Mrs B vs Union of India WPC 13371/23 16/10/23

HON’BLE MR. JUSTICE SUBRAMONIUM PRASAD [ DELHI HIGH COURT ]

Medical Termination of Pregnancy Act Section 3(2)(b) (i) and 3(3) Medical Termination of Pregnancy Rules, 2003 Rule 3B(C) Permission to termination of pregnancy of 22 weeks 4 days Petitioner was being tortured, abused verbally, physically, mentally and emotionally by her husband at her matrimonial home She has not filed any FIR against her husband complaining of physical abuse She has not filed any petition for divorce or judicial separation from her husband – A “woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy MTP Act recognises the reproductive autonomy of every pregnant woman to choose medical intervention to terminate her pregnancy opinion of a Medical Board would be necessary for consideration as to whether it would be safe for the Petitioner to undergo the procedure for termination of pregnancy by a registered medical practitioner and also to ascertain the conditions of the foetus This Court is inclined to direct All India Institute of Medical Sciences, New Delhi to immediately constitute a Medical Board to consider as to whether it will be safe for the Petitioner herein to undergo the procedure for termination of pregnancy or not and also on the condition of fetus. Let the report of the Medical Board, so constituted, be forwarded to this Court within 48 hours.

Relevant Paras:

95. Women may undergo a sea change in their lives for reasons other than a separation with their partner (Rule 3B(c)), detection of foetal “abnormalities” (Rule 3B(f)), or a disaster or emergency (Rule 3B(g)). They may find themselves in the same position (socially, mentally, financially, or even physically) as the other categories of women
enumerated in Rule 3B but for other reasons. For instance, it is not unheard of for a woman to realise that she is pregnant only after the passage of twenty weeks.88 Other examples are if a woman loses her job and is no longer financially secure, or if domestic violence is perpetrated against her,89 or if she suddenly has dependents to support. Moreover, a woman may suddenly be diagnosed with an acute or chronic or life-threatening disease, which impacts her decision on whether to carry the pregnancy to term. If Rule 3B(c) was to be interpreted such that its benefits extended only to married women, it would perpetuate the stereotype and socially held notion that only married women indulge in sexual intercourse, and that consequently, the benefits in law ought to extend only to them. This artificial distinction between married and single women is not constitutionally sustainable. The benefits in law extend equally to both single and married women.
96. A recognition of the fact that there may be a change in a woman’s material circumstance animates Rule 3B(c), Rule 3B(g) and Rule 3B(f). However,
Rule 3B does not enumerate all the potential changes that a woman’s material circumstances may undergo. It merely specifies some of the potential changes to a woman’s material circumstances, in sub-rules (c), (f) and (g). From the object and purpose of the MTP Act, its overall scheme, and the categories of women specified in Rule 3B, it is evident that it was not theintention of the legislature to restrict the benefit of Section 3(2)(b) and Rule 3B only to women who may be confronted with a material alteration in the circumstances of their lives in the limited situations enumerated in Rule 3B. Rather, the benefit granted by Rule 3B must be understood as extending to all women who undergo a change of material circumstances.

97. It is not possible for either the legislature or the
courts to list each of the potential events which would qualify as a change of material circumstances. Suffice it to say that each case must be tested against this standard with due regard to the unique facts and circumstances that a pregnant woman finds herself in.”
(emphasis supplied)

