Legal Protection for Composite Models: Functional Design Hybrids

(By Abraham Joseph, VIIth Semester, B.Com.LL.B., School of Legal Studies, CUSAT)

Keywords -- Intellectual Property, Functional Designs, Utility Models, Patent Laws, Design Laws, Innovations, Inseparability of Designs and Functions

Abstract

If the functional designs satisfy a specific level of inventiveness, then they can be patented. What if the design is inseparable from a functional utility which does not satisfy the degree of novelty prescribed by the Patents Act and hence cannot be classified as an invention? Can such functional designs be protected under the law of designs or could such functional aesthetic creations be protected under the law of patents? Numerous inventions or innovations are denied protection under the patent laws for not rising to the level of global novelty or not attaining the degree of inventiveness prescribed. The functional nature of the industrial designs and the applicability of the intellectual property laws are ambiguous in India as well as in numerous other jurisdictions. The aesthetics materialized in functional and technical cum utilitarian features i.e., when the aesthetics or ornamentality coexist with the functional features of the product, the suitable mode of protecting the intellectual property is indefinite. Numerous articles embody a design inseparable from the functional utility they have to perform. In such cases limiting the design protection to aesthetic features alone can be unpragmatic. Utility models will supplement the patent laws and design laws in the immediate future. This is the so-called need of the time; the utility models protect small scale innovations with practical utility accompanied with economic significance. We need a policy framework for the protection and commercialization of such innovations. The brighter future of the functional designs begins with the recognition of utility models. Utility models cover the blind spots left by the design laws and patent laws. This indeed is the best method of protecting the composite functional design hybrids.

Introduction

Intellectual Property Laws have become a common element in the majority of world’s legal systems today, encouraging the creation of a wide variety of intellectual goods and properties that include intangible creations of the human intellect. Intellectual Property laws give people and businesses property rights to the information and intellectual goods they create, providing economic incentives and benefits from the creations and allowing the innovators to protect their ideas and copying. Numerous products under a variety of brands rule today’s markets and the intellectual aspects involved in the making of a product influences the consumer preference. Protection offered by a registered design of a product or a patented invention is relatively much more than an unregistered or unprotected invention and design. This ensures the competitive position of the product firm in the market.  Industrial designs and patents are mutually exclusive of each other under Indian law as well as in numerous other jurisdictions. But the emerging composite product designs are hybrids of form and function. There exists a need for cumulative protection to such composite designs.

Matter in dispute

Patent Laws - exclusion of designs

Section 3(l) of the Patents Act 1970 excludes

Literary, dramatic, musical or artistic work or any other aesthetic creations including cinematographic works and television productions are not patentable as they are covered under the copyrights, design and entertainment laws.

The Patents Act 1970, along with the Patents Rules 1972, came into force on 20th April 1972, replacing the Indian Patents and Designs Act, 1911. One of the significant steps taken by the country towards strengthening of the patent laws was becoming the member of the Trade Related Intellectual Property Rights System (TRIPS). India also became a signatory of the Paris Convention and the Patent Co-operation Treaty on 7th December 1998 and thereafter signed the Budapest Treaty on 17th December 2001.

Section 3(l) of the Patents Act 1970: Literary, dramatic, musical or artistic work or any other aesthetic creations including cinematographic works and television productions are not patentable as they are covered under the copyrights, design and entertainment laws.

Patency stipulates the essential prerequisite of novelty of products or processes involving an inventive step capable of industrial application. The statute clearly excludes designs as they are aesthetic creations protected under Designs Act. The patent protection is exclusively confined to functional and structural features of technical significance.

Design Laws – exclusion of patents

Section 2(d) of the Indian Designs Act 2000, defines a Design as:

“design” means only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device, and does not include any trade mark as defined in clause (v) of sub-section (1) of Section 2 of the Trade and Merchandise Marks Act, 1958 (43 of 1958) or property mark as defined in Section 479 of the Indian Penal Code (45 of 1860) or any artistic work as defined in clause (c) of Section 2 of the Copyright Act, 1957 (14 of 1957).

As per the Act, design is confined to aesthetics and not the functionality/technicalities of the shape, pattern, form and configuration of an article. The definition expressly excludes any mode or principle of construction or anything which is in substance a mere mechanical device. Thus, the definition of designs and patents are mutually exclusive of each other. The element of technicality or functionality distinguishes both the terms.

According to the European Patents Office (EPO) Guidelines, a tyre tread is an example of anything that has both aesthetic appeal and practical value and might be patented. It has also stated that structures with distinct aesthetic appeal and usefulness may be patentable if they are a novel innovation with industrial applicability.

Conundrum

The Patents Act expressly excludes aesthetic creations. If the functional designs satisfy a specific level of inventiveness, then they can be patented. There are numerous case laws protecting patented inventions with graphical representations from parallel designs. This can be applied only when the aesthetic design is inseparable from an invention. What if the design is inseparable from a functional utility which does not satisfy the degree of novelty prescribed by the Patents Act and hence cannot be classified as an invention? Can such functional designs be protected under the law of designs or could such functional aesthetic creations be protected under the law of patents?

Numerous inventions or innovations are denied protection under the patent laws for not rising to the level of global novelty or not attaining the degree of inventiveness prescribed.  Prior art also poses a threat to numerous small innovations. Neither can they be protected under the design laws due to their functionality. 

Case Study

Functional designs

The functional nature of the industrial designs and the applicability of the intellectual property laws are ambiguous in India as well as in numerous other jurisdictions. Design is concerned with both form and function. Design law does not extend protection to those designs exclusively dictated by functions. The aesthetics materialized in functional and technical cum utilitarian features i.e., when the aesthetics or ornamentality coexist with the functional features of the product, the suitable mode of protecting the intellectual property is indefinite. Embracing one mode of protection enforces the renunciation of other forms of IP protection under the Indian Legal system as well as under many other.

The defense of functionality

The functionality of the industrial designs and the scope of their patentability has been approached differently in various cases settled by different courts. The design laws in India as well as in foreign jurisdictions have not been able to clearly define the scope of functional designs under the purview of industrial design protection.

No aesthetic consideration theory

According to a number of prominent rulings, the functional shape and configuration of an object cannot be registered as a design if the shape and configuration are exclusively influenced by the function it has to perform (no aesthetic consideration test). The restriction on design registration imposed by functionality is not removed by substantiating the fact that alternative shapes may accomplish the same result. All that has to be established is that the technical result is attributable to the essential features of the design. It is in this sense that the design is necessary to obtain the technical result.[1] An exclusively functional design cannot be claimed in design registration. If the overall appearance of a design is “dictated by” its function, it is invalid. However, “the design claim is not invalid, even if certain components have practical functions,” as long as the design is not predominantly functional.[2]

A prominent decision of Delhi HC in the year 1999 held that features of the parts of the crane were exclusively dictated by the functional utility.  The functional utility of the disputed parts of the crane to mechanically interrelate with other parts was attributed to the shape of those particular parts, and the resultant utility was the exclusive inspiration for that shape. This is a perfect example of must fit/must match designs. Those specific parts did not qualify as ‘design’ under the Indian Designs Act. The defence of the functionality of the designs was allowed and upheld. (Must-fit defence of design registration, though not defined by the Indian Legislations).

Multiplicity of forms theory

According to this theory if the same function can be achieved through other designs, then the defense of functionality must fail. For the defence of functionality to succeed, it is essential to establish that the “design applied for” is the only mode/option which was possible considering the functional requirements of the products[3]. Assuming that the design also performs a certain function, that by itself is not determinative of the exclusion of design registration, if there are other forms by which the function could be performed. It was essential to establish that the tread pattern of the tyre was the only mode/option, or one of the only few options, which was possible to achieve the functional requirements of the tyre”.[4] The learned court differentiated tread pattern from the treads of the tyre. The tread patterns did have a functional element in them, but that aspect was not the most prominent characteristic of the tread patterns; rather, the most prominent functional aspect of the tread patterns dwell in the treads themselves, not in the form or pattern in which they were organized.

A 2014 judgement delivered by a single bench of Bombay HC held that if the form of an article has only been partially dictated by the function it has to perform, the defense of functionality cannot subsist[5]. Mere relation of the form with the function is insufficient to establish the defense of functionality of the design. To establish the defense of functionality, it must be established that this is the only form which satisfies the functional requirements of the product. The existence of alternative designs renunciates the defense of functionality.

Factors dictating the choice of the customer

In a well-known judgement, the learned Lord observed, “The phrase ‘judged purely by the eye’ must be meant to prevent cases where a customer may choose an object of such shape not because of its appearance but because he felt the shape rendered it more beneficial to him.”. The House of Lords decided that the question to be decided was whether or not any aspect other than function motivated the customer, rather than whether no other shape was possible.[6]

Blending ‘no aesthetic consideration theory’ and ‘multiplicity of forms theory’

DOCERAM GmbH v Ceram Tec GmbH[7] is a leading 2018 decision by CJEU where the appellant raised a contention that when the features of the appearance of an article are exclusively dictated by the technical function, does the existence of alternative designs validate the registered community design. This indeed is a critical question that needs analytical reasoning, despite the fact that the Second Chamber held that existence of alternative design (multiplicity of forms test) is not a decisive factor.

But for determining whether the design was exclusively functional:

* The national court must consider all relevant facts in order to determine whether the product is exclusively inspired by its technical function; indicative of the reasons that dictated the choice of characteristics of the appearance of the product in question, or information on its use or application. Or

* other designs that perform the same technical function, provided that those conditions, facts, or information about the existence of alternative designs is backed by credible evidence

* There is no need to rely such conclusions on the perspective of an “objective observer” in this regard.

Of the decisions by the courts in jurisdictions worldwide some bank on no aesthetic consideration theory while some rely on the multiplicity of forms theory, either completely or partially. Some other decisions bank upon alternative theories.

Non separability of aesthetics and technical utilities

Various cases involve this issue where the shape of the product cannot be recognized as a trade mark as it has a functional aspect that is not separable from the aesthetic aspects of the shape. Numerous articles embody a design inseparable from the functional utility they have to perform. In such cases limiting the design protection to aesthetic features alone can be unpragmatic. How then can functional designs be protected?

Legislative intent of the non-functionality theory

The concept or the notion behind the non-functionality theory is that a wide number of articles to which the designs are applied lack novelty. They are already being manufactured in millions by the competitors in the market. Consequently, granting protection to such designs prevent the other manufacturers and competitors engaged in the field from manufacturing the same designs or utilizing the same principle. The design of the screw is exclusively dictated by the functional utility and the registration of that design would result in granting a monopoly to a single producer.

Limitation of the design protection only to the non-functional and ornamental aspects, excluding utilitarian and technical features, will not grant the monopoly of such features to the proprietor rather they would just prevent or disable the competitors from replication of the aesthetics of the said technique and functional utility.

Generally, the public necessity to access the patented technologies at the earliest without being economically exploited, does not exist in the field of the arts or with the aesthetic and ornamental aspects of product designs. Consequently, the conditions for the protection of such aesthetic non-functional contributions may be made less stringent. In India, the duration of the patents is 20 years and the initial duration of the designs are 10 years which can be extended up to 5 more years upon renewal.

Based on the analysis of the leading decisions and the opinion of the renowned jurists, the most appropriate legal theory to resolve the conundrum is the multiplicity of forms theory. Because if there exist alternate designs to achieve the same or desired function then the authorities should consider protecting such designs though they are functional. But the legal theory alone does no good. The theory can be resorted to only for the protection of pre-existing common functional designs in the market, and not for improvised novel functional designs and innovations. Analyzing the decisions settled by the Indian judiciary, decisions relying on the multiplicity of forms theory outweigh the decisions relying on the no aesthetic consideration theory or the exclusive functional dictation theory.

The mating mechanism of lock and key where there can be multiple designs that can achieve the same technical objective was held ineligible for design protection in an English case. There are decisions that rejected the design protection even if there are multiple options for achieving the functional objective. In the absence of multiple options to achieve the functional objective, how do we protect minor innovations including the novel functional designs falling short of the standards of patency and design registration?

The problem here is regarding innovations or novel functional designs lacking the degree of novelty to claim patency. The insufficient system of rewarding the innovators affects the R&D activities taking place in the small and medium sectors. The technology involved in most of the functional designs is simple mechanical engineering. But then, how can we protect minor inventions, improvisations and novel innovations which cannot have multiple formations?

Insufficiency of existing IP Laws

The number of domestic filings for design and patent registration conveys the status of research and development activities taking place in the nation. The insufficiency and insecurity of the IP laws to protect the creations and inventions is a determinant of the low rate of our design and patent applications. This unprotective environment affects the R&D activities taking place in the small and medium sector. The inability to protect the innovations is one of the major defects of the present system, whereas innovations happening in the small and medium sector results in simple devices with practical industrial utility. They have a shorter life in comparison with complex inventions. The domestic innovators and their investors in the small and medium sector play a vital role in the economic development of the nation.

Utility model: empowering the future

Utility models shall supplement the patent laws and design laws in the immediate future. This is the so-called need of the time; the utility models protect small scale innovations with practical utility accompanied with economic significance. We need a policy framework for the protection and commercialization of such innovations. Functional designs falling short of global novelty and degree of inventiveness shall no longer remain unprotected of patency. The requirement of the utility model is generally lesser than patency, even though it varies from region to region. The brighter future of the functional designs begins with the recognition of utility models. Utility models cover the blind spots left by the design laws and patent laws. This indeed is the best method of protecting the composite functional design hybrids.

India has strengthened its IPR policy accompanied by an initiative to enhance the IP assets and its generation by every type of investor. These initiatives also ensure a maximized and efficient commercialization of such IP assets.

Utility Model for functional designs and mere mechanical devices: Proposed Model Policy Framework

* Objectives of the proposed policy

The basic intention of the policy is to protect the articles which are neither entitled to the protection under the design laws nor under the patent laws. Any mode or principle of construction, mere mechanical device, re-arrangement or combination of articles, new forms of known substances etc. are unprotected under design laws and patent laws. There is a need to put a low-cost, quick-to-evaluate, and easy-to-apply tool at the disposal of businesses, particularly small and medium-sized businesses and researchers. Because they are no less worthwhile, utility model protection is preferable over the patency protection for technical innovations involving a low degree of inventiveness/inventions with minimal improvisation.

