RMLNLU

LAW REVIEW
ISSN 0975 - 9530
2017
Volume 7

D R . R AM M ANOHAR L OHIYA N ATIONAL L AW U NIVERSITY

 RMLNLU LAW REVIEW
Volume 7, 2017
PATRON-IN-CHIEF
Prof. (Dr.) Sanjay Singh
Vice Chancellor, Dr. Ram Manohar Lohiya National Law University, Lucknow

FACULTY ADVISORY BOARD

Mr. Manwendra Kumar Tiwari, Ms. Priya Anuragini,

EDITOR IN-CHIEF
Sunanda Singh Bisht
MANAGING EDITOR
Apurv Singh

SENIOR EDITORS
Aman Pandey, Ashray Behura, Drushan Engineer, Raj Shekhar, Ribhu Garg, Aakrishti
Kumar, Anjanay Pandey, Ashwin Misra, Ayush Chaturvedi, Saurabh Mishra, Shally Nain,
Shreepath Jain
ASSOCIATE EDITORS
Akanksha Singh, Anushree Malviya, Shivam Burghate, Shobhit Pratap Singh, Shrey Uttam
Shuaib Ahmed Saifi, Ahkam Khan, Abhishek Singh Siddhu, Digvijay Chaudhary, Ishan
Saxena, Kanay Pisal, Parimal Kashyap, Shivesh Raj Jaiswal, Varun Agarwal

The issue shall be cited as (2017) 7 RMLNLU LR <page no.>

 TABLE OF CONTENTS

EDITORIAL.............................................................................................................................. i

EXAMINING THE POWER OF CONSUMER DISPUTE REDRESSAL AGENCIES

TO RECALL AND REVIEW ORDERS: LEGAL POSITION AND POSSIBLE
REFORMS................................................................................................................................ 1
Aditya Manubarwala & Shardool Kulkarni, Pravin Gandhi College of Law, Mumbai
University
THE OLYMPICS’ RULE 40: AN UNFAIR RESTRAINT ON THE ATHLETES’
INTERESTS ................................................................................................................... 8
Agnish Aditya & Akash Srinivasan, National Law University, Odisha
OBERGEFELL AND NALSA: A COMPARATIVE LEGAL ANALYSIS OF
DECISIONS IN U.S. AND INDIA ON LGBT RIGHTS ............................................ 20
Anu Shrivastava, Gujarat National Law University
PROPORTIONALITY AND DEONTOLOGICAL REASONS: UNATTAINABLE
IDEALS IN THE CRIMINAL JUSTICE SYSTEM .......................................................... 34
Mohd. Saad Khan, Jamia Milia Islamia

THE PARIS AGREEMENT: THE LANDMARK INTERACTION OF SCIENCE,

DIPLOMACY AND INTERNATIONAL LAW ................................................................. 43
Siddharth Chaturvedi, Dr. Ram Manohar Lohiya National Law University

TRIPLE TALAQ ROW: VALIDITY OF JUDICIAL INTERFERENCE IN

PERSONAL LAWS ............................................................................................................... 65
Eesha Shrotriya, National Law Institute University

ASCHEMATISING THE POSITION OF COMMON LAW NATIONS: AN ANALYSIS

OF ADMISSIBILITY OF EXPERT EVIDENCE ............................................................... 78
Devershi Mishra & Komal Khare, NALSAR University of Law

THE IMPLICATIONS OF IMPLICATION: DECONSTRUCTING THE MOORCOCK

& THE CURIOUS CASE OF THE OFFICIOUS BYSTANDER………………………...93

Armaan Patkar, AZB Partners

IMPLEMENTATION OF FOREIGN AWARDS IN INDIA, UK AND USA ............... 113

Raghuveer Singh Meena, National Law School of India University

 EDITORIAL

The power of a pen is enormously larger than a sword. What a sharp edged sword can't achieve
can be achieved by the help of a minute tip of a pen. What it implies is that the power of writing
is much stronger than the power of hatred, war, and fighting. But in the current times, is this
age old adage faltering? The truth is that apart from being the perfect antithesis to the
destructive power of sword, the creative power of a pen is also responsible for innovation and
development. A scribbling pen is chronicling events of present for posterity, it is posing
questions and concerns plaguing the current times, and it is also the medium meant to achieve
the answers to the questions posed. This pen is thus an antithesis of ignorance and death, it
creates, enables and achieves.
In the legal profession, writing’s importance cannot be overstated. Perhaps it is the lubricant in
the wheels of the chariot of progress or perhaps it is the horse. Nevertheless, it certainly is
responsible for the germination and development of ideas and concepts. These are then tested
against the tides of time. Ask any law student about the general precepts in law and policy, and
their quite old and ancient origins. This proves that it is imperative that new ideas and concepts
be given a place to germinate and grow. The public must be exposed to the diversity in thoughts
and perspectives for a healthy and accepting society. It is this pursuit of diversity that is being
realised by this seventh edition of the RMLNLU Law Review. This edition showcases seminal
works embodying ideas and postulates about several issues that define our social structure.

i
 EXAMINING THE POWER OF CONSUMER DISPUTE
REDRESSAL AGENCIES TO RECALL AND REVIEW
ORDERS : LEGAL POSITION AND POSSIBLE REFORMS
 ADITYA MANUBARWALA & SHARDOOL KULKARNI

INTRODUCTION: STATUTORY PROVISIONS

Prior to the Amendment in the Consumer Protection Act, 19861 (hereinafter ‘the Act’) there
were no express provisions pertaining to the power of Consumer Dispute Redressal Agencies
with regard to the ability to recall their own orders. The Consumer Protection (Amendment)
Act, 2002 led to the insertion of Section 22A in the Consumer Protection Act,2 which may be
read as follows –

“22A. Where an order is passed by the National Commission ex parte

against the opposite party or a complainant, as the case may be, the
aggrieved party may apply to the Commission to set aside the said
order in the interest of justice.”

Section 22 was also replaced with following proviso:

“22 (1) Provisions of sections 12, 13 and 14 and the rules made there
under for the disposal of complaints by the District Forum shall, with
such modifications as may be considered necessary by the
Commission, be applicable to the disposal of disputes by the National
Commission.

(2) Without prejudice to the provisions contained in sub-section (1),

the National Commission shall have the power to review any order
made by it, when there is an error apparent on the face of record.”

A bare reading of the aforementioned provision makes it amply clear that the National
Consumer Disputes Redressal Commission, (hereinafter referred as the ‘National


Student, 5th Year, Pravin Gandhi College of Law, Mumbai University.
1
The Consumer Protection (Amendment 2003) Act 1986.
2
The Consumer Protection (Amendment) Act 2002, s 20.

1
Commission’) has been vested with the power of setting aside an ex parte order in the interests
of justice and to restore complaints dismissed in default. However, no corresponding
amendment has been made with respect to the State Commission and District Forum. At this
point, it becomes essential to draw attention to Order IX, Rule 13 of the Civil Procedure Code,
1908,3 which reads as under:

“13. Setting aside decree ex parte against defendant. - In any case in

which a decree is passed ex parte against a defendant, he may apply
to the court by which the decree was passed for an Order to set it aside;
and if he satisfies the court that the summons was not duly served, or
that he was prevented by any sufficient cause from appearing when
the suit was called on for hearing, the court shall make an Order
setting aside the decree as against him upon such terms as to costs,
payment into court or otherwise as it thinks fit, and shall appoint a day
for proceeding with the suit:

Provided that where the decree is of such a nature that it cannot be set
aside as against such defendant only it may be sent aside as against all
or any of the other defendant also:

Provided further that no court shall set aside a decree passed ex parte
merely on the ground that there has been an irregularity in the service
of summons, if it is satisfied that the defendant had notice of the date
of hearing and had sufficient time to appear and answer the plaintiff’s
claim.

Explanation: Where there has been an appeal against a decree passed

ex parte under this rule, and the appeal has been disposed of on any
ground other than the ground that the appellant has withdrawn the
appeal, no application shall lie under this rule of setting aside the ex
parte decree.”

Meanwhile, Order IX, Rule 4 of the Civil Procedure Code provides for restoration of a suit that
has been dismissed:4

3
The Code of Civil Procedure 1908, order IX rule 13.
4
The Code of Civil Procedure 1908, order IX rule 4.

2
 “4. Plaintiff may bring fresh suit or Court may restore suit to file—
Where a suit is dismissed under rule 2 or rule 3, the plaintiff may
(subject to the law of limitation) bring a fresh suit, or he may apply
for an order to set the dismissal aside, and if he satisfies the Court that
there was sufficient cause for such failure as is referred to in rule 2, or
for his non-appearance, as the case may be, the Court shall make an
order setting aside the dismissal and shall appoint a day for proceeding
with the suit.”

Thus, it becomes essential to examine to what extent the District Forum and State Commission
have been empowered to exercise the powers of a civil court, particularly with regard to the
Civil Procedure Code. Section 13(4) of the Consumer Protection Act, 1986 reads as follows –
5

“13(4) For the purposes of this section, the District Forum shall have
the same powers as are vested in a civil court under Code of Civil
Procedure, 1908 while trying a suit in respect of the following matters,
namely: —

(i) the summoning and enforcing the attendance of any defendant

or witness and examining the witness on oath;
(ii) the discovery and production of any document or other
material object producible as evidence;
(iii) the reception of evidence on affidavits;
(iv) the requisitioning of the report of the concerned analysis or
test from the appropriate laboratory or from any other relevant
source;
(v) issuing of any commission for the examination of any witness,
and
(vi) any other matter which may be prescribed.”

The aforesaid provision has also been made applicable to the State and National Commissions.6
It is also necessary to draw attention to Section 26(1) of the Consumer Protection Regulations,
2005, which reads as under:

5
The Consumer Protection Act 1986, s 13(4).
6
The Consumer Protection Act 1986, s 18.

3
 “26. Miscellaneous – (1) In all proceedings before the Consumer
Forum, endeavour shall be made by the parties and their counsel to
avoid the use of provisions of Code of Civil Procedure, 1908 (5 of
1908):

Provided that the provisions of the Code of Civil Procedure, 1908 may
be applied which have been referred to in the Act or in the rules made
there under.”

The cardinal question for enquiry is whether or not the State Commission and District Forum
are empowered to set aside their own ex parte orders or recall dismissed complaints.

JUDICIAL PRONOUNCEMENTS: CEMENTING STATUTORY

SHORTCOMINGS

In the case of Court Master, UCO Bank v. Ram Govind Agarwal,7 the Bihar State Commission
held that the District Forum, which had set aside its own ex parte order, had no jurisdiction to
do so, as the Consumer Protection Act does not empower dispute Redressal agencies to set aside
or recall ex parte orders or to restore matters dismissed for default. A similar view was taken
by the National Commission in Director, Forest Research Institute v. Sunshine Enterprises.8

The question finally came for consideration before the Supreme Court in the case of Jyotsana
Arvind Kumar Shah v. Bombay Hospital Trust,9 wherein an appeal had been preferred against
an order of the State Commission setting aside its own ex parte order. After the State
Commission or proceeded ex parte and awarded compensation to the complainant on merits,
the respondents, instead of preferring an appeal filed a writ petition before the Bombay High
Court. The High Court, whilst dismissing the writ petition observed that the respondent could
prefer an appeal or make an application before the State Commission for setting aside the ex
parte order, if permissible by law. On the basis of this order, the petitioner subsequently made
an application to the State Commission, which set aside its previous ex parte order. An appeal
was preferred by the complainant to the Supreme Court, which stated that the respondent could
benefit from the observation of the High Court only if the same was ‘permissible by law’.
Laying reference to the aforementioned orders of the National Commission and the Bihar State

7
Court Master, UCO Bank v Ram Govind Agarwal (1996) 1 CPR 351.
8
Director, Forest Research Institute v Sunshine Enterprises (1997) 1 CPR 42.
9
Jyotsana Arvind Kumar Shah v Bombay Hospital Trust (1999) 4 SCC 325.