9. Though, in the present case, the facts are entirely different inasmuch as the Petitioner in the present case is a married lady. Moreover, she has not filed any FIR against her husband complaining of physical abuse. She has not filed any petition for divorce or judicial separation from her husband. She has also not approached any Court under the Domestic Violence Act. However, the ratio of the Apex Court is that it is the prerogative of each women to evaluate her life and arrive at the best course of action in view of the change in material circumstance. The Apex Court was of the opinion that change in material circumstance may result when a woman separates from her partner and she may no longer have the financial resources to raise the child. The Apex Court has included the cases of domestic violence perpetrated on a woman under Rule 3B(c) of the MTP Rules wherein a woman is permitted to terminate her pregnancy up to 24 weeks on the ground of change of marital status during the ongoing pregnancy. The Apex Court has held that the right to reproductive autonomy is closely linked with the right to bodily autonomy. The Apex Court has held that theconsequences of an unwanted pregnancy on a woman’s body as well as her mind cannot be understated and, therefore, the decision to carry the pregnancy to its full term or terminate it is firmly rooted in the right to bodily autonomy and decisional autonomy of the pregnant woman. The Apex Court has relied on the observations of made by the Apex Court in K S Puttaswamy v. Union of India, (2017) 10 SCC 1, wherein it was held that a “woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy.” The Apex Court further held that the right to reproductive choice also includes the right not to procreate and in doing so, it situated the reproductive rights of women within the core of constitutional rights and held that decisional autonomy is an integral part of the right to privacy and decisional autonomy is the ability to make decisions in respect of intimate relations. It was finally held by the Apex Court that the MTP Act recognises the reproductive autonomy of every pregnant woman to choose medical intervention to terminate her pregnancy. 10. The opinion of a Medical Board would be necessary for consideration as to whether it would be safe for the Petitioner to undergo the procedure for termination of pregnancy by a registered medical practitioner and also to ascertain the conditions of the foetus.
11. For this purpose, this Court is inclined to direct All India Institute of Medical Sciences, New Delhi to immediately constitute a Medical Board to consider as to whether it will be safe for the Petitioner herein to undergo the procedure for termination of pregnancy or not and also on the condition of fetus. Let the report of the Medical Board, so constituted, be forwarded to this Court within 48 hours from today.

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judgement – 2023-10-18 MRS. B vs THE UNION OF INDIA & ANR

All Rights Reserved (𝔸𝕕𝕧 Saba Hasan)

Mrs B vs Union of India WPC 13371/23 16/10/23 [ PRASAD JJ ] [ DELHI HIGH COURT ]

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM-M-11381-2016 (O&M)
Reserved on: 23.08.2023.
Pronounced on: 15.09.2023

Tulsi Ram Mishra … Petitioner
Versus
State of Punjab and others … Respondents
CORAM: HON’BLE MR. JUSTICE ANUPINDER SINGH GREWAL

• PC ACT Sections 7 and 13(2) – Discharge of public servant for want of sanction In the event of discharge of a public servant for want of sanction or illegality of sanction, the matter ought not be closed but revived on the grant of sanction by the competent authority Prosecution in absence of sanction would be vitiated Public servant may take objections with regard to validity or absence of a valid sanction at cognizance stage but after the commencement of the trial he may take objections at the time of conclusion of the trial, but the trial shall not be scuttled in the midst This Court does not find any manifest illegality in the impugned order discharging respondent No.2 for the time being, but at the same time this Court deems it fit to direct the State of Punjab to forward all documents pertaining to the consideration for grant of sanction to prosecute respondent No.2 to the Central Government.

(c) Consequences of invalid sanction
18. Now, this Court would proceed to determine the consequencesof invalid sanction or sanction accorded by an incompetent authority. I would not accept the contention of counsel for the petitioner that the question of improper or invalid sanction could only be determined at the conclusion of the trial and the accused has to prove that the order had caused grave prejudice to him for the reason that this question is no longer res integra. The Supreme Court in the case of Nanjappa v. State of Karnataka (supra), after examining the provisions of Sections 19(1), 19(3) and 19(4) of the PC Act, had held that sub-sections (3) and (4) of Section 19 of the PC Act stipulate challenge to the validity of the order of sanction or validity of proceedings at the appellate or revisional stage before the higher court and
not before the Special Judge and that it does not forbid a Special Judge from passing an order of discharge if a valid order sanctioning prosecution is not produced in terms of Section 19 (1) of the PC Act. The relevant paragraphs
of the judgement are reproduced hereunder:-
“7. We have heard the learned counsel for the parties at considerable length. This appeal must, in our opinion, succeed on the short ground that in the absence of a valid previous sanction required under Section 19 of the Prevention of Corruption Act, the trial court was not competent to take cognizance of the offence
alleged against the appellant.

