Drugs, Narcotics and Criminal Law

By Shivangi Dubey

 

Abstract

Every coin has two sides, so is the case with drugs. On one side it is used for curing diseases i.e. as medicine, on the other side in excess use of it deeply harms brain and our body. India has cultural roots of adapting with narcotic substances since ancient time. Proximity to the largest producers of heroin and hashish-the Golden Triangle and Golden Crescent (Afghanistan-Pakistan-Iran) -has made India’s border vulnerable to drug trafficking.

Introduction

The extent to which heroin seized in India can be sourced to the diversion of licit opium grown here and it is a matter which continues to be debated. Opium has been cultivated in the northeastern states of India for medical use by both people and livestock. It is also used in festivals and celebrations in these areas as well as Rajasthan. Most areas have now curtailed this practice, but it remains prevalent in remote areas, such as in the east of Arunachal Pradesh. Hence, we can say that drugs in India are being used at a large extent.

Various steps have been taken nationally as well as internationally like following bodies govern drug abuse in India like Central Bureau of Narcotics (CBN), The Narcotic Control Bureau (NCB) etc. Illicit cultivation of opium poppy still occurs in India. It has been argued that illicit cultivation of opium poppy in the north east became commercial when the tribal population came into contact with timber merchants from the plains in the late 1980.

India and Drugs

If we look at the location of our country then it lies in the middle of two major illicit opium production regions in the world. One is the Golden Crescent in the west and the other is Golden Triangle in the east which makes it a viable hub of the illicit drug trade.

Golden Crescent includes countries like Afghanistan, Iran, and Pakistan and is a principal global site for opium production and distribution. Golden Triangle covers the regions of Myanmar, Laos, and Thailand and is Southeast Asia’s main opium-producing region and one of the oldest narcotics supply routes to Europe and North America.

In 1917, Mahatma Gandhi while addressing the All India Social Service Conference in Calcutta had said, “The cocaine habit was sapping the nation’s manhood, and that like the drink habit, it was on the increase in its effect more deadly than drink”.

In the case of State of Punjab v. Baldev Singh, AIR 1999 SC 2378- The Supreme Court has observed, “Drug abuse is a social malady. While drug addiction eats into the vitals of the society, drug trafficking not only eats into the vitals of the economy of the country, but illicit money generated by drug trafficking is often used for illicit activities including encouragement of terrorism. There is no doubt that drug trafficking, trading and its use, which is a global phenomenon and has acquired the dimensions of an epidemic, affects the economic policies of the State, corrupts the system and is detrimental to the future of a country. It has the effect of producing a sick society and harmful culture. Anti-drug justice is a criminal dimension of social justice.”

Drug Trafficking in India

Pakistan and Bangladesh are the neighboring countries of India which are closely connected to the world’s two largest illicit drug dealing countries i.e. Afghanistan and Burma. Drugs Trafficking takes place devastatingly through land borders which are being followed by sea and air routes. This menace is giving vulnerability to the borders of our nation however India has put in many efforts to tackle this problem it has made planned strategy to curb drug supply and demand reduction. A new concept of “Narco- Terrorism” has come in International sphere that huge money earned through the drug trafficking activities having been used by the terrorist for their illegal activities in certain part of the world.

In Punjab there has been a bad experience where youngsters and students are mostly addicted to drugs and the same situation should not be allowed to spread to other States. It is known that Punjab is the transit point on the drug route and the State has become a major consumer base. A recent survey by the Union Ministry of Social Justice and Empowerment in association with the All India Institute of Medical Sciences (AIIMS), which revealed that 3.1 crore Indians use cannabis, bhang, ganja, charas, heroin and opium. It also expressed the concern that only one in 20 drug addicts get treatment at a hospital. Today approximately 2.65 crore people in India have used or use opioids and approximately 1.17 crore people use sedatives and inhalants.

Very recently a case related to drugs use came to the light where the Bollywood actress named Rhea Chakraborty was questioned and later arrested by the Narcotics Control Bureau (NCB) for the offence of consuming and distributing drugs to her friends. In this case, the actress is alleged with possession of drugs particularly marijauna and also procuring of the same for her boyfriends, which is an offence according to NDPS Act, Section 20(b) Section 27, Section 28 and Section 29.

Steps taken by India involves enactment of various laws, co-operating with voluntary organizations, securing its borders and coasts by increasing surveillance, as well as seeking the active cooperation of its neighbors and the international community. There are large scale organised groups that work in different parts of the society which help in procuring drugs to the people and earning by spoiling the future of the country.

Statutory provisions relating to drugs and narcotics

In India, the fundamental Act that deals with drugs related offences is The Narcotic Drugs and Psychotropic Substances Act, 1985, [in short called as NDPS Act]. This Act prohibits a person from producing/ manufacturing and cultivating drugs and it also prohibits the person from possession, sale, purchasing, transport, storage, and/or consumption of drugs. The need for legislation for drug control was felt at the time when British ruled India. During Britishers reign, The Opium Act 1857 came into force to regulate the cultivation of opium poppy and manufacture of opium. India as a monopoly of Govt. of India Opium Act 1857 regulated the sale of opium and poppy heads, their interstate import & exports it which was followed by another legislation of the same name in 1878.

