The national dailies and all the legal news platforms were abuzz by the news of the Supreme Court taking suo motu cognizance of the rape and murder of a doctor in Kolkata's RG Kar Medical College and Hospital.

A few days back, a Constitution Bench led by the Chief Justice of India took suo motu cognizance of an order passed by a single judge of the Punjab & Haryana High Court.

So what is the ‘suo motu’ jurisdiction enjoyed by the constitutional courts of our country? Let’s analyse.

The genesis

Traditionally, courts are required to adjudicate adversarial litigation, when one party raises a dispute against the other. However, post the Emergency, the Supreme Court took up several issues that it was not seized of, matters that highlighted stories of government apathy and institutional neglect that denied vulnerable individuals or groups their fundamental rights. Thus emerged the concept of public interest litigation (PIL).

The principal of ‘suo motu’ exercise of jurisdiction - the Court’s power to initiate action on its own motion - is a jurisprudence that emanates from the Constitution of India and is developed through judicial pronouncements. This principle primarily rides on the duty of the judiciary, being the third limb of our democratic government, to protect rights guaranteed by our Constitution and the ideals enshrined in the Preamble.

If one looks closely, the exercise of suo motu or sua sponte jurisdiction, as it is also known in America, is very intrinsic and inherent to each court of law. A court of law mandatorily would, on its own motion, ascertain issues about jurisdiction to adjudicate a case before it, or, for that matter, ascertain the true characteristic of the legal issue in a case beyond the pleadings. Therefore, suo motu power finds its roots in acting judiciously and doing true justice to matter in hand.

However, the jurisdiction exercised by the top court is beyond this very basic exercise of judicious action. It is the duty of the Supreme Court and the High Courts to uphold the constitutional mandate and ensure proper administration of justice. Article 32 of the Constitution of India gives a vast power to the Supreme Court to issue directions, orders, or writs for the enforcement of any of the rights conferred by Part III. The High Courts also enjoy similar powers under Article 226 of our Constitution.

The higher courts have also exercised suo motu jurisdiction provided under Section 15 of the Contempt of Courts Act, 1971. This power has been exercised to uphold the majesty of the courts in cases of interference with the course of justice, wilful disobedience of the court’s orders, or any matter that may bring disrepute to courts or the administration of justice.

Therefore, suo motu jurisprudence is a facet of PIL, under which the Supreme Court, on its own motion, can initiate action as a duty mandated by the Constitution of India.

Suo motu cases taken up by the Supreme Court

In the recent past, the Supreme Court has adopted a unique judicial approach to exercise ‘suo motu’ jurisdiction in matters involving dereliction from the constitutional mandate. From a quick study of the past cases, it can be seen that the Supreme Court has primarily exercised suo motu jurisdiction in cases of (i) humanitarian issues affecting large sections of society, (ii) serious environmental concerns, (iii) grave incidents warranting swift and authoritarian action and (iv) incidents when the Supreme Court has to protect the dignity and majesty of the court and the judiciary.

In the initial years after the Emergency, many questions arose pertaining to the exercise of suo motu jurisdiction. The issues varied from the allocation of cases - whether the matter should be allotted to the particular judge who has raised the concern or placed before the Chief Justice, being the administrative head to allocate the appropriate bench; the procedure required to be followed; the immediate injunctive action required; the monitoring and supervision of the situation; or the relief that can be granted, especially considering that the issue was not yet finally adjudicated upon. But the wave of judicial activism was strong at that time, and the Supreme Court came up with sui generis, judicious, solutions to address each issue at hand.

Some of the notable cases where the Supreme Court rose to its constitutional duty are:

Humanitarian issues: The Supreme Court intervened during the COVID-19 pandemic to ensure proper treatment of patients and dignified handling of dead bodies in the hospitals [(2020) 7 SCC 145]. While also monitoring the modalities of distribution of essential supplies and services during the pandemic [(2021) 18 SCC 201], the Supreme Court remarked that it cannot be a mute spectator in the face of national issues that go beyond the boundaries of a particular state.

Environmental concerns: The Supreme Court’s intervention in environmental cases has ensured effective and timely control of further degradation of the situation. In suo motu cognizance pertaining to felling of trees in Aarey forest [(2019) 9 SCC 363], the Supreme Court asked the Maharashtra government to stop cutting trees in the Aarey forest area on a letter written by a group of law students. Another notable suo motu action in this area are cases pertaining to the Delhi air pollution, where the Supreme Court has passed several orders for continuously monitoring and devising methods to curb the deteriorating air quality in Delhi.

Grave situations warranting urgent intervention: In July this year, the Supreme Court took suo motu cognizance of sexual violence amidst the ethnic conflict in the State of Manipur. It set up a committee of three former female High Court judges to “look at diverse aspects of humanitarian nature”, including relief, remedial measures, rehabilitation measures, and restoration of homes and places of worship. Further, looking at the communal unrest and to ensure proper investigation, 11 FIRs were transferred to the Central Bureau of Investigation (CBI) for investigation. 

The suo motu cognizance taken in the RG Kar Hospital rape and murder case is another example.

Protection of majesty of the court and the judiciary: In pure misuse of power, a judge of the Calcutta High Court sentenced the Chief Justice of India and seven other Supreme Court judges to five years of rigorous imprisonment after holding them guilty under the SC/ST Atrocities Act of 1989 and the amended Act of 2015. A seven-judge Constitution Bench headed by the then Chief Justice of India took suo motu cognizance and sentenced the said sitting judge of the Calcutta High Court to six months of imprisonment, holding him guilty of contempt of court.

Another recent case [Suo Motu Writ (Civil) No 8 of 2024] was when a bench of five judges led by the Chief Justice of India took cognizance of an order passed by a Punjab and Haryana High Court judge. The Court, while affirming the principles governing comity between the High Courts and the Supreme Court as the apex judicial institution of the country, expunged the “random, gratuitous, and unnecessary” remarks made by the said judge.

Other notable suo motu cases pertain to cognizance for extension of limitation [(2020) 19 SCC 10] for proceedings before all courts and tribunals owing to the COVID pandemic; issuance of certain guidelines regarding inadequacies and deficiencies in criminal trials dealing with reformation, uniformity, and clarity of procedure and practices relating to investigation, prosecution, trial, evidence and bail [(2021) 10 SCC 598]; and strategy for grant of bail in which the Court directed the National Legal Services Authority to look into cases where bail was granted but the convicts were not released [2023 SCC Online SC 483].

Over the years, as the jurisprudence of suo motu action has evolved, the role the Supreme Court has played in most of these cases is supervisory and facilitative in nature, rather than that of final adjudication. The Supreme Court has taken assistance of the High Courts, amicus curiae, specially constituted panels, or retired judges, as well as the State machinery in identifying solutions and for proper implementation to ensure complete justice.

The criticism

With the increase in the number of cases dealt with by the constitutional courts under such exercise of suo motu jurisdiction, this power and jurisdiction have often faced scrutiny. The prime criticism is judicial over-activism and intrusion by courts in executive actions in the name of public interest. The other concern pertains to the need for verification of the author and contents of news that often forms the basis of suo motu action by courts.