10. A plain reading of Section 19(1)(supra) leaves no manner of doubt that the same is couched in mandatory terms and forbids courts from taking cognizance of any offence punishable under Sections 7, 10, 11, 13 and 15
against public servants except with the previous sanction of the competent authority enumerated
in clauses (a), (b) and (c) to sub-section (1) of Section 19. The provision contained in subsection (1) would operate in absolute terms but for the presence of sub-section (3) to Section 19 to which we shall presently turn. But before we
do so, we wish to emphasise that the language employed in sub-section (1) of Section 19 admits of no equivocation and operates as a complete and absolute bar to any court taking cognizance of any offence punishable under Sections 7, 10, 11, 13 and 15 of the Act against a public servant except with the previous sanction of the competent authority.

ALL RIGHTS RESERVED (ADV VAIBHAV TOMAR)

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CRM-M_11381_2016_15_09_2023_FINAL_ORDER Punjab & Haryana High Court

HINDUSTAN CONSTRUCTION vs NATIONAL HIGHWAYS CA 4658/23 24/08/23 [ Ravindra JJ ]

[ SUPREME COURT OF INDIA ]

• Arbitration and Conciliation Act Section 34 Majority award A dissenting opinion cannot be treated as an award if the majority award is set aside When a majority award is challenged by the aggrieved party, the focus of the court and the aggrieved party is to point out the errors or illegalities in the majority award Minority award (or dissenting opinion, as the learned authors point out) only embodies the views of the arbitrator disagreeing with the majority There is no occasion for anyone such as the party aggrieved by the majority award, or, more crucially, the party who succeeds in the majority award, to challenge the soundness, plausibility, illegality or perversity in the approach or conclusions in the dissenting opinion – That dissenting opinion would not receive the level and standard of scrutiny which the majority award (which is under challenge) is subjected to. Therefore, the so-called conversion of the dissenting opinion, into a tribunal’s findings in the event a majority award is set aside and elevation of that opinion as an award, would, with respect, be inappropriate and improper.

important paras 

26. In Dakshin Haryana Bijli Vitran Nigam Ltd, the court recollected the previous holding in Ssangyong Engg. & Construction Co. Ltd. v. NHAI (hereafter, “Ssangyong Engg. & Construction Co. Ltd.”)23, wherein the court had set aside the majority award, but issued consequential directions in the peculiar facts of the case:
“In Ssangyong [Ssangyong Engg. & Construction Co. Ltd. v. NHAI, (2019) 7 SCR 522], this Court upheld the view taken by the dissenting arbitrator in exercise of its powers under Article 142 of the Constitution, in order to do complete justice between the parties. The reason for doing so is mentioned in para 77 i.e. the considerable delay which would be caused if another arbitration was to be held. This Court exercised its extraordinary power in Ssangyong [Ssangyong Engg. & Construction Co. Ltd. v. NHAI,] keeping in mind the facts of the case, and the object of expeditious resolution of disputes under the Arbitration Act.”
However, the court did not, in Dakshin Haryana Bijli Vitran Nigam Ltd (supra)
direct the dissenting opinion to be treated as an award. In the opinion of this court, that approach is correct, because there appears to be a slight divergence in thinking between Russel and Gary Born. The former, Russel is careful to point out that a dissenting opinion is not per se an award, but “is for the parties’ information only and does not form part of the award, but it may be admissible as evidence in relation to the procedural matters in the event of a challenge.” However, Gary Born does not expressly say that the opinion is not a part of the award. That author yet clarifies that “This is an essential aspect of the process by which the parties have an opportunity to both, present their case, and hear the reasons for the Tribunal’s decision; not hearing the dissent deprives the parties

