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AUGUST 2020. Vol. XIII, Issue VIII

E-337, East of KailashNew Delhi - 110065, INDIA

GURUGRAMS&A Tower, Plot No. 5,6,7Udyog Vihar, Phase IVGurugram, Haryana 122008, INDIA

BENGALURUUnit No. 101, 10th Floor, Sakhar BhavanPlot No. 230, Ramnath Goenka MargNariman Point, Mumbai - 400021, INDIA

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®INDIAN LEGAL IMPETUS

S i n g h a n d A s s o c i a t e s

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Manoj K. Singh Founding Partner

EDITORIAL

Dear Friends,

We are pleased to present the August 2020 edition of our monthly newsletter “Indian Legal impetus”. In this edition we have covered recent developments, case laws and issues relating to various disciplines of law in India.

The first article makes a comprehensive analysis on the liquidation process under the Insolvency and Bankruptcy Code, 2016.

It is followed by a case note on the recent Supreme Court judgment in Arjun Panditrao Khotkar vs Kailash Khushanlal Gorantyal in respect to the requirements for admissibility of electronic evidence under Section 65B of the Indian Evidence Act, 1872.

In this current pandemic situation, the third article discusses the impact of Covid-19 on tourism industry and also explores the relief measures under the Goods and Services Tax (GST) law to minimize the impact of pandemic on this industry.

Going further, the next article throws light upon the recent legal developments in relation to Covid-19 effect on sports and legal obligations due to cancellation of events. The article highlights the legal and contractual obligations of the parties considering the force majeure clause and the common law principle of frustration of contract as per Indian Contract Act, 1872.

The fifth articles expound on the recent judgment passed by the Hon’ble Supreme Court in Johnny Paul Pierce vs. The Union of India, which discusses the rights of foreign nationals under Article 19 (1) (e) of the Constitution of India.

Going further, the sixth article discusses in detail the definition of Murder and Culpable Homicide under Indian Penal Code, 1860 and outlines the differences between these two terms.

In relation to Arbitration law, the next article throws light upon the legality of unilateral appointment of Arbitrator considering the recent judicial pronouncements.

The eighth article discusses whether a decree holder can approach the National Company Law Tribunal (NCLT) for execution of a Decree in light of the recent Judgement pronounced by the NCLAT in case of Sh. Sunil Ansal v. Ashok Tripathi & Ors.

The penultimate write-up deliberates the views on nationwide infringement of right to education and violations of Directive Principles of State Policy’s (DPSP) under the Constitution of India underlining the covid-19 scenario and several legal pronouncements in this regard.

Once again, on the Arbitration law, our final article relates to the critical analysis of the conciliation proceeding under the Arbitration and Conciliation Act, 1996.

We hope that our esteemed readers find this information useful and it also enables them to understand and interpret the recent legal developments. We welcome all kinds of suggestions, opinion, queries or comments from all our readers. You can also send in your valuable insights and thoughts at [email protected]

Thank you

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SINGH & ASSOCIATES ADVOCATES & SOLICITORS

NEW DELHI E-337, East of KailashNew Delhi - 110065, INDIA GURUGRAMS&A Tower, Plot No. 5,6,7Udyog Vihar, Phase IVGurugram, Haryana 122008, INDIAMUMBAI Unit No. 101, 10th Floor, Sakhar BhavanPlot No. 230, Ramnath Goenka MargNariman Point, Mumbai - 400021, INDIABENGALURU Condor Mirage, 101/1, 3rd FloorRichmond Road, Richmond TownBengaluru - 560025, INDIA

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Readers shall not act on the basis of the information provided in the Newsletter without seeking legal advice.

INDIAN LEGAL IMPETUSVolume XIII, Issue VIII

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Co

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Managing Editor Manoj K. Singh

Published by Singh & Associates

Advocates and Solicitors

Editor Kumar Deep

and Ratan Singh

1. Liquidation Process under the Insolvency and Bankruptcy Code. 2016- An Overview 04

2. Supreme Court Revisits the Requirements for Admissibility of Electronic Evidence under Section 65B of the Indian Evidence Act, 1872 08

3. Impact of Covid-19 on Tourism Industry and relief measures 11

4. The Covid-19 Fallouts: Sports and Legal Obligations due to Cancellation of Events 13

5. Rights of Foreign Nationals under Article 19 (1) (e) of the Constitution of India 15

6. Difference between Murder and Culpable Homicide 18

7. Legality of Unilateral Appointment of Arbitrator 23

8. Can a decree holder approach the National Company Law Tribunal for execution of a decree? A Discussion in light of the recent judgement by NCLAT 26

9. Nationwide infringement of Right to Education and Voilation of Directive Principles of State Policy (DPSP) Provided under the Constitution of Country- A Digital Divide 28

10. Critical Analysis of the Conciliation Proceeding under the Arbitration and Conciliation Act, 1996 30

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LIQUIDATION PROCESS UNDER THE INSOLVENCY AND BANKRUPTCY CODE, 2016 - AN OVERVIEW

RAGHAV SHEKHAR

Nearly all discussions and coverages on the Insolvency and Bankruptcy Code, 2016 (“Code”), highlight the process of Resolution of Corporate persons, which is the first objective of the Code. But maximization of value of assets is a close second, and if we refer to the statistics of the matters referred under the Code, we will find that far more cases finally go for Liquidation, hence, it is important to discuss this process.

INITIATION OF LIQUIDATION: Liquidation may be initiated under Section 33 of the Code when Adjudicating Authority (“AA”) either does not receive the Resolution Plan under Section 30(6) of the Code or the maximum period prescribed for corporate insolvency resolution process expires or in case where AA rejects the resolution plan under Section 31 of the Code. Further, the Committee of Creditors (“CoC”) may also, with at least 66 % votes, decide to liquidate the Corporate Debtor (“CD”) under Section 33(2), any time before the resolution plan is approved and the Resolution Professional intimates AA of such decision. Also, if the CD contravenes any terms of an approved resolution plan, any person whose interest is prejudicially affected by such contravention may apply for liquidation of CD.

AA while passing the order of Liquidation of CD, shall direct issuance of public announcement under Section 33(1) of the Code that the CD is in liquidation and require that such order is also sent to registering authority of CD, such as Registrar of Companies in case of companies.

MORATORIUM: As in the Corporate Insolvency Resolution Process, moratorium kicks in on passing of the order of liquidation also. No suit or legal proceedings shall be instituted by or against the CD. However, the liquidator may file such proceedings on behalf of CD, with prior approval of AA.

DIRECTORS AND EMPLOYEES: All powers of the Board of Directors, Key Managerial Personnel and the Partners of the CD, as the case may be, shall cease to have effect and shall vest with the Liquidator.

Furthermore, an order for liquidation shall be deemed to be notice of discharge to all employees of the CD. However, they may be retained where business of CD is proposed to be continued during the liquidation process.

All persons viz. Officers, Directors, Partners, Auditors, and Resolution Professional as well as those holding properties of CD have a duty to assist and cooperate with the Liquidator in managing the affairs of CD.

The CD is also required to add the phrase ‘In Liquidation’ after its name in all correspondence.

LIQUIDATOR AND FEES: While passing the order of liquidation, AA is required to name an Insolvency Professional (IP) as Liquidator. In case any IP is already appointed as Resolution Professional for Corporate Insolvency Resolution Process, he may be continued or another IP can be appointed, subject to his consent for appointment and independence etc. There are provisions for his replacement in certain circumstances as mentioned under Section 34(4) of the Code.

Fee payable shall be decided by CoC under Regulation 39D of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, where they do not approve the resolution plan. Financial creditors are also required to advance sums required for liquidation cost over liquid assets available, which would be refunded with interest out of proceeds of liquidation. In all other cases, fees would be on percentage basis on realizations and distribution to stakeholders, as prescribed under Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 (Liquidation Regulations).


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POWERS AND DUTIES OF A LIQUIDATOR: A liquidator is required to oversee the entire process of liquidation, right from the liquidation order to the dissolution of the CD. He has to take custody of all the assets, evaluate them properly and dispose them in a transparent manner keeping in mind the objectives of the Code. In the interim, he has to preserve and protect them. He has to invite claims and verify them for consolidation. Thereafter, he may admit or reject the claims. He has to defend any suit, prosecution or other legal proceedings, civil or criminal, in the name and on behalf of the CD.

A creditor may appeal to the AA, against the decision of the liquidator, accepting or rejecting the claims within fourteen days of the receipt of such decision.

Liquidator has the power to obtain any professional assistance from any person or appoint any professional, in discharge of his duties, obligations and responsibilities. Furthermore, in case any clarification is required, AA’s direction can be obtained.

