doctrine of proportionality

Doctrine of Proportionality

The classical definition of proportionality has been given by none other than Lord Diplock when his Lordship rather ponderously stated “you must not use a steam hammer to crack a nut if a nut cracker would do”[1] Thus proportionality broadly requires that government action must be no more intrusive than is necessary to meet an important public purpose.[2]

British Model

The British model as expounded by Lord Stynn in R v. Secretary of State for the Home Department exparte Daly[3] finds its origin in the judgment of the Privy Council in de Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Land and Housing.[4] In that case, Lord Clyde while deciding an appeal from Antigua and Barbuda, used South African and Canadian jurisprudence to formulate a three stage test for proportionality review. A decision is proportionate if :

I. The legislative (or executive) objective is sufficiently important to justify limiting a fundamental right.

II. The measures designed to meet the legislative (or executive) objective are rationally connected to it.

III. The means used to impair the right or freedoms are no more than necessary to accomplish the objective.[5]

European Model

The very concept of proportionality originated in nineteenth century Prussia35. This nineteenth century Prussian concept prescribed various tests. Those were accepted by the European Court of Justice in R v. Minister of Agriculture, Fisheries and Food, ex parte Federation Europeenne de la Sante Animale (FEDESA).[6] Based on this case Julian Rivers outlines a four stage test as:

1. Legitimacy: Does the act (decision, rule policy etc) under review pursue a legitimate general aim in the context of the right in question?

2. Suitability: Is the act capable of achieving that aim?

3. Necessity: Is the act the least intrusive means of achieving the desired level of realisation of the aim?

4. Fair balance or proportionality in narrow sense: Does that act represent a net gain, when the reduction in enjoyment of rights is weighted against the level of realisation of the aim?[7]

Indian model

Supreme Court in Omkumar v. Union of India.[8] It was in this case that the Supreme Court accepted the application of proportionality doctrine in India. However, strangely enough the Supreme Court in this case suddenly discovered that Indian courts had ever since 1950 regularly applied the doctrine of proportionality while dealing with the validity of legislative actions in relation to legislations infringing the fundamental freedom enumerated in Article 19 (1) of the Constitution of India. According to the Supreme Court the Indian courts had in the past in numerous occasions the opportunity to consider whether the restrictions were disproportionate to the situation and were not the least restrictive of the choices.[9] The same is the position with respect to legislations that impinge Article 14 (as discriminatory), and Article 21 of the Constitution of India[10]

 Santosh Kumar Satishbhushan Bariyar V. State of Maharashtra AND State of Maharashtra V. Sanjeevkumar Mahendraprasad Roy and Anr.  (2009)6SCC498

155. The Canadian Charter of Rights makes provision for the limitation of rights through a general clause. Section 1 of the Charter permits such reasonable limitations on Charter rights "as can be demonstrably justified in a free and democratic society". In R. v. Oakes (1986) 1 S.C.R. 103 it was held that in order to effect a limitation, there has to exist a sufficient objective to warrant the limitation of the right in question. There should also be proportionality between the limitation and such objective. In a frequently- cited passage, Dickson, J. described the components of proportionality as follows:

There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Secondly, the means, even if rationally connected to the objective in the first sense, should impair 'as little as possible' the right or freedom in question: R v. Big M Drug Mart Limited (supra).

Thirdly, there must be a proportionality between the effects of the measures which are responsible for limiting the charter right of freedom, and the objective which has been identified as of 'sufficient importance'.

Bipin Synthetics Pvt. Ltd., a Company incorporated under the Companies Act, 1956 Vs. The State of Maharashtra, The Commisioner of Sales Tax and The Union of India (UOI) through the Joint Secretary, Ministry of Law, Justice and Company Affairs  2009(6)BomCR204

10. We may now consider the second contention based on discrimination. The law on the subject and some tests may be spelled out from the Judgment of the Supreme Court in Shashikant Laxman Kale and Anr. v. Union of India and Anr. : (1990) 4 SCC 366, which quoted from the Judgment in Re: the Special Courts Bill, 1978:

(a) The State, in the exercise of its governmental power, has of necessity to make laws operating differently on different groups or class of persons within its territory to attain particular ends n giving effect to its policies, and it must possess for that purpose large powers of distinguishing and classifying persons or things to be subjected to such laws.