Criteria for Novelty

Less stringent are the requirements of novelty. The article or the device should meet the degree of inventiveness and local novelty to the extent of the prior art, prior publication of the device, prior public working or prior public knowledge. The novelty is founded upon the first to file principle. The device should also not be one that can be easily duplicated by a person skilled at the art. However, the degree of inventiveness and novelty is much lesser than that of patents. The novelty preferable here is a local novelty, as the devices are simple and have a localized industrial application. The requirement of global novelty is a criterion difficult for the minor innovations/simple mechanical devices to attain. The object of the policy must be to protect the domestic and indigenous innovations and R&D in the small and medium sectors within the state.

However, the device cannot be a registered utility model if it closely resembles a previously published utility model, or if it is similar to the description of a device in a utility model application filed in the domestic jurisdiction, or if it has already been notified in the state’s official gazette. In addition, violations of public order, morality, public policy, and health render the article ineligible for use.

* Grace period

A grace period of 12 months from the date of public disclosure of the article should be provided to the developers for protecting their innovations. The aforesaid protection shall be beneficial for the small and medium enterprises who can exercise their proprietary rights for devices and innovations having a shorter life.

* What cannot be protected?

Discoveries, scientific ideas, and mathematical theories, as well as aesthetic creations, plans, rules, and ways for executing mental actions, playing games, and doing business, are all examples. Methods of Commercial/financial accounting, testing and training methods, publications, lottery, and computer applications in general, operative or surgical procedures and diagnostic technologies for use on the human or animal body.

Registration procedure

The procedure ought to be simple, cheap and rapid. Only spick and span procedures can benefit the innovators and innovations. The shorter life span of the innovations necessitates immediate action. The proposed policy alternative must attempt to cure the defects of the existing system where the procedure of patency is complex and prolonged in India. It is ideal to keep the registration period between 6 to 12 months.

* Term of protection

The devices claiming the protection are generally less complex and have a shorter life, so the duration can be anywhere between ten to fifteen years. Since the life of the device is short the priority period proposed is 6 months.

* Proprietary Rights

The proprietor of the registered device shall have the exclusive rights of commercialization and licensing of the product.

* Conversion/transmutation

Innovations or inventions falling short of non-obviousness criteria or the degree of inventiveness are disentitled to patency. Those innovations have a higher commercial vulnerability of being exploited by the potential market competitors. Hence the provision to transmute the patent application to utility model application provides the rejected inven-tions/innovations with the alternative choice of the utility model registration and forthwith protect the innovation throughout the grace period from being replicated.

* Examination procedure

Proforma examinations are preferred. There ought to be no substantive examination of the innovation or the device. Since there is no substantive examination, the examination fee shall also be ignored. The requirements of patenting and design registration are very stringent and global in nature and at the same time, take a lot of time and very expensive. Due to these reasons, these small innovators and the Small Industry sector seem to have lost interest. On the other hand, the Utility Model System is less expensive, provides registration within a short time (maybe within less than six months) and need no substantive examination.

* This policy proposes that the device shall not be entitled to dual protection under patent laws and utility models.

* Penal provisions, procedures of application, search, examination, pre-grant and post-grant opposition, appeals, suits, licensing-compulsory and other, foreign filing of the application etc. yet to be proposed are left to the discretion of legislative bodies, corresponding ministries, departments, standing committees and the judiciary.

* Utility Patents should be cheaper to maintain and obtain.

* Utility models facilitate increased competitiveness among the small and medium sectors.

Conclusion

The National Innovation Foundation (NIF) is an autonomous body under the Department of Science and Technology, Government of India. Since 2000, the foundation has built up a database of more than 1,00,000 ideas, innovations and traditional knowledge practices from over 520 districts of the country.  NIF acquires the rights to such minor technologies and innovations, which are then licensed at low or no cost to small entrepreneurs and shared with the innovators. The idea here is that the state and not innovators should subsidize society. The innovator acquires a secondary title and the foundation acquires the primary title. The exclusive right of commercialisation is not vested with the innovator. This system ought to be remapped. The policy in brief aforementioned shall guide the legislative framework for the registration of utility models in India.

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Foot Note:-

1. Philips Electronics N.V. v Remington Consumers Product Ltd. [1999] R.P.C. 809 (ECA).

2. Sport Dimension. Coleman 820 F.3d 1316 (2016).

3. Cow and Coy v. Cannon Rubber Manufacturers [1959] 9 RPC 240 (CA).

4. Apollo Tyres Ltd. v. Pioneer Trading Corporation (2017) D.L.T. 488.

5. Whirlpool of India v Videocon Industries (2014) 60 PTC 155.

6. Amp.Inc. v. Utilux Pty. Ltd. [1972] RPC 103 (HL).

7. Case C-395/16 DoceramGmBH v. CeramtecGmBH [2018] 3 WLUK 165 (CJEU).

Right to Live and to Abort/Woman’s Right to Abort in view of

Medical Termination of Pregnancy Law in India

(By Swapna George, Asst. Professor of Law, CSI Institute of Legal Studies,
                                                                                        University of Kerala)

Justice lies in the balancing equilibrium of conflicting interests of individuals among themselves through the medium of legal provisions. Striking such an equitable balance between the conflicting right to life of a pregnant woman and interests of the child in the womb is not an easy task though not absolutely impossible one.

Right to life, considered as the most important of all the human rights, has been enshrined by the founders in our Constitution as a fundamental right in Part III. Article 21 of the Constitution, which is lauded as the fundamental of fundamental, guarantees the right to life and personal liberty. It says no person shall be deprived of his life and personal liberty except according to the procedure established by law. Judicial interpretation has further enhanced scope of this provision upholding that such law should have passed test of fairness as well¹. How high we hold the right to life and its value, significance and importance is evident and can well be perceived from the fact that the right to life cannot be suspended even under Emergency.

It has well been established by the Honorable Supreme Court through a number of landmark decisions that right to life doesn’t mean right to mere existence but it conveys the idea of leading dignified life of fulfillment ². Right to life aims at the accomplishment of fullest development and enjoyment of human beings. It, being the most important right, covers both Citizens as well as Non-Citizens.

Source of allied right of abortion

Article 21 is not just a right but it also serves as a never ending source of other human rights one among them being the invaluable reproductive right. If reproduction is more of a mere biological process in other living creatures it is not so in the case of human beings needs no explanations. Reproduction of human beings involves a number of social, economic, emotional and of course legal aspects as well. It involves crucial decision making in the process. Intellectual and emotional elements along with our family system play a key role making it a special kind of right derived from the aforesaid right to life. More importantly it covers right of a woman to or not to reproduce in the light of existing social viewpoint in this delicate matter.

In a society, like the one we are brought up in, whose social fabric has been woven to a great extent, with religious tenets as well as traditional morality, even the mere mentioning of the very question of right of abortion of pregnant woman evokes a volume of sentimental response. It has been a long pending question yet not answered with required amount of finality. Understandably, looking at abortion from legal point of view throws up umpteen numbers of other relevant issues in terms of rights including whether the right to reproduction carries it with right to choose abortion at the will of the pregnant woman. Can abortion be done at the mere demand of the woman treating it fully as a matter of choice of the pregnant woman? This question demands an elaborate and objective deliberation as it obviously involves right to child in the womb on the other end.

Morality and Criminality of Abortion

Though medically speaking abortion is a medical procedure putting an end to the pregnancy, it is not a simple topic to be digested in its full gamut as easily as we talk of. For the great majority of the people in our society abortion conveys a taboo, sin and moral wrong in their religious and conventional mindset. Abortion is considered as equal to the brutal killing of a living human being.

Law of land reflects existing social values and mores of the people living therein. Gone through our legal system, under Indian criminal jurisprudence abortion has been made a punishable offence. Abortion with the name miscarriage is treated as an offence under the provisions of the Indian Penal Code which has been drafted on the lines of English law.

Indian Penal Code, Section 312:--Whoever causes a woman with child to miscarry, shall if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both, and if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Explanation – A woman who causes herself to miscarry, is within the meaning of this section.

As quoted above provisions of Section 312 of the IPC provides for punishment with imprisonment for committing miscarriage. All sorts of miscarriages excluding those performed for the sole purpose of saving life of the women are covered by the provisions. Not just that it does not provide exceptions, it carries much weight, at least for the question being put up herein, to take note of the fact that the even the mother has not been spared from the net of criminality. Moreover, having a thorough look at the explanation annexed to the provision makes it vivid that legislature has even brought the pregnant woman herself within the mesh of offence even specifically and categorically.

Things being so, with the object of setting off and compensating the inconvenience and dilemmas caused by the blanket criminalization of the miscarriage, especially those arising due to medical necessities, legislature has introduced Medical Termination of Pregnancy Laws. Medical Termination of Pregnancy Act, 1971 provides for termination of pregnancy under certain circumstances. Preamble of the MTP Act categorically says the legislative intention of providing for legal sanctity and exemption from criminality for termination of pregnancy by registered medical practitioners.

In fact the Medical Termination of Pregnancy Laws stands for the protection of registered medical practitioners from legal punishment of offence of miscarriage they cause in certain situations:-

Sub-section (1) of Section 3 of The Medical Termination of Pregnancy Act, 1971 provides that “Notwithstanding anything contained in the Indian Penal Code, a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act”.

Mere verbatim reading of the said provision leaves no doubt as to the fact that the key role played by the law is protection of the doctors. As per the provisions of the MTP law pregnancy can be medically terminated up to 12 weeks of gestation period with the medical opinion of a registered medical practitioner and up to 20 weeks if supported with opinion of two medical practitioners, which has now been amended and consequently the period stands extended to 20 and 24 weeks respectively.³

Under these provisions termination of pregnancy can be carried out in case of any risk to the life of the pregnant woman or of grave injury to her physical or mental health. Similarly termination of pregnancy can be done in case of any substantial mental or physical abnormality to the child.

Section 3 further says that the miscarriage can be caused within the aforesaid period if the medical practitioners are of the opinion that:-

   (i)   the continuance of the pregnancy would involve a risk to the life of the pregnant 

         woman or grave injury to her physical or mental health; or

 (ii) there is a substantial risk that if the child were born, it would suffer from such
physicalor mental abnormalities as to be seriously handicapped.

The relevant provisions of the Medical Termination of Pregnancy Act cited above read together makes the picture crystal clear that it deals with protection of medical practitioners from being punished as abortionists as per the provisions of Indian Penal Code if they cause abortion to any pregnant woman supported by the opinion that such an abortion is necessary due to any injury to the pregnant woman or abnormality to the child in the womb. Under no circumstances, even in the widest possible stretching of the ambit of the any of the existing provisions of law, termination of pregnancy has been considered as the right of the pregnant woman. Abortion is legally permitted only in cases where they are supported with medical opinion of the registered medical practitioners as aforesaid.

In short, termination of pregnancy stands legally permitted only on the medical grounds but never on the basis of the concept of right of the pregnant woman to choose. Abortion as a right to choice coupled with the idea of autonomy of the women over her body finds not place or even an iota of mention in the existing provisions of law.

Right to Abort and Autonomy over Body

At this juncture things need to be taken from the perspective of right of a pregnant woman to abort at any stage of the pregnancy or up to what stage of the pregnancy. In terms of the right of woman to abort on demand the very first thing to be discussed is the extent of autonomy of woman over her body. Autonomy of the woman over her body is a matter to be seen from a different context by all means. The subject of autonomy of body taken in terms of the question of abortions poses a few other crucial questions for consideration. Do people have absolute autonomy over their life? Is the pregnancy to be taken as part of the body of the pregnant woman as her other organs? Even if treated as part of the body for the sake of argument how far the autonomous rights can be granted for the woman on her womb?

When things are viewed from the right point of the pregnant woman, rather than based on medical necessities, termination of pregnancy comes as a matter of choice of the women in terms of the body autonomy. To a great extent, in accordance with the growing thought process, though limited within a small section, embryo and fetus are treated more as part of the woman’s body over which she has to be given choice whether to continue or terminate. This theory is buttressed by the right to life which guarantees dignified life and also by the bigger role played by the woman in giving birth to a child. It has got its own merits warranting genuine considerations and deliberations among us.

Right to child in the womb

Doing strict justice to the argument that a coin has two sides, now the other side of the topic of right of woman to abort hast to be turned around for a look at the right of the child to be born alive. Here also we are to face a number of questions on the personality and right of child in the womb. Do we have to assign legal personality to embryo or should it be assigned when the embryo turns into fetus? Does an embryo have life? If not at what point in time we can decide that life has been formed? In the run to find an answer to all these questions it would be worthy to refer to the few existing provisions in regard to the status of an unborn person.

Property law in India which permits transfer of property between living persons treats child in the womb a person. As per the provisions of the Transfer of Property Act property can validly be transferred to an unborn person, even not in existence.

Transfer for benefit of unborn person:--Where, on a transfer of property, an interest therein is created for the benefit of a person not in existence at the date of the transfer, subject to a prior interest created by the same transfer, the interest created for the benefit of such person shall not take effect, unless it extends to the whole of the remaining interest of the transferor in the property.⁴

Though the aforesaid provision is bit out of context it sheds a message that legal right may travel even to the non-born. In a little contrast with the property law provisions of criminal law defining the offence of culpable homicide deliberately omits child in the womb from its purview. It says as follows

Explanation 3– “The causing of the death of child in the mother’s womb is not homicide”.⁵

When causing of death of a person is offence of culpable homicide, causing death of child in the womb has been excluded; sending a clear message of the legislative intention that child in the womb is not treated as a person, at least for constituting the offence of culpable homicide.

Similarly given a liberal interpretation in terms of right to life and right to equality some sort of legal personality seems to have been conferred to fetus with respect to pre natal determination of sex. Apart from these legal provisions relating to miscarriage, medical termination of pregnancy, property law, criminal law on homicide, sex determination it is seen that our legal system lacks sufficient laws on the legal status of child in the womb.