ROLE OF COC IN THE PROCESS OF LIQUIDATION: In Punjab National Bank vs. Kiran Shah, the liquidator of ORG Information Ltd.1, National Company Law Appellate Tribunal (NCLAT) held that after Liquidation order is passed, CoC has no role to play and they are merely claimant. They cannot even seek replacement of liquidator in absence of any such provision in law.

A Creditors Consultation Committee is required to be formed, but the liquidator is not bound by their advice. The liquidator has the power to consult any of the stakeholders entitled to a distribution of proceeds. Further, record of such consultation would be available to all stakeholders for the sake of transparency.

The liquidator also has the power to access any information systems for the purpose of admission and proof of claims and identification of the assets relating to CD from any source, such as information utility, credit information systems regulated under any law for the time being in force, any agency of the Central, State or Local Government including any registration

1 2020 SCC OnLine NCLAT 155

authorities, data bank maintained by the Insolvency and Bankruptcy Board of India.

REPORTS: Liquidator must prepare and submit the following as per Regulation 5 of the Liquidation Regulations:

a. A preliminary report within 75 days of liquidation commencement date;

b. An asset memorandum;

c. Progress reports on quarterly basis;

d. Sale report;

e. Minutes of consultation with stakeholders; and

f. The final report prior to dissolution to the AA.

Liquidator should also get accounts completed and brought up to date, wherever they are found incomplete. He is also required to maintain cash book and ledgers and various registers for assets, security and investment. Further, the liquidator is required to preserve physical and electronic copy of reports and books for 8 years after dissolution.

LIQUIDATION ESTATE: All assets of the CD form an estate of the assets, which is called the Liquidation Estate in relation to the CD. The liquidator holds the Liquidation Estate as a fiduciary for the benefit of all the creditors. The estate includes not only assets owned and in possession of CD, but also those not in possession. Assets listed in account books or with information utility, should be traced and taken in control. These include movable or immovable assets as well as securities and shares held in subsidiaries and joint ventures. Intangible assets like intellectual properties are also included.

However, assets of third party in possession of CD like those received in bailment and all sums due to any workmen or employee from the provident fund, the pension fund and the gratuity fund are not included.

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AVOIDABLE TRANSACTIONS:The provisions relating to Preferential, Undervalued, Fraudulent and Extortionate transactions apply to liquidation proceedings as they apply to Corporate Insolvency Resolution process.

The relevant back period for this is two years preceding the Insolvency Commencement Date for related party and one year preceding the Insolvency Commencement Date for others.

Based on an application from the liquidator, AA may pass order restoring the property or consideration in lieu thereof given in such transaction back to CD. Undervalued and extortionate transactions could be avoided.

REVIVAL: In Jindal Steel and Powers Ltd vs. Arun Kumar Jagatramka & Ors.2, and S C Sekaran vs. Amit Gupta & Ors.3, NCLAT held that even in liquidation proceeding, steps are required to be taken to revive and continue the operations of the CD by protecting it from its management. Liquidator should explore compromise and arrangement with its creditors under Section 230 of the Companies Act, 2013, and on failure, try and sell the business as going concern. Death of CD by liquidation, is the last step which should be avoided.

In Maharashtra Seamless Limited vs. Padmanabhan Venkatesh & Ors.4, the hon’ble Supreme Court held that Resolution Plan even below the Liquidation Value can be accepted by CoC as the Code prefers revival, and commercial wisdom of CoC is not to be interfered with.

A period of 90 days is allowed for compromise and arrangements from the date of the liquidation order and the same is not included in the liquidation period. Further, those not eligible to submit resolution plan, cannot be party to such compromise or arrangement also.

DISTRIBUTION OF ASSETS: Distribution of assets of CD in liquidation is done as per Section 53 of the Code, popularly known as ‘waterfall

2 Company Appeal (AT) No. 221 of 2018

3 Company Appeal (AT) (Insolvency) Nos.495 & 496 of 2019

4 Civil Appeal No. 4242 of 2019

mechanism’. The order of priority in distribution of proceeds from liquidation estate is as follows:

(a) Liquidation costs paid in full: This includes Fee of Liquidator as well as costs incurred in engaging advisers, in protecting the assets, running the business, interest on interim finance etc.

(b) Debts of the secured creditor where he opts to relinquish security and dues of the workmen for 24 months immediately preceding commencement of liquidation shall rank equally. It is highlighted that secured creditor has the option of either enforcing his security or leaving it to the liquidator to realize and receive disbursement as per this mechanism.

(c) Wages and unpaid dues owed to employees other than workmen for the period of twelve months preceding the liquidation commencement date.

(d) Financial debts owed to unsecured creditors.

(e) Following dues shall rank equally between and among the following:

(i) any amount due to the Central Government and the State Government and other government dues for the period of two years preceding the liquidation commencement date

(ii) debts owed to a secured creditor for any amount unpaid following the enforcement of security interest

Note: It is to be noted that government dues being placed on a lower priority is a big departure from prior legislations.

(f) Any other debts and dues;

(g) Preference shareholders, if any; and

(h) Equity shareholders or partners, as the case may be in the end.

The fees payable to the liquidator shall be deducted proportionately from the proceeds payable to each


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class of recipients and amount distributed to the relevant recipient after such deduction.

DISSOLUTION OF CORPORATE DEBTOR: Where the assets of the CD have been completely liquidated, the liquidator shall make an application to the AA for the dissolution of such CD under Section 54 of the Code. Early dissolution can be applied for under Regulation 14 of the Liquidation Regulations any time after preliminary report is prepared, where it appears to liquidator that there are insufficient realizable assets to cover the liquidation cost and no further investigation into affairs of CD is required. Once order of dissolution is passed, same is required to be filed with authority where CD is registered.

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SUPREME COURT REVISITS THE REQUIREMENTS FOR ADMISSIBILITY OF ELECTRONIC EVIDENCE UNDER SECTION 65B OF THE INDIAN EVIDENCE ACT, 1872

ASHITA CHHIBBER

Recently, a three-judge bench of the Supreme Court comprising justices Rohinton Fali Nariman, S. Ravindra Bhat and V. Ramasubramanian, vide judgment dated July 14, 2020,1 gave finality to the legal conundrum pertaining to the requirement of certificate for producing electronic evidence under Section 65B of the Indian Evidence Act, 1872 (hereinafter referred to as “Act”). This judgment arose from a reference by a Division Bench of the Supreme Court which required reconsideration of a two-judge bench judgment in Shafhi Mohammad v. State of Himachal Pradesh2 in view of the three-judge bench judgment in Anvar P.V. v. P.K. Basheer3.

The three-judge bench delivered its judgment and clarified that certificate required under Section 65B(4) of the Act is mandatory and a condition precedent to the admissibility of evidence by way of electronic record. The court further clarified that the required certificate under Section 65B(4) of the Act is unnecessary if the original document itself is produced.

FACTUAL BACKGROUNDThe Hon’ble High Court of Bombay while hearing election petitions had ordered the Election Commission and concerned officers to produce the entire record of the election including the original video recordings to ascertain the time at which the nomination forms were presented to the Returning Officer, Election Commission. Pursuant thereto, the CDs/VCDs were produced without the written certificate as required under Section 65B(4) of the Act. The high court held that on “substantial compliance” of the requirement of giving certificate under Section 65B of the Act, the CDs/VCDs were admissible in evidence based upon the oral evidence in cross examination.

1 Civil Appeal Nos. 20825-20826 of 2017, 2407 and 3696 of 2018

2 Special Leave Petition (Crl.) No. 2302 of 2017, SLP (Crl.) No. 9431/2011 and SLP (Crl.) Nos. 9631-9634/2012


JUDICIAL INTERPRETATION OF SECTION 65B OF THE ACT OVER THE YEARSOne of the earliest notable decisions of the Supreme Court where the issue of production of electronic record as evidence arose is State (NCT of Delhi) v. Navjot Sandhu and Ors.4 The two-judge bench therein held that irrespective of the compliance with the requirements of Section 65B, there is no bar in adducing secondary evidence under Sections 63 and 65 of the Act, of an electronic record. It was held that even if a certificate is not produced as per the requirement under Section 65B(4) of the Act, it does not mean that secondary evidence cannot be given even if law permits such evidence to be given in the circumstances mentioned under Section 63 and 65 of the Act.