In view of the obligations undertaken by the Government of India by ratifying the Geneva Dangerous Drugs Convention, 1925, and to clear the existing confusion of the laws governing the traffic in dangerous drugs Dangerous Drugs Act of 1930 was passed.

If we look at the Constitution of India then Article 47 provides that the “State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.”

However, the fundamental legislature to control drugs abuse in India is the NDPS Act, 1985.

Narcotic Drugs and Psychotropic Substances Act

The US was the driving force behind the global prohibition of drugs, which came into effect via the United Nations’ 1961 Convention on Narcotic Drugs. Secondly, there was no law which criminalised the possession and use of drugs and throughout India marijuana and other substances and there various derivatives were sold freely. So law was needed. But India kept the sale of marijuana for nearly 25 years. However, as the war to cure Drugs gained momentum and India’s economic position was of the country was also deteriorating.  Rajiv Gandhi government finally passed NDPS Act.

Following are the functions of NCB, according to the NDPS Act:

·         To coordinate actions by various authorities under the principal Act, and any other laws in relation with the enforcement of the principal Act.

·         To implement the obligations in respect of counter-measures against illicit traffic under several international conventions.

·         Assistance to the authorities in foreign countries and international organizations

·          Coordination of actions taken by the various Ministries.

Punishment for consuming drugs

A comparison of Indian laws versus European, American, and Middle Eastern regarding punishment of marijuana users and pushers and sellers shows startling differences. For example, possession of even small amounts of marijuana in several countries invites life imprisonment and even death (UAE, Maldives, Singapore), while other countries have graded penalties which are different for pushers and users and also distinguish between the type and quantities of the illicit substances. In the US, some states have legalised marijuana, while others make possession of even small amounts a crime.

As per Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 production, sale/purchase, transportation, interstate import/export or any other commercial activity of cannabis is punishable.

·         For holding a small quantity, the prescribed punishment is rigorous imprisonment for up to six months, fine of Rs 10,000 or both.

·         For holding more than a small quantity but less than the commercial quantity, the prescribed punishment is rigorous imprisonment for up to 10 years, fine of Rs 1 lakh, or both.

·         For holding commercial quantity, the prescribed punishment is rigorous imprisonment for up to 10-20 years, fine of Rs 1-2 lakh, or both.

Death penalty under Section 31A of NDPS Act

One of the most controversial provisions of the Act which mandated the death penalty in case of repeated offences was Section 31A which was added through an Amendment Act in 1989.

In Union of India v. Ram Samujh and Ors. Appeal (Crl.) 866 of 1999, the Supreme Court opined “it should be born in mind that in murder, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or a death blow to a number of innocent victims who are vulnerable.”

But in Indian Harm Reduction Network v. Union of India, CRIMINAL WRIT PETITION NO. 1790 OF 2010- The International Human Right Commission challenged the mandatory death penalty in the NDPS Act by referring it to an arbitrary, excessive and disproportionate to the crime of dealing in drugs. The court held that  Section 31-A of the NDPS Act is violative of Article 21 of the Constitution of India, as it provides for mandatory death penalty. But rejected the said provision is violative of Article 14 of the Constitution of India. Further, instead of declaring Section 31-A as unconstitutional, and void ab initio, court constituted it to be directory by reading down the expression “shall be punishable with death” as “may be punishable with death” in relation to the offences covered under Section 31-A of the Act. Thus, courts have judicial discretion in regard to the same.
After the judgment in, the NDPS Amendment in 2014 was introduced and amendments in Section 31A(1) of the Act by stating, “that the offender shall be punished with punishment specified in Section 31 or with death”. This meant a shift from the mandatory death penalty for repeat offenders to an optional death penalty.

Conclusion

In India, drug users are found throughout the country and on all levels of the society. The country’s economy is lacking behind due to the issues related to drugs. Though these laws are effective against narcotic traffickers, many practical problems remain unresolved. In such a situation drug rehabilitation and a comprehensive methodology for curbing the use and trafficking of drugs could be put to use. On the other hand, death penalty cannot be considered to be an option for habitual drug offenders instead stringent laws should be made to make the official work easier for the authorities and which would benefit the general public.

 

Arbitration Procedure in India and Institutional Arbitration

By Shivangi Dubey

Introduction

The procedure of resolving dispute outside the Court is not new. Since a long time in India societies have been using non-judicial and indigenous methods to resolve conflicts. With the passage of time there is an extensive promotion and use of Alternative Dispute Resolution. Arbitration was in practices even before the codified law came into force. Settling a dispute by referring to a third party was well known in ancient and medieval India.

According to Black’s Law Dictionary, “Arbitration in practice is the investigation and determination of a matter or matters of difference between contending parties, by one or more unofficial persons, chosen by the parties. Compulsory arbitration is that which takes place when the consent of one of the parties is enforced by statutory provision. Voluntary arbitration is that which takes place by mutual and free consent of the parties.”

India adopted the Arbitration and Conciliation Law in 1996. India is also a party to the New York Convention (on enforcement of arbitration award). Sec 89 of the Civil Procedure Court, 1908 also supports the Alternative Dispute Resolution system and urges parties to settle disputes outside the court. The Courts in India also fully support arbitration proceedings.