(b) The constitutional command to the State to afford equal protection of its laws sets a goal not attainable by the invention and application of a precise formula. Therefore, classification need not be constituted by an exact or scientific exclusion or inclusion of persons or things. The Courts should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. Classification is justified if it is not palpably arbitrary.

(c) The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian Territory or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is substantially the same.

(d) The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise even degree of evil, but the classification should never be arbitrary, artificial or evasive.

(e) The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differential which distinguishes those that are grouped together from others and (2) that that differentia must have a rational relation to the object sought to be achieved by the Act.

(f) The differentia which is the basis of the classification and the object of the act are distinct things and what is necessary is that there must be a nexus between them. In short, while Article 14 forbids class discrimination by conferring privileges or imposing liabilities upon person arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liabilities proposed to be imposed, it does not forbid classification for the purpose of legislation, provided such classification is not arbitrary in the sense abovementioned.

(g) Classification necessarily implies the making of a distinction or discrimination between persons classified and those who are not members of that class. It is the essence of a classification that upon the class are cast duties and burdens different from those resting upon the general public. Indeed, the very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality.

Have the petitioners discharged the initial burden on them to prove that the classification is unreasonable and or has no nexus with the object sought to be achieved. Have the petitioners produced cogent material to show that the petitioners and others similarly situated have been subjected for discriminatory treatment and or hostile treatment. See Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors. AIR 1958 SC 538.

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[1] R v. Goldsmith (1983) 1 WLR 151, p. 155.

[2] For e.g., See John Adler, General Principles of Constitutional and Administrative law, (4th ed., 2002) p. 368.

[3] (2001) 3 All ER 433 (HL)

[4] (1999) 1 A.C. 69

[5] See Id., p 80

[6] (1991) 1 C.M.L.R. 507

[7] Julian Rivers, Proportionality and Variable Intensity of Review, (2006) 65 (1) C.L.J.174, p. 175

[8] AIR 2000 SC 3689

[9] Id., p. 3697

[10]Id., p.3698

Cause of action and territorial Jurisdiction

Cause of action and territorial Jurisdiction

Cause of action implies a right to use. The material facts which are imperative for the suitor to allege and prove constitute the cause of action.  Cause of action is not defined in any statute. It has however, been judicially interpreted inter alia to mean that every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Negatively put it would mean that everything which, if not proved, gives the defendant an immediate right to judgment would be part of cause of action.  The import is beyond any doubt. For every action, there has to be a cause of action, if not, the plaint or the writ petition, as the case may be, shall be rejected summarily.

In ‘Kusum Ingots and Alloys Limited V. Union of India’ – 2004 (4) TMI 342 - SUPREME COURT OF INDIA  the High Court held that the facts pleaded in the writ petition must have some nexus in relation to the prayer to be granted and not those facts which has nothing to do with the prayer made therein.  Even a small part of cause of action if arose within the territorial jurisdiction of a High Court, the Court will have jurisdiction in the matter.

In ‘Sterling Agro Industries Limited V. Union of India’ – 2012 (6) TMI 76 - DELHI HIGH COURT - LB  held as following regarding to the cause of action-

• The sole cause of action emerges at the place or location where the tribunal/appellate authority/revisional authority is situate and the said High Court cannot decline to entertain the writ petition as that would amount to failure of the duty of the Court cannot be accepted inasmuch as such a finding totally based on the situs of the tribunal/appellate authority/revisional authority totally ignoring the concept of forum conveniens;
• Even a miniscule part of cause of action arises within the jurisdiction of the Court, a writ petition would be maintainable before the High Court;
• An order of the appellate authority constitutes a part of cause of action to make the writ petition maintainable in the High Court within whose jurisdiction the appellate authority is situated. Yet the same may not be the singular factor to compel the High Court to decide the matter on merits. The High Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.

In ‘Oil & Natural Gas Commission V. Utpal Kumar Basu & Others’ – 1994 (6) TMI 193 - SUPREME COURT, the Supreme Court held that mere sending of fax message from a particular place and the reply having received there from would not constitute a integral part of the cause of action.