The said position was overturned in Anvar’s case wherein the court held that Sections 63 and 65 of the Act have no application in the case of secondary evidence by way of electronic record and the same is wholly governed by Sections 65A and 65B of the Act. Section 65B being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Act shall yield to the same. The court took note of the legal position as it stood in India being that the Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with. The court further held that Section 65A and 65B form a complete code in itself and an electronic record by way of secondary evidence shall not be admitted unless the requirements under Section 65B are satisfied, including a written certificate under Section 65B(4) of the Act. Despite the law so declared in Anvar’s case, a three-judge bench of the Supreme Court in Tomaso Bruno v. State of U.P.5 deviated from the settled position. On the issue of admissibility of evidence in a criminal case in

4 Criminal Appeal Nos. 373-375, 376-378, 379-380 and 381 of 2004

5 Criminal Appeal No. 142 of 2015 (Arising out of S.L.P. (Crl.) No. 1156/2013)


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which CCTV footage was sought to be relied upon, the court held that secondary evidence of contents of document can also be led under Section 65 of the Act. The court neither referred to Section 65B(4) in the judgment nor to the law laid down in Anvar P.V. case. In fact, it adverted to Navjot Sandhu case which was specifically overruled in Anvar P. V. case.

Thereafter, in Shafhi Mohammad, the Supreme Court held that requirement of certificate under Section 65B(4) is not always mandatory and the same being procedural can be relaxed by the court wherever interest of justice so justifies. The court clarified that the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced cannot be required to produce certificate under Section 65-B(4). In such a case, procedure under Section 63 and Section 65 of the Act can certainly be invoked.

THE SUPREME COURT DECISIONAfter an in-depth analysis of law governing electronic evidence, the Supreme Court overruled the Shafhi Mohammad case for being in teeth of the judgment in Anvar P. V. Further, judgment in Tomaso Bruno was declared per incuriam, for not laying down the law correctly and the legal position was clarified as under:

y The certificate required under Section 65B(4) of the Act is a condition precedent to admissibility of evidence by way of electronic record. Oral evidence in place of such certificate cannot possibly suffice as Section 65B(4) of the Act is a mandatory requirement of the law.

y The non-obstante provision of Section 65B(1) of the Act makes it clear that when it comes to information contained in an electronic record, admissibility and proof thereof must follow the drill of Section 65B, which is a special provision in this regard, Sections 62 to 65 being irrelevant for this purpose.

y The law laid down in Anvar P. V. does not need to be revisited. However, last sentence in Anvar P.V. (supra) which reads as “...if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act...” is to be read without the words “under Section 62 of the Evidence Act...”

y The required certificate under Section 65B(4) of the Act is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. Such proof however, cannot be adduced if the device cannot be physically brought to court in cases where the computer happens to be a part of a “computer system” or “computer network”. In such case, the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4) of the Act.

y Where the requisite certificate has been sought from the person or the authority concerned, and the person or authority either refuses to give such certificate, or does not reply to such demand, the party asking for such certificate can apply to the court for its production under Section 165 of the Evidence Act, Order XVI of the Code of Civil Procedure or Section 91 and 349 of the Code of Criminal Procedure. Once such an application is made to the court, and the court directs that the requisite certificate be produced by the person to whom it sends a summons in this regard, the party asking for the certificate has done all that he can possibly do to obtain the requisite certificate.

y The court observed that Section 65B is silent with regard to the stage at which such certificate is be furnished to the court. It was observed in Anvar’s case that such certificate must accompany the electronic record when the same is produced in evidence. This is when such certificate could be procured by the person seeking to rely upon an electronic record. In cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the concerned person, the judge conducting the trial must summon the person(s) under Section 65B(4) and require that such certificate be given by such person(s) exercising discretion depending upon facts of each case. This ought to be done when the electronic record is

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produced in evidence without the requisite certificate. In so far as criminal trials are concerned, the requisite certificate can be directed to be produced by the court at any stage, so that information contained in electronic form can be relied upon in evidence.

y Furthermore, the court issued general directions to cellular companies and internet service providers to maintain CDRs and other relevant records for the concerned period in a segregated and secure manner if a particular CDR or other record is seized during investigation in the said period. Concerned parties can then summon such records at the stage of defense evidence, or in the event such data is required to cross-examine a particular witness.

y Lastly, Supreme Court was of the view that suitable rules and directions should be framed in exercise of the Information Technology Act, 2000, for the retention of data involved in trial of offences, their segregation, rules of chain of custody, stamping and record maintenance, for the entire duration of trials and appeals, and also in regard to preservation of the meta data to avoid corruption. Likewise, appropriate rules for preservation, retrieval and production of electronic record, should be framed after considering the report of the committee constituted by the Chief Justice’s Conference in April 2016.

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IMPACT OF COVID-19 ON TOURISM INDUSTRY AND RELIEF MEASURES

KUNAL BATRA

The Tourism industry has been one of the largest contributors to India’s GDP in recent years increasing from a share of 6.70% in 2017 to 9.20% in 2018. The Government of India (“GOI”) over the past few years has taken various supportive measures and has focussed on making India a global tourism destination by promoting schemes like ‘Incredible India’, ‘Atithi Devo Bhava’, ‘Swadesh Darshan’ and ‘Pilgrimage Rejuvenation and Spiritual Augmentation Drive’ (PRASAD). The World Travel and Tourism Council (“WTTC”) 2020 has reported that in the year 2019, tourism generated 39,821 million jobs in India, which is 8.0% of total employment in the year 2019. The Covid-19 pandemic has severely impacted the tourism industry across the globe covering sectors like hospitality, tour operators, travel agents, air, land and sea transportation industry and others. As per WTCC, the Covid-19 pandemic is expected to cost the tourism industry at least USD 22 billion resulting in a loss of 50 million jobs globally. India is no exception, tourism has witnessed a significant decline during 2020.

In such a situation India is no exception; tourism has witnessed a significant decline during 2020. GOI has a crucial role to play in revival and growth of the tourism industry. GOI needs to take immediate relief measures under the Goods and Services Tax (“GST”) to minimize the impact of COVID-19 on tourism industry.

To begin with, reduction in rate of GST is the need of the hour. There are different rates of GST for hotel accommodation starting from 0% to 18% depending upon room tariff. GST on room tariffs above INR 7,500 is 18%, GST on room tariffs between INR 1,000 and INR 7,500 is 12% and room tariffs below INR 1,000 does not attract GST. GOI should consider reduction in GST rate on room tariff between INR 1000 to INR 7500 from the current 12%/18% to 5% immediately for at least 12 months.

Tour operators and travel agents are required to pay GST 18% on commission earned for supplying specified services. A tax holiday may be introduced for a specified

period to safeguard the interest and revival of such service providers. Also, Online Tax aggregators (“OTAs”) are required to collect Tax collection at source (“TCS”) while remitting payments to airlines and hotels. Therefore, exemption on such levy of TCS must also be considered to avoid additional burden of tax.

Availability of Input Tax Credit (“ITC”) will be a major concern for tourism industry post COVID-19 on account of blockage of working capital of their business, and it requires a mechanism for optimum flow of ITC. Presently, taxpayers can avail ITC pertaining to financial year (FY) 2019-2020 till due date of furnishing Form GSTR-3B (relating to payment of Tax) for the period ending September 2020. The GOI may extend time limit for availing ITC pertaining to FY 2019-2020 till March 31, 2021, so that the tourism industry can avail maximum ITC and discharge its liability through ITC, hence reducing burden on its cash outflow. Additionally, GOI may increase scope of availing ITC for tourism industry by reducing list of blocked credits under Section 17(5) of the Central Goods and Services Tax Act, 2017.

Presently, ITC is required to be reversed in case recipient of goods or services, or both fails to pay consideration to its supplier within 180 days from date of invoice. In the current situation, where businesses across various sectors are experiencing losses, such reversal of ITC can be suspended till March 31, 2021, for the tourism industry.

Due to Covid-19 pandemic, timely compliance of monthly GST is also proving to be difficult to deal with. Although GOI earlier had extended due dates for filing Form GSTR-3B for taxpayers having turnover of more than INR 5 crores till April 2020, in order to further reduce burden of GST compliances GOI may extend due dates for filing of GST returns for such taxpayers.

Furthermore, currently, taxpayers are required to pay GST on mercantile/billing basis i.e. liability to pay tax arises upon issuance of invoices. In order to protect and safeguard tourism business, GOI may also allow

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tourism industry to pay GST on receipt/cash basis till March 31, 2021. Additional benefits such as exemption from payment of tax under reverse charge mechanism (RCM) would also help tourism industry to reduce additional burden of tax under GST.

Tourism industry is probably the worst hit sector due to the pandemic and the consequent restrictions imposed during the lockdown period and also beyond. Revival of this industry should be a prime concern for GOI. Tourism industry in India requires a push for its revival and immediate reliefs under GST laws will bring an impetus to this sector to survive from this never-seen-before global economic crisis.