The Supreme Court gave a pro- arbitrational judgment in the judicial pronouncement of Sumitomo Heavy Industries Ltd. v. ONGC, 1998 1 SCC 305- Where it stated “….. If the conclusion of the arbitrator is based on a possible view of the matter, the Court is not expected to interfere with the award. The High Court has erred in so interfering Court while considering challenge to arbitral award does not sit in appeal over the findings and decision of the arbitrator…’’ This judgment also shows that the Courts are not very much inclined to interfere in the process of arbitration and thereby lends its supports to this system of Alternative Dispute Resolution.

Amendment of 2019

After the 2019 amendment to the Act, the Courts are left with no role in the aforesaid situations. Instead, the Supreme Court is to designate an arbitral institution to make appointments in relation to international arbitrations and likewise, the High Courts are to designate arbitral institutions to make appointments in relation to domestic arbitrations. The appointments thus are to be made by the designated institutions. The Act clarifies that there is no delegation of judicial power by the Supreme Court or High Courts to the arbitral institutions and hence (any challenge to an appointment would remain subject to any final order by the Courts).

Arbitral institution and amendment of 2019 [Eighth Schedule]

The Eight Schedule, as included in the Arbitration Act vide the 2019 Amendment Act provides objective clarity by way of standardized eligibility requirements for the appointment of an individual as an arbitrator.

General Norms

·         The arbitrator must be impartial and neutral.

·         The arbitrator shall be conversant with the Constitution of India, principles of natural justice, equity, common and customary laws, making and enforcing arbitral awards, domestic and international legal system on arbitration and international best practices.

·         The arbitrator should be capable of suggesting, recommending or writing a reasoned and enforceable arbitral award in any dispute which comes before him for adjudication.

Special Norms

o   The arbitrator must be an Indian qualified advocate or an Indian qualified Chartered Accountant or Cost Accountant or Company Secretary etc.

o   The panel of arbitrators maintained by these institutions (who will perform the default appointment role) necessarily excludes any foreign arbitrator.

o   The law does not prescribe any code of conduct or ethical duties for arbitrators.

o   It can be expected that Common Law standards of ethical duties for judges (or members of judicial tribunals) would apply equally to arbitrators.

o   The Act enables the arbitrator with the consent of parties to arrange for administrative assistance by a suitable institution or person.

o   There are no rules or regulations in this regard. Tribunal secretaries are more frequently being appointed.

o   The 2019 amendment introduced a confidentiality obligation for the first time. The obligation applies to the arbitrator, arbitral institutions and the parties and relates to “all arbitral proceedings”, except the award, where its disclosure is required for the purposes of implementation and enforcement.

In the case of Perception v. Reality, Bar and Bench, 7th October 2019- It was made clear that foreign lawyers were not debarred from presiding over Indian-seated international arbitration. This observation when read in consonance with the neutral nationality prospect under Section 11(9) of the Arbitration and Conciliation Act suggests that there is no bar with respect to appointing an arbitrator of any nationality.
Types of Arbitration Procedures

 

Ad-Hoc Arbitration

Ad-Hoc Arbitration can be defined as a procedure of arbitration where a tribunal disputed parties will come together and conduct arbitration between the parties, following the rules which have been agreed by the party beforehand or by following the rules which have been laid down by the tribunal, in case the parties do not have any agreement between them. However, there are no hard and fast rules, as different parties may choose to follow different rules, for instance, the rules laid by the trade union which the disputing parties belong.

Institutional Arbitration

Meaning of Arbitration Institutions

Sec. 1(ca) of the new law has been introduced to define an ‘arbitral institution’ as an arbitral institution designated by the Supreme Court or a High Court. It is that method of arbitration where the whole arbitration is conducted by an established arbitral institution or organization. The arbitration agreement itself provides for appointment arbitral institution. The parties specifically provide that in case of any dispute arises in the period of contract the dispute would be solved through institutional arbitration.
India has more than 35 arbitral institutions. Some of the prominent Indian arbitral institutions are the Indian Council of Arbitration (ICA), the Delhi International Arbitration Centre (DIAC), the Mumbai Centre for International Arbitration (MCIA) and ‘The International Centre for Alternative Dispute Resolution’ ICADR. While ICADR was envisaged as a model arbitral institution, it failed miserably at achieving its objectives, which included promotion of ADR, providing administrative and logistical support for ADR, appointment of arbitrators and providing training in ADR.

Not only did ICADR fail in keeping pace with the developments in arbitration law worldwide, it was also unable to market itself as a credible alternative to ad-hoc arbitration. Plagued by inefficiency, the ICADR had a large and ineffective governing council.  However, the biggest cause for ICADR’s demise was its failure to address and market itself to prospective parties at the stage of contract formation. Further, not just private sector entities, but even public sector bodies (including public sector undertakings) were reluctant to submit to ICADR managed arbitrations. The demise of ICADR finally sounded after more than 23 years of its birth with the passing of the New Delhi International Arbitration Centre Act, 2019 (the NDIAC Act, 2019). The NDIAC Act, 2019 replaces the ICADR with a modern arbitral institution which shall be called the New Delhi International Arbitration Centre (NDIAC).