4
Commission, it held that the order of the State Commission setting aside the ex parte decision
was without jurisdiction.

However, a conflicting view on this issue emerged in the case of New India Assurance Co. Ltd.
v. R. Srinivasan,10 where the Supreme Court held that the State Commission could recall or
review its ex parte order. The original complainant, who was the respondent in the said matter,
had filed a complaint with the State Commission for an insurance claim that was dismissed in
default and not restored by the State Commission. Consequently, the respondent filed a fresh
complaint in the District Forum, which allowed the claim. The appellant’s contention that the
complaint in the district forum was not maintainable since a similar compliant had been
instituted and dismissed in default by the State Commission, was rejected by both the State and
the National Commission. When the matter reached the Supreme Court, it upheld the orders of
the National Commission, State Commission and District Forum on the grounds that the
interests of justice cannot be comprised by mere technicality, particularly since the claim of the
respondent was undisputed. Whilst taking note of the fact that Order 9 of the Civil Procedure
Code did not apply to proceedings before the State Commission or District Forum, the court
emphatically stated that the interests of justice cannot be compromised by a rule of technicality.

It would be pertinent to note here that all of the previously mentioned judgements were passed
prior to the 2002 Amendment to the Consumer Protection Act. As such, whilst they do not hold
true for the National Commission, they continued to hold good for the State Commissions and
District Forums.

The Supreme Court has therefore clearly taken contrary stands on this issue in the two instances
that it came before it for consideration. The position of law was finally settled in Rajeev
Hitendra Patekar v. Achytut Kashinath Karekar and Another.11 In the said case, the
respondent’s wife had died due to alleged medical negligence on part of the appellants.
However, the State Commission had dismissed the complaint for want of prosecution. Upon
receiving an application for recalling the said order of dismissal from the respondent-
complainant, the State Commission restored the complaint. The National Commission rejected
the arguments of the appellants that the order of the State Commission was without jurisdiction,
and dismissed the revision petition.

10
New India Assurance Co Ltd v R Srinivasan (2000) 3 SCC 242.
11
Rajeev Hitendra Patekar v Achytut Kashinath Karekar [2011] 10 SCR 513.

5
The court’s attention was drawn to both the statutory provisions and the judgement of the
Andhra Pradesh High Court in the case of M/s Eureka Estates (P) Ltd. v. A.P. State Consumer
Disputes Redressal Commission,12 wherein it was held that the State Commission and District
Forum can only exercise those powers that have been specifically conferred on them by the
Consumer Protection Act and Rules. This line of argument was further substantiated by the
counsel for the appellants by placing reliance upon the Supreme Court’s judgements in Morgan
Stanley Mutual Fund v. Kartick Das13 and Gulzari Lal Agarwal v. Accounts Officer14 wherein
it had laid down the principle that Consumer tribunals can derive powers only from express
statutory provisions. On the other hand, the respondent contended that he had lost track of the
matter due to old age and that the State Commission had rightfully restored the complaint.
However, the Supreme Court ultimately held that the Tribunals are creatures of the statute, and
hence the State Commission and District Forum cannot exercise any power that has not been
expressly conferred upon them. Thus, the court held the judgment in the case of Jyotsana to be
a good law with the judgment delivered in case of New India Assurance to be untenable.

THE CURRENT LEGAL POSITION: A TRAVESTY OF JUSTICE?

The law, as it stands today, does not allow State Commissions and District Forums to recall
their ex parte decisions or restore complaints dismissed in default. While some may hail this
move as a step in the right direction, which may deter those sellers who are negligent in
appearing before the tribunals and filing their written statement, the cascading effect of this
position is that poor litigants, who are sometimes unable to adhere to the time frames stipulated
under the Consumer Protection Act and by the Tribunals, are put in a position where they must
incur the expenditure of travelling all the way to Delhi in order to get their complaints restored.
The position of law, both in the statute books and as held by the Supreme Court in Rajeev
Hitendra Patekar disadvantages the poorest of complainants, as it is the State Commission and
District Forums that are unable to recall orders or restore complaints. At this point, it would be
pertinent to draw attention to Article 39A of the Constitution of India. Whilst this Directive
Principle of State Policy primarily deals with the issue of legal aid, it also states that the legal
system must promote justice on the basis of equal opportunity. It further states that opportunities
for securing justice should not be denied to any citizen by virtue of economic or other
disabilities. This is also in consonance with the Preamble of the Constitution wherein the State

12
M/s Eureka Estates (P) Ltd v AP State Consumer Disputes Redressal Commission AIR 2005 AP 118.
13
Morgan Stanley Mutual Fund v Kartick Das (1994) 4 SCC 225.
14
Gulzari Lal Agarwal v Accounts Officer (1996) 10 SCC 590.

6
undertakes to provide ‘Justice – social, economic and political’. The current position of law
ensures that the richest of litigants, having claims of over 1 Crore rupees are able to get speedy
justice from the National Commission, which hears their complaints in the first instance,15
whereas poorer litigants with smaller claims are unable to avail of the same benefits from their
forum of choice. Thus, this position of law not only goes against the constitutional principles
enshrined in Article 39A but also defeats the very essence of the Preamble as well.

This state of affairs, if anything, only serves to defeat the very essence of the Consumer
Protection Act, which seeks to give speedy and cost-effective justice to consumers, particularly
the ones belonging to the sections of society which do not have the resources or time to indulge
in long-drawn and expensive litigation. A mere glance at the facts of New India Assurance16 as
well as Rajeev Hirendra Patekar17 will reveal that it was, in fact, the consumer who suffered
because of this skewed position of law.

CONCLUSION: THE WAY FORWARD

Litigants, particularly consumers approaching the District Forum and State Commission, who
tend to be laypersons, are often subject to supervening circumstances beyond their control. Yet,
it is only the National Commission that has been vested with the power to restore complaints
dismissed in default and recall ex parte decisions. The judgement in the case of Rajeev Hirendra
Patekar v. Achyut Kashinath Karekar18 continues to be the law of the land. Of course, the
inherent shortcomings of the 2002 Amendment to the Consumer Protection Act were
responsible for this vexed position of law continuing to exist post-2002 in the first place. As
such, the only way forward appears to be moving requisite amendments to the Consumer
Protection Act and endowing District Forums and State Commissions with the power to restore
complaints dismissed in default and recall ex parte decisions. However, the exercise of this
power by all three dispute redressal agencies must be subject to certain caveats to safeguard the
interests of consumers. Granting the power of restoring complaints dismissed in default and
recalling ex parte decisions will not only further the interests of justice but also reduce revisions
filed before the National Commission, thereby reducing the seemingly insurmountable
pendency and arrears of cases.

15
The Consumer Protection Act 1986, s 21(a)(i).
16
New India Assurance Co Ltd v R Srinivasan (2000) 3 SCC 242.
17
Rajeev Hirendra Patekar v Achyut Kashinath Karekar (2011) 9 SCC 541.
18
ibid.

7
 THE OLYMPICS’ RULE 40: AN UNFAIR RESTRAINT ON
THE ATHLETES’ INTERESTS

 AGNISH ADITYA & AKASH SRINIVASAN

INTRODUCTION

“I am honored to be an Olympian ... but I can't Tweet about my only sponsor.”1

Through the course of the XXXI Summer Olympics and the XV Paralympics at Rio, concerns
regarding Rule 40 and ambush marketing were raised yet again. Although the International
Olympic Committee (IOC) has relaxed the ambit of Rule 40 to a certain extent, it still raises
concerns of encroaching the personal freedoms and liberties of the athletes.2 Many athletes and
organizations have taken to social media to voice their discontent against this over-restrictive
rule. Agitation against this rule can be seen not only from participants in the Games, but also
from viewers of the Olympics and Paralympics.

The intention behind Rule 40 was to prevent ambush marketing—a clever tactic employed by
brands, where they intentionally associate themselves with events sans any agreement or any
official association3in the Olympics and to protect the exclusive advertising rights of the
Official Sponsors. It also seeks to prevent “over-commercialization of the Games”4 and to
retain the focus on the athletes’ performance.5 However, doubts have been raised whether Rule
40 is actually fulfilling its intended purpose or whether it acts as an unfair restraint and burden
on the athletes by making them focus on adhering to the rule rather than on their performance.
It is also argued that Rule 40 inhibits the athletes from commercializing on their hard work
during their peak point of visibility. We further argue that the inaction by the NOCs (National
Olympic Committees) (particularly focusing on the Indian Olympic Association and the


Student, 3rd Year, B.B.A., LL.B., National Law University, Odisha.
1
Martin Rogers, ‘American Athletes Lead Revolt Against IOC Ban on Social Media Use to Promote Sponsors',
(Yahoo! Sports, 30 July 2012), <http://sports.yahoo.com/news/olympics--u-s--leads-revolt-against-ioc-
banagainst-social-media-use-to-promote-sponsors.html> accessed 22 August 2016.
2
Rosie Duckworth & Annabel Hodge, ‘Rio 2016: IOC’s “relaxation” of Rule 40’, (Sports IP Focus)
<www.squirepattonboggs.com/~/media/files/insights/publications/2016/04/rio-2016-iocs-relaxation-of-rule-
40/rio-2016-iocs-relaxation-of-rule-40.pdf> accessed 22 August 2016.
3
Adam Epstein, ‘The Olympics, Ambush Marketing and Sochi Media’ (2013-14) 3 Sports & Ent LJ 109.
4
ibid.
5
International Olympic Committee, ‘Rule 40 of the Olympic Charter: What you need to know as a Participant’
<https://inside.fei.org/system/files/Rule_40-Rio_2016-QA_for_Athletes_0.pdf> accessed 22 August 2016.

8
Paralympic Committee of India) has annulled the effect of the IOC’s relaxation of Rule 40.
This essay attempts to analyze the concerns of the IOC and its official sponsors on one hand
and that of the athletes on the other. In essence, this essay argues that Rule 40 is an over-
restrictive burden on the athletes and does not serve the intended purpose.

THE UNIQUE NATURE OF OLYMPICS AND RULE 40

The Olympic Games trace their roots to the 8th Century BC.6 The Olympic Games were revived
in 1896 that witnessed participation from only 14 countries.7 The Modern Olympic Games has
now become the largest and most participated international sporting event in the world. Many
of the symbols and practices that are used today find their roots in the ancient Olympics.8 Since
then, it has undergone tremendous changes in its structure, governance, conduct and rules.

The Olympic Games today is more than just a sporting event: they’ve progressed to become a
cultural, political and economic phenomenon. It has become the perfect media event for
opportunists to harness the tremendous potential that the Games offer in terms of marketing
and tourism, as a catalyst for development and as a source of inspiration for the youth.9

The International Olympic Committee (IOC) was one of the creations of Pierre de Coubertin
in 1984. It is legally constituted as an International non-governmental, non-profit organization
and is the governing body of the Olympic movement.10 At the domestic level, there are National
Olympic Committees (NOCs) which are organizations appointed by the IOC to “develop,
promote and protect the Olympic Movement in their respective countries.”11

The Olympics has always strived to be a non-political and non-commercial movement. Bye-
law 3 to Rule 40 of the Olympic Charter is one of the measures which seeks to preserve the
Olympics as a non-commercial movement by preventing over-commercialization. Rule 40
restricts competitors in the Olympics from advertising any brand apart from the Official
sponsors.