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THE COVID-19 FALLOUTS: SPORTS AND LEGAL OBLIGATIONS DUE TO CANCELLATION OF EVENTS

ARNAV BISHNOI

The COVID-19 pandemic, rising in late 2019, has now influenced every sphere of our life. Sports have been most affected. Starting mid-March 2020, many sporting events were cancelled. In India, the first event to be cancelled was the South African Cricket team’s tour to India, while the Indian Super League was cautiously conducted behind closed doors. The 2020 edition of IPL has shifted to the UAE, to be played sans spectators.

With the pandemic increasing unremittingly, there is a considerable ambiguity surrounding on whether sporting event will be held and, if yes then how? Many financial and legal issues related to cancellation/postponement of these events are surfacing now.

This article spotlights the legal obligations one party has to another in case of the cancellation of an event due to Covid-19. This scenario is likely to bring about a rise to catena of lawsuits globally, with the parties, be it a broadcaster, ticket holder, player, sponsor or another, already having filed suits for the implementation of contractual obligations or discharging one of the parties from its contractual obligation.

We shall first examine the (a) Force Majeure clause (contractual remedy) and then, (b) the Common Law principle of Frustration of Contract as set out under S. 56 of the Indian Contract Act, 1872 (“ICA”).

THE FORCE MAJEURE (SUPERIOR FORCE) CLAUSE – CONTRACTUAL REMEDYThe force majeure clause can ordinarily be found in the general/standard clauses of a commercial contract. It excuses the performance of a contract in case of an event ‘which is beyond the reasonable control’ of the party and thereby precludes such party from fulfilling its contractual commitments. This concept stems from the Civil Law Countries, for example, Art. 119(1) of the Swiss Code of Obligations provides that an “obligation is deemed extinguished where its performance is made impossible by circumstances not attributable to the

obligor”.1In cases like that of English Law, where this principle is not acknowledge and recognized, the parties can instead entail such a clause in their contracts, which incorporates events which are beyond one’s proximate control such as war, act of god, strikes, change of Govt./law and policies/rules like, imposition of nationwide lockdown to contain the spread of Covid-19.

THE COMMON LAW SYSTEM HAS ITS OWN WAY TO TACKLE SUCH CONDITIONS - THE DOCTRINE OF FRUSTRATION This doctrine renders impossible the recital of contract due to an event which could not have been foreknown at the time of entering the agreement, consequently the contract is rendered void (terminated) and the party cannot be held accountable for the non-performance of its obligations as the ultimate purpose of the contract is rendered impossible due to that vary event which was beyond the pragmatic anticipation of the parties while entering into the pact.

Indian courts have in the recent past stated that an arduous method of performance of a contract would not frustrate an event and a paltry rise in price which makes the performance of the contract not viable commercially, would not constitute frustration of contract,2 hence, impossibility to perform will in no condition include the facet related to commercial impossibility. For example, as stated earlier IPL was initially postponed to an uncertain date but now the same will be conducted in UAE behind closed doors therefore BCCI chalked out an alternative to impossibility of performance. Taking such a scenario into consideration one should carefully apply this principle of frustration and only when-

1. Some part is yet to be performed

1 COVID-19: sport & the law of frustration and force majeure, available at: ht tps: //w w w. lawinsp o r t .co m /to p ic s /disp ute - reso lutio n / ite m /coronavirus-sport-the-law-of-frustration-and-force-majeure?category_id=397

2 Energy Watchdog v. CERC, (2017) 14 SCC 80

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2. Having entered the contract, the performance has become impossible due to this pandemic

3. The impossibility could not have been averted realistically and that it was not due to the neglect of the promisor

On the contrary, Force Majeure excuses performance for the time being and does not terminate the contract in toto, these clauses must be narrowly construed.3 The overarching event beforehand which impelled the parties to cancel the event should seriously hinder the performance. In case of Covid-19 where nationwide lockdowns were imposed to contain the spread of the disease, transportation/hotels/stadium etc. were also closed and non-performance of contract was not merely on the context of inconvenience caused due to economic constraints/hardships but because of the fact that extra precautions had to be taken.

For example, consider the case of Royal Moroccan Football Federation when it withdrew from the African Cup of Nations - 2015 due to the outbreak of Ebola in Africa (which was later found to be incorrect on their part), the conditions were unlike Covid-19 pandemic. Ebola is neither airborne nor it spreads from touching another person; they were required to take additional hygienic measures and play games without live audience. The Ebola epidemic did not make the conduct of the tournament impossible, just economically onerous.4 Thus, special care should be taken before exercising such clauses during Covid-19 contagion, including but not limited to:

1. Whether Covid-19 or its momentous actions like lockdown/curfew etc to curb the infection impede the execution.

2. Whether the clause spares the momentous actions as mentioned under point 1.

3. Whether Covid-19 made the performance impossible or made it unviable commercially.

4. Whether Covid-19 impacted a definite element/event or in totality.

5. Finally, what remedies are offered under the

3 Ibid.

4 Royal Moroccan Football Federation (FRMF) vs. The CAF, CAS Bulletin, available: https://www.tas cas.org/fileadmin/user_upload/Bulletin_2016_1.pdf

clause of Force Majeure, like non-performance for a spell longer than projected earlier.5

If a party is able to submit its particular case under force majeure/frustration principle, they should contemplate all the perils and mitigating factors which would lessen the risk in terms of payments which are to be made to the vendors, players, broadcasters etc. and whether they will be able to re-negotiate the contracts with such parties involved. The football leagues in Europe made changes to the terms, like extending sponsorship deals till the end of season and extending player loan deals, slashing down salaries (as much as 70%)6 so that the non-playing staff can be paid. For India, IPL is leading by a prime example by shifting the league outside India and making its conduct possible.

Many sporting events are likely to remain deferred in the near future. Therefore, it is essential for the stakeholders to develop a crisis management strategy, which would evaluate different possible scenarios and also cover impact on employees, athletes, their contractual obligations with and not limited to sponsors, television/media rights, insurance pay-out etc. Parties can also initiate internal dialogues with concerned partners and re-negotiate specific clauses and/or come out with alternative plans to provide discount to the broadcasters, sponsors etc.

***

5 COVID-19: the impact of postponing or cancelling sports events in India: https://www.lawinsport.com/topics/covid19-impact/item/covid-19-the-impact-of-postponing-or-cancelling-sports-events-in-india?category_id=727

6 Messi agrees 70% pay cut amid Covid pandemic, https://www.espn.in/football/barcelona/story/4079940/barcelonas-lionel-messi-agrees-70-pay-cut-amid-coronavirus-pandemic


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RIGHTS OF FOREIGN NATIONALS UNDER ARTICLE 19(1)(E) OF THE CONSTITUTION OF INDIA

MONALISHA CHOWDHURY

INTRODUCTIONThe prevailing situation all over the world presently is one of concern due to the COVID-19 pandemic. Some countries are already recovering from a first wave of the coronavirus, however, many countries like the USA and India still report significant number of cases every day. In fact, the USA has already reported almost 6 million cases with 178,000 people losing their lives to the deadly virus, giving the county the top spot for having the maximum number of cases as well as deaths from the novel coronavirus. With this background, a very recent judgement by the Kerala High Court throws light on the fundamental rights available to a foreign national in India.

JOHNNY PAUL PIERCE VS. THE UNION OF INDIA WP(C).NO.13263 OF 2020(G)Johnny Paul Pierce, a 74 years old US citizen, sought extension of stay in India, citing the reason that he felt safer in Kerala than he would feel in the USA. Pierce had arrived in Kerala on 26.02.2020. As per the visa norms, although his visa was valid till January 26, 2025, he was allowed to stay in India only upto 180 days on a single visit.

However, due to the nationwide lockdown imposed in the wake of COVID-19 pandemic, Pierce was stuck in Kerala. His representation sent to the Commissioner of Immigration and Foreigners Registration Officer, seeking permission to extend his stay on the ground that he was a senior citizen and the worsening COVID-19 situation in the USA, did not garner a positive response.

He approached the hon’ble High Court of Kerala by way of a writ petition under Article 226 of the Constitution of India, submitting that since his visa is valid till 2025, there should not be any impediment in his stay beyond 180 days in India at a stretch.1

1 https://www.livelaw.in/news-updates/kerala-hc-refuses-to-order-visa-e x tension-for-foreigner-who -said-he-felt-safer- in-kerala-than-usa-160730

However, the single bench comprising of Justice C S Dias, which considered the writ petition, observed on the basis of the Supreme Court precedents that a foreign national cannot claim the protection of Article 19(1)(e) of the Constitution of India i.e., a foreign national does not have the fundamental right to reside and settle in India.

