"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Tuesday, November 11, 2014

Partial Setting Aside of Arbitral Awards & Compensation for Breach of Vishaka Guidelines

A recent decision of the Madras High Court is extremely interesting from two perspectives. The first issue is that the Single Judge, after an incisive analysis, rejected the prevailing view (especially in the Madras High Court-see this article titled "Anugraha Engineers & Contractors V. Union of India, 2014 (3) CTC 116: A Critique" noting and criticising the same) that awards could not be partially set aside or modified by a court hearing a petition for setting aside an award under S. 34 of the Arbitration and Conciliation Act, 1996 (1996 Act).

The second interesting point is that the judge held that where there was a complaint of sexual harassment, non-constitution by the employer of a committee as per the Vishaka Guidelines (at the time of the complaint, the Sexual Harassment of Women at Workplace Act 2013 was not enacted) was illegal and the employee who had complained against sexual harassment was entitled to compensation from the Employer. In the present case, the court awarded the complainant an ad hoc amount of Rs. 1.68 crores as damages for non-constitution of sexual harassment committee as per Vishaka Guidelines. The court held in this regard:

"137. Therefore, considering the status occupied and the position in which the petitioner was employed in the first respondent organisation and considering the opportunities that she lost on account of the non constitution of the committee, I am of the view that the grant of an amount equivalent the severance benefit of Rs.1,68,00,000/-, as compensation towards the 12th head of claim, would be appropriate."

The decision in Ms. Gayatri Balaswamy v. ISG Novasoft Technologies Ltd. is accessible from this link (pdf).

Wednesday, October 1, 2014

Is the Arbitrator Obligated to Frame Issues?

Srinivasan, Badrinath, Is the Arbitrator Obligated to Frame Issues? (September 3, 2014). Current Tamil Nadu Cases, Volume 20, Issue 36, Journal Section, pp. 162-167. 

One of the frequent questions that a non-lawyer arbitrator faces is how to frame issues. Framing of issues involves comprehensive reading of the pleadings and coming up with the real and substantial points of difference between the parties. This is not easy even for lawyers. Therefore, the question arises whether the arbitral tribunal is obligated to frame issues.

The arbitrator’s power to determine the manner in which the arbitration is to be conducted is expansive [Section 19(3) of the Indian Arbitration and Conciliation Act, 1996 ("1996 Act")] and is circumscribed only by the agreement between the parties and the legislative fiat to treat the parties equally [Section 19(2)]. The arbitrator has the power to determine his own jurisdiction [Section 16]; he is empowered to pass interim orders [Section 17]; his award is enforceable in the same manner as that of a decree of a civil court [Section 36]. For most purposes, the arbitrator is a substitute to the civil court. Nevertheless, the arbitrator is not bound to strictly follow the Indian Evidence Act, 1872 or the Code of Civil Procedure, 1908 [Section 19(1)]. The 1996 Act is silent as regards whether the arbitrator is obligated to frame issues to determine the dispute, akin to a court of law.

This short paper, published in the Journal Section of the Current Tamil Nadu Cases addresses this topic of practical significance. Further, it also discusses the possibilities of alternatives to framing issues to enable the arbitrator resolve the disputes in an effective manner.

The paper can also be accessed from the below link:



Tuesday, September 30, 2014

Blue skies of Hong Kong - less pollution and hope of freedom & democracy in the air

The boycott of students have turned into a spontaneous "occupy central" by the last weekend. Instead of heavy traffic, pollution and commercial activities, the busy roads of central district of Hong Kong and certain outlying areas are now venues of student protest. The first night of occupation deepened the mistrust of the youth towards the administration. The images of indiscriminate use of tear gas canisters and pepper sprays on a mass of visibly unarmed students who made all efforts to convey to the police force their intention of non-violence touched the raw nerve of the community at large. 

Many whom I met on the on the streets and could strike up a conversation, overcoming the language barrier, shared the same sentiments- they could not remain at home after watching the images of use of force, students need support, we wont let them face this alone.  Most carried with them bottles of water, wet towels and food for the youngsters. This reaction might explain the complete absence of the police from the streets from day two. There were many, who were either neutral or would not have joined the protest in the streets but for the images flashed in local channels. Having said that, one cannot compare the actions of the police with the brutal force we are familiar in a country like India. That very night of standoff between police and protesters, students could be seen resting popped up against parked police vans. The next day morning Mongkok woke up to a police van sporting a flower on its front windshield with an invite to join the struggle for democracy. 