In ‘National Textile Corporation Limited V. Haribox Swalram’ – 2004 (4) TMI 527 - SUPREME COURT it was held that mere fact that the writ petitioner carries on business at Calcutta or that the reply to the correspondence made by it was received at Calcutta is not an integral part of cause of action and, therefore, the Calcutta High Court had no jurisdiction to entertain the writ petition.

In ‘Magma Fincorp Limited V. Assistant Director, DGCEI’ – 2013 (8) TMI 749 - CALCUTTA HIGH COURT the petitioner is a non banking Finance Company. The petitioners have the several branches across the country for providing services coming under the category of banking and other financial services, business auxiliary services and business support services attracting the service tax.   Even a proceeding was initiated and demand was raised.  The petitioner filed appeal before Commissioner (Appeals). Subsequently the office of CAG issued a notice regarding the service tax audit for the various period ranging from 2006, 2007 till 2009, 2010. The Revenue again issued show cause notices to the petitioner on various other related issued and by an order dated 27.4.2014 the proceeding was dropped.

The Assistant Director, Director General of Central Excise Intelligence having its office at Kochi issued a summon dated 18.8.2012 and sought for the various information and documents pertaining to the financial year 2007, 2008, 2011 & 2012. Although the petitioner took the stand that they have been allotted centralized registration under the Kolkata Service Tax Commissionerate and the inquiry should be conducted by the Kolkata Zonal Unit but ultimately replied to the summons.  The documents are furnished in terms of the various notices and/or summons and the oral statements were also recorded by the officials of Kerala.  The petitioner challenged the same by means of a writ petition before Kolkata High Court.

The petitioner prayed before the High Court that direction against the respondent declaring that the inquiry initiated is illegal, bad in law and outcome of the arbitrary exercise of the power and without jurisdiction.  The Revenue contended that the Court is not having jurisdiction to entertain the petition.  The proceeding was initiated by Kochi Officers upon issuance of summons there from. Reply given to the said summons or the notices from the registered office cannot be taken as the accrual of cause of action.  Mere recording of the statement at the registered office by the Kochi Officers does not confer jurisdiction under Article 226 (2) of the Constitution of India.

The petitioner submitted the following before the High Court:

• The purported summons have been served at the registered office of the petitioner and the replies also made there from, it would therefore, be construed that a part of cause of action has arisen within the territorial jurisdiction of the Kolkata High Court;
• The statement of the officials of the petitioner has been recorded at the registered office, which is one of the constituents of the cause of action;
• If a fraction of cause of action accrues within the jurisdiction of the court, the court will have jurisdiction to entertain the writ petition;
• Any action constitutes an evil consequence at the place of business, it would give rise to a cause of action and therefore, the writ petition is maintainable.

The High Court did not find that mere issuance of notice or giving a reply would constitute a cause of action.  The other point raised by the petitioner is evil consequence at the place of the business of the petitioner at Kolkata by which the writ petition is maintainable.  The High Court held that the evil consequence as tried to be contended by the petitioner must relate to the infringement of the rights as guaranteed under Constitution of India.  No case of an infringement is made out in the writ petition. Rather it would appear from the pleadings made in the petition that the compliance to the summons and/or notices is made and the entire facts as pleaded in the writ petition would refer that the sheet anchor of the case founded on the action of Kerala Office to reopen the investigation which has already been concluded.

The High Court did not find that a slightest of the cause of action has arisen within the territorial jurisdiction of Kolkata High Court and therefore dismissed the writ petition for want to territorial jurisdiction.

Abhiram Singh vs C.D. Commachen (Dead) By Lrs.& Ors

CASE NOTE

Title and citation

·      Abhiram Singh vs C.D. Commachen (Dead) By Lrs.& Ors

                      With

Narayan Singh v. Sunderlal Patwa & Ors.