Secondly, the court also reiterated to the Petitioner, based on established precedents of the Supreme Court, that his plea to permit him to stay back in India cannot be accepted, as it falls within the purview of the guidelines and the discretion of the Government of India. The petitioner, who came to India on a tourist visa, was well aware of the conditions in the visa before he left his country. Thus, it is too late in the day for him to raise a grievance on the visa conditions.2 The hon’ble High Court further clarified that the grant and extension of visas to foreign nationals fall exclusively within the domain of the Government of India, to ensure the sovereignty and the national security of the country, which stands at the highest pedestal, and thus, judicial review in these matters is minimal.

However, having regard to the pandemic situation and the suspension of international flights, the court directed the Foreigner’s Registration Officer to consider the petitioner’s representation within a period of two weeks, strictly in accordance with the applicable guidelines and policies.

ARTICLE 19(1)(E) OF THE CONSTITUTION OF INDIA AND THE POWER OF THE GOVERNMENT OF INDIA TO EXPEL FOREIGNERSThe hon’ble High Court of Kerala based its decisions on a few well-established precedents of the hon’ble Supreme Court. We shall take a look at them to understand the nature of the fundamental rights available to foreigners.

2 Johnny Paul Pierce vs. The Union of India WP(C). No.13263 OF 2020(G), High Court of Kerala

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HANS MULLER OF NURENBURG V. SUPERINTENDENT, PRESIDENCY JAIL, CALCUTTA [AIR 1955 SC 367]The petitioner Hans Muller, a West German , was arrested by the Calcutta Police on 18th September 1954, and was placed under preventive detention. The order was made by the West Bengal Government under section 3(1) of the Preventive Detention Act of 1950 (Act IV of 1950) on the ground that his detention was “with a view to making arrangements for his expulsion from India”.

After certain events, the West German Government wrote to the West Bengal Government saying that a warrant of arrest was issued against the petitioner in West Germany in connection with a number of frauds and that legal proceedings in connection with those warrants were pending. The Consul also said that he had received information that similar charges had been made against the petitioner in Lebanon and in Egypt and stated that the Government of the Federal Republic of Germany will apply for Muller’s extradition and requested the Government of West Bengal to issue a provisional warrant of arrest which ensured Muller’s detention up to the date of his extradition to Germany. On receiving the said letter, the Secretary of the Government of West Bengal made a noting that there would be no objection from the West Bengal Government for keeping Muller in detention till the date of his expatriation.

The petitioner challenged the validity of section 3(1)(b) of the Preventive Detention Act of 1950 on the ground that it was ultra vires the constitution as it contravened Articles 14, 21 and 22 of the Constitution of India.

While dismissing the petition, the hon’ble Supreme Court of India held that the power of the Government of India to expel foreigners is absolute and unlimited and there is no provision in the Constitution fettering this discretion.

“39. The Foreigners Act confers the power to expel foreigners from India. It vests the Central Government with absolute and unfettered discretion and, as there is no provision fettering this discretion in the Constitution, an unrestricted right to expel remains.”

LOUIS DE RAEDT V. UNION OF INDIA AND ORS AIR1991 SC 1886

Louis De Raedt had challenged the order whereby his prayer for further extension of the period of his stay in India was rejected and he was asked to leave the country by the 31st July 1987. It was urged that Raedt had been staying in India continuously since 1937 except on two occasions when he went to Belgium for short periods in 1966 and 1973. It was contended that by virtue of the provisions of Article 5(c) of the Constitution of India, Raedt became a citizen of India on 26.11.1949, and he could not, therefore, be expelled on the assumption that he is a foreigner.

While dismissing the petition of Raedt, the hon’ble Supreme Court of India stated that the argument that the petitioner had been staying in this country for more than a decade before the commencement of the Constitution and therefore, he must be deemed to have acquired his domicile in this country and consequently the Indian citizenship, could not be accepted. For the acquisition of a domicile of choice, it must be shown that the person concerned had a certain state of mind, the animus manendi. If he claims that he acquired a new domicile at a particular time, he must prove that he had formed the intention of making his permanent home in the country of residence and of continuing to reside there permanently. Residence alone, unaccompanied by this state of mind, is insufficient.

The court further stated that a foreign national does not have the right to reside and settle in India as mentioned under Article 19(1)(e) of the Constitution of India. The relevant portion of the judgement is extracted herein below:

“13. The next point taken on behalf of the petitioners, that the foreigners also enjoy some fundamental right under the Constitution of this country, is also of not much help to them. The fundamental right of the foreigner is confined to Article 21 for life and liberty and does not include the right to reside and settle in this country, as mentioned in Article 19(1)(e), which is applicable only to the citizens of this country.”


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STATE OF ARUNACHAL PRADESH V. KHUDIRAM CHAKMA [(1994) SUPP. (1) SCC 615]The hon’ble Supreme Court, while dealing with the rights of the Chakma refugees, widely known as the Chakma refugee case restrained the forcible expulsion of Chakma refugees from the state of Arunachal Pradesh. However, the court made a very important distinction between the fundamental rights available to the Indian citizens and to the foreigners. The Supreme Court held that Article 19 (1) (d) and (e) are unavailable to foreigner nationals because these rights are conferred only on the citizens. The machinery of Article 14 also cannot be invoked by foreign nationals. Rights under Articles 19(1) (d) and (e) are expressly withheld to foreigner nationals.

CONCLUSIONTherefore, the recent judgement in Johnny Paul Pierce’s case once again has clarified the rights available to foreign nationals in India. Right against discrimination on the grounds of religion, race, caste, sex or place of birth (Article 15); right to equality of opportunity in matter of public employment (Article 16); freedom of speech and expression, assembly, association, movement, residence and profession (Article 19); cultural and educational rights (Article 29 and 30); and right to vote and become member of the union and state legislatures are available exclusively to citizens of India and foreign nationals cannot benefit from the same. Protection of Article 14 and 21 is available, however, it cannot include any of the fundamental rights which are only accorded to the citizens of India.

***

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DIFFERENCE BETWEEN MURDER AND CULPABLE HOMICIDEPUSHKRAJ S. DESHPANDE

MURDER The term “Murder” traces its origin form the Germanic word “morth” which means secret killing. Murder means when one person is killed by another person or a group of persons who have a pre-determined intention to end life of the former. An offence will not amount to ‘Murder’ unless it includes an offence which falls under the definition of culpable homicide as per the definition of ‘Murder’ under IPC. All murders are culpable homicide but all homicides are not murders. Section 299 and Section 300 of Indian Penal Code deal with murder.

HOMICIDEThe word homicide is supposedly derived from Latin where “homo” means man and “cida” means killing. Thus, homicide means the killing of a man by a man. Homicide can be lawful or unlawful. Culpable homicide is punishable by law and is further divided into two categories:

y Culpable homicide amounting to murder

y Culpable homicide not amounting to murder

MURDER AS PER SECTION 300 OF THE INDIAN PENAL CODESection 300 of the IPC reads as follows:

300. Murder. —Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or—

(Secondly) —If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or—

(Thirdly) —If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or—

(Fourthly) —If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

If we analyse the definition under Section 300 of the IPC, culpable homicide is considered as murder if:

y The act is committed with an intention to cause death.

y The act is done with the intention of causing such bodily injury for which the offender has knowledge that it would result in death.

y The person has the knowledge that his act is dangerous and would cause death or bodily injury but still commits the act, this would amount to murder.

INGREDIENTS OF MURDER

y Causing death: There should be an intention of causing death

y Doing an act: There should be an intention to cause such bodily injury that is likely to cause death or

y The act must be done with the knowledge that the act is likely to cause the death of another.

ILLUSTRATIONS

y A shoots B with an intention of killing him. As a result, B dies, murder is committed by A.

y D intentionally gives a sword-cut to C that is sufficient to cause death of anyone in the ordinary course of nature. As a consequence, C dies. Here, D is guilty of murder though he did not intend to cause C’s death.


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CULPABLE HOMICIDE AS PER SECTION 299 OF THE INDIAN PENAL CODESection 299 of IPC reads as follows:

299. Culpable homicide — Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

In the case of Reg. v. Govinda ( 1877) ILR 1 Bom 342), the accused had knocked down his wife, kept a knee on her chest and gave two to three violent blows with the closed fist on her face. This act produced extraversion of blood on her brain and afterwards, the wife died due to this. The act was not committed with the intention of causing death and the bodily injury was not sufficient to cause death in the ordinary course of nature. The accused was liable to culpable homicide not amounting to murder.

The difference between murder and culpable homicide is intention. If the intention is present the crime is said to be committed under Section 300 of IPC. If the intention is absent, then the crime is dealt under section 304 of IPC.