Conflict of rights

Every right held high by the society is in contrast with other rights of the same person or the others. Conflict of rights is an inevitable foundation upon the conciliation of which legal justice is served. Same is the scenario in the matter of the right to choice of the pregnant woman to abort and the right of the child in the womb to be born alive. In a recent judgment of the High Court of Kerala dealing with a similar situation the moment of start of heartbeat was taken as the point infusion of life into fetus entitling it to right to life embedded under Article 21 of the Constitution leading to the conflicting point of right of mother and child over womb. Relevant portion of the judgment reads as follows:⁶

“An unborn child has life of its own and rights of its own and the rights of unborn are recognized by law. No doubt, only if the unborn can be treated as a person, the right to life of the unborn can be equated with the fundamental right of the mother guaranteed under Article 21 of the Constitution. True, an unborn is not a natural person, but it is well known that after six weeks, life is infused into the embryo, thus converting embryo into foetus and once an embryo evolves into foetus, the heart beat starts. In other words, the unborn has life from the stage it transforms into foetus. If the unborn has life, though it is not a natural person, it can certainly be considered as a person within the meaning of Article 21 of the Constitution, for there is absolutely no reason to treat an unborn child differently from a born child. In other words, the right to life of an unborn shall also be considered as one falling within the scope of Article 21 of the Constitution”

“….When duly constituted Medical Board opines that the stage of pregnancy is such that it may result in a live baby and that the foetal abnormalities diagnosed are not lethal, in the absence of any threat to the life or health of the mother, I am of the view that the reproductive choice of the mother which is a facet of the fundamental right guaranteed to her under Article 21 of the Constitution, will have to give way to the right of the unborn to be born.”⁷

As understood from the afore cited observation of the Court, it is simply perceivable that in terms of the prevailing legal structure termination of pregnancy is allowed to be accessed only for the purpose of saving life of the woman from any injury or in case of lethal abnormalities to the child. Nowhere the aspects of right of the pregnant woman exercisable at her choice have been seen considered.

The road ahead

Laws are not dead letters. They are organic in nature and functional in spirit. Changes in the thought process and values of the society are reflected in the laws through legislative mechanism.

Various aspects and dimensions involved in the matter of abortion being legally permitted at the mere demand of mother in the light of right to life of the child in the womb need to be given immense attention of the legislature.

Viewed from the point of view of legal rights of the unborn it warrants clarification of the concept of legal personality of the unborn at the very outset. Answer of it need to match with yet other question of availability of fundamental right to child in the womb over and above the right to life of the woman. Until this area is clearly demarcated at least in terms of theoretical certainty in the words of legal language no rest will be attained over the topic of right to abort.

Right to life of the child in the womb and woman’s right to abort, which is also a facet of the fundamental right protected by the Constitution, have to be approached with an objective mindset. Mind with any sort of influence of even an iota of religious beliefs, customary norms or moral sentiments will never take one to the expected level of finding and serving legal justice.

There exists an absolute vacuum as to the rights of woman and her choices in relating to termination of pregnancy, nor is it anywhere mentioned whether the child in the womb is to be considered as part of her body giving her full autonomy over it or not. There exist opposite views among the people as to the position of the woman in regard to the child in her womb.

Next is to settle the autonomy aspect of women over their body and right to life of the child in the womb. Women have right over their body and dignity as part of the right to life. Their reproductive right carved out of the right to life gives them autonomy to the women to decide on the aspects of pregnancy. Child in the womb if considered as a person entitled to right to life under Constitution; its life need be legally protected under all the circumstance. Claims in terms of the right to life of the child in the womb and right to body autonomy of the women have to be balanced and a conclusion has to be reached tilting the scale in accordance with progressive human rights jurisprudence as objectively as possible.

All this matter requires is being taken up with legislative wisdom and being filled up with comprehensive legal provisions strong enough to clear away the prevailing grayness from this area.

 

Foot Notes

1.    Maneka Gandhi v. Union of India (1978 KLT OnLine 1001 (SC) = (1978) 1 SCC 574).

2.   Bandhua Mukti Morcha v. Union of India (1984 KLT OnLine 1212 (SC) = (1984) 3 SCC 161).

3.    The Medical Termination of Pregnancy (Amendment) Act, 2021.

4.    Section 13 The Transfer of Property Act, 1882.

5.   Section 299 The Indian Penal Code.

6.    Indulekha Sreejith v. Union of India (2021 (5) KLT 244).

7.   Ibid, para 9.

Psychological Support to Victims of Child Sexual Abuse --

Imperative Need Highlighted in the Wake of Judgment in 2020 (5) KLT 276

(By M.Shajna, Advocate & Central Government Counsel, High Court of Kerala)

The trauma induced by Child sexual abuse (CSA) is one of the most understudied yet highly prevalent public mental health problem in India. It has been estimated that in India that 1 in every 10 children experience some form of CSA and 7000-7500 rapes in children occur annually.¹

Everyday, our newspapers are strewed with reports of new cases of CSA. It was only recently that our small Gods Own Country Kerala woke up to the shocking news about a minor victim of a sexual assault incident being found hanging at her residence. It is reported that the girl was under severe mental stress following the incident and the death is considered as suicide as a result of such mental stress. This incident occurred only days after another suicide by a 12 year old girl in another district after the sexual harassment of the child by her 29 year old teacher was reported to the police. The girl was suspected to have ended her life out of mental tension as per police report. Earlier in October 2020, a dalit minor girl who attempted suicide after the rape incident, had succumbed to burn injuries in another district. The girl was sexually assaulted by an autorikshaw driver and the incident was reported by the parents to police and on the next day the girl had set fire on herself. Also, according to a news article that was published in The Times of India (online edition) on August 3, 2021, as per the report of the District Child Protection Officials, three girls and three boys ended their lives in the district of Idukki within a month following similar incidents. Two years before, when the siblings aged between 11 and 8 had “committed suicide” in two months gap after alleged rape by a relative and his friends we all have had the same shock and anger, but all of it remained on papers or was buried just in the debate rooms of the news channels.

Undoubtedly, sexual abuse of children and adolescents is a significant public health problem. It is a violation of fundamental human rights including the right to life, right to protection from all forms of violence and the right to enjoy the highest attainable standards of health. The physical, including sexual and reproductive health and mental health consequences of such abuse are wide ranging and need to be addressed. Many studies have proved that sexual abuse of children and adolescents has both short-and long-term mental health consequences. The experience of CSA can have a detrimental effect on general emotional wellbeing, leading to low self- esteem and loss of confidence. Mental health outcomes/internalising behaviours include depression, anxiety disorders, post-traumatic stress disorder (PTSD), self-harm and suicide, as well as a range of other mental health conditions.²

Rates of self-harm have been shown to be as high as 32 per cent among victims and survivors of CSA. The risk of CSA victims and survivors attempting suicide can be as much as six times greater than in the general population.³ Childhood and adulthood victims of rape are more likely to attempt or commit suicide. A study of adolescents found that prior sexual abuse is the leading factor predicting several health risk behaviours including suicidal thoughts and attempts.⁴

Many studies have come out stressing the need for providing both immediate psychological support as well as longer-term mental health care to children or adolescents disclosing sexual abuse. Immediately post-assault, most victims will experience shock, intense fear, numbness, confusion, feelings of helplessness and/or disbelief, in addition to self blame, hyperarousal and high levels of anxiety⁵. The World Health Organisation (WHO) recommends in its ‘Guidelines -/Responding to children and adolescents who have been sexually abused’,⁶ that gender sensitive psychological support should be offered continuously within the first month to children who have recently been sexually abused and experience symptoms of acute traumatic stress. It should especially cover practices to minimize harms and trauma in the process of medical history taking, physical examination and documentation and ethical and safety considerations for reporting to the appropriate authorities.

Every day children such as these come in contact with our justice delivery system, where formal and informal justice providers make decisions that have the potential to influence the future course of their lives. What rights do these children have when they come in contact with law? Are they entitled to any type of psychological support apart from legal assistance? If so, how might those services best be made available and actually reach children in crisis or in need? How does the concept of child friendly justice play out in informal justice system? While addressing these questions, we should be able to provide a conceptual and practical framework with the ultimate goal to provide children with meaningful, effective, affordable and age appropriate assistance in all fields not only legal but for overall development as such has to be taken care of. It is in this background that the righteous and remarkable judgment rendered by the Hon’ble High Court of Kerala by Justice P.B. Sureshkumar inAbhishek v State of Kerala, Crl Appeal No.1087 of 2019 dated 9.9.2020 ⁷ gains significance.

It was one year earlier that the said landmark judgment was passed by the Hon’ble High Court of Kerala wherein some major extremely important guidelines to be followed throughout the cases involving heinous crimes against children were laid out. In the landmark judgment, the Hon’ble Court has identified many flaws that are patently found in the investigation of most cases against children. The Court has identified the necessity of practical and reformative measures that are to be adopted right from the point of reporting of the crime to the police, till the culmination of the proceedings. The need for radical improvement of the system was stressed in many parts of the judgment.

The main concern that the Court found from the cases that came before it was the secondary victimisation of the Children and the ineffective measures in the justice delivery system to protect the victims from such continuing psychological harassment.

Despite the physical nature of the act constituting the crime of rape, much of harm is psychological or emotional in nature and that was identified by the Court in all its importance. The victim is subjected to marked humiliation during the prosecution which adds insult to injury. Moreover the society views the victims as being “damaged” and as a result, may suffer isolation, be disowned by friends and family, be prohibited from marrying or even killed. This phenomenon is called secondary victimization.⁸

Even though many legal & general directions were issued by the court, this article is intended to highlight the aspect of mental health of the child victim and the counselling and support that are to be provided to the victim as well as the family, right from the reporting of the complaint till the effective rehabilitation. Infact International guidelines indicate that a victim of sexual violence should be made to undergo mental state examination at the first instance itself. The Court observed that:

‘The Act ⁹ is one that provides for protection of children from sexual assault, sexual harassment and child pornography by safeguarding their interests through a prompt and systematic multi-sectoral intervention involving the State Government, the Child Welfare Committee under the Juvenile Justice (Care and Protection of Children) Act, the Police, the Special Court, Non-Government Organizations and Professionals and Experts assisting the children. In exercise of the power conferred under Section 39, the State Government has prepared elaborate guidelines prescribing the general principles to be followed by professionals and experts assisting the child at pre-trial and trial stages, guidelines for interviewing the child, guidelines for the medical and health professionals, guidelines for psychologists and mental health experts, guidelines for social workers and support persons, guidelines for child development experts etc. The guidelines also provide for rendering legal aid and other services to the victim. Suffice it to say that the guidelines are exhaustive, and if the same are given effect to in its letter and spirit the POCSO Act would certainly serve its purpose”.

It is to be noted that although the guidelines have been formulated by the State Government as early as on 20.4.2015, the same were not implemented through any of the stakeholders including the State Legal Services Authority which is to play a pivotal role in the implementation of the POCSO Act or to the public, until the court took notice of the said fact in that particular case and the Court taking notice of that fact had observed that it is unfortunate that the POCSO Act was being implemented in the State during the last almost five years without the stakeholders not being aware of the guidelines to be followed by them in the matter of implementing the provisions of the statute. It was also noticed that on account of the same, the implementation of the statute was not in accordance with the statutory intendment and the children involved in the cases were deprived of their valuable rights to avail legal aid and various other benefits.

Guidelines issued by the Court stressing the need for Psychological support to CSA victims.

In compliance of the judgment inNipun Saxena v. Union of India (2018 (4) KLT OnLine 3109 (SC) = (2019) 2 SCC 703), One-stop support centres for women and children (as one conceived and established at Hyderabad in the name “BHAROSA”) are being established by the State Governments atleast one in each district to ensure that the children who have been sexually abused are not subjected to secondary victimisation in the course of the justice delivery process.

>The Court observed that such centres should have well-trained staff who are sensitive to the needs of children and women who have undergone sexual abuse. This staff should be given adequate training to ensure that they talk to the victims in a compassionate and sensitive manner. Counsellors and psychiatrists should also be available on call at these Centres so that if necessary the victims are counselled and in some cases it would be appropriate if the counsellors question the victims in a manner in which they have been trained to handle the victims of such offences. These One-Stop Centres should also have adequate medical facilities to provide immediate medical aid to the victims.

>Necessary fund allocation has to be made to provide advance amount to the Child Protection Officers to meet the expenses for availing the services of Psychologists.

>Court also directed that the statements of the children involved in such cases are taken only when they are physically and psychologically fit to give statements after proper evaluation.

>It was stressed to ensure that the experts in the field of Psychology and Psychiatry are cited as witnesses in cases where the behavioural indicators of the child need to be explained.

>Another important direction is to obtain the opinions of Psychologists, Psychiatrists and other experts in the field to ensure the correctness of the statements of the child victims by examining the audio/video recording of the statement and shall, if necessary before filing of the final report if the case is built solely on the statement of the child to ensure that the statement of the child is voluntarily given.

SUGGESTIONS

Many of the harmful and lasting psychological impacts of sexual violence may be prevented or minimized with structured interventions and the provision of psychological support post rape. Whilst many people will recover spontaneously from the psychological aftermath of rape, the identification and treatment of psychopathology can be of great benefit to survivors¹⁰

• A study was conducted in Sweden wherein a 17-min video-based intervention was provided prior to the forensic rape examination consisting of information about the forensic examination, psychoeducation about common trauma-related reactions (intrusions of the event, marijuana use, depressive suicidal symptoms etc.), and coping strategies to tackle these symptoms. One pilot trial (N = 124) indicated that this brief video intervention could significantly reduce trauma reactions in rape victims.¹¹ Such an attempt can be done in our system also which can give the victims psychological support for overcoming the tragic incident and its consequential aftermath.

• Similar to the system wherein the The Kerala State Legal Services Authority is having a separate panel of experienced advocates to represent child victims and to advise their family in the various proceedings, a panel of Psychologists/Counsellors can be maintained under each DLSA and make it mandatory for the victims to attend their sessions.

• Mental health-care providers should offer/continue to offer first-line support that is gender sensitive and child friendly to all CSA victims who experience symptoms of acute traumatic stress (within the first month). And depending on their capacity and maturity to understand information about their symptoms, information should be offered about signs or symptoms or emotions that they are likely to experience and when to seek further help.

• In addition to first-line support to the victims, their non-offending caregivers also need good psychosocial support involving psycho-education to promote well-being and functioning of the victim, support them for managing and coping with stress, and promoting daily functioning as they recover from their traumatic experience over time.