·      Bench: T.S. Thakur, J. S.A. Bobde,

Madan B. Lokur, J. L. Nageswara Rao,

Dr D Y Chandrachud, J, J. Adarsh Kumar Goel, J. Uday Umesh Lalit,

·      Date – 02 January, 2017

History of the case

The bench was dealing with the appeal filed in 1992 by BJP leader Abhiram Singh, whose election to 1990 Maharashtra Assembly was set aside in 1991 by the Bombay High Court on the ground that he had appealed for votes on the basis of Hindu religion. In April 1996 a three Judge Bench in Abhiram singh v. C D Commachen,[1] directed Chief Justice to constitute a larger bench to hear and decide the matter authoritatively. Then 5 Judge bench was constituted. While the five-judge bench was hearing this matter on January 30, it was informed that the identical issue was raised in the election petition filed by one Narayan Singh against BJP leader Sunderlal Patwa and the apex court’s another Constitution Bench of five Judges has referred a larger Bench of seven Judges.

On October 25 the seven judge constitution bench of the Supreme Court which was hearing a slew of petitions relating to decisions and questions on electoral malpractices arising out of its earlier judgments said for now it will not touch on its 1995 definition of “hindutva is a way of life and not a religion” and also not ban its use during elections.[2]

If it would be considered that Hinduism is not religion but a way of life then asking vote in the name of Hinduism is not a corrupt pratice. This question still stands.

Issues 

·      The question for determination in this case was whether section 123(3) of the Act prohibits appeal to vote or refrain from voting any person based only on the religion, race, caste or community of that person or whether an appeal to vote or refrain from voting in the name of religion, race, caste community or language is altogether prohibited by this provision.

·      Whether there should be purposive interpretation of the words or literal interpretation of Section 123 of The Representation of Peoples Act, 1951.          

·      Is Seeking Vote In Name Of Religion “Corrupt” Practice?

Contentions

The entire controversy was hinged on the interpretation of the pronoun his. This judgement by the Court is also a testimony of the fact that language is, but an imperfect medium of conveying thoughts.

Dissenting Opinion

Former Chief Justice T S Thakur passed the ruling by a 4:3 majority. The bench was interpreting section 123(3) of the Representation of Peoples Act.  

Justices D Y Chandrachud, A K Goel and U U Lalit dissented from the majority view. On their part the dissenting judges said such an interference by the court almost amounted to judicial redrafting of law. They said prohibiting candidates from articulating issues effecting voters reduced democracy to an abstraction.

The majority, except Bobde J. has however relied on purposive interpretation and not literal or textual interpretation for arriving at their decision. Bobde J. interestingly argues that the pronoun his refers to not only the candidates contesting the election but even voters and therefore the provision literally also prohibits appeals to religion, race, caste or language altogether.

Reasoning

Chandrachud J. has highlighted how purposive interpretation is only possible if there is only one possible theory for purposive interpretation and the Court must not while interpreting a provision in a purposive manner, choose a particular theory of purposive interpretation when there are sound constitutional principles for a purposive theory which militates against the one preferred by the Court.

But T. S. Thakur C.J. forming part of the majority verdict in his concurring opinion has found only one theory of purposive interpretation which is preferable under the Indian Constitution.        

Law Points/Rule of law

The majority held that

 “Election is a secular exercise and therefore a process should be followed….the relationship between man and god is an individual choice and state should keep this in mind”

Conclusion

The seven judges bench by a majority of 4:3 decided that this provision prohibits appeal to vote or refrain from voting in the name of religion, race, caste community or language altogether and that it should not be given a narrow interpretation by confining the import of the provision to appeals to vote or refrain from voting any person based only on the religion, race, caste, community or language of that person only.

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[1] Abhiram Singh v. C.D. Commachen (Dead), (2014) 14 SCC 382.

[2] The clarification came while the bench rejected a plea filed by activist Teesta Setalvad who asked the bench to redefine Hindutva.

Right to fair trial

Right to fair trial

Mohd. Hussain @ Julfikar Ali Vs. The State (Govt. of NCT) Delhi)  AIR2012SC750

Every person has a right to a fair trial by a competent court in the spirit of the right to life and personal liberty.

But in reaching that result, the accused charged with a serious offence must not be stripped of his valuable right of a fair and impartial trial. To do that, would be negation of concept of due process of law, regardless of the merits of the appeal. Howsoever guilty the Appellant upon the inquiry might have been, he is until convicted, presumed to be innocent.

Ratio Decidendi:                
"Every person has a right to a fair trial by a competent court in the spirit of the right to life and personal liberty."