DISTINCTION BETWEEN CULPABLE HOMICIDE AND MURDERCause of confusion: The thin line is the intention behind the act. All murders are culpable homicide but the vice-versa is not true. Ever since the IPC was enacted, this distinction as to which case will fall under which category is a perennial question with which courts are often confronted. On a plain reading of the relevant provisions of the Code, it appears that the given cases can be conveniently classified into two categories but when it comes to actual application, the courts are often confronted with this dilemma. This confusion often emerges when it is difficult to interpret from the evidence whether the intention was to cause merely bodily injury which would not make out an offence of murder or there was a clear intention to kill the victim making out a clear case of an offence of murder. The most confusing aspect is ‘intention’ as in both the provisions the intention is to cause death. Hence, you have to consider the degree of intention of offenders. If the person is killed in cold-blood or with

planning then it is murder because the intention to kill is in high degree and not out of sudden rage or provocation. On other hand, if the victim is killed without pre-planning, in sudden fight or in sudden anger because of somebody’s provocation or instigation, then such a death is called culpable homicide. Hence, whether the act done is culpable homicide or murder is a question of fact.

Distinguishing between the two: The distinction between the two was aptly set forth by Sarkaria J., in State of A.P. v. R. Punnayya,((1976) 4 SCC 382) “In the scheme of the Penal Code, ‘culpable homicide’ is genus and ‘murder’ its specie. All ‘murder’ is ‘culpable homicide’ but not vice versa. Speaking generally ‘culpable homicide’ sans ‘special characteristics of murder’ is culpable homicide not amounting to murder. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the IPC practically recognises three degrees of culpable homicide. The first is what may be called, culpable homicide of first degree, this is the gravest form of culpable homicide which is defined in section 300 as ‘murder’. The second may be termed as ‘culpable homicide of the second degree’. This is punishable under the 1st part of Section 304. Then, there is ‘culpable homicide of the third degree’. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades, punishable under Part II of Section 304.”

EXCEPTIONS TO SECTION 300 OF IPC WHERE CULPABLE HOMICIDE IS NOT CONSIDERED AS MURDERClauses 1-4 of Section 300 provide the essential ingredients, wherein culpable homicide amounts to murder. Section 300 after laying down the cases in which culpable homicide becomes murder, states certain exceptional situations under which, if murder is committed, it is reduced to culpable homicide not amounting to murder punishable under section 304, IPC and not under section 302, IPC.

The exceptions are:

1. Grave and sudden provocation

2. Private defence

3. Exercise of legal power

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4. Without premeditation in sudden fight and

5. Consent in case of passive euthanasia

SUDDEN AND GRAVE PROVOCATIONIf the offender is deprived of the power of self-control due to sudden and grave provocation, and his act causes the death of the person who provoked or death of any other person by accident or mistake.

This exception is subject to a certain proviso:

y That the provocation is not sought or is voluntarily provoked by the offender to be used as an excuse for killing or causing any harm to the person.

y That the provocation is not given by anything that is done in obedience to the law, or by a public servant while exercising the powers lawfully of a public servant.

y That the provocation is not done while doing any lawful exercise of the right of private defence.

ILLUSTRATIONA is given grave and sudden provocation by C. A fires at C as a result of this provocation. A didn’t intend or have knowledge that his act is likely to kill C, who was out of A’s sight. A kills C. A is not liable to murder but is liable to culpable homicide.

CASES/JUDGMENTS FOR DISCUSSIONK.M. Nanavati v. State of Maharashtra, 1961 (AIR 1962 SC 605):

In this case, the Supreme Court had extensively explained the law relating to provocation in India. It was observed by the court:

y The test of “sudden and grave provocation” is whether a reasonable man, who belongs to the same society as the accused, is placed in the situation in which the accused was placed would have been so provoked as to lose his self-control.

y Under certain circumstances, words and gestures may also lead to sudden and grave provocation to an accused, so as to bring his act under an exception.

y The mental background of the victim can be taken into consideration, taking account of his previous act to ascertain whether the subsequent act leads to sudden and grave provocation for committing the offence.

y The fatal blow clearly should trace the influence of passion that arises from the sudden and grave provocation. It should not be after the provocation has cooled down due to lapse of time, otherwise, it will give room and scope to the accused for altering the evidence.

MUTHU V. STATE OF TAMIL NADU,((2007) ILLJ 9 MAD)In this case, it was held by the Supreme Court that constant harassment might deprive the power of self-control, amounting to sudden and grave provocation.

WHEN THE PERSON EXCEEDS HIS RIGHT TO PRIVATE DEFENSEAct of private defence can said to have been exercised, when the act is committed in order to defend oneself from further harm. If the accused intentionally exceeds his right to private defense, then he is liable to murder. If it is unintentional, then the accused will be liable to culpable homicide not amounting to murder.

ILLUSTRATION

y X attempts to flog Y, not in a manner to cause grievous hurt to Y. A pistol is drawn out by Y, X persists the assault. Y believes that he had no way to prevent himself from being flogged by X, Y fires at X. X is liable to culpable homicide not amounting to murder.

NATHAN V. STATE OF MADRAS, AIR 1973 SC 665In this case the landlord was trying forcefully to evict the accused. The accused killed the landlord while exercising his right to private defense. There was no fear of death to the accused as the deceased was not holding any deadly weapon that could have caused grievous hurt or death of the accused. The deceased had no intention to kill the accused, thus, the accused exceeded his right of private defence. The accused was liable to culpable homicide not amounting to murder.


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CULPABLE HOMICIDE IN CASE OF PUBLIC SERVANTThe act is done by a public servant who is acting to promote public justice. If the public servant commits an act which is necessary to discharge his duty as is done in good faith and he believes it to be lawful.

ILLUSTRATION

y If the police officer goes to arrest a person, the person tries to run away and during that incident, if the police officer shoots the person, the police officer will not be guilty of murder.

DAKHI SINGH V. STATE, 1955In this case the appellant was the constable of Railway Protection Force, while he was on duty, he killed a fireman unintentionally, while he was firing bullet shots to catch the thief. The constable was entitled to benefit under this section.

SUDDEN FIGHT/RAGEThe sudden fight is when the fight is unexpected or premeditated. Both the parties don’t have any intention to kill or cause the death of another. The fact that which party had assaulted or offered a provocation first is not important.

RADHEY SHYAM AND ANR. V. STATE OF UTTAR PRADESH, 2018In this case the appellant was extremely angry when he got to know that his calf had come to the deceased place. The appellant started abusing the deceased, when the latter tried to stop him, the appellant fired at the deceased. The deceased was unarmed at that time, thus, the appellant had an intention to kill the deceased, hence, he was held liable to murder.

PUNISHMENTPUNISHMENT FOR MURDER - SECTION 302, IPCWhoever commits murder shall be punishable with death, or imprisonment for life and shall also be liable to fine.

PUNISHMENT FOR CULPABLE HOMICIDE - SECTION 304, IPCCulpable homicide is not murder if it falls under any one of the five exceptions given under Section 300. For culpable homicide not amounting to murder, Section 304 of IPC describes the punishments as:

y Imprisonment for life or

y Imprisonment for either description of a term extending up to ten years and/or

y Fine.

MEANING OF EXPRESSION “BEYOND REASONABLE DOUBT”For a doubt to stand in the way of conviction of guilt it must be a real doubt and a reasonable doubt. If the data leaves the mind of the trial judge in doubt, the decision must be against the party having the burden of persuasion. If the mind of the adjudication tribunal is evenly balanced as to whether or not the accused is guilty, it is its duty to acquit the accused.

EXAMINING RAREST OF THE RARE CASE IN IMPOSING DEATH PENALTYRarest of the rare case is the principle enshrined in Bachan Singh v. State of Punjab (1980) (2 SCC 684) which limits the vast discretion of the court in imposing death penalty. Death as a highest punishment was removed from being a general rule to being awarded only in exceptional circumstances and that too after recording the special reason for imposing the highest punishment which cannot be reverted under any circumstance after its execution. The phrase “rarest of the rare” case still remains to be defined while the concern for human life, the norms of a civilised society and the need to reform the criminal has engaged the attention of the courts. The sentence of death has to be based on the action of the criminal rather than the crime committed. The doctrine of proportionality of sentence vis-a-vis the crime, the victim and the offender has been the greatest concern of the courts.

CONCLUSIONAs discussed above, there is a thin line between Murder and Culpable Homicide. The courts have time and again taken efforts to differentiate between the two offences

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the end result of the two being same, intention behind the offence being the important factor of consideration. The entire case of the prosecution can be based on a single point i.e. “intention” and in the same way the entire case of the prosecution can be destroyed by the defence by proving “no intention”.