• It is important to provide to non-offending caregivers of young children information about possible signs or symptoms of post-traumatic stress disorder (PTSD) and/or behaviours or emotions that the child may show in the coming days or months and when to seek further help.

The above aspects can be practically put into action by the Authorities by deriving power from Section 357A(6) of the Cr.P.C. wherein it is stated that :

‘The State or the District legal Services Authority, as the case may be, to alleviate the sufferings of the victim, may order for immediate first-aid facility or medical benefits to bemade available free of cost on the certificate of the Police Officer not below the rank of the Officer in charge of the Police Station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit”

Necessarily, the term ‘first-aid facility’ or ‘medical benefits’ will include not only physical aspect, but also mental/psychological. Thus we can ensure that the victims are provided with all the necessary physical as well as psychological aid/support for overcoming the trauma related to the unfortunate incident and thus hold their hands and support them to be healthy and responsible citizens of the future. Mental health is an integral part of health and wellbeing. Good mental health enables the children to realize their potential, cope with the stresses of the life, work productively and contribute to the community.

CONCLUSION

India has around 20% of the world’s children and by 2025 shall be having the largest young population in the world. As observed by our Apex Court in Salil Bali v. Union of India & Another,¹² it cannot be questioned that children are amongst the most vulnerable sections in the society. They represent almost one third of the world’s population, and unless they are provided with appropriate support in all levels, the opportunity of making them grow into responsible citizens of tomorrow will slip out of the hands of the present generation. It is time that we wake up to the problem of child sexual abuse and meet it head on. The future of nation is in the hands of its children and it is time that judiciary take steps to ensure the safety and security of our younger generation. It is imperative that the access to proper psychological support at every stage is an important part of the child’s right to life since it is one of the needs that are most basic to existence for such child victims.

It is the duty of the State to ensure that the children are safeguarded against all forms of abuse, neglect and exploitation, including special care in the criminal justice system, protection and rehabilitation for children who have suffered exploitation or abuse of any kind.

It goes without saying that the invaluable general directions for handling the victims and their cases issued by the High Court in Abhishek v. State of Kerala ¹³ must be implemented forthwith in letter and spirit. It will ensure that Children’s legal as well as the Constitutional rights are protected and properly given effect to by which the concerned child would benefit immensely. It brooks no more delay!! No denying that.

 

 

Foot Notes

1.   Finkelhor D, Korbin J. Child abuse as an international issue. Child Abuse Neglect 1988;12(1):3-23.

2.   WHO, 2009; Yuan, Koss & Stone, 2006.

3.   McCarthy-Jones and McCarthy-Jones (2014), op.cit.; Tomasula, J.L, Anderson, L M., Littleton, H. L, and Riley-Tillman, T. C (2012) The association between sexual assault and suicidal activity in a national sample. School Psychology Quarterly, 27(2), pp.109-119 .

4. Jilosha.R.C Rape: Legal issues in Mental health perspective, Indian Psychiatry 2013 July - Sep; 55(3):250-255.

5. Campbell, Dworkin & Cabral, 2009; Jewkes & Dartnall, 2008; Chen et al., 2010; Vickerman & Margolin, 2009.

6. 2017.

7.  2020 (5) KLT 276.

8.  Dheerendra Kumar Baisla Secondary Victimization under the Criminal justice System, The Law Brigade, JLSR Journal, Journal of Legal Studies and Research [Vol. 2 Issue 3] ISSN 2455-2437. 20thJan., 2021.

9.  The Protection of Children from Sexual Offences Act, 2012 (Central Act 32 of 2012).

10.  US National Center for PTSD, 2007, Astbury & Jewels, in press.

11.   Resnick, H., Acierno, R., Holmes, M., Kilpatrick, D.G., and Jager, N. (1999). Prevention of post-rape psychopathology: preliminary findings of a controlled acute rape treatment study. J. Anxiety Disord. 13,359-370. doi: 10.1016/S0887-6185(99) 00010-9.

12.  2013 (3) KLT SN 49 (C.No.51) SC = (2013) 7 SCC 705.

13.  2020 (5) KLT 276.    

Transcript of Mr.F.S. Nariman’s Speech Delivered at the Virtual Session – Indian Law Institute – Kerala State Unit Inaugural Lecture of ILI Kerala – Online Lectures Series

On the topic: “BECOMING AN ADVOCATE”

On Thursday, 21st October, 2021

A few weeks ago, when I was asked by Justice A.K. Jayasankaran Nambiar, if I would be deliver the Inaugural Lecture of the Kerala State Unit of the Indian Law Institute – I most eagerly said Yes.

Because my wife and I both loved Kerala – over the years we had visited your State on innumerable occasions enjoying the company of convivial and highly intelligent men and women of Kerala.   So for me, speaking to students in Kerala is always a great pleasure.

The topic chosen is BECOMING AN ADVOCATE

Once you become an Advocate you become a student of law for life, whether you sit in a law-firm, or work in an office for an Advocate, or if and when you begin to practise before a Court - even when ultimately in course of time you (God willing) become a judge. 

Because once a student of law, always a student of law.

This is because - No one however senior or advanced in knowledge or in age, can ever say I know the law – the LAW is as vast and unfathomable as the starry heavens in the sky that you see on a clear night.   Always remember that.

And remember also that Becoming an Advocate is a both a responsibility as well as a badge of fame.

But first things first.  The First thing you must remember on becoming an Advocate is that English is not a foreign language.  

Since 1950 it has become an Indian language.  It is one of the only two national languages of India. 

So the first important thing you do on becoming An Advocate is to improve your knowledge of and proficiency in the English language – this you must do by reading and absorbing the great pieces of writing in English literature.  

This is not in order to make you anglicised – far from it: it is to give you an opportunity to establish yourself and be successful in the legal profession – because the LAW in India is, and will remain, English in origin: all the great concepts in the Constitution are Anglo-Saxon: like LIBERTY, EQUALITY and the RULE OF LAW.

Justice Felix Frankfurter is a name that is, or should be, familiar to you all – he was the Judge whom India’s Constitutional Adviser B.N. Rau had consulted when he drafted the Constitution of India.

But he is famous also for another reason.

In May, 1954, a twelve year old American student living in Alexandria, Virginia, wrote a letter directly to the Judge and said that he was “interested in going into law as a career” and he requested advice of the Judge – and Frankfurter’s now-famous advice to a young man interested in going into law is in the public domain – for all to read.  His advice as follows:

“The best way to prepare for the law is to come to the study of the law as a well-read person.  Thus alone can one acquire the capacity to use the English language on paper and in speech and with the habits of clear thinking which only a truly liberal education can give.  Stock your mind with the deposit of much good reading, and widen and deepen your feelings by experiencing as much as possible the wonderful mysteries of the universe, and forget all about your future career.

This was Frankfurter’s frank advice to a young American.  It remains valid today for India - I heartily endorse the same and pass it on to you. 

You will find Frankfurter’s advice to a law-student recorded in a book titled “The World of Law”.

The book is in two volumes: Volume-I (of which the title is: The Law in literature) and Volume-II (has the title: The Law as Literature).  

In these two volumes you will find extracts of essays, opinions, stories, records of famous trials etc. etc. – all compiled by a distinguished English constitutional lawyer Mr. Ephraim London (that’s his name). 

These two volumes contain a mine of very useful and excellent writing in English.  If you find that the book is unavailable (it might be since it was published nearly 60 years ago) feel free to write to me and I will be glad to send you some extracts in them which you must read and digest so that you come up-to-scratch in your profession.  You will then be Frankfurter – trained in the law!

So remember the 1st rule on - becoming an Advocate in India is: Be proficient in English by stocking your mind with good reading: i.e. reading about the law as literature and reading about the law in literature. 

Next, (2)  Keep yourself informed and be uptodate with Indian case-law: i.e. decisions of the Supreme Court and  of the  High Courts – particularly your own High Court.  This is essential for the profession you have chosen.

In this way you will be useful to your senior in the profession, and later to yourself as well when you appear in Court - but even when you or your senior are not briefed in a case you can be useful to someone – unknown to you - who is arguing a case in court – you can be of help to him, because when you are of help to him by giving him some very recent judgment relevant to his case, he will remember your good deed and will surely be of help to you! 

Sir Jamsetjee Kanga the doyen of the Bombay bar - in whose chamber I had the privilege to read - had little work in the first few years of his practice (in those days – long before the Constitution of India 1950, there was far less work for juniors than there is today ).

He told us that he spent his time reading all the then current decisions of the Privy Council, and of the Indian High Courts; but during the day he would sit in various courts – seeing and listening, and so learning how to argue and how not to argue: merely by watching other lawyers presenting their cases in Court.  This is the best way in your becoming a successful advocate.

Parkinson’s law applies in the profession of law more than in any other. The less work there is the less inclination there is to put your mind to it, and so the less will be your experience; then, the less will clients seek you out as Advocate and so you will have less work – All in a downward spiral!!

But the more you are engaged in work, the better will be your application of mind, the sharper will be your intellect: and then, everything will be in an upward spiral – only the sky being the limit.

  And “Work” here means, being occupied - not necessarily paid work.

The worst enemy of hard work is a fixed monetary reward - there is no “incentive “when your senior pays you a stipend –

Of course, if it is necessary for you to survive, then take the stipend but don’t depend on it forever, because you are then in the position of an employee or an office clerk - you will soon begin to work less and less, and only in office hours – and then in company of other young lawyers you will begin to complain how poorly you are being paid!

There are no office-hours for a practising advocate – you have to be mentally engaged – day and night.

Remember that when you assist another person to argue, you must be of real use to him. 

This you can do only if you have looked up or studied the facts, made short notes, and looked up the entire law pertaining to the case in hand - not only relevant law but also law having even some remote connection with the facts. 

This is because although in a Court of Law only relevant facts are to be stated, there is one very important but least known Section of the Indian Evidence Act – Section 165 which reads as follows:

“The Judge in order to discover or to obtain proper proof of relevant facts, may ask any question he pleases, in any form at any time about any fact relevant or irrelevant and neither the parties nor their advocates shall be entitled to make any objection to such question.  

This is because a Judge, at a trial or in any proceedings, is expected to explore all avenues open to him or her in order todiscover the truth”.

So in an Indian Court of law, as an Advocate you must be prepared not only with the facts of your case but all possible permutations and combinations that can be imagined.

So when you have a brief you must always go beyond it and so be ready with answers to the Judge’s questions – relevant or irrelevant.

And you can be sure that a Judge will ask many irrelevant questions – and you have to patiently and politely answer them. 

Next - After you have read your brief and re-read it, take time to reflect.

Think on it. 

It helps greatly - this is the advice I was given by C.K. Daphtary who was for many years Advocate-General of Bombay and then India’s Solicitor-General of India (1950-1963); and after Motilal Setalvad retired in 1963 he became India’s Second Attorney­-General
(1963-1968).

In his time C.K. Daphtary was the greatest exponent of the art of advocacy in India. 

Over time and in your progress in the profession you will be involved in several cases. 

Remember that a good lawyer keeps hisimportant pending cases always in mind - they must travel with you whether at lunch parties or dinner parties, or when you are out for a walk - especially when you are out for a walk!

You must give your subconscious mind an opportunity to soak in a case: and when you do that you will find quite often, to your advantage, that problems gets solved; solutions emerge as if Providential!

Next - As a lawyer it is your duty to bring to the attention of the Court a case already decided on the point advanced.  You may then distinguish it but cite it you must.

Never cite an overruled case - it is unethical.

Sir Jamsetjee Kanga used to tell us that in the old days there used to be a solicitor in Bombay – who was a tricky fellow – because he kept a separate book containing all overruled cases - and when the going was rough in Court for his client he (the Solicitor) handed over to his Advocate an authority (which he knew had been overruled!). 

The Advocate would cite it – the Judge would get confused and the other side would get confounded - but not for long – ultimately it would be discovered that the case cited had been overruled. 

And the consequence will be disastrous.  The Judge would then look at you and always remember your face - as a person who has misled the Court.

Counsel citing an overruled case is invariably black-balled by the Judge.

That Solicitor from Bombay is not a person to be emulated: we must only remember him as a person who did the wrong thing !

Next - (3)   In Court, it is always better to understate your case rather case than to overstate it.

Never tell the judge you have a cast-iron case (in nine cases out of ten) his natural urge will be prove to you that you have not!

Do not say in Court about the other side’s argument.  “I never heard this argument before”. When I used this phrase when I was ten years old at the Bar, I swore never to use it again.

Because the Judge smiled and immediately retorted: “you are still at the beginning of your career Mr. Nariman. In course of time you will hear and learn many more things that you have never heard before!”

For me it was a perfect squelch.

Also, never say: “Your Lordship will bear with me”.

In my young days, when the Judge in Bombay used to argue with me by questioning me in a case, I used to say quite frequently “your lordships will bear me”, just to put my point across and the Judges there did not seem to mind.

But then in the Supreme Court, to which I shifted in the year 1972, Chief Justice
A.N. Ray was horrified by this expression.

When anyone said in response to an interjection from the Bench, “Your Lordship will bear with me.....” pat could come the irritable answer “Then what do you think we are doing upto now” !

Next - (4)Never exagerate in Court - about the facts of your case or the applicable law. Argue in low key and avoid rhetoric: and don’t be too smart; and for God sake avoid being funny: you will be stigmatized as flippant.

In fact until you have established yourself in the profession (for at least 30-40 years) do not (please do not) indulge in what is known as pleasantries in Court: you have to be serious-minded in Court – especially in your formative years. 

And never trump the Judges jokes or make it appear you are more humorous than he or she is.

If you must tell a story - tell one against yourself, never in your favour. 

And always remember to laugh heartily at jokes cracked by Judges from the Bench – even the corny ones! 

But more seriously! Never show irritability in a Court - leave your anger - and all the vitriol that goes with it - outside the Court room.

Never take it into court.

If you are tempted to be angry, remember what the great Lord Eldon once said.

Lord Eldon was a famous English Judge who sat for twenty-five years as Lord Chancellor of England.  

In the year 1787, as plain Mr. John Scott, a lawyer, he argued a case in the Equity Courts: (in the case of Dering v. Earl of Winchelsea).

Thirty-five years later the case was cited to him when as Lord Eldon he was presiding in the Court of Chancery, and Eldon said he remembered the case -

“and very angry I was with the decision; BUT I have lived long enough to find out that one may be very angry and yet very wrong”!

