Thursday, August 25, 2011


I am currently taking a break from drafting my written submission for the arbitration round of our intra-moot court competition, and I thought I would reflect on arbitration itself and the subject matter of arbitration.
Alternative Dispute Resolution has been around for a long time, but was viewed suspiciously, as the Courts were always accorded more respect than an arbitral tribunal. Moreover, awards by an abritral tribunal would still have to be enforced by a court, so wouldn't it be better to approach the Court?
It was only with the explosion of international commerce that the speedier method of dispute resolution, i.e. arbitration, became favoured over the long winded process of adjudication by Courts. Plus, with the international nature of transactions taking place, a multiplicity of jurisdictions and a multiplicity of applicable laws made parties more keen on having a single forum with a single substantive law being used to adjudicate disputes. With the emergence of the CISG and other conventions such as the New York Convention, international commercial arbitration rose in prominence, and today, the practice of arbitration finds many takers worldwide.
I became really interested in arbitration after reading the most authoritative text on the subject, a book called "International Commercial Arbitration" by Redfern and Hunter. What I love about the book is how lucidly it explains the concepts, and the various references and analogies it makes. I found references to paintings, poems, children's stories etc in the book, written tongue firmly in cheek. Inspite of its easygoing writing style, the authors are renowned authorities on the subject. In one part, I found a case cited by the authors, where learned Justice Steyn comments on observations made in an authoritative text, which turned out to be an earlier edition of the very same book!
Arbitration is easier, more informal and as efficacious as the municipal Courts. If only the courts in our country were less keen on interfering with disputes referred to arbitration, perhaps dispute settlement in India would not take so long!

Friday, August 19, 2011

Justice Soumitra Sen of the Calcutta High Court is one step closer to becoming the first judge to be removed from office by Parliament. We sit on the verge of constitutional history, and yet, no one seems to care about the possible pitfalls of taking the unprecedented step of removing a High Court judge.
While I am all for steps against corruption, and have always felt not removing Justice Ramaswami was a huge blunder for Parliament, what I fear is that the clipped wings of the Legislature and the Executive may begin reasserting itself, trodding unceremoniously on the independence of the judiciary. The step of removing a judge from office was considered extreme by the Legislature, back in the day when the Executive had complete control on appointment of Chief Justices.
Anyone with a good knowledge of constitutional history would remember the superseding of judges controversy post-Keshavanda Bharati judgement. The three seniormost judges who decided for the majority were passed over for appointment as CJI - Shelat, Grover and Hegde - and the judge who decided in favour of government - A.N. Ray - was appointed as CJI. Again, after his much praised dissenting opinion in the Habeas Corpus case, Justice H.R. Khanna was passed over for appointment in favour of Justice Beg.
The power to interfere with the judiciary was rightfully taken away, as the judiciary reasserted it's independence in matters of appointment. However, as Parliament's confidence grows with the possible successful removal of a High Court judge - who's to say that this won't be the Parliament's new weapon against a proactive judiciary?
That being said...if Justice Sen does get removed, it is much deserved, as he was known as a corrupt judge. However, it doesn't end with him, as Justice Dinakaran must be removed too, in order to ensure the judiciary is cleansed of its filth.

Thursday, August 18, 2011


The recent protests across the country regarding the Jan Lokpal Bill and Anna Hazare's fast have been amusing for me, to say the least. I'm not in favour of either the government nor am I a rabid anti-Anna man, but the sensationalism and hype surrounding the issue has peeved me in no small way.
The focus of the entire issue is on corruption, and yet no one has bothered to ask the single most pertinent issue which ought to have been guiding the entire movement - is the Lokpal Bill an instrument which will actually cure the malady of corruption that afflicts not only our country, but several other countries across the entire world? Most people automatically assume it will, even though when pressed for their rationale behind such statement fail to provide suitable logic for their strong assertions.
The point is that this movement, although viewed as pan-Indian, is primarily one which has been spearheaded by the upper and middle class citizens of India. The objection I have to this is that these are the very people who, when they want something done and do not want to wait for the full process to be completed, will have no qualms about greasing the palms of crooked officials in order to ensure that no strenuous checks are carried out on what they do. These are the same people who, when stopped by a law enforcement officer, have no problems with declaring "Don't you know who I am?" in order to escape probity for their transgressions of the law. And yet, they somehow believe that without changing the attitudes of society, the Lokpal Bill is a miracle drug that will remove the malaise of corruption from the nation.
After all, the Lokpal Bill targets the bribe takers...not the bribe givers. It targets the poorly paid administration officials, who with a view towards securing their life post-retirement, have no hesitations in favouring those who can afford to throw away hefty sums to secure their activities. After all, who cares if welfare schemes are being cut into by a government obsessed with "liberalisation" in an economy where the benefits of regulation are being belatedly realised. At the end of the day, corruption is a bad thing, as everyone knows, and corrupt officials must be punished...why bother the unfortunate rich people who bribe their way out of trouble? How dare the less privileged officials succumb to the temptation of securing their future? How dare they try to rise above their station?
In the midst of all the fuss about Anna Hazare's fast, the vast majority of mainland Indians care little or nothing about a woman who continues to fast as protest against the atrocities committed on her people. If Irom Sharmila's cause attracted even a quarter of the attention showered on Anna, the Armed Forces (Special Powers) Act would not be in force in the North East right now! But then again, the blinkered populace, easily taken in by hype and sensationalism, doesn't even consider the North East as a proper part of the country. The only time they actually even bother with that area is if there is talk of secession. As long it doesn't affect people who belong to a particular part of the country and a particular class of society - public interest be damned!
And therefore, I don't wish to protest for Anna. If I am to protest, it will be for a cause which has significance and meaning, not a mere excuse in the name of doing something for the common good. So, if you want to protest, go ahead...just don't ask me to give a damn!

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