Ironing out the conundrum between correction and modification of an arbitral award in India - Business Guardian
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Ironing out the conundrum between correction and modification of an arbitral award in India

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Introduction
To begin with the article, I want to first highlight that arbitration in India has grown manyfold due to legislative intent and much needed amendments coupled with various judicial pronouncements of the Supreme Court (SC) and High Courts (HC) for the betterment of making India an international hub for arbitration which gives confidence to the international business community to resolve the disputes via arbitration in India only with the exemplification of least judicial intervention in matters related to arbitration but the effort goes in vain when Karnataka High court upheld the judgment of the city civil court, Bangalore where the court permitted modification of an arbitral award under section 33 of the Arbitration & conciliation act, 1996 (Arbitration act) and surprisingly the Hon’ble Karnataka HC upheld the judgment when the matter reached the apex court with utter dissatisfaction the SC held that the modification of an arbitral award is not permitted under section 33 of the Arbitration Act and the arbitrator doesn’t have any power specifically related to this matter in Gyan Arya v. Titan industries Ltd. So I’ll mention the conundrum still prevalent among arbitrators and subordinate courts and how the supreme court of India ironed out this conundrum and cleared the mist concerning correction and modification of an arbitral award under sections 33 & 34 of the Arbitration act of 1996 on different occasions to avoid conflicting rulings and bring forth the clarified position for a win-win situation in Indian arbitration jurisprudence so far regarding this.
According to section 33 of the arbitration act, a party with notice to other parties to a dispute may request arbitral tribunal for any clerical and an arithmetical error within 30 days after receipt of the award, and also if mutually agreed they may seek an interpretation on a specific point of an award like I said about the procedural aspect about correction, modification, and interpretation about arbitral award it begins after the tribunal passed the award within 30 days or pre-decided by the respective parties on several days also the party, with notice to the other party, may request the arbitral tribunal to correct any additional errors, any ecclesiastical or typographical errors or any other errors of a similar nature occurring in the award as there are certain limitations regarding the interplay of modification and a corrected added award as section 34 appeal provisions also emanates into the show with the application of section 33 and clarification of SC in this regard recently.

Modification of an Arbitral Award
So modification of an Arbitration award sounds very similar to the correction, interpretation of an arbitral award but the reality is the legislative and legal means are way different in terms of implications as well as implementation especially when subjected to judicial scrutiny as the technicalities such as claim volume change or adding up of an additional claim or removing or similar changes of same nature and there is a Lakshman Rekha for arbitrators conduct between section 33 & 34 and time after again judicial pronouncements cleared the fog around this like just a couple of days ago the apex court reiterated that modification of arbitral award permitted only up to mathematical and calculations errors or mistakes of similar nature not beyond that if subjected to section 33 in an appeal came from Karnataka high court related to gold quantity.
Pertinent to mention the power of the court is in real dilemma dealing with an application to set aside the arbitral award under section 34 of the arbitration act of 1996 especially when it got mixed with modification of awards from district courts particularly in claimed quantity, volume, and other important stuff which are not supposed to be modified either under section 34 or section 33 of the arbitration act i.e., Correction & modification, so on similar footing we can expect section 33 must have absolute restrictions attached to the same.
The plain reading of Section 34 of the Act (“Section 34”) stipulates that the power of the Courts is limited to setting aside the arbitral awards, strictly in terms of the specific grounds enshrined therein. However, there are several judgments wherein the Courts have not only set aside but also modified arbitral awards while dealing with petitions filed under Section 34 which makes it understandable that section 33 corrections are different than modification, noticeable modification of an arbitral award vest with judiciary under certain circumstances after passing of the award the power of modification and adding up will shrink to a greater extent so whether Courts can modify arbitral awards while dealing with petitions under Section 34 and highlights certain relevant judgments given by various Courts regarding this issue for better understanding of modification of an arbitral award under sec 34 & interplay with sec 33, consequently, a dilemma occurs because of these windy clouds on concerning issues related to Indian arbitration jurisprudence although apex court regularly ironing out such conundrums to make our country an arbitration-friendly jurisdiction globally also satisfying the legislative intent of the legislation.