Institutional arbitration

 

The concept of institutional arbitration, though gradually creeping in the arbitration system in India, has yet to make an impact. The advantages of institutional arbitration over ad hoc arbitration in India need no emphasis and the wide prevalence of ad hoc arbitration has its ramifications in affecting speedy and cost-effectiveness of the arbitration process.

 

Institutional arbitration is arbitration conducted under the Rules laid down by an established arbitral organization. Such Rules are meant to supplement provisions of the Arbitration and Conciliation Act in matters of procedure and other matters the Act permits. The rules may provide for domestic arbitration or for international arbitration or for both and the disputes dealt with may be either general in character or specific.

 

In an institutional arbitration, the arbitration agreement may stipulate that in case of dispute or differences arising between the parties, they will be referred to a particular institution such as:

 

·         Indian Council of Arbitration (ICA)

·         International Chamber of Commerce (ICC)

·         Federation of Indian Chamber of Commerce & Industry (FICCI)

·         World Intellectual Property Organization (WIPO)

·         The International Centre for Alternative Dispute Resolution (ICADR)

·         London Court of International Arbitration (LCIA)

 

All these institutions have framed their own rules of arbitration which would be applicable to arbitral proceedings conducted by these institutions. Such rules supplement provisions of the Arbitration Act in matters of procedure and other details as the Act permits. They may provide for domestic arbitration or for international commercial arbitration or both and the disputes dealt with by them may be general or specific in nature.

 

 

 

 

Indian Council of Arbitration [ICA]

 

The Indian Council of Arbitration, being the apex body in arbitration matters in the country, has handled the largest number of international cases in India. The Arbitral Institutions have fixed arbitrator’s fees, administrative expenses, qualified arbitration panel, rules governing the arbitration proceedings etc., which help in the smooth and orderly conduct of arbitration proceedings.

 

History of the Institution

ICA is India’s premier arbitral institution, is a registered society under the Societies Registration Act, 1860, operating on a not-for-profit basis with its head office in New Delhi and ten branches in a pan-India network. It was established in 1965 as a specialized arbitral body at the national level under the initiatives of the Government of India.

Gradually, it attained an autonomous status and became an independent body. The main objective of ICA is to promote amicable, quick and inexpensive settlement of commercial disputes by means of arbitration, conciliation, regardless of location.

It is one of the most important arbitration centers in the Asia Pacific, handling more than 200 domestic and international arbitration cases each year. It also provides the commercial world with unrivalled and time-tested Maritime Arbitration services and imparts education and training in alternative dispute resolution mechanisms.

Core function of ICA

Administration of arbitration proceedings is the core function of ICA. It has its own set of procedural rules which govern the conduct of the entire arbitration proceedings, from its commencement to its termination. It aims at promoting and building capacity in the area of ADR (Alternative Dispute Resolution). In its continuous effort in capacity building and disseminating information on ADR, the ICA organizes various courses and forums on the different avenues of ADR.

Summary Rules of ICA

The ICA Rules of Arbitration subscribe to international standards for conduct of arbitration proceedings-

o   Where the claim is below Rupees one crore, a sole arbitration is appointed, unless the two parties agree for appointment of three arbitrators.

o   For claims above Rupees one crore, three arbitrators are appointed, unless the parties agree that a sole arbitrator be appointed.

o   The sole arbitrator is appointed by consent of the parties and, failing such consent, the Council appoints the sole arbitrator.

o   Where three arbitrators have to be appointed, each of the parties appoints one arbitrator and the Council appoints the Presiding Arbitrator of the Arbitral Tribunal.

o   Under institutional arbitration in India, the parties are free to choose their arbitrators from the panel of arbitrators established by the institution.

o   The arbitrators are empanelled by the Arbitration Committee after the latter is satisfied about their competence, integrity and impartiality.

Detailed Rules of Arbitration
Registration for arbitration
A written application to the registrar, asking for arbitration, has to be initiated by the parties. Registrar, as deem fit, may reject the request on reasonable grounds. Such grounds will be subject to judicial scrutiny. Following documents must be attached-

·         Names and full addresses of the parties to the dispute.

·         Statement of the claim and facts supporting the claim points at issue and relief sought.

·         Copies of the arbitration agreement, any contract or agreement regarding dispute resolution.

·         Registration Fees of INR 1000.

Issues that are arbitral in nature
·         Disputes relating to commercial matter including shipping, sale, purchase, banking, insurance, building construction, engineering, technical assistance, know-how, patents, trademarks, management consultancy, commercial agency or labor are taken up by the Indian Council of Arbitration.

·         Parties to arbitration can be a resident of India or foreigner. Even two or more foreign parties might enter into arbitration under the rules of Indian Council of Arbitration. What is required is their mutual consent.

 

Binding effect

 

Rule 8 of ICA provides that the decision of the arbitrators over any dispute will be final and the parties to the arbitration are bound to follow it.

 

Qualifications of arbitrators

 

·         A register is maintained by the registrar of ICA which includes the name and other details of the arbitrators.

·         The panel of arbitrators includes both Indian and foreign arbitrators.

·         Where a party to dispute asks for an arbitrator living in the foreign land, it will be the duty of the party to dispute to accommodate the arbitrator he demanded. Subject to certain exceptions, all the expenses will be incurred by the party demanding such foreigner arbitrator.

·         Retirement age of an arbitrator is 80.