Words of pearly wisdom.  Hopefully you too will live long enough to find out for yourself that you may be on occasions very angry and yet very wrong! 

Justice Krishna Iyer the great and noble Justice Krishan Iyer used to delight quoting in his judgments the exhortation of Oliver Cromwell Lord Protector of England from 1653 to 1658 – to his constituents.

Cromwell used to tell his people:

“I beseech you in the bowels of Christ, think it possible you may be mistaken.”

As a practicing lawyer you will also be very often mistaken – it is no discredit to admit that you were mistaken.

Next -Don’t quarrel with your opponents or be nasty to them because if you have chosen the law as your profession, the major part of your life will be spent with colleagues at the Bar. You must rub shoulders with them - and a sense of comaradarie at the Bar is essential for preservation of your continued sanity.

Your compatriots will always speak well about you if you have not been mean or uncharitable to them in word or action.

Remember: the old English adage “Dog don’t eat a Dog”.

Never address a Court below its station - Each Judge must be addressed according to the manner which his station entitles him to - For instance an Administrative Officer who presides at a hearing must be addressed as “Sir”, a Magistrate must be addressed as “Your Honour” a City Court Judge or a District Court Judge also as “Your Honour”, but a High Court Judge always as “Your Lordship”.

Sometimes omission to observe this elementary rule can be disastrous - as it was for my opponent in a case that I recall.

There used to be in my time Justice J.M. Shelat who was first appointed a judge in the Bombay City Civil Court, then in the High Court and finally in the Supreme Court of India (from  February, 1966 to April, 1973). 

Now, in the City Civil Court a Judge is always addressed as “Your Honour”.  In the High Court he (or she) must always be addressed as ‘My Lord’.  Shelat was sensitive about the change in forms of address when he became a High Court Judge – and as a High Court Judge he was allergic to being addressed as “Your Honour” – whenever that lawyers inadvertently addressed him as such they would suffer by losing their case! 

It happened to me in my young days when I opposed another young lawyer – (the opposing advocate (is today a brilliant commentator on public affairs) –

He kept referring to Justice Shelat as “Your Honour”, and so brittle did the Judge become that he ultimately delivered judgment in favour of my client! 

It was of course a wrong judgment, and when the appeal came up for hearing before a Bench of 2 Judges in the Appeal Court in Bombay, the appellant was not called upon, to argue: appearing for the respondent it was I who was immediately asked to defend the judgment!  (And of course, the judgment was reversed). 

But to his credit you must know that Justice Shelat worked himself out of this blemish, and in the Supreme Court to which he was finally elevated he became a fine Seasoned Judge. 

He also had a literary bent because he read a lot in his spare time – and had written a good book on the Life of Akbar, the Great.

I give you the example of Justice Shelat only to indicate to you that some judges are more sensitive, than others, some more apt to take umbrage, or offence more than others.  So when arguing – you must be careful - what you say.  You must have your wits about you.

In David Pannick’s book (“Judges”) –David Pannick has written two excellent books (one titled: “Judges” and the other titled: “Advocates”).  You must read both of them.

In Pannick’s book on Judges he mentions the farcial case of Sardar Tajendra Singh:

Sardar Tajendra Singh (was an Indian born but brought up in England) but he had no respect for the United Kingdom or its civilization or its courts!

He therefore persistently refused to stand up while addressing the Cambridge County Court - in support of his claim for money owed to him.

The Trial Judge ruled that until Tajendra Singh gave an undertaking in writing that he would stand up, and address the Court, his case would not be heard!

Mr. Tajendra Singh was a funny fellow.  He did not apologise - instead he went in appeal!

At the start three Judges of the Court of Appeal including Sir John Donaldson, then Master of the Rolls, allowed Mr. Tajendra Singh to address them sitting down, because as they humorously put it:

“to avoid prejudging the fundamental issues raised by this case”

A typical English under-statement. 

But ultimately they decided that the County Court Judge was entitled to the dignity of his office and to require Mr. Tajendra Singh to stand up!

Next - Don’t criticise the Judge before whom you have appeared either in the Bar room or before clients. When you are in a calm or collected mood reflect on what transpired in Court - and ask yourself whether the Judge may not have been right. Otherwise consult a senior lawyer (who is not opiniated) and follow his advice.

If you must say something about the conduct of a Judge - say it in the Court of Appeal – never outside Court.  If not, hold your peace - remain silent.

Francis Bacon who was Attorney-General in England in the 17th century and later Lord Chancellor used to describe a much-speaking Judge as an “ill-tuned cymbal”. 

A much-speaking lawyer is worse - he is like a broken drum – it sounds horrible when beaten.  Talk less – Reflect more.

Next - Learn to lose with dignity. Please remember only one side in the case can win - the other side must lose.

And you must always be conscious of the fact that the Judge is compelled to decide for one side and against the other!

Don’t jump to conclusions about the Judge hearing your case.  Many so-called “speaking” Judges – who interrupt a lawyer’s argument in Court – will disclose their mind: and at the start of the case say something against your contention; never assume the Judge is against you without hearing you: he often poses questions (seemingly against your client’s case) only in order to get the best out of you; not because that he has been “sold” to the case of the other side!

The entire edifice of the legal system (of which you are privileged to be a part) exists - and can only survive - on the basis of mutual good faith between Bench and Bar.

Never give interviews or talk to the Media about cases in which you yourself are appearing. It smacks of cheap publicity – and it is unfair to the Judge who cannot retaliate.  If the judgment in the case in which you have appeared needs to be criticised, such criticism will be more appreciated when it comes from disinterested quarters – not from you. 

Never complain about the inadequacy of the time set by the Judge for your argument: you thereby expose your own incompetence: of not being able to put in simple forms the essence of your case.

And believe me there is nothing like the constraints of time to sharpen your mind: what will then emerge will be only the relevant, not the useless and irrelevant.

I have seen in Federal Courts of the U.S., Counsel being given ten or at best fifteen minutes to complete an argument - and Judges there have told me that after reading the papers and forming one view, they have often changed after hearing the brief but persuasive arguments of Counsel at the time of oral hearing. When time for argument is pre-set (and it always should be in all appellate Courts) don’t complain when the Judges enforce it - that is the discipline of the law.

Many many years ago as President of the Bar Association of India I had invited Prof. Archibald Cox to give a series of Lectures in Delhi, Bombay and Madras.   He had served as Solicitor-General under President John F. Kennedy and was one of the most cited scholars of the 20th century.

He told his audience about his experience of the time limit imposed by the Supreme Court of the United States when hearing cases – and he spoke about the land mark case (which he had then argued) (Regents of University of California v. Bakke) – a case for establishing the principle of reverse discrimination.   

Cox was allotted 30 minutes (then and now this is the maximum time given for oral arguments in the US Supreme Court – howsoever important the case may be. 

The nine Judges in turn were closely questioning Cox.

And he was attempting to answer their questions.

In the US Supreme Court an ominous bright light comes on when your time is up.

But since the point he was making was extremely interesting, Cox – after seeing the light come on - continued.

The presiding Judge Chief Justice Warren Burger, pulled him up. “Mr. Cox the light is on”.

But Cox went on for 30 seconds, more – this time the Chief Justice said in louder more peremptory tones: “Mr. Cox the light is on”.

And poor Cox had to sit down, mid - sentence.

Some years ago I read an Article written by an American advising young lawyers on how to argue in the Appellate Court. There were about 20 tips and the last one was
“Sit down”.

It was, and has always remained for me the best piece of advice to a young practicing lawyer.

PART - II

Far too much of advice.

As to how well – prepared must a practicing lawyer be I now tell you a few stories of some of India’s greatest lawyers of the 20th century. 

A.V. Viswanatha Sastripractised in the Supreme Court of India from the year 1956 onwards till 1966. He was a wizard - an advocate par excellence.

When I was practicing in the High Court of Bombay from 1950 to April 1972.  I had the  good fortune to assist him as junior in a few cases in the Supreme Court of India. 

But assisting Sastri in a case was superfluous - totally unnecessary.

He never needed to be assisted – he knew his facts.

And no one could teach him or even guide him in law – because he knew his law and he knew all the decided cases.

Whenever I was briefed to go to him in Delhi, I would mention what I thought were the relevant cases.

And he already knew them all, but he never made you feel small – he never showed off.  He would simply say: “Ah yes – yes Ah yes – yes”, in his affable sing-song manner.

But there is one incident that I must tell you about.

Somewhere in the mid 1960s in a case presided over by Justice P. B. Gajendragadkar from Bombay (he was 7th Chief Justice of India from 1st February 1964 to 15th March, 1966) - sitting with him was Justice R. S. Bachawat from Calcutta), (7th September, 1964 to 31st July, 1969).

The great advocate, Vishwanath Sastri (there is a portrait – not a very good likeness – that hangs in the advocate’s lounge in the Supreme Court) – (go and see it when you are in Delhi) – Sastri was arguing in his inimitable ‘soft-but-sure’ manner, when Justice Bachawat (a fine judge who also had the law on his fingertips) reminded Sastri that the proposition that Sastri was then canvassing for was directly contrary to what the Privy Council had said in a case and off-hand he mentioned the Privy Council judgment to Sastri.

For a few moments, there was complete silence in Court and then came Viswanatha Sastri’s sing-song reply:

“Yes, My Lord, and that is the only decision of the Privy Council that has been adversely commented on in Halsbury’s Laws of England in volume such-and-such”.

“(Now there are over one hundred Volumes of Halsbury Laws of England).”

This was too much for Chief Justice P. B. Gajendragadkar (who was a scholar - judge – and a scholar – Chief Justice).  Gajendragadkar said, ‘Let us suspend the proceedings – send for the decision of the Privy Council, and send for the volume of Halsbury mentioned by Mr. Sastri.’

The books were brought in and sure enough there was the judgment of the Privy Council as Justice Bachawat had promptly off-the-cuff recollected; and equally surely there was that passage in Halsbury’s Laws of England which had commented adversely on the opinion of the Privy Council! – and which Viswanatha Sastri on the spur of moment – had also recollected!

My dear fellow students of law - This is how well prepared a practising lawyer must be!

I cite another instance –

When I was practising in Bombay (from 1950-1972). The great international trademark lawyer, Blanco White, had been invited by K. S. Shavaksha - himself an expert in Indian Trademark Law - to lead him in an important  trademark case (incidentally, Shavaksha was the son-in-law of India’s great jurist Sir Dinshaw Mulla).  

During the day Blanco White had appeared in the Chief Justice’s Court in Bombay. 

And in the evening, at a reception given for him by K.S.Shavaksha, Blanco White (whilst chatting with us youngsters) told us about the accuracy of Halsbury’s Laws of England, in all its editions.

He told us that he had been entrusted the task of writing the entire Trademark Section of the 3rd edition of (the Simonds Edition) Halsbury’s Laws of England.

He had submitted it to the Lord chancellor, Lord Simonds, who was the General Editor of the third edition of Halsbury (And mark you - Simonds was not a trademark lawyer).

A couple of weeks later, Blanco White received a telephone call from the lord chancellor’s office asking him to drop in.

When he did, Lord Simonds pointed out to Blanco White that two passages in his text were not supported by the cases cited!   That is how carefully the General Editor of HALSBURY’s Law of England examined the texts submitted to him.

Blanco White later found that the lord chancellor was right and he was wrong, and he made the requisite correction.

I am always envious of such fantastic scholarship – it is so rarely seen these days.

A K.Sen, a great advocate of his time (he never spoke ill of anyone, not even against his opponent), I had the privilege to appear with him in several cases – including the land-mark constitutional case of Golaknath). 

Sen had a story to tell about Bhulabhai Desai – of the INA trial fame - as to how important it is for an advocate to have an outstanding memory.

The story was narrated to him by B. P. Khaitan, one of the senior solicitors in Calcutta in the late 1940s.

Khaitan’s client had briefed Bhulabhai Desai in a very heavy testamentary suit (concerning a will) to come up in the Bombay High Court – the briefs added upto more than 2000 pages. 

The client trusted his solicitor implicitly and took Khaitan with him from Calcutta to Bombay to wait on Bhulabhai Desai, and to hold conferences with him.

They all went a full month before the suit was to be placed on board for hearing.

But Bhulabhai – one of the busiest of lawyers in his time - was far too busy from day to day in other matters, and he could not afford to give Khaitan and his client more than about half an hour, each evening.

Even at these conferences, he had to be constantly reminded of the facts, and made to read and reread the case papers.

At the end of three weeks, B. P. Khaitan was so exasperated that he told his client,

‘My dear fellow, the case is tomorrow! We have done all we can, but fate is against you. Your Counsel has not read your brief and all you can do is to go to the Mahalaxmi Temple and pray that some miracle happens.”

And fortunately for the client the miracle did happen.

Next day when the case reached hearing, Bhulabhai stood up and without a note, without referring to any part of the 2,000-page brief lying before him, gave the judge a masterly summary of the facts and then proceeded to deal with the law for the entire morning session.

Khaitan (one of Calcutta’s most experienced solicitor) told A. K. Sen that it was a consummate performance – one that he had never witnessed before.

Of course, not everyone can emulate Bhulabhai – the great Bhulabhai Desai - but you must try.

Incidentally Motilal Setalvad, India’s first Attorney-General (1950-1963) who in the nineteen-thirties was a junior of Bhulabhai Desai, has written a biography of his senior. 

It is in the Series “Builders of Modern India” – published by the publication division of the Ministry of Information and Broadcasting, Government of India. 

Read it if you can – it contains a very enlightening Chapter particularly on the INA Trial - Chapter XI – it is worth a read – a fascinating account of Subhas Bose’s Indian National Army during the World War – II: where as Setalvad writes (and I quote):

“though there were seventeen advocates in the court room, including Jawaharlal Nehru (i.e. Panditji) “wearing a barrister’s gown which he had not donned for thirty years”, the leading counsel for the defence was Bhulabhai, “whose brilliant searching advocacy and cross-examination rang a bell throughout India.”

Another great Advocate of the 20th century was Nani Palkhivala – in the post constitution period - he is hardly remembered today in the hurly-burly of current day lawyering and politicking. 