11. In my view, every person, therefore, has a right to a fair trial by a competent court in the spirit of the right to life and personal liberty. The object and purpose of providing competent legal aid to undefended and unrepresented accused persons are to see that the accused gets free and fair, just and reasonable trial of charge in a criminal case. This Court, in the case of Zahira Habibullah Sheikh (5) v. State of Gujarat MANU/SC/1344/2006 : (2006) 3 SCC 374 has explained the concept of fair trial to an accused and it was central to the administration of justice and the cardinality of protection of human rights. It is stated:

35. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crime being public wrong in breach and violation of public rights and duties, which affects the whole community as a community and is harmful to society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata. The courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice-often referred to as the duty to vindicate and uphold the 'majesty of the law'. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators.

36. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson's eye to the needs of society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.

37. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact in issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny.

12. In M.H. Hoskot v. State of Maharashtra MANU/SC/0119/1978 : 1978 (3) SCC 544, this Court has held:

14. The other ingredient of fair procedure to a prisoner, who has to seek his liberation through the court process is lawyer's services. Judicial justice, with procedural intricacies, legal submissions and critical examination of evidence, leans upon professional expertise; and a failure of equal justice under the law is on the cards where such supportive skill is absent for one side. Our judicature, moulded by Anglo-American models and our judicial process, engineered by kindred legal technology, compel the collaboration of lawyer-power for steering the wheels of equal justice under the law. Free legal services to the needy is part of the English criminal justice system. and the American jurist, Prof. Vance of Yale, sounded sense for India too when he said:

What does it profit a poor and ignorant man that he is equal to his strong antagonist before the law if there is no one to inform him what the law is' Or that the courts are open to him on the same terms as to all other persons when he has not the wherewithal to pay the admission fee'.

13. In Mohd. Sukur Ali v. State of Assam MANU/SC/0155/2011 : (2011) 4 SCC 729, it is observed:

9. In Maneka Gandhi v. Union of India, it has been held by a Constitution Bench of this Court that the procedure for depriving a person of his life or liberty should be fair, reasonable and just. We are of the opinion that it is not fair or just that a criminal case should be decided against an accused in the absence of a Counsel. It is only a lawyer who is conversant with law who can properly defend an accused in a criminal case. Hence, in our opinion, if a criminal case (whether a trial or appeal/revision) is decided against an accused in the absence of a Counsel, there will be violation of Article 21 of the Constitution.

10. The right to appear through Counsel has existed in England for over three centuries. In ancient Rome there were great lawyers e.g. Cicero, Scaevola, Crassus, etc. who defended the accused. In fact the higher the human race has progressed in civilisation, the clearer and stronger has that right appeared, and the more firmly has it been held and asserted. Even in the Nuremberg trials the Nazi war criminals, responsible for killing millions of persons, were yet provided Counsel. Therefore when we say that the accused should be provided Counsel we are not bringing into existence a new principle but simply recognising what already existed and which civilised people have long enjoyed.

Free and fair trial in arbitration and civil cases

P . Dasaratharama Reddy Complex vs . Government of Karnataka and Anr . ( 25 . 10 . 2013 - SC )

This facet of the problem was highlighted in the judgment of the two Judge Bench in Bihar State Mineral Development Corporation and Anr. v. Encon Builders (I)(P) Limited MANU/SC/0611/2003 : (2003) 7 SCC 418. In that case, the agreement entered into between the parties contained a clause that any dispute arising out of the agreement shall be referred to the Managing Director of the Corporation and his decision shall be final and binding on both the parties. After noticing several precedents, the two Judge Bench observed:

There cannot be any doubt whatsoever that an arbitration agreement must contain the broad consensus between the parties that the disputes and differences should be referred to a domestic tribunal. The said domestic tribunal must be an impartial one. It is a well-settled principle of law that a person cannot be a judge of his own cause. It is further well settled that justice should not only be done but manifestly seen to be done.

Actual bias would lead to an automatic disqualification where the decision-maker is shown to have an interest in the outcome of the case. Actual bias denotes an arbitrator who allows a decision to be influenced by partiality or prejudice and thereby deprives the litigant of the fundamental right to a fair trial by an impartial tribunal.