Crossing the Lakshman Rekha of Modification in Garb of Correction of an Arbitral Award

Due to the lack of a settled position of law and jurisprudence in this regard quite often inconsistent variations occur among different fora’s and court of law between correction under section 33 of the act which shall be used only for arithmetical and clerical errors in the award with notice to other party and section 34 which deals with appeal provisions to set aside arbitral award undergrounds enumerated in this section especially public policy like in garb of correction of a clerical error in an award the arbitrator went on to change claimed quantity & assets under section 33 of the act and similarly under section 34 of the act courts decides the merit of the award then made few modifications under 34 which itself is not permissible and finally the supreme court of India in 2021 pronounced two path-breaking judgments NHAI V. M.HAKEEM and GYAN ARYA V. TITAN INDUSTRIES LTD. related to ironing out the conundrum of correction and modification of award which surely clear some mist onwards on the concerned issue and do justice to the legislative intent of the act for least judicial intervention.
Tracing some background history in this regard the arbitration act of 1940 under section 15 & 16 provided powers for modification of award despite setting aside to Indian courts later got amended as this was against the basic spirit of arbitration and least judicial intervention and this amendment based on UNCITRAL model law for International Commercial Arbitration isolates the judicial appellate process from the practice of arbitration and neither does empower courts to modify award unless the law of land provided for the same, setting aside an award under section 34 of the act is restricted with few specific conditions as per the needs of international commercial disputes resolution scenario but modification part left undealt under this head, therefore it shows that parliament doesn’t want to provide any modification power of an arbitral award to safeguard autonomy and precious time of courts in a burdened judicial system but time and again the judicial precedents exhibited conflicting and non-uniform views which led to the crossing of correction and modification Lakshman Rekha in the Indian landscape.

Conflicting Judicial Precedents
In the past different courts endorsed inconsistent and differing approaches to modify and correction of awards to a greater extent until the NHAI v. M. HAKEEM judgment came on July 20, 2021, where SC held that the court cannot modify an award under section 34 as there are limited grounds to set aside an award and an doesn’t act as an appellate method also SC declined to modify the payment of compensation awarded under NHAI act despite it is extremely low for the land acquisition this provides much-needed clarity on this aspect before this the precedents created an unwanted conundrum in this regard.
In McDermott International v. Burn Standard Co. Ltd. Hon’ble SC held that courts cannot modify an arbitral award as it only has supervisory power to ensure fairness in arbitration, jurisdiction issue must be raised before the arbitral tribunal rather than the court so the court said we cannot modify the award we can only set aside it under section 34 although SC put up an interesting perspective to re arbitrate if the parties wanted so to cater the mistakes did by parties and tribunal in the past, slightly thinking it opened up a small room for a possible dilemma regarding modification issue as lastly, Apex court went on to modify the award under Article 142 in the garb of doing complete justice also it is better not to forget it cleared the mist to some extent in 2006.
In another landmark judgment Hindustan Zinc Ltd. V. Friends Coal Carbonisation delivered by the supreme court of India in 2006 after reiterating its stance in McDermott they unexpectedly upheld the modification of an award in a plea of section 34 to set aside the award by the trial court which is a dent in itself to the principle of least judicial intervention and an add on to the non-uniform position in this regard.
In a regressive step for the Indian arbitration landscape and a dent to bit improved image of the judiciary after they delivered a few pro arbitrations centric judgments during that period, it was a step back as in ONGC Ltd. V. Western Geco International Ltd. Court proceeded with modification of subject matter of an arbitral award under section 34 they had the option to set aside the award but to baffle public policy doctrine they modified the subject matter of award which violated section 5 arbitration act, 1996 doctrine of least judicial intervention in arbitration space, Hon’ble SC mentioned that if the tribunal inferred “wrong facts during proceedings then the award can be modified or cast away” which was fair to a certain extent but modification is certainly not the best choice regarding this.
In Vedanta Ltd. v. Shenzhen Shandong nuclear power construction Co. Ltd. supreme court of India in 2018 enumerated the parameters to award interest in international commercial arbitrations due to lack of consensus in awarding interest as well as the inconsistent approach of tribunals in doing so consequently the court made few modifications on account of interest part in the concerned international commercial arbitration respecting parameters and guidelines provided by Justice Indu Malhotra back then but modification and correction stigma continued which must not be the ideal practice, to be honest.
In Kinnari Mullick v. Ghanshyam Das Damani supreme court pronounced a very important judgment which said that after setting aside an arbitration award under section 34(4) courts are not empowered to transfer the parties before the arbitration tribunal especially Suo moto also added that restricted discretion is vested with courts if only written application made for the same by the parties, majorly it denied the power of modifications exercised by courts in various instances.
Similarly, in Radha Chemicals v. Union of India 2018, Hon’ble SC reiterated the same instance as mentioned in kinnari Mullick by the hon’ble court held that courts are not vested with the power to remand back the matter to the arbitration tribunal once the award is dispatched by the tribunal on the face of a petition under section 34 of the arbitration act such judgments cleared the instance of least judicial intervention and helped towards ironing out the conundrum in a limited manner.
In Gayatri Balaswamy v. ISG Nova soft technologies Ltd., Madras HC again took an ambiguous non-linear position when it comes to modification of award, the court said that under section 34 of the arbitration act modification power is inherent when the concerned matter reached SC, it found the observation of madras HC flawed and mistaken still in the garb of heaviest sword article 142 court allowed the modification to a greater extent.