The continued siege from the next day onward show less of tension but more of responsibilities. A few ten thousands are always there on the streets, led and provided for by themselves. There is no visible leader in command, but of course the new age media is of immense help to communicate and coordinate. The occupy central leadership accept that the protest is ahead of schedule that the logistics planned are not in place. Students have organised provision supply points, first aid posts, trash collection and clearing arrangements. They manage themselves in order, at ease and in true sense of democracy. 

The values of democracy, freedom and the images of students armed with umbrellas and the resolve that cover them against the force of gas, sprays and the power have shaken up many people in various walks of life. The union of teachers of public school have declared strike, so also many other labour unions. The script of resistance so far is familiar and predictable, even the response of the administration. Chief Executive of Hong Kong have dug in heals and seems to have taken a position, let the occupation continue as long as it can last. The strategy as of now seems to be waiting for the steam to ebb out and the community to turn against the youth for disrupting daily life and livelihood.

Administration seems to sense that they were caught in the wrong foot in the use of force against the students that it brought the hitherto neutral bunch of people out into the street to rally up with the students.  Not all those who support the students stand for the cause but is touched by the media images. The wait is for the images to fade. Once media attention and interest is reduced for lack of action, sympathizers might turn around and begin to see the students as meddlers.

After the occupation, today is the first day the Chief Executive addressed the Territory. In his 15 minutes speech, he appealed the demonstrators to withdraw the illegal assembly that is causing disruption and inconvenience to the city, citizens and business. Stressed upon how this movement is affecting essential services like health, transport and ambulance. The leaders of Students Federation and Occupy Central have duly responded that they are ready to create humanitarian corridors for facilitating emergency vehicles to pass through. 

It is a stalemate. Even the Chief Executive have limited area to negotiate as strings are pulled by the Big Brother. The picture in South China Morning Post today is quiet ominous, a lone person viewing the streets of Hong Kong where protests are happening through a binocular from the People's Liberation Army Head Quarters and a series of tripods. 


   

Thursday, September 25, 2014

Yellow is the Colour of Democracy in Hong Kong and Youth the Image

Joshua Wong was 15 in 2011 when he started a sit-in with few of his friends in the Legislative House premises of Hong Kong to protest against pro-China nationalist education in Hong Kong. This humble beginning magnified into a movement, of a scale, never before seen by Hong Kong in recent past. It was the moment of self-realization of power within by the Hong Kong youth. The government cowed down eventually. Wong, now 17 can’t be expected to be quiet when Hong Kong is at another historical juncture. He and the group Scholarism is in the forefront of the ‘Occupy Central with Love and Peace Movement’ demanding democracy in Hong Kong.

Today is the fourth day of the boycott of classes by the university students. A group of concerned staff and members of faculty are supporting the protest. Professors are recording and uploading their lectures to make good the missing classes. Students are gathered in Tamar Park, where the central Government offices are located. Speeches, discussions, protest banners, processions- the place is buzzing with activity. Thousands of students move in and out wearing black t-shirts with slogans printed in Cantonese, sporting yellow ribbon. Yellow is the colour; of democracy, liberty, freedom, happiness and the responsibility they have shouldered.

The spark youth carries is the defining factor of society’s political health. Hong Kong youth like their counterparts in other regions have been at the receiving end of criticisms for being apathetic to social and political causes, strictly rule bound, looking west forgetting home. The 2011 incident shook up Hong Kongers to the potential of the Hong Kong youth and now it is felt that if someone can make change it is they.

Chambers of Commerce of different countries including India have issued statements against the pro-democracy protests. The billionaires of Hong Kong have lot to loose. It is anybody’s guess that status quo is the best for them that they shuttle to China to broker peace. They have business interests both in the mainland and Hong Kong. The Hong Kong government is openly pro- China and the students can't expect to have a repeat of 2011 that easily as stakes are much too high this time.

The hope but is only with the students of Hong Kong and the support that has to flow from the community. After all, it is the students of Hong Kong who reminded the administration of Chinese University of Hong Kong that universities should be places of neutrality and should demonstrate the courage to face historical facts, in their struggle to place the statue of ‘Goddess of Democracy’ commemorating the pro-democracy movement of Tiananmen Square, in the University grounds.
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