6
University of Pennsylvania Museum of Archaeology and Anthropology, ‘The real story of the Ancient Oympic
Games’ (Penn Museum) <http://www.penn.museum/sites/olympics/olympicorigins.shtml> accessed 28 October
2016.
7
Heather Whipps, ‘How the Olympics Changed the World’, (Live Science, 7 July 2012)
<www.livescience.com/2733-olympics-changed-world.html> accessed 22 August 2016.
8
Andy Miah and Beatriz Garcia, The Olympics: The Basics (Routledge 2012) 16.
9
Kristine Toohey and AJ Veal, The Olympic Games: A Social Science Perspective (CABI 2009).
10
Battonnier Rene Bondoux, ‘The Legal Status of the International Olympic Committee’ (1992) 4 Pace YB Int’l
L 97.
11
The International Olympic Committee, ‘The Organisation’ (Olympic Games) <www.olympic.org/ioc-
governance-national-olympic-committees> accessed 22 August 2016.

9
The IOC’s regulation of the athletes’ advertising activities can be traced to Rule 26 of the
Eligibility Rules of the International Olympic Committee, 1962. It states that “…if an athlete
is paid for the use of his name or picture or for a radio or television appearance, it is
capitalization of athletic fame…”12 This rule was made with the intention of ensuring that the
athletes always maintained their amateur status, thus preserving the sanctity of the Olympics.
This eventually lead to the incorporation of Rule 40 into the Olympic Charter in 1991 13with
the aim of protecting the official sponsors of the Games, who invest astronomical amounts to
gain exclusive global rights to be associated with it, from ambush marketing.

THE CONTROVERSY BEHIND RULE 40

The purpose of Rule 40 is, not surprisingly, about the money. The purpose behind it is to
prevent ambush marketing while the Games take place and granting the official sponsors’
exclusive advertising rights. Rule 40 was incorporated with the purpose of limiting the number
of companies that free-ride on the popularity of the Games.14

The essence of Rule 40 is that before and during the Olympics (the blackout period), no non-
official sponsors are allowed to use the following words— ‘“2016”, “Rio/Rio de Janeiro”,
“Gold”, “Silver”, “Bronze”, “Medal”, “Effort”, “Performance”, “Challenge”, “Summer”,
“Games”, “Sponsors”, “Victory”, “Olympian”, “Olympic”, “Olympics”, “Olympic Games”,
“Olympiad”, “Olympiads”, “Citius, Altius, Fortius” (and any translation of it). They are not
even allowed to associate their brand with the Olympic athletes, which includes wishing them
on social media, and re-tweeting Olympic related tweets that feature them.

Athletes have vehemently voiced their frustration against Rule 40’s restrictive nature and
stringent enforcement. The London 2012 Olympics witnessed the rise of the
#WeDemandChange campaign spearheaded by Olympic gold medalist Sanya Richards-Ross.
This year, Emma Coburn registered her protest against Rule 40 by taking to the social media

12
Olympic Charter, ‘Eligibility Rules of the International Olympic Committee’
<www.olympic.org/Documents/Olympic%20Charter/Olympic_Charter_through_time/1962-
Eligibility_rules_of_the_IOC.pdf> accessed 22 August 2016.
13
International Olympic Committee, ‘Olympic Charter 1991’
<www.olympic.org/Documents/Olympic%20Charter/Olympic_Charter_through_time/1991_Olympic_Charter.p
df> accessed 22 August 2016.
14
Michael Sol Warren, ‘Rule 40: An Olympics Advertising Explainer’ (Paste, 18 July 2016)
<www.pastemagazine.com/articles/2016/07/rule-40-an-olympics-advertising-explainer.html> accessed 22
August 2016.

10
and thanking her sponsor just a day before the commencement of the ‘blackout’ period.15
Sportswear manufacturer Brooks Running Co. has initiated a campaign titled “Rule 40” which
consists of social media posts opposing Rule 40. In another instance, Dawn Harper, an athlete
from the United States, tweeted an image of herself with her mouth covered by a duct tape
which read "Rule 40," making her opinion of Rule 40 amply clear.16

Amidst all the negative response Rule 40 is stirring up, this year’s Rio Olympics gives us an
opportunity to revisit the issue.

THE CONFLICTING INTRESTS

Rule 40 creates a conflict between the interests of athletes and non-official sponsors on one
hand, and the rights of the IOC and the official sponsors on the other hand. While the official
sponsors need protection from ambush marketing, the athletes should be enabled to
commercialize and promote themselves during the Games. It is important to understand the
conflicting rights and interests and strike a balance between them.

THE NEED TO PREVENT AMBUSH MARKETING

The IOC, being a non-profit NGO, heavily relies on funds from various sponsors, to make the
Olympic Games happen. This year, the total funds secured from sponsors reached $1.3
Billion17 and their official sponsors are indispensable to the organization of the event.
Companies like Nike and Coca-Cola invest millions of dollars every year to procure such
sponsorship contracts.18 The reason why the sponsors shell out such generous amounts for the
Olympic Games is because of the enormous marketing opportunity it gives them. In terms of
media coverage, the Olympics are one of the world’s largest sporting events. The London 2012
Olympic Games, for example, garnered 3.6 billion unique viewers throughout the games.19

15
Lori Shontz, ‘Rio Runners Finding Creative Ways Around Olympic Rule 40’ (Runner’s World, 19 August
2016) <www.runnersworld.com/olympics/rio-runners-finding-creative-ways-around-olympic-rule-40> accessed
22 August 2016.
16
Adam Shergold, ‘US Athletes Launch 'Gag' Protest Against Olympic Rule that Bans Them from Promoting
Their Sponsors’ (Mail Online, 31 July 2012) <www.dailymail.co.uk/news/article-2181501/London-2012-US
athletes-launch-gag-protest-Olympic-rule-bans-promoting-sponsors.html> accessed 22 August 2016.
17
Ben Chapman, ‘Rio 2016: The richest Games in 120 years of Olympic history’ (Independent, 4 August 2016)
<www.independent.co.uk/news/business/analysis-and-features/rio-2016-olympic-games-richest-ever-usain-bolt-
mo-farah-a7171811.html> accessed 22 August 2016.
18
Daniel Kaplan, ‘Nike Spending Billions for Endorsements and Sponsorships’ (Portland Business Journal, 17
April 2008) <www.bizjournals.com/portland/stories/2008/04/14/daily39.html> accessed 22 August 2016.
19
Sponsorship Intelligence, ‘London 2012 Olympic Games Global Broadcast Report’
<https://stillmed.olympic.org/Documents/IOC_Marketing/Broadcasting/London_2012_Global_%20Broadcast_
Report.pdf> accessed 22 August 2016.

11
Also, brands feel that Olympic casts over them a ‘halo effect’ which increases their credibility
and this is why they find Olympics sponsorship to be a really good marketing strategy apart
from the monetary benefits they get during the games.20

With such huge investment, the sponsors of the Games have a vested interest in ensuring that
they extract maximum possible returns out of such sponsorship arrangements. The downside
here is the continuing threat to the sustainability of these sponsorship arrangements, and failure
on part of the IOC to address these concerns may lead to, these corporations becoming reluctant
to invest in future editions of the Games. That threat is ambush marketing. Ambush marketing
tends to 'devalue' the exclusive rights granted by the IOC and other International Sporting
Organizations, such as the National Basketball Association (NBA), International Federation of
Association Football (FIFA), National Football League (NFL), etc. Brands do this to ‘free-
ride’ on the popularity of the event to create positive publicity for their own products or
services.21

At first glance, the practice of ambush marketing appears no different from competitive
marketing. However, ambush marketing discourages the companies to invest huge amounts on
sponsorship agreements as they could achieve equivalent returns by engaging in ambush
marketing and spending a fraction of the amount.

The nature of sporting events, such as the Olympics, makes them an obvious target for ambush
marketing. Moreover, sports spectatorship is increasing22 and that, in turn, generates
opportunities for corporations that seek to advertise during sporting events.23 That same
popularity, though, makes sports advertising very expensive, which creates the incentive to
engage in ambush marketing.24 The cost of hosting a modern Olympic Games imposes an
astronomical burden on the host country. Sponsorship agreements are probably the best way to
offset the costs that go into organizing the event. For the Olympics to attract sponsors, it needs

20
John A Davis, The Olympic Games Effect: How Sports Marketing Builds Strong Brands (Wiley 2012) 33.
21
The Chartered Institute of Marketing, ‘Ambush Marketing and the Law’ <www.cim.co.uk/media/1979/cim-
insights-ambush-marketing-and-the-law.pdf> accessed 22 August 2016.
22
Simon Hendery, ‘Drink up, It’s Time to Cash in on the Cup’ New Zealand Herald (20 November 2003)
<www.nzherald.co.nz/business/news/article.cfm?c_id=3&objectid=3535083> accessed 22 August 2016.
23
Brian Stelter, ‘NBC Making the Most of Its Super Bowl Coverage’ New York Times (29 January 2009)
<www.nytimes.com/2009/01/29/business/media/29adco.html?_r=0> accessed 22 August 2016.
24
John A Tripodi and Max Sutherland, ‘Ambush Marketing- 'An Olympic Event’’ (2000) 7 J Brand Mgmt 412.

12
to ensure a certain degree of protection with regards to these exclusive sponsorship rights while
fending off competitive advertising.25

One of the pertinent concerns for the IOC, this time around, is the ambush marketing campaigns
taking place in social media platforms. Social media has been cleverly used for ambush
marketing by various brands including Nike, Pepsi and Google.26 Social media platforms have
become extremely difficult to monitor due to a shift towards video based social networking
platforms.27 This makes the task of tackling ambush marketing in the social media, a herculean
one.

In order to protect the official sponsors from such ambush marketing, the IOC has taken several
measures which include facilitating enactment of national legislations in host countries as well
its own rules and codes of conduct.28 The NOCs are also extremely important for protecting
the Olympic trademarks in their respective countries. Rule 40 is one of the measures which
address this issue.

ATHLETES’ RIGHTS TO COMMERCIALIZE ON THEIR PERFORMANCE

Even though the IOC does not require the competitors to be amateurs, the athletes who
participate in the Olympics often struggle to make the ends meet. Even in countries like the
United States most athletes earn a living by taking up odd jobs.29 A great number of athletes
survive on incomes below the poverty line, which is mostly made up of the prize money,
sponsorships and part time jobs.30 India has the worst Olympic record in terms of medal per
head, and it is attributed to meagre spending on athletes.31 Stories of Indian athletes ending up

25
David Vinjamuri, ‘U.S. Athletes are Right about Twitter: Rule 40 Exposes The Flaw in Olympic Thinking’
(Forbes, 1 August 2012) <www.forbes.com/sites/davidvinjamuri/2012/08/01/the-athletes-are-right-about-
twitter-rule-40-exposes-the-paradox-at-the-core-of-the-olympic-games/#2eee51991016> accessed 22 August
2016.
26
‘Ambush Marketing at the Olympics: Driven by Social Media and Online Video’ (Knowledge Vision, 20
August 2012) <www.knowledgevision.com/ambush-marketing-at-the-olympics-driven-by-social-media-and-
online-video> accessed 22 August 2016.
27
Max Willens, ‘Rio Olympics Advertising Problems: Snapchat and Ambush Marketing Has IOC Throwing up
Hands’ (International Business Times, 29 June 2016) <www.ibtimes.com/rio-olympics-advertising-problems-
snapchat-ambush-marketing-has-ioc-throwing-hands-2385395> accessed 22 August 2016.
28
Suzan Ryan, ‘Ambush marketing and the Rio Olympics’ (Mumbrella, 11 March 2016)
<https://mumbrella.com.au/ambush-marketing-rio-olympics-stephen-von-muenster-352277> accessed 22
August 2016.
29
‘How Olympic Athletes Make a Living’ (Sports Management Degree Hub)
<www.sportsmanagementdegreehub.com/olympic-athletes-salaries/> accessed 22 August 2016.
30
Rule40, ‘Facts, reasons to join the fight’ (rule40) <http://rule40.com/> accessed 23 August 2016.
31
Kumar Vikram, 'Meagre Spending On Players Behind India's Poor Olympic Show' (Business Today, 12
August 2016) <www.businesstoday.in/current/world/meagre-spending-on-players-behind-indias-poor-olympic-
show/story/236077.html> accessed 23 August 2016.

