Consumer cases cannot be arbitrated: SC

The Supreme Court recently reiterated that consumer cases cannot be arbitrated under the normal scenario although there is no inhibition in disputes being proceeded in arbitration.

“We may, however, hasten to add that in the event a person entitled to seek an additional special remedy provided under the statutes does not opt for the additional/special remedy and he is a party to an arbitration agreement, there is no inhibition in disputes being proceeded in arbitration. It is only the case where specific/special remedies are provided for and which are opted by an aggrieved person that judicial authority can refuse to relegate the parties to the arbitration”, the Court said during a review petition.

The Court relied on the fact that not only the proceedings of Consumer Protection Act, 1986 (“Act”) are special proceedings which were required to be continued under the Act despite an arbitration agreement, there are large number of other fields where an arbitration agreement can neither stop or stultify the proceedings. For example, in case where a cheque is dishonoured by one party in transaction, despite the arbitration agreement party aggrieved has to approach the criminal court. Similarly, there are several issues which are non-arbitrable. There can be prohibition both express or implied for not deciding a dispute on the basis of an arbitration agreement.

The Court relied on it previous judgments wherein it was held that disputes within the trust, trustees and beneficiaries are not capable of being decided by the arbitrator despite existence of arbitration agreement to that effect between the parties.

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Legislators not barred from practicing as advocates: SC

The Supreme Court of India held that the legislators are not debarred from practicing as advocates during the period when they continue to be the Members of Parliament or the State Assembly/Council.

“The provisions of the Act of 1961 and the Rules framed thereunder, do not place any restrictions on the legislators to practice as advocates during the relevant period”, a Large Bench of the Court said.

The Court said that Rule 49 [Bar Council of India Rules] applies where an advocate is a full-time salaried employee of any person, government, firm, corporation or concern. “Legislators cannot be styled or characterized as full-time salaried employees as such, much less of the specified entities. For, there is no relationship of employer and employee. The status of legislators (MPs/MLAs/MLCs) is of a member of the House (Parliament/State Assembly). The mere fact that they draw salary under the 1954 Act or different allowances under the relevant Rules framed under the said Act does not result in creation of a relationship of employer and employee between the Government and the legislators, despite the description of payment received by them in the name of salary. “

The Court further said, “Indeed, the legislators are deemed to be public servants, but their status is sui generis and certainly not one of a full-time salaried employee of any person, government, firm, corporation or concern as such.”

The Court also observed that merely because the advocate concerned is an elected people‘s representative, it does not follow that he/she has indulged in professional misconduct or the conferment of power on the legislators (MPs) to move an impeachment motion against the judge(s) of the Constitutional Courts does not per se result in conflict of interest.

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Section 497 (Adultery) declared unconstitutional: SC

In a landmark ruling, the Supreme Court of India struck down as unconstitutional the penal provision on adultery saying that the law affected individual dignity and equality of women.

“Any system treating a woman with indignity, inequity and inequality or discrimination invites the wrath of the Constitution. It is time to say that a husband is not the master. Equality is the governing parameter”, the Court said.

Stating that Section 497 of Indian Penal Code is manifestly arbitrary, the Court said that “it is demonstrable that women are treated as subordinate to men inasmuch as it lays down that when there is connivance or consent of the man, there is no offence. This treats the woman as a chattel. It treats her as the property of man and totally subservient to the will of the master. It is a reflection of the social dominance that was prevalent when the penal provision was drafted.”

The Court further said that if adultery is treated as a crime, there would be immense intrusion into the extreme privacy of the matrimonial sphere. “It is better to be left as a ground for divorce. For any other purpose as the Parliament has perceived or may, at any time, perceive, to treat it as a criminal offence will offend the two facets of Article 21 of the Constitution, namely, dignity of husband and wife, as the case may be, and the privacy attached to a relationship between the two.”

Section 497 punished a married man for having sex with wife of another man. However, the sexual act is exempted from punishment if it is performed with the consent or connivance of the husband of the other woman. The section also exempts the wife from punishment, and states that wife should not be even treated as an abettor.

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Arbitration agreement need not be signed: SC

The Supreme Court of India clarified that an arbitration agreement needs to be in writing though it need not be signed under the provisions of the Arbitration and Conciliation Act, 1996 (“Act”).

“The fact that the arbitration agreement shall be in writing is continued in the 1996 Act in Section 7(3) thereof. Section 7(4) only further adds that an arbitration agreement would be found in the circumstances mentioned in the three sub-clauses that make up Section 7(4). This does not mean that in all cases an arbitration agreement needs to be signed. The only prerequisite is that it be in writing, as has been pointed out in Section 7(3)”, the Court recently ordered.

Appellant argued that there was an arbitration clause in the bill of lading even though it was not signed by the parties.

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States not to collect data on backwardness of SC/ST: SC

A Constitution Bench of the Supreme Court of India recently ruled that the States need not collect quantifiable data on backwardness of Scheduled Castes and Scheduled Tribes (“SC/ST”) for giving quota in job promotions to SC/ST employees.

Refusing to reconsider its 2006 decision in the M Nagaraj case on the reservation for Scheduled Castes and Scheduled Tribes in job promotions, a five judge Bench of the Court, however, reversed the finding in M Nagaraj judgment that stated States required to collect quantifiable data to prove backwardness.

“States need not collect quantifiable data on the backwardness of SC/ST for giving quota in job promotion to SC/ST employees,” the Court said.

The Apex court also turned down the Central Government plea that the proportion of SC/ST to the population of India shall be considered for determining whether they are adequately represented in promotional posts.

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Information can’t be denied under RTI Act: P&HHC

The Punjab and Haryana High Court has recently ruled that right to information cannot be denied under the Right to Information Act merely because a statutory mechanism is evolved and prescribed under a different Act where alternative procedure and conditions are prescribed.

“The right to information, thus, cannot be denied under the RTI Act merely because a statutory mechanism is evolved and prescribed under an Act, which is also applicable, obliging a public authority to share the same by following a prescribed procedure subject to fulfillment of prescribed conditions”, the Court said.

The Court said that if there being no inconsistency under the RTI Act and the provisions of the other statute/law, the option and prerogative is with the citizen to select and choose to exercise his right under such Act/law or the RTI Act.

Even in case of any inconsistency between the provisions of RTI Act and other Act/law, the RTI Act shall prevail, the Court added.

However, the Court said that that the information under the RTI Act can only be denied if the same is exempted from disclosure of information under the provisions of RTI Act itself such as Sections 8, 9 and 11 thereof.

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Accused entitled to get bail as per law: SC

The Supreme Court of India has ruled that an accused is entitled to get bail under Code of Criminal Procedure even though the charge sheet filed by police was returned by the lower court on technical reasons.

“The fact of the matter is that as on completion of 90 days of prescribed period under Section 167 of the Code there were no papers of investigation before the concerned Magistrate. The accused were thus denied of protection established by law. The issue of their custody had to be considered on merits by the concerned Magistrate and they could not be simply remanded to custody dehors such consideration”, the Court said.

In the instant case, police filed the charge sheet just before the expiry of 90 days period before the court but the Magistrate returned the charge sheet being not in compliance with the orders of the High Court.

The Court also mentioned that even the High Courts have no power to extend the prescribed time period under the law within which the investigation must be completed.

“The provisions of the Code do not empower anyone to extend the period within which the investigation must be completed nor does it admit of any such eventuality”, the Court opined.

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