of an important aspect of this process.”
27. It is, therefore, evident that a dissenting opinion cannot be treated as an award if the majority award is set aside. It might provide useful clues in case there is a procedural issue which becomes critical during the challenge hearings. This court is of the opinion that there is another dimension to the matter. When a majority award is challenged by the aggrieved party, the focus of the court and the aggrieved party is to point out the errors or illegalities in the majority award. The minority award (or dissenting opinion, as the learned authors point out) only embodies the views of the arbitrator disagreeing with the majority. There is no occasion for anyone- such as the party aggrieved by the majority award, or, more crucially, the party who succeeds in the majority award, to challenge the soundness, plausibility, illegality or perversity in the approach or conclusions in the dissenting opinion. That dissenting opinion would not receive the level and standard of scrutiny which the majority award (which is under challenge) is subjected to. Therefore, the so-called conversion of the dissenting opinion, into a tribunal’s findings, [in the event a majority award is set aside] and elevation of that opinion as an award, would, with respect, be inappropriate and improper.

28. In view of the findings recorded earlier, this court is of the opinion that all the appeals have to succeed. Therefore, C. A. No. 4658/2023, C. A. No. 4659/2023; C. A. No. 4660/2023; C. A. No. 4661/2023 and C. A. No. 4662/2023 are allowed; all judgments of the Delhi High Court, which were the subject matter of challenge in those appeals are set aside. The awards, which were the subject matter of challenge, and to the extent they were set aside, are hereby upheld and restored. The direction in the awards, to the extent they required compounded monthly interest payments, are modified. Instead, the NHAI shall pay uniform interest on the amounts due, on the head concerned, i.e., construction of embankment, to the extent of 12% from the date of award to the date of payment, within eight weeks from today. All the above appeals are allowed in these terms. There shall be no direction to pay costs.

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40706_2012_5_1501_46332_Judgement_24-Aug-2023

all rights reserved (Vaibhav Tomar 𝔸𝕕𝕧)

भारतीय साक्ष्य विधेयक, 2023 में प्रमुख प्रावधान और परिवर्तन:
इलेक्ट्रॉनिक रिकॉर्ड की स्वीकार्यता: नया बिल इलेक्ट्रॉनिक या डिजिटल रिकॉर्ड को साक्ष्य के रूप में स्वीकार्य बनाता है, जिससे उन्हें पारंपरिक कागजी दस्तावेजों के समान कानूनी महत्व मिलता है।
निरसन, संशोधन और प्रावधानों को जोड़ना: भारतीय साक्ष्य विधेयक पुराने साक्ष्य अधिनियम के पांच मौजूदा प्रावधानों को निरस्त करता है, 23 प्रावधानों को संशोधित करता है, और एक पूरी तरह से नया प्रावधान पेश करता है, जिसके परिणामस्वरूप कुल 170 धाराएं बनती हैं।

द्वितीयक साक्ष्य के लिए दायरा विस्तार: विधेयक द्वितीयक साक्ष्य के दायरे को व्यापक बनाता है, जिसमें यांत्रिक प्रक्रियाओं, दस्तावेजों के समकक्षों और दस्तावेज़ सामग्री के मौखिक खातों के माध्यम से उत्पादित प्रतियों को शामिल करने की अनुमति मिलती है।

सटीक और समान नियम: विधेयक के प्राथमिक उद्देश्यों में से एक आपराधिक मामलों की सुनवाई के दौरान सबूतों के प्रबंधन को नियंत्रित करने वाले सटीक और समान नियम स्थापित करना है।

भारतीय साक्ष्य विधेयक का तर्क:
भारतीय साक्षी विधेयक को पेश करने के पीछे सरकार की प्रेरणा इस अवलोकन से उपजी है कि वर्तमान भारतीय साक्ष्य अधिनियम पिछले दशकों में हुई तकनीकी प्रगति और सामाजिक बदलावों को संबोधित करने के लिए अपर्याप्त है। पुराने कानून को एक आधुनिक और व्यापक विधेयक से बदलकर, सरकार का लक्ष्य यह सुनिश्चित करना है कि साक्ष्य-संबंधी नियम समकालीन आवश्यकताओं के अनुरूप हों।