13
in poverty are not uncommon.32 Even the IOC officials are compensated much more than the
athletes, who only get to enjoy a miniscule fraction of what the Olympics earns.33

The plight of the Paralympians is also a major concern. This year, the Indian Paralympians
have brought laurels for the country by outshining their Olympics counterparts. 34 However,
their situation is far worse than that of the Olympians. Not only are they socially discriminated
and ignored, but they are also subjected to day to day institutional barriers.35 The Paralympics
are a very important event for them to get noticed and bring a change in the outlook towards
physically challenged people. Rule 40 not only obstructs them from appearing in the limelight,
but also impairs their chances of being recognized by potential sponsors.

Since, the Olympics and Paralympics give amateur athletes a platform to exhibit their skills
and years of hard work and perseverance, it is natural for them to expect monetary gains
through it. The athletes’ have often lamented that Rule 40 inhibits their right to commercialize
on their performance by acknowledging their sponsors during their peak point of visibility.
Sponsorships and endorsements are the main source of income for most athletes and it is
imperative that they build strong relationships with their sponsors and give them a good image.

IS RULE 40 STRIKING A BALANCE?

The purpose behind Rule 40 was to prevent ambush marketing. However, as can be seen, it
also places unfair restraints on the athletes’ interests. Apart from the fact the rule does not
further the objective of preventing ambush marketing, it also exceeds its scope by restricting
the athletes’ personal rights.

RULE 40 DOES NOT HELP PREVENT AMBUSH MARKETING

32
Mail Today Bureau, 'Athletes Who Brought Laurels to the Nation Are Languishing in Poverty, Thanks to
Centre's Apathy' (India Today, 21 April 2013) <http://indiatoday.intoday.in/story/athletes-in-poverty-centre-
negligence/1/266857.html> accessed 23 August 2016.
33
Will Hobson, 'Olympic Executives Cash in on a ‘Movement’ That Keeps Athletes Poor' The Washington Post
(30 July 2016) <www.washingtonpost.com/sports/olympics/olympic-executives-cash-in-on-a-movement-that-
keeps-athletes-poor/2016/07/30/ed18c206-5346-11e6-88eb-7dda4e2f2aec_story.html> accessed 23 August
2016.
34
Karan Deep Singh, 'India’s Paralympians Are Winning More Medals than Their Olympic Colleagues' The
Wall Street Journal, (14 September 2016) <http://blogs.wsj.com/indiarealtime/2016/09/14/indias-paralympians-
are-winning-more-medals-than-their-olympic-colleagues/> accessed 28 October 2016.
35
Firstpost.com, 'India's Paralympians want to know why their achievements are ignored' (Firstpost, 23 March
2015) <www.firstpost.com/sports/discriminated-and-ignored-the-sad-story-of-indias-paralympians-
2053495.html >accessed 28 October 2016.

14
Although the main purpose of Rule 40 is to prevent ambush marketing, it is difficult to argue
it has succeeded in doing so. Even if athletes are not involved, organizations can still engage
in clever ambush marketing tactics and hijack the event. The classic example of Nike’s ambush
needs mention to this effect. Even though Michael Johnson’s golden spikes incident occurred,
it could be treated as an unintentional ambush.36 The real strategy was in the highly creative
commercials which were visible all around Atlanta, distributing Nike flags and the opening of
a Nike showroom in the vicinity of the Olympics Village.37

Constraints tend to make people more creative and “strike the innovation fire”.38 This increases
their ability to innovate and find new ways to circumvent the rule, and yet enjoy the benefits
which they are not entitled to. Moreover, how difficult is it for a person to do a Google or
Wikipedia search on a player and find out which brand he or she endorses? The more the IOC
restricts and make athletes do absurd things like forcefully making them paste tape on their
apparels or even skin to cover nearly invisible logos of Normal Operating Procedures (NOPs)39,
the more it makes spectators curious about the controversy, which ultimately reveals the
corporation endorsed by the player.

It can, thus be argued that Rule 40, by itself, fails to curb ambush marketing; since brands will
often come up with creative campaigns which need not involve athletes.The IOC’s endeavors
to generate a positive image of their sponsors and acknowledge their efforts are thwarted by
creative ambush marketing campaigns.40 It makes it disastrous for the IOC.

IT UNFAIRLY RESTRICTS ATHLETE’S RIGHT TO FREE SPEECH AND TO

COMMERCIALIZE ON THEIR PERFORMANCE

Rule 40 has been enforced against seemingly harmless social media posts by athletes. It
deprives the athletes of their opportunity to acknowledge their sponsors end endorsers. This
subsequently deprives them of their right to commercialize on their hard work and enjoy the
fruits of their labour.While it is a matter of honor and prestige to represent one’s nation, from

36
Derrick Wright, ‘The Danger of Ambush Marketing in the Olympic Games, and Balancing the Interests of the
Athlete’s Sponsors with the Olympics’ Official Sponsors’ (2013-14) 3 Sports & Ent LJ 109.
37
Epstein (n 3).
38
Tom Jacobs, ‘Constraints Can Be a Catalyst for Creativity’, (Pacific Standard, 25 April 2016)
<https://psmag.com/constraints-can-be-a-catalyst-for-creativity-d5997d2030f7#.ertdfk8nh> accessed 22 August
2016.
39
Abe Sauer, ‘London 2012 Watch: Olympic #Rule40 Backfires as Fans Embrace Non-Sponsors’ (Brand
Channel, 6 August 2012) <http://brandchannel.com/2012/08/06/london-2012-watch-olympic-rule40-backfires-
as-fans-embrace-non-sponsors/> accessed 22 August 2016.
40
ibid.

15
another perspective it can also be said that athletes tend to be unpaid entertainers. 41In a world
which is getting increasingly competitive, this restriction seems unnecessary and unfair.

Athletes have taken to social media and other forms of media to express their disappointment
with this rule, which has led Rule 40 to backfire. For instance, U.S. Star Runner Nick
Symmonds has criticized the IOC’s measures vehemently, lamenting that sponsorship
agreements are the only way to keep training and pursue their Olympic dreams. Dominique
Blake, a United States track star, also tweeted: “Trying out my new Headphones from my
sponsor that I cannot name SMh #rule40.” The IOC fails to understand that with the social
media trend, one such tweet will lead to many others probing the matter, and ultimately
revealing the NOP. It imposes a burden on the athletes to be overcautious before using social
media and impinges on their free speech rights. Even though free speech rights might not be
enforceable against the IOC or NOCs, this is a universal right that the IOC must give deference
to.42

Moreover, Rule 40 puts an unnecessary burden on the athletes, coaches, official, etc. to prevent
their non-official sponsors from using their name, person, picture, etc. in advertisements during
the blackout period of the Games. Ironically, the IOC proclaims the goal of Rule 40 to ensure
the focus to remain on the athletes’ performance. But what the IOC fails to understand is that
by imposing such a burden on the athletes, they (the athletes) would not be able to focus on
their own performance, and would have to additionally keep an eye on Rule 40’s restrictions.
Why should the burden be on the athletes? The authors believe that this burden must be
transferred onto their respective sponsoring corporations, considering that they are the ones
who want to be promoted, and they should be carrying out their promotional activities within
the reasonable bounds of Rule 40.

It is for these undue restrictions that athletes have vehemently criticized Rule 40 and in turn
attracted negative attention for the Olympics movement. Commentators have noted that such
negative sentiments must be avoided in order to reach the younger generation who are active
on social media platforms.43 Unfairly restricting the athlete’s right to use social media and to

41
David Vinjamuri, ‘U.S. Athletes Are Right about Twitter: Rule 40 Exposes the Flaw in Olympic Thinking’
(Forbes Magazine, 1 August 2012) <www.forbes.com/sites/davidvinjamuri/2012/08/01/the-athletes-are-right-
about-twitter-rule-40-exposes-the-paradox-at-the-core-of-the-olympic-games/#2eee51991016> accessed 22
August 2016.
42
Alexander Larry, ‘Is Freedom of Expression a Universal Right?’ (2013) 50 San Diego L Rev 707.
43
Megan Ormond, ‘#WeDemandChange: Amending International Olympic Committee Rule 40 for the Modern
Olympic Games’ (2014) 5 Case W Res JL Tech & Internet 179.

16
commercialize on their performance only brings contempt towards the Olympics movement,
which itself generates huge revenues but deprives the athletes of it.

THE SPONSORS OF THE ATHLETES NEED TO GET RECOGNIZED TOO

An argument supporting athletes’ right to commercialize on their performance cannot be

separated from the argument that the non-official sponsors of the athletes need their recognition
too. Many small sponsors do not get the recognition they deserve for training, nurturing and
endorsing athletes for the Olympics. For instance, Oiselle, a small size woman’s running and
athletic apparel company sponsors 32 elite athletes. They claim that such sponsorship payments
are a significant part of their budget. There’s zero visibility for such companies and there’s
zero visibility for their Olympic athletes to talk about them. For bigger companies, such as
Under Armour, going through the waiver process might not have a significant impact on their
budget. Oiselle ultimately did not pursue the waiver to get their proposed advertising
campaigns approved.44 These smaller companies tend to see such sponsorships as unworthy of
their money, and ultimately withdraw, having a consequent negative impact on the athletes.

It can fairly be argued that non-official sponsors should be prevented from advertising in the
Olympic venue to prevent ambush marketing. But even then commentators have argued that
ambush marketing should not be viewed as an immoral or disgraceful tactic, considering that
the IOC itself is a highly commercialized and political entity. 45 Creative marketing tactics
employed by various brands are often viewed as clever and get positive response and may even
dilute the effect of the official sponsors. Allowing certain amount of advertisements, especially
in the social media, might counter that effect as those sponsors would not feel the need to
antagonize the IOC or the official sponsors.

RECOMMENDATIONS

44
Kelly O’ Mara, ‘What is the Fight over Rule 40 and Why You Should Care’ (Competitior.com, 1 July 2016)
<http://running.competitor.com/2016/07/features/what-is-the-fight-over-rule-40-about-and-why-should-you-
care_150052> accessed 22 August 2016.
45
Arthur Solomon, ‘The Case for Ambush Marketing’ (O’Dwyer’s, 31 December 2013)
<http://www.odwyerpr.com/story/public/1650/2013-12-31/case-for-ambush-marketing.html> accessed 22
August 2016.