The main crux of the criticism seems to be the fact that when constitutional courts exercise ‘suo motu’ jurisdiction, there is a departure from the normal operation of the judicial hierarchy, or that such actions are inroads into the executive’s domain of exercise of power. To keep away from such criticism, the key necessity is to strike the right balance between, freedom to exercise executive action, conformance to legislative supremacy and adherence to judicial self-restraint, keeping in mind the democratic values of our Constitution.

Despite criticism, ‘suo motu’ action initiated by the Supreme Court has gained traction over the years. From the above indicative list, one can see that the Supreme Court has judiciously and prudently exercised the power of suo motu judicial intervention. It has exercised the utmost caution, ensuring proper verification before initiating action, and often refrained from final adjudication until proper investigation and scrutiny.

In conclusion, one can say that the Supreme Court has only intervened where it is required to step into a larger role of protector of constitutional rights and values. In fact, in many such cases, the State itself has treated the issue as a ‘joint cause’ and devised solutions to address the issue, rather than treating a suo motu petition as adversarial litigation. This is a classic example of all components of a democratic government working as a well-oiled machine.

Yugandhara Pawar Jha is an Advocate-on-Record practicing before the Supreme Court of India.

Recently, I overheard the CJI say, “Padho Bhai” in the courtroom while he rejected a petition to lower the cut-off marks for the All India Bar Examination (AIBE). With the cut-off standing at a low 45% for general category students and 40% for SC/ST students, his reaction to the petition seemed logical.

However, the point of contention remains the larger validity of this test and whether it manages to filter out ‘advocates’ from ‘students’; students against whom it discriminates, by calling them ineligible to practice in courts right away after completing 5-6 years of their legal education from premier institutes across the country and abroad.

Before raising any arguments or giving any reasoning, it is important to understand that ‘competence’ and ‘acumen’ are two very different things. A student’s legal acumen can be judged using a test, whereas one's ‘competence’ as an advocate can only be judged after intensive exposure and equal opportunities to all, therefore making it an impossible metric to set. Coming to legal acumen, the need for a further assessment after long intensive study is a mockery of the Indian legal education system. Instead of setting roadblocks to legal practice in the name of ‘competence’, the Bar Council of India (BCI) must make attempts to refine Indian legal education.

Ever since its introduction, the AIBE has stood out as a controversial and divisive component. First conducted in 2011, the examination was conceived with the intention of ensuring competence among law graduates prior to their practice. However, the story of its execution and real-time impact has been far from ideal. AIBE is conducted after the candidate has completed his degree in law which is either five years or three years if law is done after graduation. To add to that, there is no distance learning option for law on the ground that legal education can only be taught in classrooms and can’t be learnt by self-study, hampering accessibility.

AIBE brings with it more challenges than just these. After having invested five or six years for a law degree, students are still at a crossroads and are required to deposit an additional fee for appearing in the examination. Many law graduates with humble backgrounds can’t afford to pay so much fees. Recently, the Madras High Court dismissed a plea seeking to reduce the application fee for the AIBE which is conducted by the BCI. The decision was made by Acting Chief Justice R Mahadevan and Justice GR Swaminathan. The AIBE imposes additional costs such as registration fees, study materials and potential expenses related to repeated attempts at the examination. Not only does the exam delay a graduate's entry into the legal profession, but it also further burdens them with added financial stress. 

Though the AIBE has always been dealing with the controversies, the recent jibe on the low standard of the examination was brought up in A Mohandoss v. Registrar General (renamed as "In Re: Strengthening of the Institution of Bar Associations) on July 16. The Supreme Court's Justice Surya Kant criticised the “low standard” of the AIBE. Ironically, this observation has come in the background of the fact that in the year 2023, more than 50% of candidates who appeared for the AIBE failed to pass the same.  Hence, it can be derived that in its present form, the AIBE alone has no potential to solve the Supreme Court’s concerns over "quality lawyers”. If the AIBE’s standards remain unsatisfactory despite such a high failure rate of law graduates, there is a need to reconsider the exam’s role. 

If the goal is to improve the quality of lawyers, a more nuanced approach is needed rather than simply raising the bar of the AIBE to match the examinations used in other countries. The solution lies in a multi-dimensional approach. Legal education should be refined to focus on practical skills and problem-solving approaches rather than memorising certain sections of law. A lawyer’s competence is determined by a sum of skills such as drafting, ability to use technology, inter-personal relations, argumentation and hard work. This can be ensured only by re-visiting the syllabus of law and adding new topics dealing with technology, emotional intelligence and management etc.

For a better understanding of legal procedure in India, students must have exposure to the real-time cause and effect of the study. For instance, they must be encouraged to visit prisons, where they can assist the inmates and the legally oblivious in filing appeals, getting certified copies of orders, assisting legal aid counsel etc. The selection of teachers should also be transparent and guided by the requirements of the present time. It is imperative to make the study of law more fitting to changing times, with greater emphasis on a more practical and technological approach, coupled with the addition of newer subjects which are relevant and have a more holistic approach to employment.

One can draw a parallel between the legal profession and chartered accountancy, where the latter follows an inverted pyramid approach with self-study holding the larger bracket, further checked by a fool-proof examination system. Yet formal training, like an articleship, is one of the integral qualifying factors. The BCI and state bar councils can study these approaches and introduce the same in legal education.

However, one can’t be ignorant of the fact that India as a nation still suffers from rampant poverty and unemployment, which drive people into choosing professions out of need and not passion. The lack of diverse options and the further lack of awareness of existing career options is something that pushes people into boxes To address the issue, one needs to first understand and recognise that though basic education can be for all, professional education isn’t, and the Indian mindset of “acquiring a degree” must modify itself into “acquiring a skill”. A skill can be that of a professional carpenter or an advocate, depending upon the demand of the same in the market. This modification can only come when there's less time invested in filtering out the “unfit” and instead time is invested in instilling within the people a sense of dignity for labour so that pride can be generated from being both an advocate and a carpenter. 

To conclude, creating a barricade and filtering out students after completion of formal education is a waste of time, money and resources. This filter needs to be put right at the inception; only those should study law who are capable of becoming good lawyers. Further filtering should be at the stage of passing the law exam. Only those who are capable of practicing law should pass the law exam. As I said, the aim ultimately should be to produce quality lawyers and not to exclude the majority by a three-hour objective and multiple-choice exam.

Jyotika Kalra is an Advocate-on-Record practicing before the Supreme Court of India.

High Courts are often faced with the dilemma of choosing between two conflicting rulings of co-equal benches of the Supreme Court, both equally binding upon them. In Atma Ram v. State of Punjab, (AIR 1959 SC 519, 527), the Supreme Court observed that subordinate courts are placed under the embarrassment of preferring of one conflicting High Court view over another when both are equally binding upon them. High Courts face the same embarrassment.