भारतीय साक्ष्य विधेयक का तर्क:
भारतीय साक्षी विधेयक को पेश करने के पीछे 
सरकार की प्रेरणा इस अवलोकन से उपजी है 
कि वर्तमान भारतीय साक्ष्य अधिनियम पिछले 
दशकों में हुई तकनीकी प्रगति और सामाजिक बदलावों 
को संबोधित करने के लिए अपर्याप्त है।पुराने कानून 
को आधुनिक और व्यापक विधेयक से बदलकर, 
सरकार का लक्ष्य यह सुनिश्चित करना है कि 
साक्ष्य-संबंधी नियम समकालीन आवश्यकताओं के 
अनुरूप हों।

Hinduism or Santana dharma is based on the very idea of love and respect for everyone regardless of the community to which they belong. Renowned philosophers like Swami Vivekanandaalso preached about secularism. But what we see in the world today, especially in India is the apotheosis of this word. Human beings are social culture and are meant to love and deal with each other with empathy but the social trajectory of our times is building as such that even in times of a scarcity of basic necessities such as food , shelter, clothing some people are busy creating a hostile environment for certain communities. Hate has taken the shape of extremism, communalism, violence and what not. Barely was the ink dry of our constitutional fathers laying down the principles of equality, fraternity, liberty we are here to address a new issue called ‘hate crimes’

What are hate crimes and why are they in the headlines of every news channel? Hate crimes are incredibly disturbing offences that go against societal equality and coherence. Daughters are being raped, harassed and burnt or either made to shut their mouths if they are a victim of such crimes just because they belong to a community which occupies a ‘lower’ position in the society. While talking about hate crimes in detail, this article will examine the Indian legal system’s approach to dealing with hate crimes, including its definition, legal requirements, punishments, and difficulties.

Hate crimes are not specifically defined by legislation in India. According to Oxford Languages , it is defined as “a crime, typically one involving violence, that is motivated by prejudice on the basis of ethnicity, religion, sexual orientation, or similar grounds.a crime, typically one involving violence, that is motivated by prejudice on the basis of ethnicity, religion, sexual orientation, or similar grounds.a crime, typically one involving violence, that is motivated by prejudice on the basis of ethnicity, religion, sexual orientation, or similar grounds.a crime, typically one involving violence, that is motivated by prejudice on the basis of ethnicity, religion, sexual orientation, or similar grounds.” In layman’s terms, these are criminal acts committed against individuals or groups because of their religion, caste, race, ethnicity, language, sexual orientation, gender identity, or any other protected trait. They often involve violence, harassment, or intimidation and are motivated by prejudice, bias, or hatred towards the targeted community or individual.

The ‘hate’ in hate crimes doesn’t necessarily mean anger, frustration, jealousy or other negative feelings but encompasses a wider range of feelings such as bias or prejudice against a community. For example, just because A belongs to a particular community B presumes him to be a terrorist. Hate crimes are deleterious for societal health. Imagine waking up and walking your kids to their school with a certainty that nothing can go wrong in the way. And now imagine a situation completely opposite where you do not know when you and your kids can be attacked on their way to school just because of who you are .This is the brutal picture of hate crimes and a sad reality in India.

We all must have heard the name ‘The diary of Anne Frank’. Does it ring any bells to you?  Anne, a Jewish kid described about the atrocities she had to face while she was in hiding in Amsterdam. Hate crime is not a recent phenomena; it has existed for centuries. For example, The Holocaust in Germanyprovides a recent illustration of hate crime. The people belonging to the Jewish category were killed so brutally that the horrors of these killings, atrocities are still clearly present in the minds of Jewish people. The religious minority of Jews faced legal action. This holocaust took place because of Anti-Semitism which was the idea that Germans were the “superior” race and Jews were the “inferior” group.