 

Arbitration process

·         Party can directly approach the registrar by making an application, after the application is accepted, then a notice is sent to the other party.

·         Notice will include a copy of the claim statement and the attached documents and a time period of 30 days or as the time period set up by the registrar will be given to the other party to the dispute to show cause of their side of the case.

·         If the opposite party refuses to take the notice then a counterclaim can be made by the respondent, provided the counterclaim arises from the same transaction as the original claim. It must be support with relevant documents.

·         Three copies of all statements, replies and other documents and papers, as well as appended documents, must be supplied to the registrar.

Number of Arbitrators to Settle the Dispute

·         If the disputed amount is > or = to INR 1 crore then single arbitrator will be appointed.

 

·         If the disputed amount is < INR 1 crore and > or = to INR 15 Crore, the ICA will be duty bound to provide the parties with three arbitrators.

 

·         If the parties fail to agree on the person to be appointed as sole arbitrator within the time granted by the Registrar, the Registrar in consultation with the Chairman of the Committee and in his absence in consultation with the member of the Governing Body designated by the Chairman, shall appoint the sole arbitrator from among the Panel of Arbitrators.

 

·         In the cases where one party to a dispute is a foreign national- In such cases, the registrar will appoint an arbitrator who does not belong to any country as the proposing parties do.

 

·         Where parties are not satisfied with the selection of arbitrator by the registrar-The Challenge of an arbitrator shall be made within 30 days after his appointment has been communicated to the challenging party or within 30 days of his becoming aware of the reasons for which the challenge is made. The judge will be members of ICA committee.

 

If party fails to cooperate

If claimant fails- In depositing of the requisite documents, papers, or appropriate fees, the arbitration procedure will come to a halt.

If respondent fails- The arbitration proceedings will proceed as it is assuming the presence and awareness of the respondent.

Place of Arbitration
If both the parties are from India
The place or venue of arbitration shall be India. The Arbitration proceedings shall be held at such place or places in India as the arbitral tribunal may determine to have regard to the convenience of the arbitrators and the parties.

Parties from overseas [Either one or both]

The arbitration proceedings may also be held at any place outside India at the discretion of the arbitral tribunal.

Party unsatisfied with Arbitration Process
Only in special circumstances the parties are free to approach the Court. A procedure is to be followed for the same where an application has to be forwarded to the registrar who in turn will forward it to arbitration tribunal and if the arbitration tribunal is satisfied, an appeal may lie in the Court.

International and domestic institutions

Large commercial disputes continue to be referred to well-known international institutions such as the:

o   International Chamber of Commerce (www.iccwbo.org).

o   Singapore International Arbitration Centre (www.siac.org.sg).

o   London Centre of International Arbitration (www.lcia.org).

o   Hong Kong International Arbitration Centre (www.hkiac.org).

 

 

Domestic arbitration institutions include-

·         Mumbai Centre for International Arbitration (www.mcia.org.in). This is the most popular arbitration institution based in India for large commercial disputes. It was set up in 2016 and is led by a very competent and internationally renowned board of arbitration practitioners from across the globe, has received significant traction, but does not yet have a notable list of administered matters.

·         Nani Palkhivala Arbitration Centre (www.nparbitration.com). This is another institution which has seen significant growth in recent years. It has been formally recognised by the Madras High Court to render assistance in arbitration matters by its Order dated 21 September 2005. The Centre has a panel of arbitrators comprising retired judges, lawyers, chartered accountants and civil servants among others.

·         Some High Courts in India have also set up arbitration centres affiliated with such High Courts, such as the Delhi International Arbitration Centre (www.dacdelhi.org) and the Arbitration & Conciliation Centre – Bengaluru (Domestic & International) (www.arbitrationcentreblr.org), an initiative of the High Court of Karnataka.

Concept of Institutional arbitration
It is important to understand that parties are free to choose the method of arbitration. It depends upon the facts and circumstances of their dispute. These intuitions are preferred by the international business community as it provides them various services. Such as providing a specific arbitration procedure, experienced panel of arbitrators and expertise that provide a quick and effective dispute resolution process. Some of the famous arbitral centers are The London Court of International Arbitration (LCIA), The Chartered Institute of Arbitrators UK, The National Arbitration Forum USA and The International Court of Arbitration Paris Singapore International Arbitration Centre, Hong Kong International Arbitration Centre (HKIAC).

Essential features of institutional arbitration

o   The arbitration agreement designates an arbitral institution to administer the arbitration.

o   The parties here submit their disputes to the institution which then administers the arbitral process as provided by the rules of that institution.

o   The institution does not arbitrate the dispute.

o   It is the arbitral panel which does. The parties may stipulate the institution to be referred to in the arbitration agreement itself.

o   Institutional arbitration is prohibitive due to the administrative charges levied by the institution, and this usually is correlated to the amount in dispute.

o   Institutional arbitration is time bound arbitration and is supervised in nature.

o   The rules for arbitration set out clearly.

o   The parties who chose to agree to submit any dispute to arbitration in accordance with the rules of institution.

o   This automatic incorporation of the rules is the principal advantage in institutional arbitration as it leads to effective enforceability.