Supreme Court of India Ironed Out the Conundrum
So, as I mentioned the dilemma and inconsistent approach of high courts and the supreme court on different occasions related to this conundrum of modification, correction, and the intricacies involved in section 34 of the act, to settle the dust and mist around the issue in 2021 SC pronounced 2 important judgments which according to me will iron out these confusing stances and shall provide a constant and uniform approach in India to make India an arbitration-friendly jurisdiction in a real sense although the courts can modify the award under article 142 of Indian constitution in the garb of doing complete jurisdiction these two precedents will benefit the arbitration jurisprudence of India.
1st is Project director, NHAI v. M. Hakeem where the supreme court held that courts do not have any power to modify the arbitral award under section 34 of the Arbitration act, 19996 and as section 34 of the act is based on UNCITRAL model law on international commercial arbitration, 1985 under which no modification power was provided under section 34 courts can set aside the award completely or in part but modification is not the ideal way to proceed , court also discussed power to adjourn the proceedings under section 34(4) so the arbitration tribunal can treat the defects in a fair and just manner as tribunal can eliminate grounds for setting aside the award this judgment welcomed largely by the practitioners of arbitrations and the commentators in the same subject or practice area as this cleared the space which was earlier complicated by different high courts hopefully the relevant course, judicial orders, and relevant amendments to the post-award mechanism become more synthesized and effective onwards.
2nd one is in Gyan Prakash Arya V. titan industries Ltd. This is one of the most important and recent cases decided on the issue of the conundrum of modifications and corrections under section 33 of the act as the learned arbitrator modified the award in name of correction and interpretation under section 33 so the aggrieved appellant after facing a setback under section 34 for setting aside this award on account of modification which is not permitted under section 33 consequently, went to the Karnataka high court against this under section 37 of the act but surprisingly the high court upheld the judgment of Bangalore city civil court rendering the modification of award under section 33 as Valid and sustaining with no option left the appellant knocked on the door of the apex court where the bench decided with utter dissatisfaction from both subordinate courts that no modification of an award is permitted under section 33 of the act until and unless there is an arithmetical or clerical error in the award and constitutional courts shouldn’t interfere with the basic spirit of arbitration legislation of least judicial intervention and to contribute for improving India’s image as a preferred seat for International Arbitration around the world and eradicating such sorry affairs of the state in Indian Arbitration Landscape.

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Supreme Court: Commercial Transactions Outside Purview Of Consumer Protection Act 1986

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The Supreme Court in the case Annapurna B. Uppin And Ors. Versus Malsiddappa And Anr. observed wherein the complaints is filed seeking recovery of the investment from which the complainant is deriving benefit in the form of interest cannot be entertained under the Consumer Protection Act of 1986. The bench comprising of Justice Vikram Nath and Justice Satish Chandra Sharma in the case observed and has stated that it was a commercial transaction (investment) and therefore also would be outside the purview of the 1986 Act.

The court in the case stated that Commercial disputes cannot be decided in summary proceeding as stated under the 1986 Act but the appropriate remedy for recovery of the said amount, if any, admissible to the complainant respondent No.1, would be before the Civil Court. Thus, the complaint was not maintainable. The aforesaid observations came in the judgement authored by Justice Vikram Nath while deciding the civil appeal preferred by the appellants, the Legal heirs of the partner of the firm against the decision of the National Consumer Dispute Redressal Commission, NCDRC.

The present case relates to the alleged for the non-payment of the respondent no.1, the investment amount by the appellant(s). The respondent also had invested an amount of Rs. 5 lakhs in the partnership firm, wherein the husband of appellant’s was a partner to be repayable after 120 months with interest @ 18% per annum.

On the other hand, the Respondent No. 1 sought for the premature release of the invested amount but was asked to wait till the maturity period and when the amount was not returned even after the end of the maturity period, thus, he filed a consumer complaint claiming the said amount. Therefore, the Forums at various levels allowed the respondent No. 1 i.e., complaint, following which the appellant approached the Supreme Court.

Arguments:

It was also contended before the court Supreme Court by the appellants that the transaction to invest in the partnership firm was commercial and the consumer complaint filed seeking recovery of the investment made by respondent no. 1. Would not be maintainable under the 1986 Act. It has also been contended by the appellants that the complainant could not seek the recovery of the investment because when the investment was made by respondent no.1, he was the partner of the firm.

Further, it was contended before the court by respondent no.1 that the refusal of the appellants to return the investment amounted to a deficiency of service and therefore, the complaint was maintainable. It also being the case of respondent No.1 that the appellants herein inherited the estate of the Managing Partner Basavaraj Uppin, and hence cannot escape the liability of making the payment due to respondent No.1.