One such instance in India is the discrimination against the minority Hindu Kashmiri Pandits in India which was depicted in a film called ‘Kashmiri Files ’. For the people who originally belonged to the state, Kashmir became a living hell because of the Muslim predominance there. Pandits from Kashmir were given the option to either leave Kashmir or die. During that time, countless Kashmiri pandits died. The Kashmiri Pandits left in large numbers. Overnight, millions of people fled for their lives. Other examples include the 2002 Godhra riots case (for which PM Modi recently got a clean chit in June 2022) and the 1984 anti-sikh riots.

According to a multi-organization research conducted by FactChecker, the number of hate crimes driven by religious bias increased to 93 in 2018, a decade-high.  Some factors could be:

• Choking difference of opinions: In Indian families, it is generally a practice to stop the children and the young from fostering a different opinion and not thinking in the traditional way and for embracing a different faith. Our own laws of inheritance are an example of this. Until the introduction of The Caste Disabilities Removal act, 1850 the convertor was disqualified from inheriting the property.

People should be made aware and vigilant about the possible effects of circulation of unverified information online which could incite hate speeches. They must know how detrimental it is for society at large .People can also be informed about the effects of hate crime and should be encouraged to report such acts through media campaigns and community outreach initiatives. Communities can be crucial in combating hate crimes.

4. https://globalfreedomofexpression.columbia.edu/cases/modi-v-uttar-pradesh/  

5. https://indiankanoon.org/doc/1042064/

6. https://www.factchecker.in/2018-saw-most-religious-hate-crime-most-deaths-in-decade/

This can be accomplished by setting up areas where individuals can congregate and engage in direct, forthright conversationabout the problems that separate them. Additionally, it can promote greater respect and understanding amongst other communities by acting as a bridge between them. We need to build a community where no daughter has to see her father hacked and burnt, no wife has to see her husband beaten to death and no father has to see his daughter raped and charred. If someone is a victim, we must ensure that he or she speaks up and all the relevant sections are invoked to build their case. As a witness, one must not stand and silently watch a mob lynching someone rather he should be vigilant enough to call the police and inform them of such incidents. In this era of MPs and MLAs playing a game of ‘dirty politics’ of incitement and stirring hate against a community, we must build a system that punishes the attacker and not the attacked. As a guardian or a parent, it is one’s responsibility to actually foster a healthy environment in the family where difference of opinion is appreciated and nurtured instead of being choked. The most important step is to bring a specialized legislation for such matters with stringent punishments.

With the recent rise in hate crimes against Indian Sikhs in United Kingdom, it is important that we recognize how detrimental such acts of violence can be. India needs to adopt the theory of deterrence in such matters. India’s multicultural society faces a serious issue as a result of hate crimes. Although legislation specifically targeting hate crimes has not yet been passed, these crimes can nevertheless be dealt with under already in place legal measures. It is necessary to work to increase awareness, promote reporting, and reinforce the enforcement of current legislation. Additionally, social activities that support communication, empathy, and inclusivity are crucial to combat this menace. Peoples should be encourages to be empathetic towards each other and not focus on preconceived notions. We must create a system that fosters the ideals of equality, justice, and peace by working together to create a society devoid of prejudice and hatred. The need of the hour is to make our society more inclusive. The police and deputy officers need to be informed regarding their duties so as to prevent them reaching after the crime has taken place.

List of references:

       https://www.ijlmh.com/paper/legal-regulation-of-hate-crimes-in-india-a-look-at-the-  current-regime-and-its-shortcomings/

for read the full article

Combating Hate Crimes in India A Legal Perspective by Diya Saraswat

all rights reserved by intern Diya Saraswat (Law 2nd year VIPS)

Congratulations: “The Bar Council of Delhi is directed to notify the subsequent notification by which the earlier notification stands withdrawn (making filing of Aadhar Card and Voter ID bearing address of Delhi/NCR mandatory for enrolments), within a period of four weeks”: Delhi High Court (Rajni Kumari Vs BCD).