Advantages of Institutional Arbitration
1. Reputation
One of the biggest advantages of opting for institutional arbitration is the reputation of the institution. Decisions given under the name of any prestigious institution is easier to enforce as it is accepted by a majority of other bodies.
2. Efficient Administration
One more advantages of going for institutional arbitration is that such institutes provide trained staff to the parties for administering the whole process. The administrative staff will lay down the rules, ensure that the time limits are being complied to, and the process is going ahead as smoothly as possible.
In the case of ad-hoc arbitration, when the arbitrator himself has to do all the administrative work, it may distract him from his primary objective.
3. Clear Rules
In the case of institutional arbitration, the rules of the arbitration are generally fixed by the institution. There is no further dispute between the parties regarding the rules of the procedure, which might happen in the case of ad-hoc arbitration. Also, the rules are framed keeping all eventualities in mind, as these institutions have an experience of going through various arbitration proceedings and know what eventualities may arise. Also, the rules are flexible in nature. There is a mechanism to oppose any part of the process which is not consistent.

4. Quality of Arbitral Panel
One of the major advantages of institutional arbitration is that they have an extensive panel of experts, who acts as arbitrators. These institutions also have arbitrators who specialize in different areas, so that any type of dispute can be resolved.
Big institutions like ICC also have a network of national committee for appointment of arbitrators to ensure that there is no bias based on the country to which the parties belong.
5. Supervision
Apart from the administration of the arbitrational process, some institute also supervises the process, i.e., examine the award or penalty sanctioned ensuring that due process of law has been followed, and proper reasoning has been given to the parties for taking that particular decision.
6. Remuneration of the Tribunal
In the case of institutional arbitration, the remuneration to be paid to the arbitrators is already fixed. The disputing parties do not have to haggle with the arbitrators to decide the terms and amount of remuneration. The remuneration of the arbitrators in case of institutional arbitration is based on a fixed scale. The money is paid to the arbitrators without involving them directly.
7. Default Procedure
Many institutional arbitrators expressly provide the rule that the proceedings will continue and not stop in between, even if one of the parties defaults in the course of the proceedings. For instance, Article 21(2) of the ICC Rules states that if any party fails to appear for the proceeding without giving any valid excuse, even after it has been duly summoned by the institution, the Tribunal will proceed with the proceedings.
Challenges of institutional arbitration in India
1.  Issues relating to administration and management of arbitral institutions.

2.  Perceptions regarding arbitrators and expertise issues relating to resources and government support, lack of initial capital, poor and inadequate infrastructure, lack of properly trained administrative staff, lack of qualified arbitrators, etc.

3.  Issues in developing India as an international arbitration seat.

To address the challenges and shortcoming of the Institutional arbitration, a High-Level Committee (HLC) to Review the Institutionalization of Arbitration Mechanism in India under Mr Justice B N Srikrishna was constituted in 2016. The committee submitted its report on 3 August 2017.

Conclusion

Even after having an edge over the ad-hoc form of arbitration in India the parties do not prefer the institutional arbitration. There are certain reasons why these institutions are not gaining popularity, there is need to change the structure these institutions are working in India. The 2019 Amendment Act is a step forward in promoting the institutional arbitration in India along with streamlining and overcoming some of the challenges faced after the enactment of the 2015 Amendment Act.

However, there are still certain loopholes in the Amendment Act of 2019, which did not take into consideration some recommendations by the Committee notably on incorporating the International Bar Association (IBA) Rules on evidence. There is a long way to go while dealing with the scope, composition, functioning of Arbitration Council of India (ACI). India has laws and regulation regarding arbitration but there is need for implementing the same.

 

Admissibility of Dying Declaration

Dying-DeclarationIntroduction
Section 32(1) of the Indian Evidence Act is an exception to the principle that excludes the hearsay rule. Principle behind the concept of dying declaration is that the person having the first hand information about a particular matter, however due to death or any kind of disability is unable to appear before the court, then his/ her knowledge/ information should be transmitted to the court through some other person . This Section plays a significant role when the person having a particular knowledge is sought to be proved died or cannot be found or due to any reason his attendance cannot be procured in the Court. However, proof must be produced before the Court that why person could not be present to give evidence. Further Supreme Court of India has held that a dying declaration made by a victim, accusing a person of having been responsible for his/her death cannot form the basis of conviction if it suffers from infirmity.
The statement made can be verbal/ oral connected to the circumstances of transaction that resulted the death caused to that person; such statement must be made before dying known as “dying declaration”. Such statement plays relevancy when the person who is making the statement, is under expectation of death, irrespective of the nature of proceedings in which the cause of death comes into question. If the declarant survives after making the statement then it is inadmissible as dying declaration but the statement can be used under section 157 of the Indian evidence Act, in order to contradict, corroborate, impeach or confirm the credit of the person by whom it was made.
In Uka Ram v. State of Rajasthan Apex Court held that, “when a statement is made by a person as to cause of his death or as to any circumstances of transaction which resulted into his death, in case in which cause of his death comes in question is admissible in evidence, such statement in law are compendiously called dying declaration”.
Admissibility of dying declaration in the Court
The concept of dying declaration is based on the Maxim “NEMO MORTURE PRAESUMNTUR MENTIRI” which means that the person who is about to die would not tell lie. The necessity of relying on the dying declaration is that a) victim being the sole eye witness of the crime committed, b) the statements made by a person who is about to die would be nothing but just truth. These are the two principles on which the concept of admissibility of dying declaration it is based upon.