Observations Made By Supreme Court:

The court while finding force in the appellant’s contentions held that the complaint seeking recovery of the investment would not be maintainable under the old act. The court in the case noted that respondent no.1 would not benefit from the complaint as he was the partner of the partnership firm during the period of the investment made by him.

The court observed that this court is of the considered opinion that once there was a registered partnership deed dated May 27,1996, there is no further document which is placed on record by the complainant-respondent No.1 with regards to the dissolution of the said registered deed which continued till the time when the investment was made by the complainant respondent No.1 on May 21, 2002 and hence the complainant respondent No.1 would be deemed to be partner of the firm.

Deceased Partner Liability Do Not Passes Upon Its Legal Heirs:

The court in the case rejected respondent no.1 or complainant argument that being the legal heirs of the Managing Partner of the firm, the appellants cannot escape from the liability owed by the Managing Partner. It has also been stated by the said court that the legal heirs of a deceased partner do not become liable for any liability of the firm upon the death of the partner.

The court in the case observed that there was no evidence on record in order to show that a fresh partnership deed was executed reconstituting the firm in which the present appellants had become partners so as to take upon themselves the assets and liabilities of the firm. Further, the court stated that the law is well settled that legal heirs of a deceased partner do not become liable for any liability of the firm upon the death of the partner.

The court while considering the facts and circumstances of the case allowed the appeal and the complaint preferred by the complainant or respondent No. 1 was set aside. Accordingly, the court allowed the appeal. The counsel, Mr. C. B. Gururaj, Adv. Mr. Prakash Ranjan Nayak, AOR Mr. Animesh Dubey, Adv. Mr. Debendra Ghosal, Adv. Appeared for the Petitioner(s). The counsel, Mr. Chinmay Deshpande, Adv. Mr. Anirudh Sanganeria, AOR represented the respondent(s).

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Former AAP Minister Moves Delhi High Court, Seeks Removal Of Kejriwal From CM’s Post

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In the case Sandeep Kumar v. Arvind Kejriwal and Others, the Delhi High Court observed a petition filed by Aam Aadmi Party MLA Sandeep Kumar seeking the removal of Arvind Kejriwal from the post of Chief Minister of Delhi. Arvind Kejriwal is presently in judicial custody related to an Enforcement Directorate (ED) case concerning the excise policy. This is the third petition seeking such a prayer, with the previous two pleas being rejected by the Division bench headed by Acting Chief Justice Manmohan.

Sandeep Kumar approached the court as a Court of first instance in writ jurisdiction, not as a Public Interest Litigation (PIL), in his individual capacity. He, being a lawyer by profession, claims to be a founding member of the Aam Aadmi Party and a social worker.

The plea filed seeks the issuance of a writ of quo warranto against Kejriwal, calling upon him to show by what authority, qualification, and title he is holding the office of the Chief Minister of Delhi. Additionally, the plea prays for an inquiry to dislodge Kejriwal from the office of the Chief Minister, with or without retrospective effect.

Kumar claims that as a voter of the Delhi Assembly Election, he is personally aggrieved for having a Chief Minister for his Union Territory who has incurred an ‘incapacity to hold the post’ and ‘who can never function as the Chief Minister from custody or prison’ as envisaged by the Constitution of India.

The petitioner argues that Kejriwal has incurred an incapacity to carry out his functions as the Chief Minister of Delhi under the Constitution and therefore, he cannot hold the post. The plea emphasizes that the right to have a government in accordance with the Constitution is a Constitutional Right of every citizen and voter.

Arvind Kejriwal was arrested on the night of March 21 and subsequently remanded to judicial custody until April 15. However, the court refused to entertain a Public Interest Litigation (PIL) seeking Kejriwal’s removal from the post of Chief Minister, observing that there is no scope for judicial interference in the matter, and it is for other organs of the State to examine the issue.

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Delhi High Court Reserved Verdict On Arvind Kejriwal’s Plea Challenging ED Arrest In Liquor Policy Case

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The Delhi High Court in the case Arvind Kejriwal v. Directorate Of Enforcement observed and has reserved verdict on the plea moved by Chief Minister Arvind Kejriwal challenging his arrest by the Enforcement Directorate, ED in the money laundering case related to the alleged liquor policy scam case.

The bench headed by Justice Sharma in the case observed and has denied any interim relief to Kejriwal and only issued notice on his plea challenging the arrest, as well as his interim application seeking immediate release.

In the present case, Kejriwal is currently in judicial custody. Kejriwal was being arrested on the night of March 21.