17
The primary issue, which Rule 40 gives rise to, is the issue of balancing the rights of the athletes
and that of the IOC and its official sponsors. The official sponsors’ and the IOC’s rights cannot
be undermined due to the huge transactions involved, however the athletes are the Olympics
viewers’ primary concern. The IOC has moved past its origins to become an increasingly profit-
oriented commercial entity. The ‘unique’ nature it seeks to preserve is leading to absurd
restrictions. The IOC’s focus now should be towards betterment of the athletes.

It is suggested that restricting athletes from appearing in advertisements in traditional media

can be seen as a reasonable restriction.46 However, regulating expression on social media
encroaches upon personal liberty of the athletes, especially the freedom of speech and
expression. Such stringent regulations are not viewed favorably by either the athletes or the
viewers; but are rather subject to strong criticism. This has made the IOC subject to animosity
and widespread criticism. Going beyond control of advertising in the Olympic venue, and
trying to regulate the conduct of athletes in their social media handles and their public
interaction sponsors, who have invested in them, will ultimately antagonize the Olympic
Games. Further, the relaxation of this rule will not harm the official sponsors adversely.

Closer home in India, the NOCs for India, i.e., the Indian Olympic Association (IOA) and the
Paralympic Committee of India (PCI) need to endeavor to support our athletes in every manner
possible. The dormancy of the Indian NOCs has severely influenced the Indian Olympians and
Paralympians throughout the years. Particularly this year, the IOA and the PCI have thwarted
the chances of Indian athletes getting a Rule 40 exemption by not establishing clear procedural
guidelines in this regard.47

It is no secret that the athletes are often deprived of institutional support from the government
during the most valuable period where they can leverage and foster long-term associations with
potential sponsors. In such cases, a Rule 40 exemption would at least allow them to harness the
tremendous coverage the Olympics provide.

CONCLUSION

46
Ormond (n 43).
47
The Sports Law & Policy Centre, ‘Rule 40: A Lost Opportunity for Indian Olympians and Paralympians’
(Sportslaw.in, 3 August 2016) <http://sportslaw.in/home/wp-content/uploads/2016/08/SLPC-Note-on-IOA-and-
Rule-40.pdf> accessed 28 October 2016.

18
Authors have made extreme arguments that Rule 40 should be done away with.48However, we
believe this will not be a cogent solution as the application of Rule 40 in traditional media is a
reasonable restraint. We suggest that posts of acknowledgment and thanks should not be treated
as advertising. The sanctions should also be reduced, as disqualifying an athlete or stripping
her of her title is too harsh for just a tweet or blog post. Rule 40 must make clear demarcations
between what is a legitimate post and what is not and must not use sweeping general terms,
which confuses the athletes and in effect chills their thoughts.

Further, it is not enough for the IOC to relax Rule 40 and allow for exemptions. Inaction by the
NOCs thwarts all such efforts. In such cases, the IOCs must see to it that the NOCs are aware
of such developments and act upon it. The ultimate burden in this regard is, however, on the
NOCs themselves to ensure that the athletes who toil to bring laurels to their nation receive
adequate support.

Although Rule 40 was framed with legitimate intentions of protecting the official sponsors’
valuable investments, the IOC lost track of how social media operates and thereby lead it to its
backfire. Rule 40, as it exists now, is by no means a measure that is effective and is helping in
preserving the ‘unique nature’ of the Olympics. The Olympics must take into account the
hardships the athletes face and realize how unfair and restrictive Rule 40 is. The social media
backlash, which Rule 40 is facing, has already brought disrepute to the games. The IOC must
recognize that the athletes are the most important part of the Olympics. Regulating technology
or social media is not an exercise that the IOC should indulge in as such regulations have never
been successful in the past.

48
Breeanne Nicole Glaviano, ‘Ambush Marketing in Mega-Sporting Events: Drawing the Line with Freedom of
Expression’ (Thesis, The University of Arizona 2013)
<http://arizona.openrepository.com/arizona/bitstream/10150/297615/1/azu_etd_mr_2013_0082_sip1_m.pdf>
accessed 22 August 2016.

19
 OBERGEFELL AND NALSA: A COMPARATIVE LEGAL
ANALYSIS OF DECISIONS IN U.S. AND INDIA ON LGBT
RIGHTS

 ANU SHRIVASTAVA

INTRODUCTION

In a celebrated judgment delivered in June 2015, Obergefell v Hodges,1 the Supreme Court of
the United States held that states, that did not recognise marriage between homosexuals,
violated the Fourteenth Amendment’s Equal Opportunity and Due Process Clause.2 This
judgment came subsequent to decisions in the U.S. that struck down laws that made
homosexuality an offence, or otherwise discriminated against homosexuals. The minority
opinion has considered the majority opinion led by Justice Kennedy as judicial overreach,
impinging on the realm of the legislature. According to the minority, the majority judges had
effectively decided to change the definition of marriage by flouting the democratic process and
disregarding separation of powers between the legislature and the judiciary.

Strikingly different to what was held in the U.S., the Indian Supreme Court in Suresh Kumar
Koushal v Naz Foundation & Ors.3 reversed a decision of the Delhi High Court4 which had
decriminalized homosexuality by reading down the provisions of Section 377 of the Indian
Penal Code, 1860 (IPC). This decision was shortly followed by another decision of the
Supreme Court, National Legal Services Authority v Union of India, (NALSA)5 which legally
recognized trans-genders as a third gender, and asked the executive to undertake measures in
furtherance of their upliftment. The inconsistency between the two judgments with a bearing
upon the rationale of the decisions in the two countries is the focal point of this article. The
crux of the matter would essentially boil down to the debate between judicial restraint and
judicial activism. While the Indian Courts have usually donned their activist-hat in securing


Student, Gujarat National Law University, Gandhinagar.
1
Obergefell v Hodges 576 US 1 (2015).
2
US Const amend XIV 1868, s 1.
3
Suresh Kumar Koushal v Naz Foundation & Ors (2014) 1 SCC 1.
4
Naz Foundation v Govt of NCT of Delhi, (2009) SCC OnLine Del 1762.
5
2014 AIR 1863 (SC).

20
rights for various sections of the society, was it correct for the Supreme Court to shirk away
from its responsibility to do so in Koushal? Moreover, what repercussions would the decision
in NALSA have upon the future interpretations of Article 14 and 15 of the Constitution of India6
(The Constitution)?

In a jurisdiction that follows a strict separation of powers doctrine,7 the Court while interpreting
the provisions of the constitution in an unorthodox manner, went on to actively confer rights
to homosexuals. On the other hand, in the humble opinion of the author, the Indian Supreme
Court failed to give satisfactory explanation for not interpreting Article 14, 15 and 21 of the
Constitution in a manner to avoid discrimination on the basis of sexual orientation, and for
ensuring dignified treatment of homosexuals. There seem to be glaring contradictions in the
Supreme Court’s reading of Fundamental Rights in Koushal and NALSA. In Koushal, the Court
failed to interpret Fundamental Rights harmoniously to decriminalize homosexuality, which
would have allowed homosexuals to lead a dignified life. On the other hand, in NALSA, the
Supreme Court adopted the harmonious interpretation of Fundamental Rights to give legal
recognition to trans-genders. The Supreme Court’s judgement in NALSA is sufficient to make
arguments against the decision in Koushal. Homosexuals, akin to trans-genders, should not be
subjected to differential treatment only on the basis of their sexual orientation. This is the basis
of Article 14 and 15 of the Constitution that seems to have been overlooked by the Supreme
Court while deciding Koushal.

The first part of the article analyses the decision of the U.S Supreme Court followed by the
Indian cases on homosexuality. The next section seeks to undertake a comparative analysis of
these two decisions and underline the differences between the two. This is followed by the last
section dealing with the general duty of courts to judicially review laws vis-a-vis the
responsibility to not impinge upon the legislature’s realm while exercising judicial restraint. In
conclusion, the article proposes that irrespective of the debates surrounding judicial review and
judicial deference, furtherance of the interests of the people is what should be given paramount
consideration in order to strike a balance between the functions of judiciary, executive, and the
legislature.

6
The Constitution of India 1950, art 14 and 15.
7
M P Jain, Indian Constitution Law (6th edn, LexisNexis 2010) 16.

21
OBERGEFELL TO NALSA

There has been a recent trend across jurisdictions to recognise the rights of homosexuals and
protect them from discrimination based on their sexual orientation.8 The decision of the United
States Supreme Court in Obergefell went a step further in assuring rights for homosexuals by
declaring that all states in the U.S. had an obligation to recognise marriages between
homosexuals, even if the laws in that state restricted the definition of marriage only to
heterosexual couples. The Court held that not recognising homosexual couples as married
violated the Fourteenth Amendment’s Due Process Clause and Equal Protection Clause.9 The
right to marry had been recognised in previous cases to be a substantive right capable of being
protected under the Due Process and Equal Protection Clauses.10 With Obergefell, this
protection was extended to same sex couples, whose marriages might have been legally valid
in states that recognised same-sex marriages, but were otherwise not recognised by the laws of
other states in the country.

On the other hand, in India, the Supreme Court reversed Delhi High Court decision in Naz
Foundation v Govt of NCT of Delhi11 which had decriminalised homosexuality by reading
down the provisions of Section 377 of the IPC. The decision of the Supreme Court had attracted
criticism from various sections of the society including academicians and eminent lawyers for
the lack of coherent reasoning in arriving at its conclusion.

Shortly thereafter, the same court, in NALSA recognised trans-genders as a third gender and
asked the Government to undertake steps for their betterment including providing for
reservation in government jobs. The Court’s reasoning was based on the practical
understanding that not recognising them as a third gender led to widespread discrimination
against the entire transgender community. Article 14, 15, 19 and 21 of the Constitution mandate
that trans-genders should be allowed to lead a dignified life and enjoy civil rights which are
based on gender identification. Most of all, the main thrust behind the Supreme Court’s
reasoning was to recognise an otherwise emancipated community in order to remove the stigma

8
Corbett v Corbett [1970] 2 All ER 33; Attorney General v Otahuhu Family Court (1995) 1 NZLR 603;
National Coalition for Gay and Lesbian Equality v Minister of Justice (1999) 1 SA 6; , AB v Western Australia
(2011) HCA 42; Bellinger v Bellinger [2003] All ER 593; Norrie v NSW Registrar of Births, Deaths and
Marriages (2013) NSWCA 145.

9
US Const amend XIV 1868, s 1.
10
Loving v Virginia 388 US 1, 12 (1967); Zablocki v Redhail 434 US 374, 384 (1978); Turner v Safley 482 US
78, 95 (1987); Goodridge v Department of Public Health 440 Mass 309, 798 NE 2d 941 (2003).
11
Naz Foundation v Government of NCT [2010] Cri LJ 94.

22
attached and to confer on them the right to freedom of expression and the right to live with
dignity.

The three decisions, Obergefell, Koushal and NALSA, illustrate the different interpretations on
a similar issue in determining the extent of rights enjoyed by the citizens and the different
conclusions that can be reached via recourse to judicial review. An understanding of the
decisions in the U.S. and the three judgments in India would be necessary to better appreciate
the reasoning adopted by courts in both the jurisdictions and their correctness. We shall first
look at the decisions in the United States followed by those in India.