Unfortunately, the law laid down by the Supreme Court on this question is not clear. In Sundeep Kumar Bafna v. State of Maharashtra, [(2014) 16 SCC 623, 642] it was held that if two or more mutually irreconcilable decisions of the Supreme Court are cited before a High Court, the “inviolable recourse” is to apply the earliest view as the succeeding one would fall in the category of being per incuriam. On the other hand, in Indian Petrochemicals Corporation v. Shramik Sena, [(2001) 7 SCC 469], the Supreme Court took a different view and held that even if the High Court was faced with diametrically opposite interpretations, it should have decided the case on merits and according to its own interpretations of the judgments. Thus, there are conflicting views of the Supreme Court on how conflicting views rendered by coordinate benches should be dealt with.

Salmond in his classic book on Jurisprudence, has termed these conflicting rulings as ‘schizophrenic’. The relevant passage from Salmond was cited by Tarkunde J. in Mansing Surajsingh v The State of Maharashtra, (70 Bom LR 654, 669) and it was observed that when there are contrary decisions of co-equal benches which are both binding on the High Courts, it has to undertake the unpleasant task of choosing  the one which appears to have better authority or reasons. Tarkunde J. cited this classic passage from 12^th edition of Salmond, p.153:

“Where authorities of equal standing are irreconcilably in conflict, a lower court has the same freedom to pick and choose between them as the schizophrenic court itself. The lower court may refuse to follow the later decision on the ground that it was arrived at per incuriam or it may follow such decision on the ground that it is the latest authority. Which of those two courses the court adopts depends, or should depend, upon its own view of what the law ought to be.”

This decision of Tarkunde J. was subsequently followed by a Full Bench of Bombay High Court in Kamleshkumar v. Union of India, (1994 Mh.L.J., 1669, 1681).

The principle that the earlier decision must be preferred was rejected in a carefully reasoned Full Bench judgment of the Punjab & Haryana High Court in Indo Swiss Time Ltd. v. Umrao, [(1981) 2 ILR (P&H) 49 (FB)]. It was held that a decision made at an earlier point of time will not necessarily prevail over a later decision.

Reference was made to a passage from Seervai’s Constitutional Law of India, 3^rd Edition, page 2244:

“But judgments of the Supreme Court, which cannot stand together, present a serious problem to the High Courts and to subordinate courts. It is submitted that in such circumstances, the correct thing is to follow that judgment which appears to the court to state the law accurately or more accurately than the other conflicting judgment.”

This was followed by a Full Bench of the Patna High Court in Amar Singh Yadav v. Shanti Devi, [1986 SCC OnLine Pat 203 : AIR 1987 Pat 191 (FB)].  

However, a five-judge bench of the Madhya Pradesh High Court took the view that if there is a conflict of two benches of co-equal strength, the decision of the earlier bench will be applicable. The five-judge bench overruled the decision of a three-judge bench which had held that the High Court had the option of choosing that ruling which is more elaborate and more accurate and in conformity with the scheme of the Act. [Jabalpur Bus Operators Association v. State of Madhya Pradesh, (2003 (1) MPLJ, 513].

The High Courts’ problem is also aggravated because it has been held that they ought not to declare a Supreme Court decision as per incuriam. This problem is further compounded when these two co-equal bench decisions are referred to a larger bench for resolution. It will be impossible to predict what the larger bench may ultimately hold. Therefore, it is submitted that the High Court is entitled to examine both the conflicting rulings and choose that which appears to it to state the law more accurately or which applies more closely to the facts of the case that the particular High Court is considering.

It is submitted that the view taken by the Supreme Court in Indian Petrochemicals Corporation case is the correct view and the view in Sundeep Kumar Bafna that the earliest view will always prevail is incorrect. Similarly, the Full Bench decisions of Bombay, Punjab & Haryana and Patna High Courts are correct and the Full Bench of the Madhya Pradesh is incorrect.

It is, therefore, submitted that if the High Court is faced with ‘schizophrenic court rulings’ ,as they have been labelled by Salmond, the following principles will apply:

i. The time theory that the earlier judgment automatically prevails is incorrect. The later decision may have noted the earlier decision and given reasons as to  why it is taking a different view.

ii. Two conflicting rulings, if referred to a larger bench, make the case stronger for the High Court to choose that decision which is better reasoned or more appropriate to the case on hand.

iii. The High Court must carefully examine both conflicting rulings and choose that which is most relevant to the facts of the case before it. The mere fact that one judgment is longer, and contains more reasons, will not necessarily make it the better one. It is not necessary that the High Court must necessarily follow the more elaborate ruling.

iv. For the reasons Salmond has set out, the High Courts have the freedom to pick and choose either of the conflicting rulings. 

About the author: Arvind P Datar is a Senior Advocate of the Supreme Court and wishes to acknowledge the help of M. Jannani, Advovate, in the writing of this article.

Mahatma Gandhi, Bhagat Singh, Rani Laxmibai, Sardar Vallabhai Patel - these names will be forever etched in India's modern history. But there are scores of people involved in India's freedom struggle - including some who are alive to this day - whose names hardly anyone knows.

Take, for example, 97-year-old M Velu from Tamil Nadu, who only recently received the arrears of his freedom fighters' pension. It was in April 2021 that he had started receiving the pension - almost eight decades after participating in India's freedom struggle.

Velu is one among many of the forgotten freedom fighters who have been made to run from pillar to post to get a moderate sum of money for their service to the country.

As India celebrates its 78th Independence Day, we look at how the courts have aided such freedom fighters in their struggle for pension.

Gratitude delayed

Velu was born in 1924 in Burma (now Myanmar), which was also a British colony then. At a young age, he participated in the freedom struggle and signed up for the Indian National Army (INA) headed by Netaji Subhas Chandra Bose. 

Velu was arrested and jailed by the British between 1945 and 1946. In 1970, he returned to India and settled in Tamil Nadu. However, his struggle continued even long after the colonisers left India and its neighbouring countries. Though Velu is said to have applied for the State pension in 1987, his application was never traced. Instead, the application submitted by him in 2012 was considered by authorities. 

However, the benefit of pension in his favour did not come easy. The State first rejected his case while doubting the proof submitted by him. It accepted his claim only in 2021 after an order of Madras High Court.

There were three more cases thereafter in 2021, 2023 and 2024 over arrears of his pension. Though he was unsuccessful in receiving the arrears from 1987, a record was found of him having made an application in 2008. On that basis, the High Court in 2022 had ordered the State to quantify his arrears.

It was only on July 8 this year that Velu received the arrears - after the State lost in an appeal before the High Court and the bench hearing Velu's contempt of court petition took the matter seriously to ensure compliance with the April 2022 decision. 

Who is eligible for freedom fighters' pension?

The freedom fighters pension scheme was introduced by the Central government in 1972, on the 25th anniversary of India’s independence, to honour the freedom fighters. It was only in 1980 that the scheme was rechristened as Swatantrata Sainik Samman Pension Scheme. Many states also have their own pension schemes for freedom fighters.

In 2022, there were around 23,566 beneficiaries under the Central government scheme.  As per an answer given by the Ministry of Home Affairs to the Rajya Sabha in 2022, there were 5,625 freedom fighters receiving the pension.