Evidentiary value
Dying declaration can only be taken into consideration when it is a) Recorded by a competent magistrate (with certain exception), b) the said statement must be recorded in the exact words, c) there must not be any scope of influence from the third party, and hence the declaration must be made soon after the incident that is the reason of the death, d) there must not be any ambiguity regarding the identity of the offender or cause of death.
It is very important to note that such a statement must not be made under the influence of anybody or it must not be given by promoting or tutoring. In case there is such a suspicion, then such dying declaration needs evidence to corroborate.
Kaushal Rao Vs. State of Bombay

In the instant case, the Supreme Court observed that it was not an absolute rule of law that other evidence must corroborate a dying declaration. A dying declaration even if uncorroborated can form the sole side basis of conviction. But each and every case must be determined based on its facts and circumstances in which the dying declaration was made. A declaration cannot be judged on some footings and on general propositions, surrounding circumstances and other piece of evidence must also be taken into consideration.
Following conditions must be fulfilled to taking a statement admissible as dying declaration-
1. The declarant must about to die- That the person who has made the statement must be dead otherwise statement could not be taken into consideration as the name itself suggests “dying declaration”.
2. The declaration made must be in context to the cause of the death- Any statement made that has co-relation with the death of the declarant is considered admissible.
3. Cause of death must be in question- It is essential condition that the person who is about to die, his/ her death must be in question.
4. Injury caused- That the injuries that are caused to the declarant must be the cause of the death of him, otherwise said statement cannot be taken into consideration.

What happens if the dying declaration is incomplete?
In case of an incomplete dying declaration, where the person dies before completing the declaration in that situation the said statement cannot be taken into consideration hence the same would be inadmissible in the eyes of law. However, if the person made incomplete statement but have made the declaration about the cause of his death and has revealed that who is the accused/ offender. In that case the question of incomplete declaration would not come into the question; otherwise the sole purpose of the dying declaration will go in vain.
Even if the declarant fails to answer some of the questions asked and has made the relevant statement that has caused his death would be considered relevant and admissible before the Court. In Abdul Sattar Vs. State of Mysore the court held that however the dying declaration was not complete, but as far as the accused have shot the deceased is concerned, the said declaration could certainly be relied upon.

Forms/ types of dying declaration
There is no specific guideline or parameter to define the admissibility of a dying declaration; it can be verbal/ oral or written. It can be partly oral or partly written, at times it can be recorded when the declarant uses gestures or signs to give dying declaration, it can be in the form of question and answer. Even if the dying declaration is made in vernacular language and the same is recorded/ translated in English language, the same is considered admissible before the court of law. The declaration made orally must be taken with due care and caution. The Supreme Court held that dying declaration must be scrutinized minutely with a “microscopic eye” to make it admissible. Usually time limit is not taken into consideration; there are cases where dying declaration is considered admissible made 4 months prior to death.
In Ranjit Singh Vs. State of Punjab the deceased had written a letter to his brother mentioning that his relationship was not cordial with his wife and he has apprehended dragger of his life from his wife. These letters were written by the deceased five years prior to the incident sought to be proved. The court held that the letters are admissible as dying declaration as they alleged of the circumstances that brought about his death.
The only object to make it admissible is that the ends of justice must not be defeated. Where the victim is about to die/ already dead or there is no other eye witness or even if there are some they might not come forward after the death of victim, in that situation the statement of the victim plays a very evident role. The grounds of admissibility of statement are the death of the declarant and the presumption that before dying the person would state the truth. Supreme Court has held that conviction solely on dying declaration is valid.

Dying declaration has to be made in a fit state of mind
State of Tamil Nadu vs Karuppasamy In this case it was held by the apex court that it would be improper to reject the dying declaration merely on the ground that the maker is not fit, solely based on the certificate of the doctor and where the Magistrate did not enquire independently that the deceased was in a fit state of mind or not at the time the dying declaration was made.
The court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe & identify his assailants & that he was making the statement without any pressure or malice. It is perfectly permissible to reject a part of dying declaration if it is found to be untrue and if it can be separated.
Once the court is satisfied that the dying declaration is true & voluntary, it can be sufficient to found the conviction even without further corroboration.

To whom the dying declaration must be given?
a) Best form of dying declaration would be the one that is recorded by the Magistrate.
b) However as per the Supreme Court guidelines anybody can record dying declaration. A bench of Justices BS Chauhan and Dipak Misra “The law on the issue can be summarized to the effect that law does not provide who can record a dying declaration, nor is there any prescribed form, format or procedure for the same,”.
c) Dying declaration can also be recorded by public servants, or by a doctor as well, where the victim is hospitalized and is badly burnt or injured and wants to make a statement, the doctor can also record the same and make note of that statement. A person having 100% burns can make a statement, and a certificate provided by a doctor is not a condition precedent for placing reliance upon a dying declaration.
d) It can also be made to a relative or a family member and the same plays an admissible role in the eyes of law.
e) Courts discourage the recording of dying declaration by the police officers but if there is nobody else to record it, then the dying declarations written by the police officers are also considered by the courts.
f) If the statements are not recorded by the magistrate then in that case to make it admissible, it is better that signatures of the witnesses are taken who are present at the time of recording the dying declaration. It is important that when the declarant is giving the statement, he must be in sound state of mind.