THE KENNEDY TRIUMVIRATE – U.S. DECISIONS ON

HOMOSEXUALITY
Justice Kennedy is remembered for his judgments in the three sexual orientation cases that
came up before the Supreme Court of U.S. before the decision in Obergefell: Romer v Evans,12
Lawrence v Texas13 and United States v Windsor.14 Much has been written about the treatment
of rights of same sex couples under the Equal Protection Clause and the Due Process Clause.15

In Romer, the Court invalidated an amendment to the Colorado Constitution16 which repealed
local laws that prohibited discrimination on the basis of sexual orientation. Justice Kennedy,
writing for the Court, went on to hold that the amendment had only placed a disability on a
single group, making it an invalid form of legislation.”17

Next, in Lawrence, a Texas statute18, which provided for the criminalisation of sodomy
performed by same-sex couples was challenged before the Court, on the basis of the Equal
Protection and Due Process Clause.19 In this case, Justice Kennedy noted that an analysis of
the case could not be based solely on equal protection grounds. According to him, the rights at
issue were also protected by the substantive guarantee of liberty, and a decision based on due
process grounds encompassed equal protection interests as well.20 The Court relied on the
dissent by Justice Steven in Bowers v. Hardwick,21 stating that decisions by married persons in

12
Romer v Evans 517 US 620 (1996).
13
Lawrence v Texas 539 US 558 (2003).
14
United States v Windsor 133 S Ct 2675 (2013).
15
Stacey Sobel, ‘Windsor Isn’t Enough: Why The Court Must Clarify Equal Protection Analysis For Sexual
Orientation Classifications’ (2014) 24 Cornell Journal of Law & Public Policy 493.
16
Colo Const amend II 1992.
17
Romer (n 12) 627.
18
Texas Penal Code 2003, Ann s 21.06(a).
19
US Const amend XIV, s 1.
20
Lawrence (n 13) 575.
21
Bowers v Hardwick 478 US 186 (1986).

23
their individual capacities about their physical relationship (even in furtherance of procreation)
is a liberty that is covered by the substantive component of the Fourteenth Amendment’s Due
Process protection.22 The Court ruled that the Texas law23 did not further any legitimate state
interest and made same-sex activity legal in every U.S. state and territory by invalidating the
sodomy laws in 13 other states in the same stroke.

In the third case, United States v Windsor,24 the Court held that Section 3 of the Defence of
Marriage Act, (“DOMA”) 1996 was unconstitutional on the ground that a limitation on the
recognition of marriages only to the union of man and woman resulted in the deprivation of the
liberty of homosexuals. This decision also relied on the linkage between protection of liberty
by the Due Process clause and the Equal Protection clause. The DOMA had no legitimate
purpose, like its predecessors, and did not refer to a specific standard of review which had to
be applied to the case at hand. In all the three above mentioned cases, the government’s
justifications could not satisfy even the lowest standard of review. The Court’s decision hinged
on the reasoning that no legitimate purpose was being served by the DOMA and the state could
not justify its purpose and effect to disparage and injure the personhood and dignity of citizens.
However, the judgement does little to clarify the exact hurdle or threshold that the government
was required to meet.25

THE INCONSISTENT POSITION IN INDIA

The Delhi High Court in Naz26 struck down Section 377 of IPC which made sexual intercourse
between two men a crime, as being violative of Articles 14, 15 and 21 of the Constitution. The
Court stated that there was no rational basis for differentiating between homosexuals and
straight couples and targeting homosexuals as a class. It also stated that the section did not
serve any legitimate interest of the State and the provision violated Article 15 of the
Constitution, which prohibits discrimination on the basis of sex. The term ‘sex’ should not
solely be restricted to gender, but should be read to include sexual orientation. The impugned
provision was also held to be against the right to privacy of homosexual couples and was
therefore violative of Article 21 of the Constitution.

22
Lawrence (n 13) 578.
23
Texas Penal Code 2003, Ann s 21.06(a).
24
United States v Windsor 133 S Ct 2675 (2013).
25
United States v Windsor 133 S Ct 2675 (2013); Laurence H Tribe, ‘Lawrence v Texas: The Fundamental
Right that Dare Not Speak Its Name’ (2004) 117 Harvard LR 1893, 1897-98.
26
Naz Foundation v Government of NCT 2010 Cri LJ 94.

24
On appeal, Apex court considered different sexual conducts that were covered by the impugned
provision and arrived at the conclusion that the provision was justified in differentiating
between ‘ordinary sexual conduct’ and ‘carnal intercourse against the order of nature’. What is
meant by ‘ordinary’ and what is meant by ‘intercourse against the order of nature’ has not been
clarified on the basis of any scientific, psychological or behavioural study. The term ‘ordinary
sexual conduct’ has been equated with sexual conduct practised by a majority of the population
which undermines the foundation of the idea behind protecting minority rights. The judgment
creates two different classes, without basing it on any intelligible differentia. Even if an
intelligible differentia is found, there is no rational nexus or legitimate governmental objective
behind the differentiation.27 On this basis alone, the requirements of upholding the provision
have not been met.

The Court relied on the doctrine of the presumption of constitutionality of a statute, and held
that there was nothing in the section which violated the right to equality or the right to life.
However, the judgment lacked convincing arguments to show that the provision did not violate
any of the fundamental rights, or reasons to hold that the Delhi High Court was wrong in its
approach. There is nothing in the judgement to show why homosexuality is ‘carnal intercourse
against the order of nature’ and not natural. It was the basis of this differentiation which was
challenged before the Delhi High Court and the High Court did not find any reasonable
classification. A practice by majority of the population of being heterosexual does not
automatically mean that anything else should be considered ‘against the order of nature.’

Next, the Supreme Court held that Section 377 of IPC was a neutral provision and was not
directed against any class or community. By doing this the Supreme Court did not consider the
full effect and impact of the provision. The Court should have weighed the real effect and
impact of the provision on fundamental rights while deciding its constitutionality in light of its
earlier decision in Minerva Mills v Union of India.28

Finally, the Supreme Court also had a problem with the High Court’s reading down of the
provision to exclude homosexuality.29 This, the Supreme Court considered was beyond its

27
Gautam Bhatia, ‘The Unbearable Wrongness of Koushal v Naz Foundation Indian Constitutional Law and
Philosophy’ (WordPress: Indian Constitutional Law and Philosophy, 11 December 2013.)
<https://indconlawphil.wordpress.com/2013/12/11/the-unbearable-wrongness-of-koushal-vs-naz-foundation/>
accessed 26 October 2016.
28
Minerva Mills v Union of India [1980] AIR 1789 (SC).
29
Suresh Kumar Koushal v Naz Foundation [2014] 1 SCC 132.

25
powers. However, the doctrine of reading down a provision has been applied by the Indian
judiciary in various cases.30 This was not considered by the Supreme Court in its decision.

Soon after the decision in Koushal, the Supreme Court took a progressive stand in NALSA in
recognising trans-genders as a third gender and asking the Government to undertake steps for
their upliftment. The reasoning adopted by the Supreme Court here is quite far-removed, if not
contrary to the orthodox stand taken by the Court in Koushal. The judgment seems to mirror
the decision of the Delhi High Court in Naz. The Court recognised sexual and gender identity
as a component of Article 21of the Constitution and the right to live with dignity. The Court in
NALSA also considered the right to freedom of expression and held that Article 19(1)(a)
includes the freedom to express a chosen gender identity through speech, manners, clothing
etc. 31

Regarding Articles 14 and 15 of the Constitution, the Supreme Court observed that Article 14
does not only ensure equal protection before law but also confers a positive obligation on the
State to ensure equal protection by bringing in necessary socio-economic changes. Since the
trans-genders had been facing discrimination in all spheres of the society, not recognising their
identity would deny them equal protection, especially in the fields of education, health,
employment, etc. The Supreme Court also considered Articles 15 and 16 of the Constitution
and held that the term ‘sex’ should also include gender identity and should not be limited to
the biological sex of a male or a female.32 Consequently, the Supreme Court read the
Fundamental Rights mutually, harmoniously and in a broader manner in NALSA as opposed
to a narrower and more-orthodox view taken by it in Koushal.

THE PATH AHEAD OF NALSA

The Supreme Court in NALSA held that Article 15 of the Constitution prohibits discrimination
on the basis of sexual identity. On the other hand, in Koushalthe court held that there was no
Fundamental Right which had been affected. In light of this contradiction, the decision of the
Supreme Court in Koushal needs to be re-considered by a higher bench. A peculiar observation
could also be noted in this context at paragraph 20 of the judgement in NALSA where the
Supreme Court has tried to determine the meaning of sexual orientation and trans-genders. The

30
RMD Chamarbaugwalla v Union of India [1957] 1 SCR 930; Kedar Nath v State of Bihar [1962] AIR 955
(SC); Bhim Singhji v Union of India [1981] AIR 234 (SC); State of Andhra Pradesh v National Thermal Power
Corporation [2002] 3 SCR 278.
31
NALSA (n 5) [71].
32
NALSA (n 5) [66].

26
Court notes that sexual orientation is a reflection of a person’s physical and romantic attraction
to another person. This includes trans-genders, bisexuals, homosexuals, heterosexuals alike.33
Though the judgement is more focused on the recognition of trans-genders as a third gender, it
could be considered as having blurred the distinction between sexual orientation and gender
identity. This is not only at variance with Koushal but also dilutes the rationale in it.

The thrust of the reasoning in Koushal was that there should be a presumption of
constitutionality when a statute is challenged. Further, the Supreme Court could not find
enough teeth in the arguments made before it to arrive at the conclusion that fundamental rights
were indeed being violated by the provision in question. But NALSA has accepted that sexual
identity was a component of human dignity as recognized under the ambit of Article 2134 and
even though trans-genders may constitute a minority, their rights would still have to be
protected under the constitution. In addition, Koushal did not consider the intersectionality of
Article 14, Article 19 and Article 21 of the Constitution. On the other hand, in NALSA, the
Court construed these rights together to arrive at the conclusion that sexual identity was not
only an expression under Article 19(1)(a) but it was also a component of human dignity because
gender constituted an integral part of one’s identity.

Second, as accepted by the Supreme Court, the term ‘transgender’, in contemporary usage, has
become an umbrella term that is used to describe a wide range of identities and experiences,
including but not limited to pre-operative, post-operative and non-operative trans-sexual
people, who strongly identify with the gender opposite to their biological sex.35 This includes
cross-dressers, eunuchs, castrated men and to a certain extent even homosexuals. The court did
clarify that the term ‘transgender’ for the purposes of the judgment would only be restricted to
hijras, eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shakthis, etc.36 However, the reasonable
differentia between homosexuals and trans-genders as understood by the judgement might still
be questionable, especially because the degrading treatment meted out to homosexuals is no
different from the other classes of trans-genders as referred to in the judgement.

33
ibid [22].
34
National Legal Services Authority v Union of India [2014] AIR 1863 (SC) [20], [68]. .
35
ibid [11].
36
ibid [108].

27
ANALYSIS OF OBERGEFELL VIS-À-VIS KOUSHAL

This section will seek to analyse the reasoning in the U.S decisions on homosexuality vis-à-vis
the decisions on homosexuality and trans-genders in India. It may be pertinent to point out here
that Naz is more closely related to Lawrence in the U.S. and the decision in NALSA has more
resemblance to the decision in Obergefell. In Obergefell, the petitioners approached the Court
to claim active recognition by the state, the logical culmination of the right to marry. Similarly,
in NALSA, the claim was for a recognition of the fundamental rights of trans-genders by
conferring on them legal recognition as the ‘third gender’. The decision in Lawrence, similar
to the decision in Naz was more concerned with decriminalising homosexuality as a
consequence of being violative of certain fundamental rights. The petitioners did not want a
declaration from the Court that they were entitled to a certain right. They merely wanted the
Court to recognise that a statute was against the already extant fundamental rights. Therefore,
the difference between the two would boil down to the role of the judiciary as a protector of
fundamental rights and as an active interpreter and creator of the same. The difference between
India and the U.S., in this context, needs to be analysed with respect to the power of the courts
in the two jurisdictions to interpret the constitution in light of the doctrine of separation of
powers.