The rate of pension has been increased from time to time.

A person who had suffered minimum imprisonment of six months before independence is eligible under the scheme. Also, ex-INA personnel are eligible if they had suffered any detention for at least six months outside India. The requisite imprisonment period is only three months in case of women and those belonging to the Scheduled Caste and Scheduled Tribe categories. 

Those who had remained underground for at least six months after being declared a proclaimed offender, or on being issued detention orders are also eligible under the scheme.

The freedom fighters are required to submit a certificate to prove they had been in jail. In its absence, they can submit a Non-Availability of Records Certificate (NARC) from the authorities along with any co-prisoners’ certificate to support their claim.

Bureaucratic bungles and the courts

Having seen the plight of these freedom fighters, the Madras High Court in November 2020 put it down to “bureaucratic bungles”.

“It is an agonising fact that this Court has been repeatedly seeing pathetic cases of freedom fighters. Time and again, Courts have taken a very tough stand and has given directions after directions sensitizing the issue to the Government authorities / Officials / Bureaucrats, however the attitude of the Government authorities / Officials / Bureaucrats has not changed,” Justice R Suresh Kumar said in an order dated November 23, 2020. 

The Delhi High Court in November 2023 came across a similar case where the Centre, despite the Bihar government’s confirmation of his claim, had failed to grant pension to a 1927-born freedom fighter who had been declared a proclaimed offender by the British Raj in 1943. 

Justice Subramonium Prasad, while granting relief to the 96-year-old, had called the Centre’s inaction an insult to the freedom fighter and said that it was painful to see how such persons were being treated.

“A 96 years old Freedom Fighter has been made to wait for over 40 years for his pension. The 'Swatantrata Sainik Samman Pension' Scheme was announced by the Government of India to honour the freedom fighters who gave their seat and blood to secure the freedom of the country. A 96 years old freedom fighter has been made to run from pillar to post to get his rightful pension,” the judge said in the ruling. 

Such bureaucratic and procedural hurdles are not new. Back in 1993, the Supreme Court had said that the expectation of the authorities for freedom fighters to be in possession of proof to be eligible for pension was "unrealistic".

“In the very nature of things, such documents have to be secured either from the jail records or from persons who have been named in the Scheme to certify the eligibility. Thus the claimants have to rely upon third parties. The records are also quite old. They are bound to take their own time to be available. It is, therefore, unrealistic to expect that the. claimants would be in a position to produce documents within a fixed time limit, What is necessary in matters of such claims is to ascertain the factum of the eligibility. The point of time when it is ascertained, is unimportant. The prescription of a rigid time-limit for the proof of the entitlement in the very nature of things is demeaning, to the object of the Scheme,” the top court said in May 1993.

In Mukund Lal Bhandari and Ors v. Union Of India and Ors, the apex court had gone to the extent of saying that the government should find out the freedom fighters or their dependents and approach them with the pension instead of requiring them to make applications for the same.

However, as shown by the multitude of cases before courts, the authorities have not acted in that spirit even 31 years after the judgment was passed.

The courts have of late been proactive when it comes to granting pension to the kin of deceased freedom fighters.

In March 2022, the Kerala High Court intervened in an INA veteran’s case 13 years after his death.

94-year-old old Edadan Chindan Nair had approached the Court in 2008 challenging the Kerala government's decision to not recommend him for the Central government’s pension scheme. He died in 2009.

His widow and son were impleaded as parties to the case in 2021. A year later, the High Court directed the State government to reconsider Nair’s  pension application.

In September 2023, the Kerala High Court pulled up the State government for denying pension to the divorced daughter of a freedom fighter. Such decision, the Court said, smacked of archaic patriarchal notions since it was based on the ground that two of her brothers were in a position to take care of her.

On July 3 this year, the Madras High Court intervened in yet another case of an INA veteran who died in 1991. His wife in 2021 had approached the Court against denial of pension to her by the Centre. She was granted relief by the Court in 2022.

However, the Centre appealed against the decision. The Court said that the widow had been fighting for the benefits for more than two decades.

While hearing the case of a 99-year-old who had faced imprisonment in the Lahore Central Jail during the Quit India Movement, the Punjab and Haryana High Court in November 2023 passed a unique order.

Gurcharan Singh had been receiving the pension from the Punjab government since 1998 even as his documents had later got misplaced at the government level. When he later applied for the pension under the Central government scheme, he was asked to re-establish his claim. 

In the meanwhile, his co-prisoners had passed away and his 93 per cent deafness also did not help his case. Taking exception to the conduct of the authorities in Punjab, Justice Vinod S Bhardwaj ordered the State to trace Singh’s record.

It further directed that if the record is not traced and the Centre declines to grant benefits to the freedom fighter for want of documents, then the State of Punjab itself will have to pay the pensionary benefits as prescribed under the scheme of the Government of India.

While the courts in these cases have shone the light at the end of a long, dark tunnel for some freedom fighters, others have died without any relief. Several others' cases continue to languish before the courts.

The Madras High Court summed up the situation best when it said in a recent order,

“Without all their sacrifices and unimaginable struggle, we would not have been enjoying all our freedom and the present day life. It is only because of the their struggle, the authorities who are considering the applications are adorning such positions today and the freedom fighters and the family members definitely command a better respect and compassion at least when their rights in granting pension is considered, that too which is extended by the Government in recognizing their sacrifices to our Mother Country."

On July 22 this year, the Bombay High Court bench at Aurangabad held that an arbitration agreement survives termination of the parent contract, invoking Section 16(1) of the Arbitration and Conciliation Act, 1996.

The Court followed a line of decisions cited by the Supreme Court in SBI General Insurance Co Ltd v. Krish Spinning recognising the UNCITRAL Model Laws on International Commercial Arbitration, 1985, which embody the presumption of separability elucidated in the Act. It highlighted that an arbitration clause forming part of the contract is to be treated as an agreement independent of other terms of the contract. The decision of an arbitral tribunal of declaring the parent contract as null and void does not ipso facto make the arbitration clause invalid. 

The Court also cited National Agricultural Coop. Marketing Federation India Ltd v. Gains Trading Ltd, which lays down that an arbitration agreement is a collateral term in the contract that relates to the resolution of disputes and not performance. Even if the performance of the contract comes to an end due to frustration or breach of the contract, the arbitration agreement survives for the purpose of resolution of disputes arising in connection with the contract.

Background

The dispute relates to termination of the contract between EBIX Cash and Aurangabad Smart City Development (ASCDCL). EBIX was awarded a contract by ASCDCL in 2020 and thereafter ASCDCL issued a new tender in 2024, which was not a substitute tender to the 2020 tender contract. EBIX pushed back and said that it will face grave loss if the new tender is processed. Consequently, ASCDCL issued a show cause notice terminating the 2020 tender contract without any lawful excuse.

Based on the aforesaid termination, EBIX filed a writ petition against ASCDCL to set right the arbitrary actions of the State and/or against termination due to breach of contract.