***


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LEGALITY OF UNILATERAL APPOINTMENT OF ARBITRATORRAHUL SARASWAT

Arbitration as a private mode of dispute resolution is known for the fundamental principle of party autonomy which provides parties the flexibility to choose the law and procedure for adjudication of their disputes. Party autonomy also allows parties to decide the arbitrator(s), however, independence and impartiality of arbitrator is of paramount importance. The Arbitration and Conciliation Act, 1996 (“Act”) under section 12, 13, 14, 5th and 7th Schedule reflects the importance of the independence and impartiality of arbitrators. It is perceived that arbitrator being appointed by the party may act in a manner which suits interest of the party appointing them, therefore, to have a level playing field and balance the integrity of the process, the independence and impartiality of arbitrators are considered to be of paramount importance. Moreover, one of the principles of natural justice i.e. nemo judex in causa sua which also supplements the scrutiny for independence and impartiality.

Independence and impartiality is not a new concept, it already existed in the Arbitration and Conciliation Act, 1996. However the 2015 amendment gave a prescriptive guidelines of independence and impartiality to make it convenient for the arbitrators, counsels and court while appointing the arbitrators. These guidelines or safeguard were recommended by the 246th Law Commission in their report to ensure that the arbitration proceedings are unbiased and efficient. The Apex court in the HRD Corporation vs. GAIL (India) Ltd1 while interpreting 5th and 7th schedule of the Arbitration and Conciliation Act, 1996, held that “the doubts as to the independence and impartiality of the arbitrator are justifiable only if a third person would reach a conclusion that an arbitrator would be influenced by factors other than the merits of the case. This test requires taking a broad common-sensical approach to the Schedules – a fair construction neither tending to enlarge or restrict unduly.”

Appointment of arbitrator is generally done by the parties as per their convenience, however if party fails to appoint then approaching the court under section 11 is the remedy. However, there has been a lot of

1 HRD Corporation v. GAIL (India) Limited, 2017(5) ARBLR 1 (SC)

debate on the unilateral appointment clauses whereby only one-party posses the right to appoint the arbitrator(s) or suggest the names of arbitrator(s) to the opposite party.

The first case to deal with the issue was TRF Limited vs. Energo Engineering Project Limited2, whereby the arbitration agreement provided that the “disputes shall be referred to a sole arbitrator of the managing director of Buyer (Energo Engineering) or his nominee”. The hon’ble Supreme Court (three judges bench) interpreted the arbitration agreement and held that since the managing director or his nominee are ineligible to be appointed as arbitrator as per the amendment to the Arbitration Act and therefore, they cannot be appointed as arbitrator.

Moreover, the Apex Court further went on to hold that such ineligibility to act as an arbitrator would extend whereby the managing director cannot nominate another in its place. Therefore, the Apex Court made it clear that once a person is ineligible to be appointed as arbitrator in a dispute, he/she cannot nominate someone else as an arbitrator in that dispute.

In Voestalpine Schienen GmbH vs. DMRC3, the parties were required to nominate their respective arbitrators from a panel of arbitrators suggested by DMRC. DMRC shortlisted 5 names from the panel and each party nominated an arbitrator from the given list. The process was challenged being contrary to section 12(5) of the Act. While dealing with such a scenario, the Apex Court held that the choice given to opposite party is limited and there is no free choice to nominate a person out of the entire panel prepared by DMRC. Further DMRC choosing 5 names out of the list and then opposite party choosing their respective arbitrator from those 5 names, this would instill the idea of bias in mind of opposite party. The opposite party shall be given the full freedom to nominate an arbitrator from the entire panel. The Court also suggested that the panel should be broad-based. It should not only contain retired

2 TRF Limited v. Energo Engineering Projects Limited, AIR 2017 SC 3889.

3 Voestalpine Schienen GmbH vs. DMRC, [(2017) 4 SCC 665]

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government employees, but also experienced and eminent engineers from private sector.

In Bharat Broadband Network Ltd. Vs. United Telecoms Ltd4 the Apex Court relied on its decision in TRF Ltd. case to hold that an arbitrator, appointed by a person who is ineligible to act as an arbitrator is de jure unable to perform his functions. Further if the ineligible person appoints an arbitrator in its place, such appointment is void ab initio. Moreover, the court held that the ineligibility under section 12(5) read with schedule VII of the Act will have a retrospective application and is not confined to only a prospective application. Further, in Perkins Eastman Architects DPC & Anr. V HSCC (India) Ltd5, where the arbitration clause provided for unilateral appointment of sole arbitrator by the respondent, the respondent’s unilateral appointment power was challenged before the Supreme Court. The apex court relied upon TRF Ltd. case and held that this unilateral appointment power of appointing the sole arbitrator is invalid as there exist possibility of bias whereby the appointed arbitrator may act in a way to safeguard the interest of the appointing party and therefore violates the neutrality of the proceedings. This decision of the apex court gave the parties a level playing field while appointing the arbitrators.

However, in Central Organisation for Railway Electrification v M/S ECI-SPIC-SMO-MCML (JV)6 where the arbitration clause provided the appointment of arbitrators from a panel of arbitrators(5 nominees) comprising of retired railway officers, the apex court sitting in the capacity of division bench though relied on its decision Voestalpine GmbH, upheld the arbitration clause and held that “merely being a retired employee of an organisation does not necessarily attribute bias against such employee while acting as an arbitrator. This decision has been criticised for taking the contrary view from Perkins Eastman and Voestalpine GmbH. The Delhi High Court in a recent judgement in Proddatur Cable TV Digi Services v. SITI Cable Network Limited7, while relying on the Perkins Eastman Case

4 Bharat Broadband Network Limited v. United Telecoms Limited, (2019) 5 SCC 755.

5 Perkins Eastman Architects DPC v. HSCC (India) Ltd., 2019 SCC Online 1517

6 Central Organisation for Railway Electrification v M/S ECI-SPIC-SMO-MCML (JV), 2019 SCC OnLine SC 1635

7 Proddatur Cable TV Digi Services v. SITI Cable Network Limited, 2020(2)ArbLR260(Delhi)

held that directors of a company ,as a part of Board of Directors, would have a clear interest in the outcome of the arbitral proceedings and therefore, the idea of bias would come in the mind of opposite party and therefore the company acting through its Board of Directors would be ineligible under section 12(5) read with schedule VII of the Act. The Delhi High court in the present matter held that be it a company acting through its board of directors or the managing director as in the Perkins Eastman’s case, there cannot be any distinction and such a scenario is impermissible in the law.

The Bombay High Court in Lite Bite Food Pvt. Ltd. Vs. AAI,8 facing the similar issue of unilateral appointment of sole arbitrator by the responded, relied upon Perkin Eastman and Voestalpine to hold the procedure of unilateral appointment of sole arbitrator as invalid. Moreover, court also invalidated the respondent’s offer to appoint arbitrators from a panel as the panel was a tailored one and not broad enough to give freedom of choice to opposite party as held in Voestalpine.

Moreover, the Delhi High Court, in SMS Ltd. Vs. Rail Vikas Nigam Ltd.9, and BVSR-KVR(JV) vs. Rail Vikas Nigam Ltd.10 where the High court acting under section 11 of the Act, held that the appointment procedure is invalid as the panel suggested by the authority is not broad-based, as it majorly include retired or serving employees of the respondent, creating a reasonable apprehension of bias and impartiality.

CONCLUSIONFrom the above discussions we can conclude that:

1. The arbitration clauses providing for unilateral appointment of sole arbitrator is invalid and impermissible in the law.

2. The arbitration clauses providing unilateral appointment of arbitrator from a panel suggested by one of the parties could be valid provided the panel is broad based and not narrowly tailored in order to give opposite party a freedom to choose the arbitrator of their choice from the said list.

8 Lite Bite Food Pvt. Ltd. Vs. AAI MANU/MH/3423/2019

9 SMS Ltd. Vs. Rail Vikas Nigam Ltd 2020(2)ArbLR376(Delhi)

10 BVSR-KVR(JV) vs. Rail Vikas Nigam Ltd [2020 (1) ArbLR 580 (Delhi)].


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Moreover, the apex court decision in Railway Electrification is a deviation from the Voestalpine and Perkins Eastman and therefore require interference of larger bench. However, TRF Case being a three judges bench decision would have more persuasive value over Voestalpine and Railway Electrification case.

The Supreme Court will once decide this issue in the case of Bhayana Builders Pvt. Ltd. v Oriental Structural Engineers Pvt. Ltd.11. We are expecting from the Hon’ble Supreme Court to clear the ambiguity by prohibiting use of unilateral appointment clauses by the parties.

***

11 SLP (C) No. 007161 of 2018

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CAN A DECREE HOLDER APPROACH THE NATIONAL COMPANY LAW TRIBUNAL FOR EXECUTION OF A DECREE? A DISCUSSION IN LIGHT OF THE RECENT JUDGEMENT BY NCLAT

RAHUL CHOPRA

In the last few years, it has been noticed that the homebuyers struggle to get their decree executed as the orders of the Real Estate Regulatory Authority (“RERA”) have not been executed. This has forced the homebuyers to approach the appellant tribunal and other tribunals to get their orders executed. Homebuyers in the recent times have approached the National Company Law Tribunal (“NCLT”) for execution of Decree by filing insolvency applications under Section 7 of the Insolvency and Bankruptcy Code, 2016 (“IBC”).