The Trial Court in the case remanded him to six days of ED custody, which was extended by further four days. On April 01, he was remanded to judicial custody till April 15.

It has been stated by the Enforcement Directorate, ED that Kejriwal is the kingpin and the key conspirator of the excise scam and there were reasons to believe on the basis of material in its possession that he was guilty of the offence of money laundering.

It has also been alleged that the Aam Aadmi party was the ‘major beneficiary’ of the proceeds of the crime and has committed the offence through Kejriwal.

The response stated that, the Aam Aadmi Party, AAP is the major beneficiary of the proceeds of crime generated in the Delhi Liquor Scam. The Sh Arvind Kejriwal was and is not only the brain behind the AAP but also controls its major activities, he was also one of the founding members and was also involved in the decision making of the policy as evident from the statements of the witnesses.

Arguments:

The counsel, Additional Solicitor General SV Raju told the Court that investigation qua the sitting CM is at a nascent stage. Thus, he also pointed that Kejriwal has not challenged the latest order remanding him to 15 days judicial custody. He has also challenged the first remand order. Please look at the remand order of 26 March. Today we are on April 3. The second remand order is passed on March 28. That has not been challenged. Thus, the third remand order of judicial custody has not been challenged. So today his custody isn’t pursuant to arrest or first remand order, it’s pursuant to April 1 order which has not been challenged. Therefore, Raju also wondered if Kejriwal can challenge his remand since he did not oppose it. ‘He voluntarily accepts please remand me further. Can he challenge the remand order? Or is it barred by waiver? They are blowing hot and cold at the same time. You cant challenge the remand order and say please pass the order and accept it. They have not challenged the latest orders pursuant to which he is in custody. Thus, custody can’t be said to be illegal.”

The counsel, Senior Advocate Abhishek Manu Singhvi appearing for Kejriwal argued before the court that the central probe agency did not comply with Section 50 PMLA which empowers it to issue summons, collect evidence, etc. thus, it being clear that section 50 involves an inquiry. Because it’s inquiry which enables ED to make up mind about arrest and prosecution. No attempt is made to record my section 50 even at my residence. While pointing out the remand application he added ED wants to “find out” the role of Chief Minister. ‘Surely that’s not a ground for today’s arrest… There has to be specific role of the petitioner, even for the company, which I’m denying.’

On the other hand, it has been argued by the ASG that the fact that a PMLA offence has taken place is clear and beyond any doubt. Because as far as first Police Custody and subsequent Police Custody is concerned, court has taken cognizance… Categorical finding that there is money laundering. Cognizance of the offence of money laundering. Nobody has challenged the order.

It has also been contended by the Singhvi that ED forced the approvers Raghav Magunta, Sarath Reddy and Magunta Reddy to make statements against Kejriwal. Further, it has been alleged that two approvers even have links with the ruling party. Adding to it, Singhvi stated that initial statements that did not implicate Kejriwal are not even put on record by the ED. ‘These statements are kept in unrelied. Why should the court not see it? Is it fair? What cannon of fairness are you carrying ED? Out of 13 statements by this Reddy. He says nothing in 11 statements. The judge will go by one statement?’

He also questioned the necessity of arrest amid upcoming general elections. The test is not can arrest. It is demonstrating the necessity to arrest. The should arrest test. The necessity to arrest immediately before elections… the only object is to insult, humiliate and disable… So that the petitioner is unable to participate in the election process and to try to demolish the party before the first vote is cast. The timing reeks of basic structure issue, free and fair election issue and democracy issue. What is this urgency or necessity?

Further, Singhvi stated that it said to be a flight risk, given his deep roots in the society. Responding to this ASG stated that, supposing a political person commits murder two days before elections. This means he can’t be arrested? Basic structure comes into play? Criminals are supposed to be arrested and put in jail. In such cases there is no infringement of basic structure.

Further, it has been argued by ASG that calculation was done as to why 5 percent profit was made 12 percent in the new policy. “Only inference is that it was done so that 7 percent of portion is used for giving kickbacks. The fact that there is a scam is beyond doubt. Howsoever hue and cry you make, its a fact that a scam was there… Finding of the actual proceeds of crime is irrelevant if we make out a case that you were involved in money laundering.

Facts of the Case:

Kejriwal had skipped nine summons issued to him by ED. The Aam Aadmi Party leaders Manish Sisodia and Sanjay Singh are also accused in the case and are presently in judicial custody. While following his arrest, Kejriwal had promptly moved an urgent petition before the Supreme Court challenging his arrest. However, the same was withdrawn later. Kejriwal has previously moved the Delhi High Court, the division bench wherein it challenged the summons issued to him by the central probe agency. He has also filed an application seeking interim protection. The matter is fixed for hearing on April 22. The Kejriwal has skipped the summons, claiming that they are illegal.