Union of India (UOI) Vs. U.P. State Bridge Corporation Ltd. (2015) 2 SCC52

In so far as first pillar is concerned, it contains three general principles on which the entire edifice of the said Act is structured. These principles are mentioned by an English Court in its judgment in the case of Department of Economics Policy and Development of the City of Moscow v. Bankers Trust Co.MANU/UKCM/0009/2003 : (2004) EWCA Civ 314. In that case, Mance, L.J. succinctly summed up the objective of this Act in the following words: 'Parliament has set out, in the Arbitration Act, 1996, to encourage and facilitate a reformed and more independent, as well as private and confidential, system of consensual dispute resolution, with only limited possibilities of court involvement where necessary in the interests of the public and of basic fairness'. Section 1 of the Act sets forth the three main principles of arbitration law viz.- (I) speedy, inexpensive and fair trial by an impartial tribunal; (ii) party autonomy; and (iii) minimum court intervention. This provision has to be applied purposively. In case of doubt as to the meaning of any provision of this Act, regard should be had to these principles.

Centrotrade Minerals and Metal Inc. Vs. Hindustan Copper Ltd. 2016(12)SCALE1015 ; MANU/SC/1609/2016

37. In Union of India v. Uttar Pradesh State Bridge Corporation Ltd. MANU/SC/0837/2014 : (2015) 2 SCC 52 this Court accepted the view¹⁹ that the A&C Act has four foundational pillars and then observed in paragraph 16 of the Report that:

First and paramount principle of the first pillar is "fair, speedy and inexpensive trial by an Arbitral Tribunal". Unnecessary delay or expense would frustrate the very purpose of arbitration. Interestingly, the second principle which is recognised in the Act is the party autonomy in the choice of procedure. This means that if a particular procedure is prescribed in the arbitration agreement which the parties have agreed to, that has to be generally resorted to.

[Emphasis supplied by us].

39. However, the authors in Comparative International Commercial Arbitration²¹ go a step further in that, apart from procedure, they say that party autonomy permits parties to have their choice of substantive law as well. It is said:

All modern arbitration laws recognise party autonomy, that is, parties are free to determine the substantive law or Rules applicable to the merits of the dispute to be resolved by arbitration. Party autonomy provides contracting parties with a mechanism of avoiding the application of an unfavourable or inappropriate law to an international dispute. This choice is and should be binding on the arbitration tribunal. This is also confirmed in most arbitration rules.

[Emphasis supplied by us].

Anita Kushwaha and Ors. Vs. Pushap Sudan and Ors. AIR2016SC3506

The Universal Declaration of Rights drafted in the year 1948 gave recognition to two rights pertaining to 'access to justice' in the following words:

Article 8: Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rightsgranted him by the Constitution or by law.

Article 10: Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations, and of any criminal charge against him.

21. In Brij Mohan Lal v. Union of India and Ors. MANU/SC/0316/2012 : (2012) 6 SCC 502 this Court declared that Article 21 guarantees to the citizens the rights to expeditious and fair trial. The Court observed:

137. Article 21 of the Constitution of India takes in its sweep the right to expeditious and fair trial. Even Article 39A of the Constitution recognises the right of citizens to equal justice and free legal aid. To put it simply, it is the constitutional duty of the Government to provide the citizens of the country with such judicial infrastructure and means of access to justice so that every person is able to receive an expeditious, inexpensive and fair trial. The plea of financial limitations or constraints can hardly be justified as a valid excuse to avoid performance of the constitutional duty of the Government, more particularly, when such rights are accepted as basic and fundamental to the human rights of citizens.

(i) The need for adjudicatory mechanism: One of the most fundamental requirements for providing to the citizens access tojustice is to set-up an adjudicatory mechanism whether described as a Court, Tribunal, Commission or Authority or called by any other name whatsoever, where a citizen can agitate his grievance and seek adjudication of what he may perceive as a breach of his right by another citizen or by the State or any one of its instrumentalities. In order that the right of a citizen to access justice is protected, the mechanism so provided must not only be effective but must also be just, fair and objective in its approach. So also the procedure which the court, Tribunal or Authority may adopt for adjudication, must, in itself be just and fair and in keeping with the well recognized principles of natural justice.