Historical evolution of ADR in India and Emerging Trends in ADR in Today’s Corporate World

Abstract:

The manuscript delves into the multifaceted landscape of Alternative Dispute Resolution (ADR) in India, tracing its historical evolution and exploring its role in the modern corporate world. The article encompasses a comprehensive analysis, including an introduction to ADR, its fundamental concepts, types, and the distinctions between them. The legal framework governing ADR mechanisms is also discussed, offering insights into the legislative framework that supports these mechanisms. Additionally, the manuscript sheds light on recent developments in the field of ADR. The article concludes with insightful suggestions to enhance the effectiveness of ADR methods in addressing the evolving challenges of commercial disputes.

Introduction

Since time immemorial, humans have had disputes and fights. The only difference is earlier wars were fought to establish who is right or wrong or people had to go to the king’s darbaar to get it solved. With time, jurisprudence and judicial system evolved and then came litigation. In this method, parties resolve conflicts by contending on the basis of their rights, there is an impartial and impartisan judge who would hear those contentions from both the sides and then deliver a reasoned decision.  With time,people realized that not every dispute has to go to the traditional courts and that’s when ADR (Alternative Dispute Resolution)came into the picture.

Meaning of Alternative Dispute Resolution & Key differences in Mediation, Arbitration and Conciliation

ADR or Alternative Dispute Resolution includes the methods of mediation, conciliation, arbitration, settlement by judiciary and any other process of resolving disputes. It does not involve courts; and is governed by certain rules. With the advent of technology and passing of time, ADR has become a viable career option for many judicial practitioners and law students. There is an involvement of a third party which helps in solving the disputes amicably. The judgement or the decision delivered is enforceable by law. The third party involved is called mediator or arbitrator. The third party is called a Mediator in case of mediation and Arbitrator in case of arbitration. In mediation, the award is not binding whereas in arbitration the award is binding on the parties. Moreover, in arbitration there can be more than one arbitrators whereas in mediation there can be only a single mediator. Arbitration is somewhat similar to a court procedure whereas mediation has a more informal procedure and the central focus is on resolving the dispute between parties amicably. Conciliation is also a completely different process wherein there is an expert that is appointed and that expert is shouldered with the responsibility of maintaining the confidentiality of both the parties. It is regulated by Civil Procedure Code, 1908. The expert is known as the conciliatorand he has an active role to play in the process. This article will delve into the intricacies of ADR and its evolution in today’s corporate world where corporate firms are in fashion. Recently, the Mediation Bill, 2023 was also passed by the Lok Sabha which seeks to modernize the process of mediation in India.

Evolution of ADR methods: Ancient Times

Alternative dispute resolution has been present in the judicial fabric of India since ancient times. Its earliest mentions can be found in the Bhradarnyaka Upanishad which mentions Puga, Shreni, and Kula. Earlier also, many disputes in the villages, municipalities were solved by the method of panchayats. This was and still is a form of ADR. They used to deal with a myriad of disputes, commercial, matrimonial, contractual, civil, and criminal and everything else you can think of. In Muslim law, similar provisions find a mention in the Hedayas which are one of the principal sources of their laws. Fast forwarding the timeline, then came the British Rule in India which brought with itself specific laws and provisions dedicated to ADR mechanisms. Such mechanisms were brought into effect in Calcutta, Bombay and Madras. Let’s understand these provisions with the help of pointers.

Timeline of evolution of Provisions for ADR in India

   As discussed above, ADR has developed hugely before and after independence of India from the British Rule .Let us understand such evolution with the help of pointers.

Emerging Trends of ADR in India

After the Covid-19 pandemic struck the whole world with its proliferation in every nook and corner of countries, the Indian Judicial System recognized the importance and boons that ADR mechanisms brought with it. Due to shut down of in-person court proceedings, there was a huge backlog of cases. The courts in order to deal with this vice brought many developments in ADR mechanisms in India. The courts have also observed that ADR methods are efficacious and money – saving since the proceedings are not as long as traditional dispute resolution systems (litigation). Let us understand some recent developments.