Order of the Division Bench of the Bombay High Court

The Court recognised the discrepancy in the facts produced by both parties. However, without dwelling into the merits of the case, the Court held that ASCDCL issued a preliminary termination notice prior to the termination of the contract. The said termination was within the contractual domain. Furthermore, clause 16.2 of the request for proposal under the contract envisaged a mechanism for dispute resolution through arbitration, thus confirming that the dispute at hand is arbitrable.

Interestingly, the Court interpreted Section 16 of the Act and held that even if the underlying contract comes to an end, the arbitration agreement contained in such a contract survives.

Besides, the fundamental premise governing the doctrine of separability is that the arbitration agreement is entered into between parties with the mutual intention to settle disputes that may arise with respect to the underlying substantive contract. Thus, by its inherent nature, it is independent of the substantive contract.

The Court's decision in this case is based on two key assumptions:

1. Ancillary nature of the arbitration clause: The Court viewed the arbitration clause as ancillary to the main contract. This perspective holds that the arbitration clause, being a procedural mechanism for dispute resolution, is inherently linked to the substantive rights and obligations arising from the contract. Consequently, when these rights and obligations are assigned, the arbitration clause follows automatically without the need for a separate agreement. While this approach may enhance the commercial effectiveness of arbitration agreements, it conflicts with the widely accepted principle of separability. This principle treats arbitration clauses as autonomous and independent from the main contract, ensuring their survival even if the main contract is void or terminated.

2. Survival of the arbitration clause: The Court also reasoned that the arbitration clause should survive the termination or frustration of the main contract. The rationale is that contracts may be terminated or frustrated for various reasons, which are traditionally performance-based. However, in this judgment, the arbitration clause is seen as a collateral term that is sustained for the specific purpose of resolving disputes. Such a view ensures that even if the main contract becomes unenforceable, the mechanism for resolving disputes through arbitration remains unequivocal.

The Court's emphasis on the survival and independence of the arbitration clause underscores the importance of the doctrine of separability and the autonomy of arbitration agreements. This principle ensures that parties can still seek resolution through arbitration, de hors the status of the main contract, thereby providing a clear and consistent avenue for dispute resolution.

Natasha Sood is an arbitrator and counsel at Juscontractus.

On July 10, the Supreme Court, while hearing a matter pertaining to vacant posts in statutory pollution control boards of various states, noted the sad state of affairs of the Delhi Pollution Control Board, questioning its efficiency in light of 233 vacancies out of 344 sanctioned posts.

The Court also criticised the “shortcut” method of employing workers on a contractual basis instead of providing regular full-time appointments. This brings to light the broader challenges faced by pollution control authorities in India.

The history of pollution control in India dates back to the early 1970s, when the Government of India started to recognise the need for regulating and controlling environmental pollution. One of the first steps taken in this direction was the establishment of the Central Pollution Control Board (CPCB) in 1974, under the Water (Prevention and Control of Pollution) Act, 1974.

The CPCB was set up with the primary objective of coordinating the activities of state pollution control boards (SPCBs) and promoting research and development in the field of environmental pollution control. The Board was also responsible for providing technical assistance and guidance to industries, municipalities and other agencies in matters related to pollution control.

Over the years, several other pollution control boards were established at the state level, under the Water Act and the Air (Prevention and Control of Pollution) Act, 1981. These boards were given the responsibility of implementing and enforcing pollution control measures within their respective states.

The functioning of pollution control boards in India has evolved significantly over the years, with a focus on improving the regulatory framework and enhancing the effectiveness of pollution control measures. Despite sporadic developments, there are several challenges faced by pollution control boards in India, including inadequate staffing and resources, lack of public awareness and participation, and the need for more stringent regulatory measures to address the growing concerns of pollution.

Composition and membership of pollution control boards

The structure and functioning of pollution control boards in different states of India vary slightly depending on the state's specific laws and regulations. However, the broad functions and responsibilities of these boards remain the same, which include monitoring, controlling and regulating pollution.

State-level pollution control boards are responsible for enforcing pollution control measures in their respective states. These boards are headed by a chairperson who is usually a senior government official. The number of members and their specific roles and responsibilities may vary from state to state.

Civil society, academia, public health and the medical community are underrepresented on the boards responsible for monitoring and regulating pollution in India. The majority of representation comes from government agencies, public sector organizations and business groups. This lack of diversity raises questions regarding the effectiveness of these boards in tackling the complicated and varied issue of pollution.

The law requires the boards to have at least two members with knowledge and experience in air quality management, although the majority of boards have vacancies in technical positions.

The selection of Chairpersons and Member Secretaries for SPCBs frequently favours individuals with a government background over those with environmental management degree or technical expertise. Active public officials are more suited for the post of Chairpersons, whereas the Member Secretary should have a technical background. This preference is based on the assumption that civil servants are better prepared to manage inter-departmental cooperation and connect the SPCB's work with the state government's aims, notwithstanding the SPCBs' autonomy.

In a number of states, the position of the Chairman is part-time. Most Chairpersons hold secondary positions in other government agencies, preventing them from focusing solely on the SPCB's mission and operations. This reduces the efficacy of the SPCBs, as the Chairperson cannot dedicate enough time and attention to pollution control operations.

The terms of Chairpersons and Member Secretaries vary greatly, despite the fact that the majority of governments have set terms for both roles. Some Chairpersons and Member Secretaries have maintained their positions for less than a year. The average tenure of the previous five Chairpersons is longer than three years in just two states, and only because of extreme outliers who held positions for up to seven years. The short tenures make it difficult for Chairpersons and Member Secretaries to successfully develop and implement long-term strategies for pollution reduction, as the majority of their time is devoted to learning the requirements of their position.

Challenges and opportunities for pollution control boards in India

PCBs in India face various challenges in fulfilling their mandate of controlling and preventing pollution. One of the significant challenges is the lack of financial and human resources. PCBs often have limited funding, staff and equipment to monitor and enforce environmental regulations effectively. A recent report submitted to the National Green Tribunal highlighted that more than 50% of the sanctioned posts in all state pollution control boards and committees are lying vacant. This shortage of personnel severely hampers the effectiveness of pollution control efforts across the country. According to the report, 6,075 out of the 12,016 sanctioned posts (50.56%) in 28 state pollution control boards and 8 pollution control committees in union territories are vacant. For instance, Bihar has the highest vacancy rate at 84%, with 209 out of 249 posts unoccupied and Jharkhand follows with 73% of its posts vacant. The situation is similarly dire in other states, with vacancies ranging between 58% and 84% in places like Andhra Pradesh, Gujarat, Haryana, Karnataka, Madhya Pradesh, Manipur, Odisha, Rajasthan, Uttarakhand, Dadra & Nagar Haveli and Daman & Diu, and Ladakh.

These vacancies plague the entire functioning of the PCBs and affect their ability to conduct regular inspections of polluting industries and enforce penalties for non-compliance. Additionally, the PCBs' staff may not have sufficient technical expertise or training to assess the environmental impact of industrial activities and implement appropriate control measures.