It is high time we remember him. In his time, he was able to convincingly argue (and win) the three greatest constitutional cases of modern times: 

(1)  First, Golaknath in 1967 before a Bench of 11 Judges; I had the good fortune to be briefed as a junior assisting both Asoke Sen as well as Nani Palkhivala;

(2)  Next, Keshavananda in 1973 before a Bench of 13 Judges; I was then Additional Solicitor General of India and because of conflict of interest having appeared for the Petitioners in Golaknath I could not appear for the Union of India;

(3)  and Minerva Mills in 1980 was before a Bench of 5 Judges; in which my son Rohinton usefully assisted Nani Palkhivala and gained for himself recognition as a competent young Advocate of the Supreme Court of India.

The last case was particularly notable because it consolidated the doctrine of “basic structure”, and also because the judge who delivered the judgment did so by dutifully following the narrow majority view in Keshavnanda (7:6) – even though the judge who delivered the verdict in Minerva Mills (Justice Y.V. Chandrachud) had propounded the minority view in Keshavananda (the minority view was that there was no basic feature in the Constitution which was un-amendable!)  I always give Chief Justice Mr. Y.V. Chandrachud full marks for his acute sense of judicial discipline – of dutifully following precedent!

Now I must let you all into a secret - I have never known anyone – no one – neither judge nor lawyer - ever poking fun at Nani Palkhivala’s arguments – except once!

This was dared by another great lawyer, Kanhaiya Lal Misra who did so quite defiantly in Gokalnath’s Case: I was also appearing with Nani in Golaknath, and K.L. Mishra was appearing as Advocate General for his State, the State of U.P.

In his argument before the Bench of 11 Judges inGolaknath it was Palkhivala who had first advocated the theory of implied limitations in the Constitution.

Palkhivala relied upon the relevant part of Article 368(2) which said that the Bill to amend the Constitution “shall be presented to the President who shall give his assent to the Bill, and thereupon the Constitution shall stand amended in accordance with the terms of the Bill.” 

This must mean, Palkhivala argued, that at the end of the procedure for amendment the Constitution must stand: i.e. it must remain; therefore a whole sale amendment repealing the provisions of the Constitution was unthinkable; hence implied limitations had to be read into Article 368 itself.  That was his argument.

And Palkhivala kept emphasising the words “shall stand amended” in Article 368(2) not once but several times – in words and in gestures: as was customary with him: when he was agitated he used both his hands to emphasise the point.

When Kanhaiya Lal Misra got up to reply, he made his submissions in low-key – he submitted that there were no implied limitations to the amending power.  Unlike his opponent Palkhivala, he was not agitated.   And after he stated his point he poked fun at Palkhivala’s emphasis on the words “shall stand amended”.

“What should it have said, My Lords” he asked, in mock surprise “should the Clause have said that the Constitution shall sit amended”?

He then went on:

“No - no – my lords Plain English cannot be subverted to suit any particular point of view”. 

Now Kanhaiya Lal Misra’s English was impeccable – one could perhaps out smart him occasionally on law, but never on the English language.

In his young days, in the year 1926, he had sat for his ICS (India Civil Service) examination and in the paper on the English Essay; he had scored 150 out of 150.

But he was rejected as a candidate for the Indian Civil Service.   And this was only because Kanhaiya Lal in his young days had committed the unpardonable sin – he had joined the India Nationalist Movement and the British had a black mark against his name! 

His scoring cent percent marks in his English Essay Paper had a sequel.  It was Sir Arthur Quiller Cooch the well known Professor, and master of the English Language, also one of the Editors of the Oxford Book of Verse, who had examined and marked Kanhaiya Lal’s paper.  He was so impressed that he not only gave him full marks but also took the trouble of writing a personal letter to Kanihya Lal’s Professor in Allahabad University.  In it he summarised K. L. Misra’s brilliance in one eloquent but deadly sentence (and I quote it):

“It was the English man who conquered India, but it is only Kanihya Lal who conquered English.”

So let this be a lesson to you all – and I say this once again - to be proficient in English – is very essential if you are to become an Advocate. 

The draft Constitution of India was prepared in English and after nearly 3 years of debate in India’s Constituent Assembly it was finalised in English, adopted in English.  The concepts of Liberty, Equality, Justice are all expressed in English – they are concepts familiar to Anglo-Saxon and common-law jurisprudence, not civil law jurisprudence. 

One of the only 2 national languages of India are and remains English.  So if you are keen to be an Advocate practising in India – and hopefully and ultimately establishing yourself in one of the High Courts in India and ultimately in the Supreme Court of India – you must know the English Language – and to really say you know the language you must know its literature.

Another advocate of the 20th century was Sir Dinshaw Mulla – but he was better known as one India’s great jurists – perhaps the most prolific.   There is a story that was told to my wife by his grand-daughter.

Mulla had passed his Bar Examination and after returning to India he was wondering whether he should join the profession or pursue his life’s passion which was poetry. 

Mulla fancied himself as some sort of a budding poet. 

In those days the only form of communication was by letter that travelled by sea mail from India to England and back. 

Mulla sat down and wrote to Alfred Lord Tennyson, the poet laureate of England (he never knew him but he wrote just the same) and sent the great English poet some of his own poems earnestly inquiring whether he should take up his career in the law, or whether he should stick to poetry. 

Tennyson, seeing a letter from some forelorn student in far – away India, like Frankfurter in the year 1954, he promptly picked up pen and paper and wrote back in his own long hand:

“Dear Mr. Mulla, I thank you for your letter and your poems.  I have read them and I think that you should stick to the law.”

Providential for Mulla that Tennyson wrote back.

Just imagine – if Tennyson had not written back to Mulla, and Mulla had embarked on his urge to write poetry abandoning the legal profession, the entire jurisprudence of modern India would have been the poorer!

Mulla was a great jurist – ending up as Pricy Councillor – but not a very good advocate in his time.

K.L. Misra however was one of the most powerful advocates of his time and one of the most persuasive.  

It is recorded that the 14^th Chief Justice the U.S.S.C. from 1953 to 1969 - Earl Warren told Kanhaiya Lal Misra after meeting him and hearing him speak at Varanasi that if they had Counsel like him back home in the United States he as Chief Justice would waive the time limit to hear such counsel!  Great tribute to a great Advocate by a great Judge.

I had the privilege of listening to him arguing – a criminal appeal - in the Bombay High Court when he was there for about a month, in the nineteen sixties. 

He treated the Court with utmost courtesy a treatment which was reciprocated by the Bench.  He did not succeed in the case and the Judges kept questioning him, questions which he coolly and politely answered.  He knew - like what all great advocates know - that to lose your temper at a Judge is losing half the battle in Court. If you have a temper and get upset at what the judge sometimes says control your temper, and if your temper is uncontrollable find some excuse to get angry with your junior, sitting next to you it this is one of the tricks of the trade! –

The Judge will come to the rescue of your junior because he will think you are unnecessarily losing your temper on a young man who is trying to assist you!

Kanhaiyalal knew the “tricks of the trade” – remember the expression “tricks of the trade” is not a disparaging remark.  It is a mark of appreciation for a person steeped in the fine art of advocacy, which after all is the art of gently persuading the Judge to your point of view.

Lessons on advocacy are often imbibed from the great and successful.

Quintin Hogg – later Lord Hailsham of St Marylebone – writes about the very useful lesson on advocacy that he (then a totally inexperienced pupil at the Bar) learnt from Wilfred Greene MR.

Quintin Hogg was sitting next to him one night at dinner, when he (Wilfred Greene) suddenly asked him a question.

GREENE: Supposing you were instructed in a case where you had two points to argue, both of them bad, but one worse than the other, which would you argue first?

HAILSHAM (Then a young lawyer): I suppose I would argue the less bad of the two.

GREENE: Quite wrong. You must argue the worse, and put your very best work into it. Eventually the Judges will drive you into a corner, and you will have to admit defeat. You will then say,

‘My Lords, there is another point I am instructed to argue. But I am not quite sure how to put it.’

And you will then put the better of the two arguments,but not quite as well as it could or should be put.

(After a little while) One of the old gentlemen on the Bench will interrupt you.

He will say, ‘But surely Mr. Greene, you might put it in this way.’

And he will put it exactly as you really ought to have put it in the first place.’

And then,but only then, you will be at least half way to winning your case!

It is an illusion to think that great cases are won or lost because of their inherent strengthen or weakness.   Advocacy plays a vital role, simply because the Judge is also human like the Advocate – the only difference is he or she is trained to control emotions better.

I wish you all the best of luck in becoming Advocate.

Whether Commercial Disputes under Arbitration Reference shall be Governed by the Commercial Courts Act or the Arbitration and Conciliation Act ?

(By K.L.Varghese, Sr. Advocate, High Court of Kerala)

With the assistance of Sri. Rahul Varghese & Ranjith Varghese, Advocates

 

1.1  In our Article “CONSTITUTION OF COMMERCIAL COURTS AND APPELLATE COURTS IN KERALA, WHETHER REQUIRES A RELOOK – AN OVERVIEW” published in KLT Journal 2021 Vol.1 Part 5 dated February 1st, 2021, in the opening paragraph I “INTRODUCTION: THE GENESIS OF THE COMMERCIAL COURTS ACT, 2015 AND 2018”, specific reference had been drawn to two Law Commission Reports and the ‘Proposal for constitution of Hi-tech Fast Track Commercial Divisions in High Courts’, suggesting that commercial suits of high pecuniary value, shall go directly before the ‘Commercial Division’ of the High Court adopting a ‘fast track’ procedure with high tech facilities of video conferencing and so on, with the intent to send a clear message of faster disposal of commercial disputes in India, to all stakeholders.

1.2  Before reaching our conclusion, again reference had been drawn to the anxiety and anguish expressed by Justice Jagannadha Rao, then Chairman of the Law Commission in the 188th Law Commission Report which reads as follows:

“There is a recent spate of judgments of the US and UK Commercial Courts declaring that the Indian Court system has “collapsed” because there are delays upto twenty years or more, and that, therefore Indian defendants can be sued in US and UK Commercial Courts, even if there is no cause of action in those countries, provided the Indian defendant has a branch or local representative in that country or is trading in the stock exchange of that country. This trend has to be immediately reversed by bringing in ‘fast-track, high-tech Commercial Divisions’ in all the High Courts. The Commission is of the view that the overall benefits that may accrue by way of increased investment in India, both from domestic and foreign investors, will be in hundreds of millions of dollars and the expense in constituting these fast-track, high-tech Divisions in High Courts will only be a very small fraction thereof.”     (emphasis supplied)

The message is clear, eloquent and self speaking.

1.3 In the Article, conclusion was as follows:

“While the Commercial Court Act of 2015 was enacted with the intention for speedy and quick resolution of high value commercial disputes, in view of the amendments brought about to the Act in 2018 and consequent designating of Principal Sub Court as Commercial Court with appeal to the Principal District Court as Commercial Appellate Court, the objectives for setting up such Commercial Courts seems to have been negated in practice”.

This is particularly so because the ‘specified value’ as per the amendment has been sliced down from One crore rupees to meagre three lakhs rupees, which is evidently without proper application of mind to the object of the statute.

1.4 Incidentally, under para XII “PROPOSAL OR SUGGESTIONS IN ORDER TO MAKE THE ACT MORE EFFECTIVE AND RESULT ORIENTED IN STATES LIKE KERALA” a suggestion was made:

“Considering the number of cases involved, there can be more than one Commercial Court at the Subordinate Judge’s level and District Judge’s level, as in the case of all District Courts which were dealing with arbitration cases, on the principle of coordinate power, notwithstanding the hierarchy”.

Under para X of the Article relating to “PENDENCY OF CASES RELATING TO DISPUTES UNDER ARBITRATION IN KERALA”, it was pointed out that as on 18.01.2021 in the District of Wayanad, pendency of arbitration cases alone was to the extent of 37 whereas in the District of Ernakulam it was around 1591. This was to focus on the point that in Wayanad one Commercial Court may be able to deal with the cases whereas it would be practically impossible for the Principal Sub Judge alone in Ernakulam, by any stretch of imagination, to handle such a vast number of arbitration cases single handed. It is a welcome step, the Hon’ble High Court has decided to designate all the Subordinate Judge’s Courts as Commercial Courts.

1.5  As per the statistics in the website, the number of arbitrations, mainly miscellaneous, as on 25.10.2021 has risen to 2055 against the 756 number of commercial suits. With such a vast variation between the number of commercial cases falling under the Arbitration Act and Commercial Courts Act a relook into the provisions of the Commercial Courts Act dealing with commercial disputes which fall under the Arbitration and Conciliation Act is required. The interplay between the above statutes requires the immediate attention of our High Court as also the Government.

2.0 Glaring anomalies in the Commercial Courts Act, 2015 after the amendment in 2018.

2.1 Questions without answer in the Commercial Courts Act after 2018 amendment

There are only very few provisions in the Commercial Courts Act relating to arbitration, like Section 10 regarding jurisdiction of the Commercial Court to deal with arbitration matters, Section 13(1A) Proviso referring to Section 37 of the A & C Act and Section 15 transfer of cases including applications under A & C Act pending before District Courts to Subordinate Judge’s Court, functioning as Commercial Courts and so on.

2.2 Let us have a glance through Section 10 of the Commercial Courts Act which is extracted hereunder for ease of reference:

“10. Jurisdiction in respect of arbitration matters. – Where the subject-matter of an arbitration is a commercial dispute of a Specified Value and –

(1) If such arbitration is an international commercial arbitration, all applications or appeals arising out of such arbitration under the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) that have been filed in a High Court, shall be heard and disposed of by the Commercial Division where such Commercial Division has been constituted in such High Court.

(2)  If such arbitration is other than an international commercial arbitration, all applications or appeals arising out of such arbitration under the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) that have been filed on the original side of the High Court, shall be heard and disposed of by the Commercial Division where such Commercial Division has been constituted in such High Court.

(3) If such arbitration is other than an international commercial arbitration, all applications or appeals arising out of such arbitration under the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) that would ordinarily lie before any principal Civil Court of original jurisdiction in a district (not being a High Court) shall be filed in, and heard and disposed of by the Commercial Court exercising territorial jurisdiction over such arbitration where such Commercial Court has been constituted.      (emphasis supplied)

2.3  Section 10(1) deals with international commercial arbitration. All applications or appeals arising out of such arbitration under the provisions of the Arbitration and Conciliation Act, 1996 (A & C Act for short) filed in a High Court, shall be heard and disposed of by the Commercial Division where such Commercial Division has been constituted. The expression “where such Commercial Division has been constituted” shows, the Legislature was aware that in 2018 when the amendment was brought in the Commercial Courts Act, 2015 there were States which might not have constituted Commercial Division in the High Courts (like in Kerala).