It has also been alleged by the ED that Arvind Kejriwal is the ‘kingpin’ of Delhi excise scam and is directly involved in the use of proceeds of crime accounting to over Rs. 100 crores. It being the case of ED’s that the excise policy was implemented as part of a conspiracy to give wholesale business profit of 12 percent to certain private companies, although such a stipulation was not mentioned in the minutes of meetings of Group of Ministers, GoM. Further, it has also been claimed by the Central agency that there was a conspiracy that was coordinated by Vijay Nair and other individuals along with South Group to give extraordinary profit margins to wholesalers. According to the agency, Nair was acting on behalf of Chief Minister Arvind Kejriwal and Manish Sisodia.

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Delhi High Court CM Arvind Kejriwal’s ED Custody extended By 4 Days Till April 1 In Liquor Policy Case

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The Delhi High Court in the case Surjit Singh Yadav v. Union Of India observed and has remanded the Chief Minister Arvind Kejriwal to Enforcement Directorate, ED custody till April 01 in the money laundering case which relates to the alleged liquor policy scam case. Arwind Kejriwal was being arrested on the night of March 21, 2024. The Special CBI judge Kaveri Baweja of the Rouse Avenue Courts passed the order after Kejriwal was produced in court on the expiry of his six days of Enforcement Directorate, ED custody.

The Delhi High Court in the case declined any interim relief to Kejriwal and only issued notice on his plea challenging the arrest and remand. The counsel, Additional Solicitor General SV Raju told the court that the sitting CM was giving “evasive replies” during interrogation and the agency needs to confront him with some individuals who have been summoned from Goa. Thus, ED sought 7 more days of custody. He doesn’t get exonerated if he is a CM. There is no different standards for a CM. Right to arrest a CM is no different from an ordinary man.”

Yesterday, the Enforcement Directorate, ED summoned AAP’s Goa unit chief Amit Palekar and some other party leaders for questioning. Thus, they have been asked to appear at the agency’s Goa office on March 28, 2024. Further, the Kejriwal while appearing in person submitted before the court that he is not opposing remand. He claimed the entire case is a ‘political conspiracy’ and there is no such material against him. It has also been alleged by the Delhi CM that the central probe agency was collecting selective material and even the approver was forced to make a statement against him. Further, the central probe agency submitted before the court that Kejriwal has refused to share the password of his mobile phone.

Adding to it, Kejriwal responded that ED cannot force him to unlock his electronic gadgets. Delhi High Court Rejected PIL For Removal Of Arvind Kejriwal From Post Of Chief Minister The Delhi High Court rejected the Public Interest Litigation, PIL moved seeking removal of Arvind Kejriwal, who has been arrested by the Enforcement Directorate, ED in the liquor policy case, from the post of Chief Minister of Delhi. The Division bench comprising of Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora in the case observed and has stated that the petitioner failed to show any bar in the law which prohibits the arrested CM from holding office. The CJI orally stated that, ‘Show us, where is the prohibition. Show us any legal bar which you’re canvassing’.

Further, the bench stated that there is no scope for judicial interference in the matter and the executive is examining the issue. The court in the case observed that if there is a constitutional failure, President or Governor will act on it…Is there any scope for judicial interference in this? The LG is examining the issue. It will go to the President. It belongs to a different wing. There is no scope for judicial interference in this. In the present case, the petition is moved by one Surjit Singh Yadav, a Delhi resident claiming to be a farmer and social worker. It has been claimed by him before the court that a Chief Minister accused of a financial scandal should not be permitted to continue in public office. Kejriwal is presently in ED custody which ends on March 28, 2024. It has been submitted by Yadav in the PIL that Kejriwal’s continuation in the post would not only lead to obstruction of due process of law and disrupt the course of justice, but also would lead to a breakdown of the constitutional machinery in the State as Kejriwal does not satisfy most of the limbs of Article 163 and 164 of the Constitution of India owing to his incarceration.

Further, the plea stated that the Respondent No.4 has virtually forfeited his office as a Chief Minister of account of being arrested and as he is in the Custody he has disabled himself from performing the duties and responsibilities of being a public servant and as such he ought not to continue as a Chief Minister. Therefore, the AAP Ministers have been making statements in the media that Kejriwal will not resign from the post and if need be, he will run the government from inside the prison.

It has been submitted by Yadav that a jailed CM would be incapable of transacting any business that the law enjoins upon him and if he is allowed to do so, any material, irrespective of its secretive nature, would have to be scanned thoroughly by the prison authorities before it reaches Kejriwal’s hands and such an act would amount to direct breach of oath of secrecy administered to the CM under the Third Schedule of the Constitution. Further, the plea stated that the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993 empowers a CM to call for files from any department of the Cabinet and if Kejriwal continues as CM, he would be well within his rights to demand for the investigation of files wherein he has been arraigned as an accused.