According to Section 39 of the Water Act, the CPCB must submit its 'Annual Report' each financial year, detailing activities from the previous financial year, to the Central government. The government must present this report to both Houses of the Parliament within nine months from the last date of the previous year. However, no reports have been publicly available since 2020-21, raising concerns about the CPCB's effectiveness in addressing pollution and air quality management.

The representation, expertise and functioning of the boards responsible for monitoring and regulating pollution in India require significant improvements to effectively address the pressing issue of pollution in the country. The preference for civil servants and the lack of full-time commitment to the role of Chairperson should be addressed. While the PCBs in India face various challenges, there are also opportunities for them to improve their functioning and effectiveness. By leveraging technology, collaboration and capacity building, the PCBs can better fulfill their mandate of preventing and controlling pollution.

Shailee Basu is a Research Fellow with the Climate & Ecosystems team at Vidhi Centre for Legal Policy.

Constitutionalism and Rule of Law: In a Theatre of Democracy, authored by former Supreme Court judge Justice AK Sikri, is a compelling look into the core values and principles that sustain democratic societies. Using his judicial background, Justice Sikri delves into the intricate relationship between constitutionalism and the rule of law.

With a foreword by Chief Justice of India DY Chandrachud, an introduction by Prof Upendra Baxi and an afterword by former Supreme Court judge Justice Rohinton Fali Nariman, the book contains an assortment of essays and speeches reflecting on cases that shaped constitutional jurisprudence in India.

The book is structured into several chapters, each meticulously exploring different facets of constitutionalism and the rule of law. These include the role of a judge in a democracy, judicial review and the principle of constitutional proportionality in achieving good governance. The central theme of the first part of the commentary is the pivotal role of the Constitution in striking a balance between the State’s power to take measures for advancing social welfare and the autonomy and dignity of people faced with coercive State powers.

Justice Sikri begins with a historical overview, tracing the development of these concepts from their philosophical origins to their contemporary applications. A significant portion of the book is dedicated to the analysis of landmark judicial decisions. Justice Sikri’s discussion of these cases provides valuable insights into how courts interpret and uphold constitutional principles. He uses a range of examples from India and other democracies to illustrate the dynamic nature of constitutional law and its adaptability to changing societal needs.

He goes on to lay down the three broad duties of a judge - to uphold the Constitution and the law in a substantive democracy as against maintaining a formal democracy (government of majority rule); bridging the gap between the law and society; and the duty of a judge to deliver speedy justice in the face of burgeoning complexities that are inevitable in the era of globalisation.

The author succinctly mentions the role of lawyers in being crucial agents in the process of administration of justice and underscores the importance of lawyers discharging their duties without fear or favour. He also highlights the importance of lawyers being “more than skilled legal technicians”, the need for them to be “legal architects, engineers, builders, and from time to time, inventors as well”, and their role as peacemakers as against promoters of conflict.

The second part of the book delves into the role of law schools in shaping the fabric of the legal profession.

In emphasising on the contributory role of law schools, Justice Sikri puts forth some recommendations. Some of these include the need to instil ethics and morality by intertwining professional responsibility in legal studies; sensitising students on legal aid work and connecting legal aid clinics at law schools with district or state legal services authorities so as to create a sense of responsibility to speak up for those who cannot stand up for themselves; training on mediation; revamping teaching pedagogies and stepping away from the rote learning system; and introducing new courses to equip students in the global world and augment research wings in law schools. 

Justice Sikri also covers the marginalised sections of society by delving into gender justice, disability rights and the jurisprudence of dignity by providing numerous anecdotes and references to legal luminaries to underscore these themes.

The third part of the book explores the relationship between spirituality and the legal profession, the relationship between law and literature, the globalisation of judging, and the power and role of mediation in enabling access to justice.

The fourth part is an exclusive dedication and tribute to legal luminaries like Prof Upendra Baxi and Prof MP Singh, who Justice Sikri says have been role models, teachers and mentors to him.

Justice Sikri's writing makes complex legal concepts understandable to a broader audience. He avoids unnecessary jargon and instead focuses on elucidating ideas through practical examples and analogies. This approach ensures that the book is not only suitable for legal professionals and students, but also for anyone with an interest in understanding the foundations of democratic governance.

The author does not shy away from discussing contentious issues and differing perspectives. He acknowledges the challenges and limitations of constitutionalism and the rule of law, such as the potential for judicial overreach and the tensions between different branches of government. This balanced approach adds depth to the book, encouraging readers to think critically about the principles and their application.

For anyone interested in the intersection of law and democracy, Justice Sikri’s book is an essential and thought-provoking read. It not only deepens the understanding of constitutionalism and the rule of law, but also inspires readers to appreciate the delicate balance that sustains democratic societies.

In May 2024, leading art auction house Christie’s faced a “technology security issue,” causing its website to go offline and forcing it to reschedule a major auction. While it worked with experts to identify and resolve the issue, Christie’s created a temporary website to provide information and catalogues for upcoming auctions.

A ransomware gang called RansomHub took responsibility for the hack and claimed it stole sensitive client information like address and passport numbers. The gang has not yet published any data, but is using it to extort money. While the Christie’s website and app are now fully functional, this was not the first breach it experienced. In 2023, ARTnews reported that a flaw had been discovered in Christie’s website because of which the GPS data of images of artwork uploaded by consignors were revealed accurate to a few feet from where the photo was taken. This essentially meant that the location of highly sort-after artwork would have been in the public domain, which, ordinarily, is considered extremely confidential.

How does the art industry work?

Art galleries have curators who select artwork based on artistic merit, theme and demand. These are showcased at exhibitions for prospective buyers. Often, these exhibitions are promoted online and offline. If a buyer expresses intent to purchase, the gallery facilitates the sale including all incidental tasks (paperwork, certificates of authenticity and delivery or shipment).

Auction houses follow a similar process. Artwork owners, including collectors, estates and galleries, contract with the auction houses to sell their art. Experts are appointed to value the art to get it ready for auction. A contract is executed between the seller and auction house to finalise key terms. The auction house then organises a physical or virtual venue to auction the artwork. The art industry has also seen its share of innovation. For example, many art museums and galleries in the US have implemented Apple’s iBeacon technology to enhance visitor experience and boost revenue by tracking smartphones and gathering analytics, including visual representations of interactions with exhibits.

In this process, art galleries/auction houses are often privy to and process extremely sensitive and confidential data. This includes but is not limited to (i) artwork documentation on history of ownership, exhibition history and authenticity records, (ii) personal details of visitors, donors, buyers, appraisers, curators and artists, (iii) sales records, (iv) correspondences with artists and clients, (v) cataloguing information such as titles, descriptions, dimensions, materials, creation dates and artist details, (vi) pre-sale valuation and estimates, reserve price and hammer price including any premium for the art work, (vii) sale records of an artist’s prior work, and (viii) sensitive data of bidders, buyers, consignors and collectors including their contact details, identification documents, past transaction records and preferences, website interactions and financial and bank information.

