.

3.     Rene Herzfeld (Claimant) v. Morton Medical Ltd.(Defendant) (13 May 2016).

4.     [2012] Ch 333 CA @341 [para.28].

5.     Ibid @341 [para.31].

6.          6.        Ibid@345 [para.42].

7.     Lombard North Central Plc v GATX Group[2012] EWHC 1067 @6 [para.16].

8.     Ibid [paras.13(i) and 16].

9.         9.    Ibid[para.16].