The plea states that, such a situation is against the ethos of Criminal Jurisprudence. Therefore, Yadav had prayed the Court to issue a writ in the nature of Quo Warranto, calling upon Kejriwal to answer under what authority he is holding the post of CM and consequently remove him. However, Yadav has also filed another PIL seeking to prevent Kejriwal from issuing directions or orders while in ED custody. About The Case: The Kejriwal had skipped nine summons which were issued to him by the Enforcement Directorate, ED.

The Aam Aadmi Party leaders Manish Sisodia and Sanjay Singh are also accused in the case and are presently in judicial custody. The Kejriwal while following the arrest of him had promptly moved an urgent petition before the Supreme Court challenging his arrest. Later, the same was withdrawn. Therefore, Kejriwal has previously moved the Delhi High Court (division bench) challenging the summons issued to him by the central probe agency. Further, the Kejriwal has also filed an application seeking interim protection.

The matter was fixed for hearing on April 22. It has been alleged by ED that two criminal complaints had been filed against Kejriwal in city’s Rouse Avenue Courts alleging non-compliance of the summons by him. Kejriwal has skipped the summons, claiming that they are illegal. It has been alleged by the ED that Arvind Kejriwal is the ‘kingpin’ of Delhi excise scam and is directly involved in the use of proceeds of crime accounting to over Rs. 100 crores.

It being the case of ED that the excise policy was implemented as part of a conspiracy to give wholesale business profit of 12 percent to certain private companies, although such a stipulation was not mentioned in the minutes of meetings of Group of Ministers, GoM. It has been claimed by the Central Agency that there was a conspiracy that was coordinated by Vijay Nair and other individuals along with South Group to give extraordinary profit margins to wholesalers.

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Supreme Court: Plea To Stay Citizenship Amendment Act

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The Supreme Court in the case was hearing the application filed to stay the Citizenship Amendment Act 2019 and the Citizenship Amendment Rules 2024.

The bench comprising of CJI DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra was hearing the present matter. In the present case, the court was hearing the 237 writ petitions challenging the CAA, filed in 2019.

Therefore, these petition before the Court on October 31, 2022. The Union Government notified the Citizenship Amendment Rules 2024 to implement the CAA and notified the formation of committees at the State or UT levels to process the applications on March 11.

The petitioner are Political party Indian Union Muslim League (IUML, the lead petitioner in the case), Democratic Youth Front of India (DYFI, youth wing of the CPI(M)), All Assam Students Union, Assam opposition leaders Debrabata Saika and Abdul Khaleque, State of Kerala, AIMIM head Asaduddin Owaisi, Socialist Democratic Party of India etc.,

The Senior Advocate Kapil Sibal told the court that there was no question of a pause back then since the rules were not notified. Adding to it, Solicitor General Tushar Mehta then said that the fact that the rules were notified before the elections was irrelevant.

The party leader Jairam Ramesh has stated that, the pposition has slammed the Narendra Modi government over the timing of the law’s implementation – four years after it cleared the Parliament. The move is “evidently designed to polarise the elections, especially in West Bengal and Assam”.

Further, the Trinamool Congress chief and Bengal Chief Minister Mamata Banerjee stated that she doubts the legality of CAA and alleged a conspiracy to “snatch citizenship rights. The Bengal Chief Minister Mamata Banerjee says that, BJP leaders say CAA gives you rights. But the moment you apply for citizenship, you become illegal migrants and you will lose your rights. You will lose rights and be taken to detention camps. Please think before you apply. The Centre has trashed the Opposition’s allegations. Stressing that the CAA is not “unconstitutional”, Home Minister Amit Shah has accused the Opposition of resorting to the “politics of lies”.

Amit Shah stated that, On the timing of the law’s implementation, “BJP made it clear in its 2019 manifesto that it will bring CAA and provide Indian citizenship to refugees (from Pakistan, Bangladesh and Afghanistan). BJP has a clear agenda and under that promise, the Citizenship (Amendment) Bill was passed in both houses of Parliament in 2019. It got delayed due to Covid.” Further, Amit Shah stated that, minorities of the country “need not be afraid because CAA has no provision to take back the rights of any citizen”.