All this data, especially details of bidders, their bidding history, mode of payment and place of delivery, is extremely confidential. In fact, a lot of art collectors prefer to make purchases anonymously, especially if their interest in that specific artwork can result in an increase in price.

What are the legal consequences?

With the coming into force of the General Data Protection Regulation (GDPR) in the EU, the Digital Personal Data Protection Act, 2023 (DPDPA) in India, and other global data laws, art galleries and auction houses cannot merely focus on their “art”, but also have to implement reasonable security practices and deploy tools/software to prevent breach of personal data. Specifically in the Indian context, Section 2(t) of the DPDPA defines “personal data” as “any data about an individual who is identifiable by or in relation to such data”. Section 3(b) further states that DPDPA shall apply to processing of personal data outside India as well, “if such processing is in connection with any activity related to offering goods or services” to individuals in India. This means that if auction houses like Christie’s offer their services to clients in India, they will have to comply with the provisions of the DPDPA.

To ensure personal data is protected against cyber incidents, Section 8(4) requires art galleries and auction houses to implement “appropriate technical and organizational measures to comply with this law.” Section 8(5) further requires them to “protect personal data” by “taking reasonable security safeguards” to prevent data breach. However, should there be a breach of personal data, Section 8(6) mandates the art gallery/auction house to inform the data protection board as well as the affected individual. Lastly, Section 33(1) states that should the gallery/auction house fail to take reasonable security safeguards to prevent personal data breach under section 8(5), it shall be liable to pay a penalty of up to ₹250 crore (around USD 30 million approx). GDPR has similar provisions, with penalties that can go up to EUR 20 million or 4% of annual revenue from the preceding year.

Now, one can argue that data points such as pre-sale valuation, cataloguing information and auction pricing may not qualify as “personal data” under the DPDPA. However, these data points, when clubbed with other “non-personal data points”, could possibly identify the concerned individual. For instance, demographic information, GPS location and the bid placed for an artwork together could possibly reveal the identity of a bidder. Notwithstanding whether the data points qualify as personal data or not, a cybersecurity incident concerning any of these would mandate reporting to CERT-In within six hours of the incident identification/notification.

What preventive measures can be taken?

Given the sensitivity of data and the exposure to liability (not just under privacy laws but also under various contracts where the auction house has committed to keep data, personal or otherwise, confidential), it is critical that reasonable safety measures are adopted. Traditionally, the art business has not been known for taking initiatives to adopt and use technological solutions. Consequently, there have been multiple instances in the past where data has been compromised. For example, in 2017, hackers targeted several galleries in the US and UK. They gained access to email accounts of various art dealers and sent duplicate invoices to buyers after modifying the bank account details. While it is not clear how much money was lost, such system vulnerabilities certainly expose the gallery/auction house to significant losses (and lawsuits). In fact, when Christie’s data was compromised in 2023 (GPS data of artwork was leaked), two experts identified the flaw in minutes and offered to help. However, as reported by ARTnews, Christie’s refused on the pretext that it had a reliable internal team and comprehensive information security program. However, the vulnerability was reportedly fixed after three months.

Given that most data protection laws impose penalties by ascertaining the overall “harm”, it is critical for organisations to proactively mitigate damage. This often requires systematic collaboration with various stakeholders within and outside the organisation. The art ecosystem should periodically undertake data protection impact assessments and deploy tools and software to protect their system from avoidable cyber security incidents. Some key technical measures are encrypting sensitive data, implementing role-based access control, multi-factor authentication, firewalls, data loss prevention solutions, taking regular backups, having a disaster recovery plan, conducting regular drills and simulations (especially for phishing), etc.

It is also important to work with legal experts to create and implement comprehensive cybersecurity policies in accordance with applicable laws and governmental requirements that outline best practices for data protection, including regular updates and strong password protocols. These generally also mention the reporting procedure for data breach and cyber security incidents, allowing for immediate cognisance, response and accountability.

Dylan Sharma is an Associate at Priti Suri & Associates.

The International Bar Association (IBA) recently published the revised Guidelines on Conflict of Interest in International Arbitration. The updated guidelines were approved by the IBA Council in May 2024. The guidelines were last updated in 2014 and originally published in 2004.

These guidelines are soft laws, setting out the framework for impartiality, independence and disclosures governing the selection, appointment and continuing role of arbitrators in international arbitrations. These guidelines are followed worldwide. Even the Indian Arbitration and Conciliation Act 1996 relies on the 2014 Guidelines through Schedules V and VII, introduced in 2015 (see 246th Law Commission Report). The 2014 Guidelines were also commonly referred to by Indian courts.

While retaining the essence of the 2014 Guidelines, the 2024 Guidelines update the General Standards and Explanatory Notes along with the three lists - (a) non-waivable Red List, (b) waivable Red List, (c) Orange List and (d) Green List.

This piece analyses the changes introduced in the 2024 guidelines to keep pace with the changing dynamics of arbitral appointments and best practices. They are reflective of recent trends where arbitrators may not always be from a law firm, views of potential arbitrators on social media, repeat appointments and influence of parties on arbitrators.

The General Standards form the primary source for evaluating the existence of conflicts of interest (adopting an objective ‘reasonable third person’ test) and the obligation to disclose (adopting a subjective ‘in the eyes of the parties’ test).

1. Subsistence of obligations of impartiality and independence

Under General Standard 1, every arbitrator is required to be impartial and independent at the time of accepting an appointment and this obligation would continue till the final award is rendered or the termination of the proceedings. The 2024 Guidelines clarify that the obligation does not extend to the period during which the award may be challenged. It further states that a fresh round of disclosure and review of potential conflict of interests ‘shall’ be necessary if the dispute is referred back to the same arbitral tribunal. This was not mandatory under the 2014 Guidelines.

2. Tests for conflict of interest

General Standard 2 of the 2024 Guidelines clarifies that the test for declining an appointment or refusal to continue to act should be objective. An arbitrator should decline appointment or refuse to continue to act, for example in circumstances described in the non-waivable Red List. However, an arbitrator may make a disclosure as per General Standard 3, such as in circumstances described in the waivable Red List.

3. Thresholds for disclosures by arbitrators

General Standard 3 of the 2024 Guidelines expressly requires the arbitrator to consider all facts and circumstances known to him to determine if the same should be disclosed. Unlike Standard 2 (which prescribes an objective test for declining or refusing to continue an appointment), General Standard 3 lays down a subjective test that relies on the knowledge of the arbitrator. The 2024 Guidelines have elevated a few clauses from the explanation to the main text of General Standard 3.

4. Waiver of potential conflict of interest by parties

Under General Standard 4, a party is deemed to have waived potential conflict of interest if it does not raise an objection against an arbitrator within 30 days of the receipt of the arbitrator’s disclosure, or if the party learns of facts or circumstances which could potentially be conflicts of interests. Under the 2024 Guidelines, a party shall be deemed to have learned of such fact or circumstance that could have been known after a reasonable inquiry at the start or during the proceedings.

5. Scope of the guidelines

The 2024 Guidelines do not make any change to the scope of the guidelines which are relevant for tribunal chairs, sole arbitrators, co-arbitrators, arbitral or administrative secretaries and assistants.

