PM IAS JAN 24 SYNOPSIS

“Justice can never be instant, and it loses its character as justice if it becomes revenge.” Comment in light of recent events.

Demand of the Question:
Introduction: Explain the context of the question in terms of the retributive and adversarial system of justice.
Body: Why justice cannot be instant?
The need of the hour
Conclusion: Larger issue of misuse.
MODEL ANSWER:
India has a retributive justice system with the goal of punishment for criminal violations. However adversarial system assumes significance as it is the best way to get to the truth of a matter, through a competitive process to determine the facts and application of the law accurately. Instant justice although it is in consonance the retributive feature, is against the adversarial system which is important to uphold the rule of law.
Recent Hyderabad encounter of four rape accused in an alleged encounter has created divided opinions among the public at large.
WHY JUSTICE CAN NEVER BE INSTANT?

1. It violates Art 21 which states “No person will be deprived of his life or personal liberty except in accordance with the procedure established by law “. It is against due process of law.
2. Art 21 contains implied guarantee against torture or assault by the State or its law enforcement agencies. The punishment of a person, involving either deprivation of life or personal liberty, can be done only through a procedure established law.
3. As many as 2,560 cases of extra-judicial killings have been recorded in the country since 1993, of which the 1, 224 were found to be fake encounters by the NHRC. This means every second encounter was staged.
4. Instances like the 2017 Ryan International School murder case and the Arushi Talwar murder case, where innocent persons were framed by police initially, highlight how hysteric media trials shape public opinion.
5. In Prakash Kadam vs Ramprasad Vishwanath Gupta, the Supreme Court observed that fake encounters by the police are nothing but cold-blooded murders, and those committing them must be given death sentences, placing them in the category of ‘rarest of rare cases’.
6. In Om Prakash v. the State of Jharkhand, SC observed that ‘Such killings are not recognized as legal by our criminal justice system. They amount to State-sponsored terrorism.’
   NEED OF THE HOUR
7. Fast track courts to deal with crimes of heinous nature. As per the latest National Crime Records Bureau data, there were 1.33 lakh rape cases and 90,205 POCSO cases pending trial at the end of 2016.
8. Manual on Human Rights for Police Officers, issued by the National Human Rights Commission (NHRC) needs to be adhered to. This calls for reforms in police training.
9. The Supreme Court 16 point guidelines in the matters of investigating police encounters laid down in PUCL v. State of Maharastra needs to be adhered to.
10. There is an urgent need for reforms in the criminal justice system as the conviction rate for rape cases stood at 25.5 percent as per NCRB data.
11. Judicial vacancies also result in the pendency of cases and delayed justice.
12. Institutional reform of police processes, including investigation of crimes, professionalization and rationalization of court systems with the induction of technology and limiting appeal procedures to the minimum required.
    Crime and violence constitute a major impediment for development and social integration for a plural society like India. The problem of extrajudicial killing is that it is a slippery slope and dangerous philosophy prone to misuse. Encounter killings cannot be condoned, citing the heinousness of the crime.

In the past few years, there have been significant developments to the Indian arbitration law, bringing the Indian arbitration regime closer to global standards. Discuss in the light of legal reforms

Demand of the Question:
Introduction: Briefly explain the context of the question.
Body: Significant development to the Indian Arbitration Law Impact of the legal reforms
Conclusion: Significance of legal reforms.
MODEL ANSWER:
India’s aspirations to become a major international centre of arbitration have long been hindered by its arbitration laws and their judicial interpretation. It has been seen quite often that foreign companies entering into business contracts with Indian companies prefer a foreign arbitration centre for dispute resolution, primarily due to lack of institutionalized arbitration in India. In this context, parliament enacted Arbitration and Conciliation (Amendment) Act, 2019 bringing the Indian arbitration regime closer to global standards.
SIGNIFICANT DEVELOPMENT TO THE INDIAN ARBITRATION LAW

1. SC’s BALCO decision in 2012 put a restriction on the Indian court’s jurisdiction over foreign-seated arbitrations. It is in line with the underlying philosophy and ethos of the New York Convention and UNCITRAL Model law, exhort Indian courts to become more arbitration-friendly and thereby less prone to intervene in the arbitral process.
2. Arbitration and Conciliation (Amendment) Act, 2019
   ● The act seeks to establish an independent body called the Arbitration Council of India (ACI) for the promotion of arbitration, mediation, conciliation, and other alternative dispute redressal mechanisms.
   ● It aims to make the arbitration of excellent quality, bestowing responsibility on the ACI to hold training, workshops, courses, frame policies, guidelines, and update norms to ensure a satisfactory level of arbitrations, arbitral institutions, and the arbitrators.
   ● Relaxation of time limits by removing 12 months time restriction for international commercial arbitrations. It adds that tribunals must endeavor to dispose of international arbitration matters within 12 months.
   ● Confidentiality of proceedings by providing that all details of arbitration proceedings will be kept confidential except for the details of the arbitral award in certain circumstances.
3. Disclosure of the arbitral award will only be made where it is necessary for implementing or enforcing the award.
4. ● New Delhi International Arbitration Centre (NDIAC): The act provides for the establishment of the NDIAC to conduct an arbitration, mediation, and conciliation proceedings. It declares the NDIAC as an institution of national importance.
5. ● Key functions of the NDIAC are Facilitating conduct of arbitration and conciliation in a professional, timely and cost-effective manner and Promoting studies in the field of alternative dispute resolution.
6. International Centre for Alternative Dispute Resolution (ICADR): The ICADR is a registered society to promote the resolution of disputes through alternative dispute resolution methods (such as arbitration and mediation). The act provides for the transfer of the undertakings of the ICADR and to vest such undertakings in the NAIC for the better management arbitration so as to make it a hub for institutional arbitration.
   IMPACT OF THE LEGAL REFORMS
7. Putting India on the world map in arbitration proceedings by making India an international arbitration hub by providing facilities for the settlement of commercial disputes.
8. Earlier, in case of any dispute with respect to the appointment of Arbitrators, parties have to approach the Supreme Court or the High Court for the appointment of Arbitrators or to resolve their dispute. An effective ACI will share this burden of the court and even facilitate the speedy appointment of arbitrators. This would further aid the quick resolution of disputes outside the court.
9. The parties to an arbitration agreement can choose their own arbitrator, this choice is sacrosanct to the arbitration process.
10. The Arbitration and Conciliation (Amendment) Act, 2019 provides for the statement of claim and defence to be completed within six months from the date the arbitrator receives the notice of appointment. Earlier, parties would take a lot of time to submit their pleas. Now the time can be efficiently used for arbitration proceedings.
    The above legal reforms are necessary steps towards the Indian government’s stated goal of reforming arbitration law, which is considered to be a necessary step towards encouraging foreign investment in India. These reforms will hopefully herald a bright new era for India, creating an arbitration-friendly jurisdiction, where the arbitration will be looked at favorably by all parties involved.