Recently, Mr. Ashok Tripathi and Mr. Saurabh Tripathi (“Applicants”) approached the NCLT by filing application under Section 7 of the IBC against Mr. Sunil Ansal claiming to be financial creditors, as in the present case the Applicants were decree holder executing decree of UPRERA which was admitted by the NCLT with moratorium and appointment of the Insolvency Resolution Professional (“IRP”) on 17th March, 2020. Mr. Sunil Ansal approached the National Company Law Appellant Tribunal (“NCLAT”)1 against the order of admission of the application under section 7 of the IBC passed by the NCLT. In the present case the issue raised before the appellate tribunal is whether the decree holder can approach as a financial creditor before NCLT against Corporate Debtor. The NCLAT held that the decree-holder seeking execution of money due under the Recovery Certificate is impermissible within the ambit of section 7 of the IBC.

In the present case the Hon’ble NCLAT, while discussing the issue, raised few important aspects and reasoning’s on why the decree holder cannot approach the NCLT. As per Section 5(7) of the IBC, “financial creditor” means any person to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred to. While Section 5(8) provide definition of financial debt, it does not cover nature of the decree. Further, Section 5(8)(f )(ii) covers expression of allottee and real estate project but here as well

1 Sh. Sunil Ansal v. Ashok Tripathi & Ors. CA (AT) (Insolvency) No. 452 of 2020

decree has not been covered under definition of the Financial debt.

As per the amendment dated 28th December, 2019, for initiation of Corporate Insolvency Resolution Process (“CIRP”), against the corporate debtor, by allottees under Real Estate Project, it is required to be filed jointly by not less than one hundred of such allottees or not less than ten percent of the total number of such allottees under the same Real Estate Project. It was made clear that a minimum threshold limit was laid down for taking cognizance where under section 7 application is relatable to a Real Estate Project. The present amendment was challenged in the Supreme Court of India with respect to the allottees who have already filed applications under section 7 prior to date of the amendment. The Hon’ble Supreme Court ordered to maintain Status Quo in the present matter.

The Applicants got a decree vide order of the UP RERA and after issuance of recovery certificate approached the NCLT under purview of “Financial Creditor”. The decree holder is covered under definition of Creditor under section 3(10) of the IBC.

As per Real Estate (Regulation and Development) Act, 2016, Section 40 lays down mode of execution to recover the amount as per Recovery certificate by the concerned authority as an arrear of land revenue. Generally, as per the order of the concerned authority the decree holder needs to approach for the execution of the order like for the order passed by UPRERA or HRERA, the decree holder needs to approach the concerned authority for execution of the order and is recovered as per the arrear of land revenue.

While holding against invoking the jurisdiction of the IBC, the NCLAT held that “the amount claimed under the decree is an adjudicated amount and not a debt disbursed against the consideration for the time value of money and does not fall within the ambit of any of the clauses enumerated under section 5(8) of the IBC”.


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The Hon’ble NCLAT while deciding the case referred to the judgment of G. Eswara Rao v. Stressed Assets Stabilisation Fund & Ors2 wherein it was held that an application under section 7 of the IBC cannot be filed for execution of decree. It was highlighted that decree cannot be executed by filing an application under section 7 of the IBC and the application was filed with malicious intent.

CONCLUSION In view of the above judgment, the doors are closed for invoking the jurisdiction under Section 7 of the IBC for execution of a decree. It is, however, noteworthy to mention that recently Hon’ble Supreme Court in the matter of Wg. Cdr. Arifur Rahman Khan and Aleya Sultana & Ors. Vs. DLF Southern Homes Pvt. Ltd3 held that home buyers are entitled to compensation as stipulated in the agreement with the developer, for delayed handing over of possession and failure to provide basic amenities which should come as a relief to thousands of people investing their savings in the real estate projects.

***

2 MANU/NL/0092/2020


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NATIONWIDE INFRINGEMENT OF RIGHT TO EDUCATION AND VIOLATION OF DIRECTIVE PRINCIPLES OF STATE POLICY (DPSP) PROVIDED UNDER THE CONSTITUTION OF OUR COUNTRY - A DIGITAL DIVIDE SAHIL SOOD

Globally, education is an essential right recognised under Article 261. Further, it is a part of Articles 13 and 14 2 to which India is a signatory and has ratified the same. The said conventions are in the nature of soft laws, however, the same are considered to be an authoritative interpretation of the provisions contained in the Covenants and Treaties. In April 2010, our Country brought a social legislation i.e. the Right of Children to Free and Compulsory Education Act, 2009, which acknowledges the state’s responsibility to provide free and compulsory education to all children from the age of six to 14 years. This legislation was brought within the ambit of Article 21A3 that made elementary education a fundamental right which is available to everyone and cannot be taken away under any circumstances.

Already, our Country is overcoming the shortfalls and paving away its path towards the agenda of education to all with the rights-based framework & then the whole world witnessed the COVID-19 pandemic. As the rights-based framework is in progress, elementary education in government schools, especially for children from rural areas and the urban poor. , is witnessing unprecedented times due to challenges posed by the novel coronavirus pandemic.

The closure of educational institutions was a necessary measure to curb the spread of COVID-19. As the educational institutes continue to be closed, the government has decreed imparting education through online channels. But education should be available to all without discrimination, affordability, and if necessary accessible via ‘modern technology’. However, looking at its dismal reach to all rural areas and urban poor in India, it seems that the government is side-lining these principles. The government has clearly ignored the

1 The Universal Declaration of Human Rights (UDHR)

2 International Covenant on Economic, Social and Cultural Rights (ICESCR)

3 Constitution of India, 1950

economic status of students and has taken up an over-optimistic view on the availability of proper infrastructure to students at their homes.

Some efforts are being made by both government and non-government organisations and other technology companies to support the school system to make a smooth transition to the virtual world. Upskilling and motivating teachers, organising counselling sessions for stakeholders such as teachers, parents and students are some of the important measures taken by the administration in the recent past. The Central government has recently launched the PM e-VIDYA platform, with 12 new DTH channels, one for each class to reach out to all strata of society.

These efforts have proved beneficial to a sizable chunk of the school-going population. However, the same is not catering the needs of all people. These digital initiatives are perpetuating the hegemony of elite schools over the education system, resulting in the digital divide between rural and urban and rich and poor. In addition, the non-government organisations that support the marginalised sections of the society in terms of health, education and livelihood and also collaborate with governments are facing financial crunch as most of the funds are being diverted to tackle the pandemic which is also important.

There are also social barriers to digital education such as discrimination against girls as they are expected to do household chores instead of attending online classes in the mornings. In rural areas, boys are often expected to work on the family farmlands. Most times, girls are not allowed to watch educational programmes. Envisioned in the Constitution of India is the aim of providing equality of education opportunities to all citizens irrespective of caste, class, gender and religion. Article 29 (1)4 provides for equal access to educational

4 The Constitution of India, 1950


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institutions maintained by the State without discrimination on grounds only of religion, race, caste, language or any of them. However, all the efforts of the government to facilitate education processes during the pandemic draws attention to the fact that the milieu of public/government education system, and low fee private school or affordable private schools, are out of the purview of government initiatives of online education. It is alarming that the government is oblivious to the stark realities of social inequalities which are proving to be the greatest barrier to access online education.

There are some lessons to be learnt from the countries like Kenya and other African countries which for reasons such as conflict, refugee and recurring epidemics like Ebola have the experience of making provisions for the education of children during difficult times. Over the years they have developed strategies to keep the schooling of students going. No matter how simple a technology or plan is being used to provide education to all, some of the children will remain left out during critical situations due to multiple causes such as poverty, migration, family problems and so on. The education system is destined to face an array of issues post-Covid-19.

In a recent judgment, the High Court of Kerala5 has recognized that the right to have access to the internet is a part of the right to education as well as the right to privacy under the Constitution of India. The court also noted that the usage of mobile phones to enable students to access the internet would only enhance their opportunities to acquire knowledge, as well as the quality of education. Resolutions 23/26 calls upon States to (i) promote women’s exercise of freedom of opinion and expression online and off-line, as well as (ii) facilitate equal participation in access to and use of the internet. The resolution adopted by the UN General Assembly on 14th July 2014, (i) emphasizes that access to information on the internet created vast opportunities for affordable and inclusive education globally, thereby being an important tool to facilitate the promotion of

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