Conclusion-
There are different opinions of courts on the question whether dying declaration must be considered as a whole or also admissible if made in parts. As per the opinions of experts on this issue, the conclusion drawn by them was that the statement made by the victim must make sense even if made in parts.

Taking a note of the above mentioned discussion and opinions of various courts and experts, it is concluded that whenever a dying declaration is to be recorded it must be done minutely after proper scrutiny, keeping in mind that court will attach it as a piece of evidence. In case where there is more than one dying declaration and there is inconsistency between the statements, then it is not safe to convict the person on such discrepant declaration made while dying by the declarant .

Use and Abuse of Section 498 A of Indian Penal Code

Article 498 A of IPCAN OVERVIEW

What is Article 498 A of IPC?
Section 498 A which deals with the punishment of the husband and his relatives if a married women is subjected to cruelty which is likely to drive a woman to commit suicide or cause grave physical or mental injury to her, and harassment with a view to coercing her or any of her relatives to meet any unlawful demands of property. The offence is cognizable, non-bailable and non-compoundable. That the offence committed under said Section is considered to be very grave and the accused has to face stringent legal consequences.
How is it useful to society?
The core concern to enact any legal provision is that it must be useful for the society in maintaining the rule of law and controlling the anarchy. Section 498 A was enacted with a motive to protect women from the harsh and insensitive society that includes her own matrimonial home. The aim behind this is to create awareness and to impart equal rights to women in the male dominating society.
Impact of Section 498A-
With the rise of modern era, the woman has become educated, financially strong and aware of her rights. The said enactment which was made for their protection has now being used as a weapon by them. Many innocent husbands and their families are being a victim of their implacable wives/ daughter-in-laws. Courts are flooded with the cases under Section 498 A, many of them are turning to be false and filed with mere intention to blackmail. It has become a foul play to extort money from spouse and his family if they do not value her liberty or does not able to fulfill her demands.
The aim of this article is not to criticize any segment of society, but to point out that the provision which was enacted for the betterment of women are now being misused by them, which is a very sad state. To the contrary those who are the actual victims of the harassment are still not able to raise their voice against the aggravation they are facing. The question is why such a disparity in the society? The answer could be lack of awareness, fear, lack of education or might be pressure of their own family etc.
Is there a real need of 498 A?
The answer to this question would a big YES. There is a need of this provision for those women who are being ill-treated, burnt alive for not brining enough money in marriage, tortured by their in-laws for fulfilling their avaricious wishes. However, before availing the said provision every woman must think whether it is a weapon or a shield to them.
Modernization has changed the views of the society, women have got equal freedom and liberty they have become equally aware, independent and educated. This is a boon for the society to have literate people who can contribute in the growth of Nation. But why Section 498A is being misused? The answer to this question might be the arrogance, high headedness, egotism among woman, the feminism deeply imbedded. However, one forgets that education does not teach us haughtiness; on the contrary it makes us modest and humble. One must appreciate that performing once matrimonial responsibilities does not make us less than anybody and it does not curtail our liberty in any manner. However, it gives a feeling of pride and a responsible, loving human being.
Nowadays married couple has disputed on trivial issues such as refusal to cook, demand to live separately from in-laws, demanding to hire servants for every petty household task, making extravagant demands. In case of failure to fulfill such needs, the clashes start and sword of Section 498 A is used.
However, this is one side of the coin there are genuine cases as well where the brides are burnt alive and being brutally tortured by their husbands and in-laws. They do not get the moral support to raise their voice against such ill-treatments and brutality against them.
How can we use Section 498A in maintaining a balance in the society?
a. Foremost everyone should understand that laws are made for their protection and not for exploitation or misuse.
b. One should keep in mind that legal provision must only be used in genuine cases and not to blackmail or to harass somebody.
c. We must educate woman to take a stand against the injustice being done with them in the matrimonial home.
d. We must focus on areas where woman are downtrodden specific concern to rural areas, where woman do not get moral support to stand up against the harassment.
e. NGOs can help in spreading awareness among woman who is unaware of their rights.
f. Woman who is educated must help another woman in educating her about their rights.
g. Not only woman but every individual must understand their duties and obligations towards matrimonial relationship. Because breakdown of a marriage not only effects the married couple. But it also hampers the growth of a child who is innocent and deserves love of both the parents.
Conclusion-
The most important part of the society, woman must understand that being literate and independent makes her stronger. But she must also appreciate the fact that performing her matrimonial obligations or being modest is equally important. Woman is the most beautiful creation of God on this planet. She should feel proud on herself but not by being arrogant but by being modest. This article is written with a motive to create awareness among mass to use the legal provisions for protection but not for exploitation.
I would like to end this article here by mentioning a quote on woman that shows her power, her modesty, her determination and her love. The society must love and respect woman.
God’s most important and the most beautiful creation…. WOMAN…. She is a mother, a wife, a friend, a sister and play so many roles all at a time…. She does get tired, but she still carries on….she is the real strength, God has given her the power to bring life on earth….when she loves you, she does it with whole heart and soul…. She deserves to be loved and respected…… LOVE HER AND RESPECT HER……