Court Hearing:

The bench passed an order appointing separate nodal counsels for petitions which relates t0o States of Assam and Tripure. The Adv Ankit Yadav appointed for the petitioners’ side and Adv Kanu Agarwal for the Petitioners.
Sibal: the moment something like this happens, give us liberty to move here.
CJI: We are here.
Jaising : Would your lordships be pleased to say that any citizenship granted will be subject to the outcome of the petitions.
SG : No, no.
CJI : They don’t have the infrastructure in place, the committee..
SG : This attempt was made outside the court four years back. Misleading people that you will be out of NRC. Same thing Mr. Pasha did. NRC is not an issue here. Grant of citizenship is. Please don’t do this. Nizam Pasha : Muslim members left out of NRC will be prejudiced.. 19 lakhs people left out of NRC, it applies to them.
SG : NRC is not an issue
CJI : They are not willing to make a statement, that is why we keep on April 9.
Sibal : If something happens, we will come..
CJI : What we will do is we will keep on April 9, 2024.
Jaising : In the meantime no citizenship.
SG : I am not making any statement.
SC : We direct the proceedings be listed on April 9, 2024.
Sibal : In meantime no citizenship be granted.
SG: Realistically speaking, I need 4 weeks.
CJI : You can file response in one case, opposing interim prayer.
SG : Many matters have different contentions.
Sibal : Then make a statement that no citizenship will be granted
CJI dictates order : On 22.01.2020 notice was issued. The rules have been
recently notified. This has given rise to applications for stay. SG submits that 4 weeks’ time be granted to file response. The request of 4 weeks’ time is opposed on the ground that in the meantime if citizenship is granted, it will be irreversible.
Sibal : There are serious issues of constitutionality.
Sr Adv Ranjit Kumar (for migrant) : From Balochistan, I came to India because I was persecuted. If I am given citizenship, how is it affecting them?
Jaising : They will get the right to vote!.

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Legally Speaking

Delhi High Court: ED summons cannot be quashed merely because documents required for confrontation or probe not specified in it

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The Delhi High Court in the case Mr Talib Hassan Darvesh v. The Directorate Of Enforcement observed and has said that the summons issued by Enforcement Directorate, ED cannot be quashed merely because relevant documents are required for investigation or confrontation with an accused who have not been specified in them.

The bench of Justice Anoop Kumar Mendiratta in the case observed and has stated that the summoning, in exercise of statutory powers, cannot be stalled merely on mere apprehension that the accused may be arrested and prosecuted on basis of summons issued after registration of ECIR in the proceedings which are initiated by the Enforcement Directorate, ED. The court in the case observed and has denied the interim relief to Talib Hassan Darvesh, the accused in the money laundering case.

Before the court, he also sought a stay on the summons which is issued to him by Enforcement Directorate, ED and to restrain the probe agency from taking any further coercive steps against him. Therefore, the Enforcement Directorate, ED opposed the petition which being on the ground that Darvesh cannot be insulated from any coercive action at the initial stage itself and no protective orders could be passed in his favour, ignoring the mandate of Section 45 of PMLA.

It has also been submitted before the court that the proceedings which are initiated by ED were an independent investigation into money laundering allegations based upon the ECIR and the benefit could not be granted which being merely on account of orders granting anticipatory bail to Darvesh in FIR registered by CBI.

The court stated while denying the relief that the summons issued by the Enforcement Directorate, ED cannot be quashed merely because the relevant documents required for purpose of investigation or confrontation to the petitioner, have not been specified in the summons. Adding to it, the court stated that since ECIR is an internal document which is being created before initiation of prosecution against persons involved with process or activity connected with proceeds of crime and it is not necessary to reveal the evidence collected by the Enforcement Directorate, ED at this stage in the summons forwarded to Darvesh.

Further, the court stated that the petitioner is yet to be absolved of scheduled offence by way of discharge, acquittal or quashing and as such protection orders cannot be issued in favour of petitioner ignoring the mandate as it is stated under Section 45 of PMLA, 2002 for grant of bail. Further, the court stated that summoning in exercise of statutory powers cannot be stalled merely on mere apprehension that petitioner may be arrested and prosecuted on basis of summons issued after registration of ECIR, in proceedings initiated by Enforcement Directorate, ED.

The court while considering the facts and circumstances of the case observed and found no grounds for interim relief to be made out at this stage, thus, the court disposed of the plea. Accordingly, the court the petition seeking to quash of the ECIR and summons for hearing on May 07.

The counsel, Advocates Mr. Siddharth Luthra and Mr. Siddharth Agarwal, Sr. Advs. with Mr. Ayush Agarwal, Mr. Udhav Sinha, Mr. Amar Gahlot, Ms. Srishty Jaura, Mr. Nalin Bajaj, Ms. Purvi Garg and Mr. Prashant Singh appeared for the Petitioner. The counsel, Advocates Mr. Zoheb Hossain, Special Counsel for E.D. with Mr. Vivek Gurnani, Mr. Kartik Sabharwal and Mr. Abhigiya represented the respondent.

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