In the Indian context, it has been accepted that there is no rigid separation of powers between
the executive, legislature and the judiciary. The fundamental aspect merely remains that each
of them should be free from the interference of the other. 37 Three principles of constitutional
law are relevant here for the upcoming analysis. First, the Indian Constitution relies more on
the system of checks and balances and it has long been accepted that the power of judicial
review does not go against the separation of powers but ensures that neither of the wings of the
government enjoy unbridled powers.38 Second, there have been various instances in the past
where given the lacunae in law; the Supreme Court in the exercise of its powers under Article
141 and Article 142 has framed guidelines to have the force of law until the government came
up with laws to fill in the lacunae.39 Third, the doctrine of reading down of provisions to make
laws more consistent with the changing nature of the society has also been recognised by courts

37
His Holiness Kesavananda Bharati Sripadagalvaru v State of Kerala [1973] 4 SCC 225; Bhim Singh v Union
of India [2010] 5 SCC 538.
38
Supreme Court Advocates on Record Association v Union of India Writ Petition (Civil) No 13 of 2015.
39
Vishakha v State of Rajasthan [1997] 6 SCC 241.

28
in India. A succinct example may be given with the reference of Section 309 of IPC, which has
been read down to decriminalise passive euthanasia.40

The U.S. position is, however, slightly different because of the inherent belief in a strict system
of separation of powers. Moreover, unlike its Indian counterpart, there is no obligation on the
U.S. Government to undertake affirmative action to protect, uplift or confer rights on its
citizens.41 Under the Due Process clause and the Equal Protection clause the traditional
understanding had only been to stop the government from impinging upon the rights of the
individuals. This has been gradually broadened by the judiciary in the U.S. to include the
protection of certain rights as well, but the scope of review in the U.S. still remains narrower
as compared to India. The U.S. courts have the power to strike down laws that are against due
process and equal protection clause but there is nothing which entitles the courts to confer more
rights.42

In this backdrop, it is important to note that the Indian judiciary failed to stand by its role as a
protector of the constitution when it refused to declare Section 377 of IPC as unconstitutional,
despite having the power to do so. The only issues for consideration before the Supreme Court
should have been to determine if there was a right to be protected against discrimination based
on sexual orientation and if there was any reasonable classification inSection 377, IPC. If the
Court is able to find a reasonable classification, it will still have to consider a legitimate state
interest for retaining Section 377 IPC. Additionally, the Court should have considered whether
the provision deprived homosexuals of a dignified life, personal liberty and freedom of
expression.

The judgment does tend to touch upon these aspects but fails to satisfy the reader with reasons,
as to why sexual orientation based discrimination is not ultra vires the Constitution and why
criminalising homosexuals, does not deprive them of their personal liberty and dignity. Instead,
the main and sole focus of the decision is the doctrine of presumption of constitutionality,
reflective of judicial restraint. This is in variance with precedents where the Supreme Court
ventured beyond its traditional role to recognise new rights under the Constitution and to
intervene regularly to monitor their enforcement.43

40
Aruna Shanbaug v Union of India [2011] 4 SCC 454.
41
Obergefell (n 1) 3 (Alito J), 22 (Roberts CJ).
42
Marbury v Madison 5 US 137 (1803).
43
Bandhua Mukti Morcha v Union of India [1984] AIR 802 (SC); Consumer Education and Research Centre v
Union of India [1995] 3 SCC 4; Vellore Citizens Welfare Forum v Union of India [1996] AIR 2721 (SC);

29
CONCLUSION: ABDICATION V. REVIEW – FINAL TAKEAWAYS

Judicial review has been accepted as a fundamental principle under the Constitutions of both
India and the United States.44 The origin of the principle rests on the assumption that the
Constitution of any country is the source from which the executive and the legislature derive
their power. Therefore, it is to be treated as the supreme law of the land that cannot be surpassed
by any act of the Parliament. The traditional routes of judicial review, therefore, were
seemingly rooted in the supremacy of the Constitution, and abrogated laws that went against
the fundamental rights.45 The origin of and the rationale behind judicial review has historically
seen different perspectives and theories on them.46 A common theme present in the application
of judicial review in India, U.S. and the U.K. is that courts would strike at the abuse of power
and uphold the rule of law.47

DOES EXPANDING THE SCOPE OF RIGHTS AMOUNT TO A LEGISLATIVE

FUNCTION?

Judicial review becomes judicial overreach when the courts start reviewing the laws made by
the legislature on the basis of intention of the legislature and begin substituting their wisdom
for the wisdom of the elected representatives of the people. It is considered prudent to leave
law-making powers to those who are directly responsible to the masses. However, Courts
should not abdicate their duty of judicial review and shrug off the responsibility of protecting
fundamental rights. The Indian Supreme Court’s decision in Koushal48 seemed to have done
exactly that.

Interpreting new fundamental rights within the ambit of extant fundamental rights is not a
legislative function and does not go against the doctrine of separation of powers as has been
held in a plethora of precedents in India and the U.S. This law creating function of the judges

Vishakha v State of Rajasthan [1997] AIR 3011 (SC); Milk Men Colony Vikas Samiti v State Of Rajasthan
[2007] 2 SCC 413.
44
HM Seervai, The Position of Judiciary under the Constitution of India (University of Bombay 1970), William
O Douglas, From Marshall to Mukherje: Studies in American and Indian Constitutional Law (Eastern Law
House1956).
45
Marbury v Madison 5 US 137 (1803).
46
Harry Woolf and others, De Smith's Judicial Review (1st edn, Sweet & Maxwell 2007).
47
Mauro Cappellati, ‘Judicial Review in Comparative Perspective’ (1970) 58(5) California LR 1017; Dudley O
McGovney, ‘The British Origin of Judicial Review of Legislation’ (1944) 93(1) UPA LR 1.
48
Sujitha Subramanian, ‘The Indian Supreme Court Ruling in Koushal v. Naz: Judicial Deference or Judicial
Abdication?’ (2015) 47 George Washington International LR 711, 755-58.

30
has been well recognised now.49 Such an approach reflects the liberal and purposive approach
towards judicial review, which takes, into consideration social values and the need to evolve.50
As long as the judiciary does not go out of bounds while interpreting the Constitution,51 re-
interpreting existing laws to meet contemporary needs of the society should be appreciated.

A BALANCING ACT

The tussle between the judiciary and the executive or the judiciary and the legislature has been
long drawn out in different countries. This tussle itself is what gives the democratic process
certain character as it emerges in the process of seeking to secure the rights and choices of the
individual above everything else. The critics of judicial activism often forget that courts tend
to be the last resort for a common man to raise his anguish and displeasure against the
government without waiting for the next election season. As pointed out by J. Balakrishnan,
the Supreme Court is often criticised for judicial overreach and for usurping power. However,
these criticisms overlook the fact that the common man has nowhere to go if the Courts exercise
restraint in situations where the other organs of the State do not perform their duties properly.
There have been constant failures in governance and the courts have a responsibility to correct
these failures.52

It is, therefore necessary, for not only the judiciary but also for the other wings of the
government to strike a balancing act while bearing in mind that the citizens’ interests are of
paramount consideration. In every country governed by a written Constitution, the supremacy
of the constitution is the cornerstone of legislative interpretation and yet there are bound to be
interpretative challenges that demand a shift in the law. The legislatures of every country have
to bear upon themselves the responsibility of ensuring that the laws of the nation do not become
obsolete and are in accordance with the needs of a democratic society. However, history has
shown that quite often, the legislature becomes prone to committing errors which are then
required to be addressed by the judiciary as the final arbiter, protector and interpreter of rights
of the citizens.

49
PN Bhagwati, ‘Judicial Activism and Public Interest Litigation’ (1985) 23 Columbia Journal of Transnational
Law 561.
50
Saurabh Chaudhri v Union of India [2003] 11 SCC 146; Alfred Thompson Denning, From Precedent To
Precedent (1st edn, Clarendon Press 1959).
51
US v Butler 297 US 1 (1935).
52
KG Balakrishnan, ‘Inaugural Address at Kerala Legislative Assembly Golden Jubilee Celebrations’ (Seminar
on Legislature, Executive and Judiciary, Kerala, 26 April 2008)
<http://supremecourtofindia.nic.in/speeches/speeches_2008/26%5B1%5D.4.08.legislature-
relationship.kerala.pdf> accessed 26 October 2016.

31
The question then arises, as to what extent the courts can go, to remedy the conundrums created
by the inaction or misconduct of the legislature. There are proponents of judicial activism and
there are those who support judicial restraint, each with meritorious arguments to their aid. But
it always has to be kept in consideration by those who govern and those who sit in judgment
that intellectual debates on separation of powers, review and abdication should not become a
hurdle in assuring the rights of a common man who merely wants to go about the vicissitudes
of life without being subject to arbitrary actions by the government and the courts.

In Koushal, this is exactly what had happened: two learned judges restrained themselves from
remedying a situation that was undoubtedly against the spirit of Part III of the Constitution.
This was not done for the lack of power, but merely because the court in its wisdom decided to
leave the matter to the legislature, which had consistently avoided the issue in the past.
Questions have also been raised about the Supreme Court’s entertainment of the appeal when
the Government had agreed to the stand taken by the Delhi High Court. 53 On the other hand,
the same court, four months later, donned its activist-hat and ordered the executive to accord
due recognition to the fundamental rights of a certain section of the population, and further
ordered the legislature to enact laws to secure these rights in NALSA. While an analysis akin to
the reasoning adopted in the U.S. was used in the former, the same seems to have escaped the
Court’s notice in the latter.

As Gautam Bhatia has pointed out, “every once in a way, the highest Court in the land delivers
a judgment that is both constitutionally preposterous, and morally egregious.” 54 This had
happened once before in the Habeas Corpus case55 and has happened yet again in the case of
Koushal.

Parallel to the developments in India, in another diverse nation, the highest court of the nation
not only protected the rights of a section of the society, but also conferred upon them a right
that was not read into any statute or the Constitution by the legislature. This was achieved
despite there being a strict separation of powers in the United States, the absence of any specific
provisions on judicial review in the U.S. Constitution and the absence of the power to judicially

53
Sujitha Subramanian, ‘The Indian Supreme Court Ruling in Koushal v. Naz: Judicial Deference or Judicial
Abdication?’ (2015) 47 George Washington International LR 71756-57.
54
Gautam Bhatia, ‘The Unbearable Wrongness of Koushal v Naz Foundation Indian Constitutional Law and
Philosophy’ (WordPress: Indian Constitutional Law and Philosophy, 11 December 2013)
<https://indconlawphil.wordpress.com/2013/12/11/the-unbearable-wrongness-of-koushal-vs-naz-foundation/
accessed> accesssed 26 October 2016.
55
ADM Jabalpur v Shivkant Shukla [1976] AIR 1207 (SC).