Conclusion

Recently, honorable Chief Justice of India, Justice Chandrachudalso observed that ADR methods are hassle-free and the Indian judiciary must become malleable enough to adapt with the changes that the onset of technology has brought in the country. The courts have again and again observed that Indian judicial system must become paper-less in order to prevent wastage of papers and make the disposal of cases easier. This end can be met by the means of Alternative Dispute Resolution. The evolution of ADR in India reflects a dynamic shift in the approach to dispute resolution, embracing alternative dispute resolution methods that are efficient, flexible, and in tune with the needs of a rapidly changing society. From ancient panchayats to the modern arbitration and mediation mechanisms, India’s ADR journey exemplifies a rich blend of tradition and progress. This article showed how the trajectory of ADR mechanisms in India has taken a shift and revolutionized the way cases are dealt. It is a very efficacious method and Indian judicial system can benefit a lot with the overall development of such methods and mechanisms. However there are certain gaps and hurdles that need to be addressed.

References

Historical evolution of ADR in India and Emerging Trends in ADR in Today’s Corporate World.

for pdf click here 

Historical evolution of ADR in India and Emerging Trends in ADR in Today

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Maa Tarini Industries Ltd. and vs PEC LIMITED CRLMC 254/20 20/01/20 [ Rajnish JJ ]

[ DELHI HIGH COURT ]

• NI ACT Section 138 Dishonour of Cheque Notice Contention that the notice is defective as the demand has been made over and above the cheque amount and the legal demand notice is vague and ambiguous, so the notice being defective, the complaint is liable to be dismissed

Held that notice is to be read as a whole Perusal of the notice clearly set out the details of the cheque which have been dishonoured, so it cannot be said that the demand made is ambiguous or in any way confusing the petitioners as there is no denial that the cheque in question were not issued or that they were not dishonoured for insufficient funds. [ Para 9]

9. The arguments of the Ld. counsel for the petitioners that notice is confusing qua the amount claimed and there is an ambiguity, in my opinion, the Ld. revisional Court has rightly held that notice is to be read as a whole. The perusal of the notice clearly set out the details of the cheque which have been dishonoured, so it cannot be said that the demand made is ambiguous or in any way confusing the petitioners as there is no denial that the cheuqe in question were not issued or that they were not dishonoured for insufficient funds. There is no dispute with regard to the propositions of law laid down in the judgments “supras” relied upon by the Ld. counsel for the petitioners but with due regards, the same are not applicable to the facts of the present case.
10. A learned single judge of this court in Surender Kumar Jain vs. State & Anr., ILR (2012) 3 Del 99 accepted such objections in another similarly placed petition under Section 482 Cr. PC observing thus :-

“5. The issue regarding filing of petition before the High Court after having availed first revision petition before the Court of Sessions has come up before the Supreme Court and this Court repeatedly. While laying that section 397(3) Cr. P.C. laid statutory bar of second revision petition, the courts have held that High Court did enjoy inherent power under section 82 (sic) Cr. P.C. as well to entertain petitions even in those cases. But, that power was to be exercised sparingly and with great caution, particularly, when the person approaching the High Court has already availed remedy of first revision in the Sessions Court. This was not that in every case the person aggrieved of the order of the first revision court would have the right to be heard by the High Court to assail the same order which was the subject matter of the revision before Sessions Court. It was all to depend not only on the facts and circumstances of each case, but as to whether the impugned order bring about a situation which is an abuse of process of court or there was serious miscarriage of justice or the mandatory provisions of law were not complied with. The power could also be exercised by this Court if there was an apparent mistake committed by the revisional court. Reference in this regard can be made to the judgments of the Supreme Court in Madhu Limave v. State of Maharashtra(1977) 4 SCC 551, State of Orissa v. Ram Chander Aggarwal, (1979) 2 SCC 305 : AIR 1979 SC 87, Rai Kapoor v. State (Delhi Administration)1980 Cri. L.J. 202, Krishnan v. Krishnaveni and Kailash Verma v. Punjab State Civil Supplies Corporation (2005) 2 SCC 571.”

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MAA TARINI INDUSTRIES LTD. & ANR. VS PEC LIMITED

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