Section 10(2) and Section 10(3) relate to arbitration other than international commercial arbitration i.e. domestic arbitration. If the applications or appeals are filed from the original side of the High Court, it shall be heard and disposed of by the Commercial Division where such Commercial Division has been constituted. (not applicable in Kerala) Naturally, a question arises, which is the forum in case of an international commercial arbitration like the one under Section 10(1), if a Commercial Division is not constituted in the High Court (like Kerala). A glance through the entire Act provides - no answer.

2.4 Let us have a look at Section 3(3) of the Commercial Courts Act as amended in 2018 which reads, “The State Government may, with the concurrence of the Chief Justice of the High Court, appoint one or more persons having experience in dealing with commercial disputes to be the Judge or Judges, of a Commercial Court either at the level of District Judge or a Court below the level of a District Judge”. Naturally, a doubt arises why both the District Judge and a Judge below the level of a District Judge (i.e. the Subordinate Judge) in the self-same District be designated as Commercial Court? – no answer.

2.5 Again, let us have a look at Section 3-A with the title “Designation of Commercial Appellate Courts” which reads as under:

“3-A. Designation of Commercial Appellate Courts.– Except the territories over which the High Courts have ordinary original civil jurisdiction, the State Government may, after consultation with the concerned High Court, by notification, designate such number of Commercial Appellate Courts at District Judge level, as it may deem necessary, for the purposes of exercising the jurisdiction and powers conferred on those Courts under this Act”.              (emphasis supplied)

This amended provision shows that except in the territories over which the High Courts have ordinary original civil jurisdiction (i.e., Bombay, Calcutta and Madras as also Delhi and Himachal Pradesh), the State Government in other States can designate such number of Commercial Appellate Courts at District Judge level, as it may deem necessary. This provision raises further doubts.

Can a District Judge be designated as a Commercial Court under Section 3(3) and at the same time be designated as Commercial Appellate Court, if so, why? – no answer.

Again, if the answer is in the affirmative, what is the demarcation line between the District Judge functioning as Commercial Court under Section 3(3) and the District Judge functioning as Appellate Court under Section 3(A) - no answer.

2.6 Section 13(1) shows that appeal from the Commercial Court below the level of a District Judge (i.e. the Subordinate Judge) shall lie to the Commercial Appellate Court (i.e. District Judge) and the time limit is 60 days from the date of judgment or order.

The proviso to Section 13(1-A) refers to an appeal from orders passed by a Commercial Division (not applicable to Kerala) or a Commercial Court (as in Kerala) which are specifically enumerated under Order XLIII of the Code of Civil Procedure and as amended as per Section 16 of the Commercial Courts Act and Section 37 of the Arbitration and Conciliation Act.

Evidently, the proviso refers to appeal under orders passed under the Commercial Courts Act, 2015 relating to commercial disputes under CPC as amended by Commercial Courts Act, 2018 as per Section 16 as also orders passed under the A & C Act providing appeal under Section 37 of the said Act. Naturally a question arises, for the appeals under Section 37 of the A & C Act from the orders passed by the Commercial Court, what is the limitation period, whether it is 60 days as provided in Section 13(1) of the Commercial Courts Act or 90 days as provided in Article 116 of the Limitation Act which is applicable to appeals under Section 37 of the A & C Act? - no answer.

2.7  Since the specified value (pecuniary jurisdiction) of the Commercial Court is three lakhs rupees and above, if there is an arbitral award for less than three lakhs rupees (now sought to be enhanced to `10 lakhs) naturally it has to be dealt with by the District Court. If so, what is the reason for the dichotomy i.e. arbitration award of three lakhs rupees or ten lakhs whatever it be, it can be dealt with by the Subordinate Judge whereas below three lakhs or ten lakhs has to be dealt with by the District Court? – no answer.

2.8 Section 16 of the Commercial Courts Act indicates that the amended provisions of CPC as in the Schedule to the Commercial Courts Act shall apply to the proceedings before the Commercial Courts including provisions relating to submission of plaint, written statement, affidavits, disclosure, discovery and inspection of documents in suits, production of documents, case management hearing, adducing evidence and so on. If so, there arises a question, how can such provisions be made applicable to any proceeding before the Arbitral Tribunal or before the Commercial Court dealing with cases falling under arbitration? – no answer.

3.0 A second look or a close look at the same provisions

3.1  Even though the Commercial Courts Act, 2015 as amended in 2018 does not give a proper answer to the above questions, if we have a second look at the same provisions with a positive mind, we can find a definite answer, an answer immensely required at present, in view of the fact that our High Court would have no judicial role at all, as per the Commercial Courts Act now in force, since all the 21 items of commercial suits defined under Section 2(1)(c) of the Commercial Courts Act have to be dealt with by the Subordinate Judge’s Court in the capacity of the Commercial Courts and the District Judge as the Appellate Court. Section 12(3) bars further appeal or civil revision application under Section 115 of the Code of Civil Procedure and naturally proceedings under Article 227 of the Constitution of India as well [as held in Pranathmaka Ayurvedics Pvt. Ltd. v. Cocosath Health Products (2020 (6) KLT 620).

3.2 Reasoning for the above submission

Let us have a look at Sections 10 and 11 of the Commercial Courts Act once again. Section 10 deals with vesting of jurisdiction of Courts under the Commercial Courts Act, in respect of arbitration matters whereas Section 11 bars jurisdiction of the self-same Commercial Courts and Commercial Divisions.

3.3  Section 11 reads as follows:

11. Bar of jurisdiction of Commercial Courts and Commercial Divisions.– Notwithstanding anything contained in this Act, a Commercial Court or a Commercial Division shall not entertain or decide any suit, application or proceedings relating to any commercial dispute in respect of which the jurisdiction of the Civil Court is either expressly or impliedly barred under any other law for the time being in force”.   (emphasis supplied)

3.4  Avoiding the expression ‘Commercial Division’ which repeatedly appears in Section 11 and elsewhere (since not applicable in Kerala) simple reading of Section 11 tells us:

(i) The Section starts with a non-obstante clause.

(ii) The Commercial Court shall not entertain or decide any suit, application or proceedings relating to any commercial dispute in respect of which the jurisdiction of the Civil Court (Commercial Court in this context) is either expressly or impliedly barred under any other law for the time being in force.

(iii) It means, there can be a statutory bar against a Commercial Court dealing with commercial disputes.

(iv) The bar is in respect of exercise of jurisdiction of a Civil Court (i.e. Commercial Court) either expressly or impliedly barred under “any other law for the time being in force”.

(v) If so, the question is whether there is any ‘other law for the time being in force’ which bars the jurisdiction of Civil Court (i.e. Commercial Court) in respect of dealing with a commercial dispute. The answer is -yes.

In order to find out the answer, we may have to refer to the definition of the ‘court’ under the A & C Act Section 2(1)(e) which reads as under:

“2(1)(e) “court” means–

(i) in the case of an arbitration other than international commercial arbitration, the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any Civil Court of a grade inferior to such principal Civil Court, or any Court of Small Causes’.                                                             (emphasis supplied)

3.5  For easy reference purpose, Section 2(1)(e)(i) may be sufficient, in this context, because Section 2(1)(e)(ii) refers to cases of international commercial arbitration in High Courts exercising ordinary original civil jurisdiction and otherwise the High Court having jurisdiction to hear appeals from decrees of courts subordinate to the High Court, which also may not be applicable in Kerala (if the ‘Subordinate Court’ is the Commercial Court no appeal will lie to the High Court because of Section 3A appellate jurisdiction of the District Court and the bar under Section 12(3) against further Appeal or Revision).

Section 2(1)(e)(i) which, we are very much acquainted with now, defines the ‘court’ “as the principal Civil Court of original jurisdiction in a district having jurisdiction to decide the questions on the subject-matter of the arbitration”. The section further provides that the case has to be the subject-matter of a suit which forms the subject-matter of arbitration. It is followed by an exclusion which reads, “but does not include any Civil Court of a grade inferior to such principal Civil Court, or any Court of Small Causes”.

3.6 To put it simply, Section 10 of the Commercial Courts Act confers jurisdiction on the Commercial Courts to deal with the arbitration matters in the case of international commercial arbitration under sub-section (1) only and in cases other than international commercial arbitration i.e. Domestic Arbitration under sub-sections (2) and (3). The bar under Section 11 takes away jurisdiction of the Commercial Courts if there is an express or implied bar under any other law for the time being in force. This takes us to the expression ‘court’ defined under the A & C Act. Clubbing together Section 11 of the Commercial Courts Act and definition under Section 2(1)(e) of the A & C Act, it would read, ‘in order to deal with any commercial dispute, if the same is covered by an arbitration clause, jurisdiction is vested only on the ‘District Court’ because the Commercial Courts Act itself under Section 11, bars the jurisdiction of Commercial Courts.

3.7  If the above interpretation is agreed to and implemented we can find positive answers to all the other questions as above in paras 2.3 to 2.8.

(i) Why Section 3(3) of the Commercial Courts Act confers power on the State Government to constitute Commercial Court at the level of (i) a District Judge as also (ii) below the level of a District Judge? The answer is, with respect to the commercial disputes falling under arbitration clause or arbitration reference, only the District Judge has power to deal with such matters under arbitration in the capacity of the Commercial Court and all other cases to be dealt with as per Civil Law, shall be by the Subordinate Judge’s Court.

(ii) Why District Judge is conferred with power in dual capacity i.e. ‘Commercial Court’ under Section 3(3) and ‘Commercial Appellate Court’ under amended Section 3-A?

The answer is, in respect of commercial disputes not falling under the provision for arbitration, Commercial Court will be the Subordinate Judge’s Court and ‘Commercial Appellate Court’ will be the District Judge’s Court whereas regarding the same commercial disputes falling under arbitration, the District Judge’s Court will be the Commercial Court as per Section 2(1)(e) of the A & C Act read with Section 11 of the Commercial Courts Act, in which case appeal shall be under Section 37(1) of the A & C Act and it shall lie only before the High Court. Of course, appeals from Section 17 order passed by the Arbitration Tribunal shall be before the District Court under Section 37(2) of the A & C Act.

(iii) In the above scenario, the Court as per Section 2(1)(e) of the A & C Act in the case of international commercial arbitration in States like Kerala shall be dealt with by the ‘High Court having jurisdiction to hear appeals from the decrees of a court subordinate to the High Court’ under Section 2(1)(e)(ii) i.e. the District Court.

(iv) Regarding the question as to appeals under Section 37(1) and (2) of the Arbitration Act there cannot be any confusion relating to the time limit or limitation. It will be 90 days as per Article 136 of the Limitation Act which has been prevalent all along.

(v) Since the minimum specified value relating to commercial dispute is `3 lakhs as of now, if there is an arbitral award with pecuniary value of less than `3 lakhs, naturally District Judge’s Court alone can deal with such awards and related applications avoiding the embarrassing situation as stated earlier.

(vi) If the provisions of the Arbitration and Conciliation Act are made applicable to proceedings relating to commercial disputes falling under the A & C Act, there can be definitely a demarcation of application of Section 19 and the Schedule thereto confining to proceedings relating to commercial court cases other than those falling under arbitration, in which case, those cases falling under arbitration can be exclusively dealt with by the provisions of the A & C Act, as before. This will be conducive with Section 5 of the Arbitration Act as such, which stipulates that “Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part (Part I of A & C Act) no judicial authority shall intervene except where so provided in this Part”.

4.0 Other Advantages

4.1 If we adopt the above interpretation and reasoning and the power of the District Court to deal with applications under Sections 8, 9, 34, 36 and 37 of the A & C Act, “the bar under any other law for the time being in force” in Section 11 of the Commercial Courts Act compel us to be governed by the provisions of the Arbitration and Conciliation Act, 1996 which is a self contained code providing for all situations relating to all the applications as also appeals under the A & C Act. Thus the judicial role lost to the High Court on account of 2018 amendment in the Commercial Courts Act, 2015 can be restored on the High Court, at least in the appellate stage, in case of commercial disputes falling under the arbitration agreement; naturally all other provisions of the A & C Act as such will be applicable.

4.2 It may be pointed out, as on 27.10.2021 against 773 commercial suits (and related cases), the arbitration cases pending in Ernakulam District alone is 2087. In Kerala, all the districts put together the arbitration cases pending is 3696 and commercial suits and related cases 3404. If the Commercial Court turns to be the District Judge’s Court (all the District Courts with cognate powers) as before in respect of arbitration matters, there can be fast or faster disposal of cases. In effect, all the commercial disputes under arbitration can be dealt with by all the District Courts (as it was prevailing earlier) and commercial disputes other than those falling under the A & C Act, can be decided by all the Subordinate Courts, which will pave way for faster disposal. In such a scenario, the High Court as the Appellate Court can decide whether all the appeals under Section 37(1) of the A & C Act should be decided by the Division Bench alone or considering the pecuniary value, power can be vested on the Single Judge of the High Court as is being done in the case of other civil cases with pecuniary jurisdiction upto Rs.40 lakhs before the Single Judge and beyond the limit of Rs.40 lakhs, before the Division Bench.

5.0 The point at issue is no more “res integra”

5.1 The Hon’ble Supreme Court in Kandla Export Corporation & Anr.v.OCI Corporation& Anr. (2018 (2) KLT OnLine 3109 (SC) = (2018) 14 SCC 715), referring to Section 13(2) of the Commercial Courts Act as amended in 2018 has accepted the dictum laid down in Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2011 (3) KLT SN 56 (C.No.55) SC = (2011) 8 SCC 333) to the effect that the Arbitration Act itself is a ‘self contained code’ providing for various situations which cannot be ignored. The provisions of the ‘Arbitration Act, as amended’ conflict with the provisions of the ‘Commercial Courts Act’, with respect to the definition of ‘Court’ and as such A & C Act, the Special Statute, should govern the arbitration cases.