6. Relationships of arbitrators with parties

General Standard 6 sets out guidelines when an arbitrator would be considered to bear the identity of certain persons or entities, which may warrant disclosure or potential conflict. The 2014 Guidelines referred to arbitrators bearing the identity of his/her law firm. However, the 2024 Guidelines consider the changing dynamics in corporate and sovereign structures, which may potentially impact independence and impartiality of arbitrators and introduce the following changes:

a. The 2024 Guidelines expand to include relationships of parties with the arbitrator’s “law firm or employer” and not just “law firm”. This may include arbitrators who are lawyers at law firms and/or employed by a company or other organisations. Corresponding changes have been made to the Lists. For example, this would now extend to in-house counsel in companies.

b. The law firm’s or employer’s organisational structure and mode of practice would be relevant.

c. The 2024 Guidelines also contemplate that a party may have a controlling influence over “a natural person” and not just a legal entity. This could be controlling influence, economic interests or indemnification obligations. This could be in case of parent-subsidiary companies or promoter having controlling influence over their companies.

d. In case of states or state-entities who are parties to the arbitration, the arbitrator should consider disclosing his relationships with entities such as regional or local authorities, autonomous agencies, or state-owned entities, irrespective of whether they are part of the state or have private status, and vice-versa.

7. Duty of parties to disclose

The 2024 Guidelines include additional information required to be disclosed by parties, which includes informing of: (a) a person or entity over which a party has a controlling influence, (b) any other person or entity an arbitrator should consider while making disclosures in accordance with General Standard 3. Parties’ duty to disclose relationships also applies in case of any controlling influence, direct economic interest or duty to indemnify over any legal or natural person.

The Guidelines prescribe non-exhaustive lists of situations of potential conflict of interests, subject to applicable facts. The facts/circumstances surrounding the arbitrator’s failure to make disclosures can impinge upon his independence and impartiality.

The Red List contains situations which may give rise to justifiable doubts as to the arbitrator’s impartiality and independence. The Red List further consists of: (a) non-waivable Red List enlisting incurable conflicts; and (b) waivable Red List covering serious but less severe conflict situations.

The Orange List provides illustrative situations which may, in the eyes of the parties, give rise to doubts as to the arbitrator’s impartiality or independence. The 2024 Guidelines clarify that situations not included in the Orange List would be disclosed based on an assessment by the arbitrators on a case-by-case basis, if they give rise to “doubts in the eyes of the parties” instead of “justifiable doubts” as to the independence and impartiality of the arbitrator.

Unlike in case of the Orange List, situations in the waivable Red List are considered waivable only if and when the parties expressly confirm the arbitral appointment as per General Standard 4(c), irrespective of being aware of the conflict of interest situation.

The Green List includes situations where the arbitrator does not have any duty to disclose. The 2024 Guidelines require subjective or objective standards (compared to the 2014 Guidelines which were limited to objective standards) to ascertain the absence of any conflict of interest.

i. Non-waivable Red List

The 2024 Guidelines specify that a non-waivable conflict situation would arise when an arbitrator is a legal representative of the party “in the arbitration”. The 2014 Guidelines merely referred to arbitrators who are legal representatives of the party (see 1.1), indicating all legal representatives and not those limited to the arbitration. The 2024 Guidelines now include situations where an arbitrator “currently” advises a party or its affiliate and derives significant financial income from such advice. Earlier, this was limited to situations where an arbitrator “regularly advises” a party or its affiliate (see 1.4).

ii. Waivable Red List

Corresponding to changes in the non-waivable Red List, an arbitrator who currently represents or advises a party or its affiliate comes under the waivable Red List provided the arbitrator “does not derive significant financial income therefrom” (see 2.3.1).

iii. Orange List

The 2024 Guidelines expand the Orange List to include situations where:

a. Two arbitrators have the same employer (see 3.2.1).

b. The arbitrator has, within the past three years, been appointed to assist in mock-trials or hearing preparations on two or more occasions by one of the parties or its affiliate in unrelated matters (see 3.1.4).

c. The arbitrator has, within the past three years, been appointed to assist in mock-trials or hearing preparations on more than three occasions by the same counsel, or the same law firm (see 3.2.10).

d. The arbitrator currently serves, or has acted within the past three years, as an expert for one of the parties or its affiliate, in an unrelated matter (see 3.1.6).

e. The arbitrator has, within the past three years, been appointed as an expert on more than three occasions by the same counsel, or the same law firm (see 3.2.9).

f. An arbitrator and their fellow arbitrator(s) or an arbitrator and counsel for one of the parties currently serve together as arbitrators in another arbitration (see 3.2.12 and 3.2.13).

g. The arbitrator is instructing an expert appearing in the arbitration proceedings for another matter where the arbitrator acts as counsel (see 3.3.6).

h. The arbitrator has publicly advocated a position on the case through social media or online professional networking platforms. Earlier, the Orange List specified published paper or speech, or otherwise (see 3.4.3).

i. The arbitrator holds an executive or other decision-making position within the administering institution or appointing authority with respect to the dispute, and in that position has participated in decisions with respect to the arbitration (see 3.4.3).

iv. Green List

The Green List remains unamended barring one additional situation - when the arbitrator, as an arbitrator in another matter, heard testimony of an expert deposing in the current proceedings. (see 4.5.1)

The 2024 Guidelines promise a stronger framework for avoiding conflict of interest, which will foster renewed confidence in arbitration. They pave the way for amending laws relying on the 2014 Guidelines. For example, Schedules V and VII to the Indian Arbitration Act have not been further amended since their introduction in 2015. This may be a good opportunity to update the domestic laws to keep up with modern trends.

The 2024 Guidelines also provide leeway to parties for waiver of potential conflict situations. Several entries in the waivable Red List and Orange List can be treated as non-waivable conflict situations, for example, in case of close family members of arbitrators having interests in the dispute. While the overall intent is to uphold party autonomy, there is a parallel need to protect the sanctity of arbitral processes. Pertinently, Indian law imposes more stringent requirements by providing a broader range of situations which render arbitral appointments invalid, as compared to the limited entries in the non- waivable Red List.

Similarly, the Green List, which enlists situations where there is no apparent or actual conflict, may in fact lead to conflict situations, more so, with the 2024 Guidelines including subjective standards for ascertaining conflict. For example, the Green List includes arbitrators who have previously expressed legal opinions arising in the arbitration but not focused on the case. However, this may be a relevant factor in case a potential arbitrator has expressed certain political views which may impact his independence and impartiality in arbitration involving states or state-owned entities.

Arbitral appointments have been challenged in the past on the ground that the arbitrators served together on two tribunals which took a position on a legal issue expected to arise in the arbitration, following which one of the challenges was sustained. Therefore, a deemed absence of conflict may not always be ideal.

Shweta Sahu is a Leader and Senior Member of the International Dispute Resolution Practice at Nishith Desai Associates. Alipak Banerjee heads the firm's practice in New Delhi.