5.2  In para 19 of the above decision, referring to Union of India v. Mohindra Supply Co. (1962) 3 SCR 497 and Fuerst Day Lawson case, (2011 (3) KLT SN 56 (C.No.55) SC = (2011) 8 SCC 333), holding that the Arbitration Act, 1996 which consolidates, amends and designs the law relating to arbitration to bring it, as much as possible, in harmony with the UNCITRAL Model and is a ‘self-contained code’ and exhaustive. Ultimately it was held in para 27 reading, “Even on applying the doctrine of harmonious construction of both statutes, it is clear that they are best harmonized by giving effect to the special statute i.e. the Arbitration Act, vis-à-vis the more general statute, namely, the Commercial Courts Act, being left to operate in spheres other than arbitration”. Under Article 141 of the Constitution of India, this ruling has the force of law throughout India.

5.3 In yet another decision of the Apex Court in Civil Appeal Nos. 4492-4493 of 2021, Amazon.com NV Investment Holdings LLC v. Future Retail Limited and others (2021 (4) KLT OnLine 1016 (SC) = 2021(5) KLT SN 42 (C.No.31) SC = LL 2021 SC 357) referring to Kandla Export Corporation v. OCI Corporation (supra) which in turn has referred to Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2011 (3) KLT SN 56 (C.No.55) SC = (2011) 8 SCC 333) and Sumitomo Corpn. v. CDC Financial Services (Mauritius) Ltd., (2008 (3) KLT Suppl. 1172 (SC) = (2008) 4 SCC 91), Deep Industries Ltd. v. ONGC, (2020 (1) KLT OnLine 1108 (SC) = (2020) 15 SCC 706) which in turn has referred to Union of India v. Varindera Constructions Ltd., ((2020) 2 SCC 111) and BGS SGS SOMA JV v. NHPC, (2019 (4) KLT OnLine 3104 (SC) = (2020) 4 SCC 234) as also Sections 13(1-A) relating to appeals as per the Commercial Courts Act and occurrence of Section 37 of the Arbitration and Conciliation Act, 1996 in the proviso to Section 13(1-A) and significance of Section 37(1) relating to appeal from orders, the apex court opined that there can be no doubt that Section 37 of the Arbitration and Conciliation Act is a complete code so far as appeals from orders and awards made under the Arbitration and Conciliation Act are concerned which has been strengthened by adding non-obstante clause by the Arbitration and Conciliation (Amendment Act, 2019). In the very judgment in para 69, the Apex Court has stated as under:

“69. We now come to the appeal provision in the Arbitration Act. There can be no doubt that Section 37 is a complete code so far as appeals from orders and awards made under the Arbitration Act are concerned. This has further been strengthened by the addition of the non-obstante clause by the Arbitration and Conciliation (Amendment) Act, 2019”.            (emphasis supplied)

6.0 Law followed by other High Courts

6.1  Is there any other High Court adopting the criteria as above i.e. in case of commercial disputes falling under the arbitration agreement or arbitration reference, the provisions of the Arbitration Act shall prevail? The answer is ‘yes’.

In States like Gujarat, though a similar notification as in Kerala was passed on 15.04.2019 designating Senior Civil Judges/Judges of Small Causes Court as Commercial Courts, as regards arbitration matter, in Kirtikumar Futamal Jain v. Valencia Corporation (2019 SCC OnLine Guj.3972) it was held that notification designating Courts at District level i.e. Subordinate Judge’s level, below or inferior to the ‘Court’ as defined in Section 2(1)(e) of the Arbitration Act i.e. District Judge’s Court would not be applicable being contrary to the Arbitration Act and effect has to be given to the Arbitration Act being a Special statute. This was again reiterated and followed in a Division Bench ruling of the same High Court in Fun N. Fudu v. GLK Associates (2019 SCC OnLine Guj. 4236).

6.2  The decisions of the Rajastan High Court in Hindustan Copper Ltd. v. Bhagwathi Gases Ltd., (2005) 4 WLC 251 and yet another decision in Hindustan Copper Ltd. v. Paramount Ltd. (2018 SCC OnLine Raj. 3055) were also to the same effect.

6.3  The High Court of Madhya Pradesh in Yashwardhan Raghuwanshi v. District & Sessions Judge and another (2021 SCC OnLine MP 457), after referring to the definition of ‘Court’ under the A & C Act and the Commercial Courts Act, and constitution and jurisdiction of commercial courts in respect of arbitration matters under Sections 10 and 15 of the Commercial Courts Act (governing transfer of pending arbitration cases) and with reference to Gujarat High Court DB decision, in Fun N. Fudu v. GLK Associates, (2019 SCC OnLine Guj. 4236) as also the decision of the Apex Court, in Kandla Export case, (2018) 14 SCC 715 and yet another decision of the Apex Court in State of Maharashtra v. Atlanta Ltd., (2014) 11 SCC 619, has held that Section 2(1)(e) of the Arbitration Act contains an ‘exhaustive definition’ marking out only the Principal Civil Court of original jurisdiction in a district or a High Court having original civil jurisdiction in the State, and no other court shall have jurisdiction as ‘court’ for the purpose of Part 1 of the Arbitration Act .

6.4 In this context, the observation in para 16 of the above judgment is eloquent and self speaking:

“16. It would be thus evident from the language employed by the Legislature in the definition clause of “Court” in Section 2(1)(e) of the Arbitration Act that it intended to confer power in respect of the disputes involving arbitration on the highest judicial Court of a District so as to minimize the supervisory role of the Courts in the arbitral process and, therefore, purposely excluded any Civil Court of grade inferior to such Principal Civil Court, or any Court of Small Causes. The Court of superior most jurisdiction in a District is the Court of District Judge as interpreted by the Supreme Court in the case of Atlanta Limited (supra). The jurisdiction in respect of arbitration matter is provided in Section 10 of the Commercial Courts Act and Section 15 thereof contemplates transfer of all suits and applications including the application under the Arbitration Act pending in Civil Courts in any district or pending in High Court where Commercial Division is constituted or area in respect of which the Commercial Courts have been constituted. While Section 11 of the Commercial Courts Act bars the jurisdiction of a Commercial Court or a Commercial Division to entertain or decide any suit, application or proceedings relating to any commercial dispute in respect of which the jurisdiction of the Civil Court is either expressly or impliedly barred under any other law for the time being in force. Section 21 of the Commercial Courts Act stipulates that save as otherwise provided, the provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law for the time being in force other than this Act. Segregation of an arbitration matters on the basis of a pecuniary limit is not what the law provides for. All the arbitration matters, irrespective of the value of claim, are required to be adjudicated by Principal Civil Court of original jurisdiction. Therefore, it is clear that in respect of commercial disputes involving an arbitration dispute only the Commercial Court of the status of District Judge or Additional District Judge should be the competent court to entertain the matters under Sections 9, 14, 34 & 36 of the Arbitration Act. …..             (emphasis supplied)

If so, there is no reason why Kerala High Court cannot follow the same rule of law.

7.1 This discussion will not be complete, we feel, without mentioning that while three High Courts have held as above, the Goa Bench of the Bombay High Court has taken a contrary view. Two Special Leave to Appeals were filed before the Hon’ble Supreme Court from the decision of the High Court of Gujarat in Kirtikumar Futarmal Jain v. Valencia Corporation, 2019 SCC OnLine Guj 3972 and Sonia Gaurang Suctancar v. Gaurang Mangesh Suctancar, LD-VC-CW-88-2020, a decision of the High Court of Bombay at Goa. Since the parties had approached the Apex Court with two conflicting judgments, both the cases were listed for hearing on 08.09.2021 by two different benches after admission and after repeated adjournments because of ‘Covid’ pandemic conditions and restrictions. However, the Apex Court had no occasion to consider the divergent opinions of the different High Courts on the above point at issue, because the parties in the decision of Goa Bench, agreed to resolve the disputes between themselves and the SLP was disposed of recording their terms of settlement. On the other hand, in respect of the case from Gujarat High Court, the aggrieved party did not press the point of law relating to the question whether the A & C Act shall govern the proceedings before the Commercial Court, if the commercial dispute falls under the arbitration agreement. It seems, the Apex Court was also not inclined to go to that question at all, though it was an issue before the learned Judges when admitted the SLP; may be, apparently being convinced that the judgment of the Gujarat High Court was not be interfered and thus the Apex Court dismissed the case on merits.

7.2  We feel, the decision of the Goa Bench of the Bombay High Court in Gaurang Manguesh Suctancar v. Sonia Gaurang Suctancar, LD-VC-CW-88-2020 can be distin-guished on the point at issue considered by the learned Judge. Of course, we have to admire the beautiful analytical study of the provisions of the Commercial Courts Act and exposition of law as per the learned Judge with flowery language indicating the legal acumen. We feel, the learned Judge was focusing on a different issue rather than the issue we are confronting. In para 2 of the decision, the learned Judge has asked the question, for an application under Section 9 of the A & C Act, which is the forum?, Whether the ‘court’ defined under the Arbitration Act or Section 3(1) of the Commercial Courts Act? In para 54, with reference to Section 11, the bar of jurisdiction of Commercial Courts, the learned Judge observes, “I fail to understand how this provision affects the issue before me”…. and holds that the Legislature has constituted a ‘specialised’ forum for the adjudication of commercial disputes and commercial court displaces the civil court with an inference, “Thus it not only enjoys civil court’s powers but also suffers from its limitations”. Evidently, the import of Section 11 ‘bar of jurisdiction of Commercial Courts’ in respect of commercial disputes falling under arbitration has escaped the learned Judge’s attention. Resultantly, in para 95, the learned Judge has observed that “because the Commercial Courts have been established, ‘all applications’ under the Arbitration Act should go before the Commercial Courts” which apparently is ignoring the statutory mandate of Section 11 of the Commercial Courts Act excluding the jurisdiction of the Commercial Court with substitution of ‘principal Civil Court of original jurisdiction’ in case of commercial disputes falling under arbitration. As such with all due respect, it is submitted that the said decision is not right on the point on which we are concerned.

8.0 We may also add that Writ Petitions and appeals were also filed before our High Court. Few of the cases were seeking for interference for designating all the Subordinate Judge’s Court as Commercial Courts. It is understood that the Full Court has already issued orders to that effect. Thus, the grievance expressed in those cases stands redressed. Still there are Writs pending relating to the question whether the proceedings relating to commercial disputes under arbitration shall be governed by the provisions of the A & C Act, 1996 in place of the provisions of the Commercial Courts Act, 2015 as amended in 2018.

9.1  Even though a Single Bench decision of our High Court has already come out indicating that in view of the bar under Section 12(3) of the Commercial Courts Act barring appeal or civil revision application under Section 115 of the Code of Civil Procedure, naturally a Writ Petition under Article 227 also cannot be entertained (Ref: Pranathmaka Ayurvedics Pvt. Ltd. v. Cocosath Health Products (2020 (6) KLT 620), it requires reconsideration, Article 227 being part of the Constitution of India, which cannot be abrogated by a statute.

9.2 In this context, reference is drawn to the decision of the Supreme Court in Deep Industries v. ONGC, (2020) 15 SCC 706. While considering a case where a party had invoked remedy under Art. 227 of the Constitution before the High Court, having failed in appeal under Section 37(2) of the Arbitration Act against the order of the arbitral tribunal under Section 17, referring to Non Obstante Clause in Section 5 and Section 37 of the Arbitration Act, the Apex Court held that Section 37 provides for a constricted right of first appeal against certain judgments and orders and no others. It was also held that if petitions were to be filed under Articles 226/227 of the Constitution against orders passed in appeals under Section 37, the entire arbitral process would be derailed and would not come to fruition for many years and at the same time Art. 227 was untouched by the Non Obstante Clause of Section 5 of the Act. The Court held that though petitions can be filed under Article 227 against judgments allowing or disallowing first appeals under Section 37 of the Act, yet the High Court should be extremely circumspect in interfering with the same, taking into account the statutory policy so that interference is restricted to orders that are passed which are patently lacking in inherent jurisdiction. Therefore, the supervisory role of the High Court under Article 227 cannot be declined in case of an error in an order passed by the District Judges under Section 37(2)(b) while acting as the ‘Court’ under the said provision. It will be possible only if the definition of ‘Court’ under the Arbitration Act is adopted for the ‘Commercial Court’ so that the power of review can be exercised by the High Court under Article 227, for rendering complete justice in the interest of remedying any situation resulting in gross injustice in the order under Section 37(2) of the Arbitration Act.

10.0 We may hasten to add that there may arise a doubt as to whether it is proper to address this issue through an Article while the Writ Petition is pending. The simple answer is that as per the past experience disposal of the Writ Petition, if it is opposed, may have to undergo the usual procedure of filing Counter Affidavit and Reply Affidavit, if any, followed by hearing on merits and possible Writ Appeal by either of the parties aggrieved by the decision of the Single Bench, and it may go to the Apex Court even, which would again take its own time for final authoritative pronouncement. In the meantime, there would be disposal of cases under arbitration according to the provisions of the Commercial Courts Act, especially since all the Subordinate Judges have been designated as Commercial Courts and in case the rule of law ultimately to be passed by the Apex Court is accepting that the Arbitration and Conciliation Act shall prevail over the Commercial Courts Act relating to adjudication of commercial disputes under arbitration, particularly in view of the judgments of the High Courts in Gujarat, Rajasthan and Madhya Pradesh as stated above, all such cases decided by the Subordinate Judge’s Court in the first round and appeals before the District Judges in the second round, may be hit on the question of ‘want of jurisdiction’ which will create an embarrassing situation. Definitely it will go against the noble intention of ‘speedy disposal of commercial disputes’ including those commercial disputes between the parties within India and outside India, falling under the realm of international commercial arbitration, creating an embarrassing situation.

11.0 It is in all fairness, considering the anomalous situations as explained above, which would have the effect of defeating the very purpose and spirit in the objects of both the enactments and to create a loud thinking on the points at issue by all concerned (including all stakeholders in the field of trade and commerce) this article is brought out, so that there can be a just, fair and final solution in the matter either by the court of law or through appropriate amendments by the Central/State Government concerned since Arbitration and Code of Civil Procedure fall within Concurrent List in the Seventh Schedule under Article 246 of the Constitution of India.

12.0 Needless to add, suggestions and constructive criticism are always welcome.