32
review amendments in the U.S., unlike the position in India.56 The courts here did not get
digressed by debates on the merits and demerits of restraint, activism or abdication, but adhered
to its sacred duty of protecting the rights of the people and the supremacy of the Constitution.
It is entirely possible that the approach of the Indian Supreme Court, though based on a literal
and narrow interpretation of the Constitution, was correct in leaving it on the wisdom of the
legislature and the elected representatives in creating a better society based on consensus. But
in doing so, the Supreme Court overlooked the principle of ‘inclusiveness’ as pointed out by
Pandit Nehru in the ‘Objective Resolution’ moved on December 13, 1946. According to this
resolution, there is a deeply ingrained underlying tenet of the Constitution, which recognises a
role for every person in the society. This goes even to the extent where persons seen as different
or deviants would not be socially excluded or ostracised. The Indian society by displaying this
inclusiveness would assure a life of dignity and non-discrimination for all.57

The question of violation of fundamental rights has not been raised for the last time in the
context of homosexuality and Section 377, IPC. The courts will again undoubtedly be faced
with similar, if not the same issue, in future. The Supreme Court has already ordered the
curative petition arising out of Koushal to be placed before a larger Constitutional Bench
because questions of public importance had been raised. India has already witnessed a Bowers,
it can now only be hoped that soon enough there is a Lawrence as well which confers basic
human dignity upon homosexuals, without waiting for seventeen years, the period it took in
the U.S. for the legal position to change.

56
US v Butler 297 US 1 (1935); State of Rhode Island v Palmer 253 US 350 (1920); Dillon v Gloss 256 US 368
(1921); United States v Sprague 282 US 716 (1931); Leser v Garnett 258 US 130 (1922).
57
Naz Foundation v Government of NCT, [2010] Cri LJ 94, 130-131.

33
 PROPORTIONALITY AND DEONTOLOGICAL REASONS:
UNATTAINABLE IDEALS IN THE CRIMINAL JUSTICE
SYSTEM
 MOHD. SAAD KHAN

INTRODUCTION

When Canada adopted the Canadian Charter of Rights and Freedoms (hereinafter Charter) in
19821, the country joined a growing a number of jurisdictions in what has been labelled the
“post-war paradigm”2. Proportionality analysis has spread across the new world of
constitutionalism and its place in constitutional adjudication has yet to be assessed and refined.
In this regard, the test set up in R. v. Oakes3, the established way to assess proportionality in
the Canadian context, is not devoid of any blind spots. One of these blind spots is the place
given for non-instrumental reasons in the assessment of proportionality of legislation.

Commentators have already highlighted that proportionality is not compatible with a

deontological conception of rights.4 In this paper, I will deepen this exploration of the
compatibility of deontological arguments and proportionality by showing that the structure of
proportionality is not designed for deontological reasons for limiting the rights. I do not discuss
if this is fatal to proportionality but I think it is important that scholars and judges alike be
aware that proportionality analysis simply disregards an important set of genuine moral
considerations. To do so, I will first examine the inherent instrumental and consequentialist
nature of proportionality analysis (I). Second, I will show that some pieces of legislation are
enacted for non-instrumental reasons (II). I will then give the example of retributive justice as
a form of deontological and non-instrumental reason (III) and illustrate this with the Canadian
case of Sauvé II to show that proportionality analysis is unfit for these kind of reasons (IV).


5th year, B.A. LLB., Jamia Milia Islamia, New Delhi.
1
Canadian Charter of Rights and Freedoms; Part I of the Constitution Act 1982; Schedule B, Canada Act 1982
(UK) c 11.
2
Lorraine Weinrib, ‘The Post-War Paradigm and American Exceptionalism’ in Sujit Choudry (ed), The
Migration of Constitutional Ideas (2007) 84.
3
R v Oakes [1986] 1 SCR 103.
4
Matthias Kumm, ‘Political Liberalism and the Structure of Rights: On the Place and Limits of the
Proportionality Requirement’ in George Pavlakos (ed), Law, Rights And Discourse: The Legal Philosophy Of
Robert Alexy (2007) 133; Aharon Barak, Proportionality: Constitutional Rights And Their Limitations (2012)
471.

34
Finally, I will show that the way the “proper purpose” requirement is framed makes
deontological and non-instrumental reasons necessarily look suspect or improper (V).

THE INSTRUMENTAL NATURE OF PROPORTIONALITY

Proportionality analysis is based on a means-end and cost-benefit analysis.5 The two step
analysis that distinguishes between the scope of a right and the justification for its limitation is
a way to determine if the limitation is for a proper purpose that is rationally connected and
necessary to achieve the end the legislator is seeking to achieve, and if the marginal general
social benefit of achieving this end is proportionate to the limitation of the right. What must be
underlined here is that the analysis is focused on the means used by the legislature, i.e., the
provision that limits a constitutional right – to achieve its policy objective.

Should we limit free speech and prohibit the distribution of child pornography in order to
protect potential victims?6 Should we limit the freedom of religion of certain public officials,
like judges, to preserve the appearance of neutrality of the judiciary? Answering these
questions involves an evaluation of the means used to achieve the end. The end is different
from the means used. In this sense, the legislation is instrumental. Generally, when a legislator
adopts a piece of legislation, he does so because he thinks that it can produce good social
consequences. However, not every piece of legislation is necessarily instrumental. Instrumental
provisions are easily identifiable in that it is clear that the purpose generally cannot be
completely fulfilled. For example, fighting against the sexual exploitation of children is
certainly a legitimate social policy objective. Nevertheless, this does not warrant constant
electronic surveillance of the populace. There is a trade-off between the protection of the right
to privacy of citizens and the need to protect children from sexual exploitation. Proportionality
is good for balancing these competing claims. But in this case, it is clear that the result is that
there will always be some sexual exploitation of children. The question is really: what level is
tolerable for society? In this case, the purpose can be partially fulfilled, thus it is a scalar
purpose, not an all-or-nothing purpose.

Unfortunately, the very structure of the proportionality analysis makes it difficult to analyze
all-or-nothing and non-instrumental purposes. Let us examine the two steps analysis of
proportionality as presented by Barak7:

5
Kumm (n 4).
6
R v Sharpe [2001] 1 SCR 45.
7
Barak (n 4).

35
1. A right is limited

2. The limitation is justified, i.e.:

A. There is a proper purpose

B. There is a rational connection between the purpose and the piece of legislation

C. The piece of legislation is necessary to achieve the purpose

D. At the margin, what the whole society gains from achieving the purpose outweigh
the limitation of the right (proportionality stricto sensu).

What is interesting to note is that stages B and C of the justification involve a means-end
analysis while stage D involves a cost-benefit analysis The steps involving rational connection
and necessity examine the link between the provision, i.e., the means and the goal (the “proper
purpose” identified at stage A to see if there is a rational connection and no less restrictive
means capable of fulfilling the purpose to the same extent. The proportionality analysis, stricto
sensu, is a case of cost-benefit analysis. “It is an analytical process that places the proper
purpose of the limiting law on one side of the scales and the limited constitutional right on the
other, while balancing the benefit gained by the proper purpose with the harm it causes to the
right.”8 All these stages presuppose that the purpose is external to the legislation, i.e., the piece
of legislation is an instrument, or a means, to achieve a goal outside of it. Thus, proportionality
analysis presupposes that all legislations are instrumental and therefore, the legislation’s
constitutionality is to be analysed in light of its consequences and not its inner coherence or
justification. It limits, in a sense, the kind of reasons the legislator can provide to justify its
piece of legislation.

THE POSSIBILITY OF NON-INSTRUMENTAL PURPOSES

The problem is that even though most of the legislation enacted by parliamentary institutions
nowadays fulfills some kind of regulatory role of social life, some still fall outside this

8
ibid 343.

36
instrumental model. Sometimes, even if a piece of legislation produces some consequences, it
is unclear that these consequences were the purpose guiding the legislator; they might simply
be a side effect, the legislator having arguments of principle for adopting the statute.9 Imagine
that a legislator enacts, in a Civil Code, the following provision: “Nobody shall benefit from
their wrongdoings”10. There may be some consequential arguments in favor of this principle,
but are they a part of legislator’s reasoning as well? It is more likely that the legislator will
enact such a provision because it is simply a basic principle of justice, i.e., for deontological
reasons. This entails that the reasons for enacting a law can be completely different from the
actual effects of this law.11 The justification for the enactment of such a provision is not its
consequences but its moral content. The provision can be said to be just in and of itself, not
because of any instrumental role it plays in social life. I want to explore here a kind of non-
instrumental argument that can be offered to justify a limitation of a right that fit only
strenuously within the means-end/cost-benefit proportionality test: deontological arguments
for punishment.

DEONTOLOGICAL ARGUMENTS: THE EXAMPLE OF RETRIBUTIVE

PUNISHMENT

It is always problematic to identify the right level of abstraction at the proper purpose stage.
This is even more problematic and crucial for non-instrumental purposes because they can
always be reframed in a more abstract fashion. The problem is that at a certain level of
abstraction, it fails to capture the real subjective intent of the legislator.12 Let me illustrate this
with the example of retributive punishment.

Imagine that a legislature wants to punish a certain type of crime by, say, the death penalty.
Imagine that a person challenges the constitutionality of the death penalty based on its right to
life. According to him, the death penalty is unconstitutional because it is not proportional.
Before going forward, one thing must be clarified at the outset. Proportionality in the
constitutional context is not like proportionality in the criminal context where it is normally
used to mean that there must be a balance between the blameworthiness of the act and the
punishment. In the constitutional context, the balance is between the social benefits furthered

9
Ernest J Weinrib, Legal Formalism: On the Immanent Rationality of Law, 97 Yale LJ 949 (1988). On the
inherent coherence of private law, see Ernest J Weinrib, The Idea of Private Law (2012).
10
Ronald Dworkin, Taking Rights Seriously Ch 1 (1977).
11
See Ronald Dworkin, A Matter Of Principle (1985).
12
ibid (n 4) 285-302.

37
by the legislation (the “proper purpose”) and the punishment. In the criminal context, the
punishment is seen as a consequence of the wrongful act while in proportionality analysis the
punishment is seen as a cause of some social benefit pursued by the legislator.

The purpose can be said (A) to punish a crime with the death penalty because it is recognised
as a highly blameworthy conduct. On the other hand, we can move one-step back and say (B)
that the purpose is to punish this crime with the death penalty to manifest society’s disapproval
of such conduct. In (B), the punishment itself is framed as a means to achieve society’s interest.
Alternatively, we can move another step back and say that the real purpose is (C) to increase
the level of confidence in the justice system. Alternatively, we can also divert our attention and
say that (D) the elected representatives simply want to please the electorate and be re-elected.13
These completely different purposes will trigger completely different analyses. The appropriate
level of abstraction is crucial for the rest of the proportionality analysis. As I will argue here,
however, I think it is possible to defend the proposition (A), i.e., that the purpose of a piece of
legislation can be the very same thing it does. In other words, a piece of legislation can be
genuinely non-instrumental. All other formulations (B, C and D) are scalar and instrumental
purposes but (A) is an all-or-nothing non-instrumental purpose; either you punish this person
with the death penalty or not. In fact, it is probable that even the subjective legislative intent
was to enact a legislation imposing the death penalty because the representatives considered it
to be just in these circumstances. The consensus in Parliament was about the appropriateness
of this particular punishment. Therefore, the subjective legislative intent cannot be said to be
“to punish this crime” or “to manifest social disapproval of this conduct”. The subjective
legislative intent was rather “to impose death penalty for this crime”.

Now, once we admit that a purpose can be framed like (A), the rational connection and the
necessity test become useless. Is punishing this person with the death penalty rationally
connected to punishing this person with the death penalty? Of course. Is punishing this person
with the death penalty necessary to punish this person with the death penalty? Of course. Do
the social gains, at the margin, from punishing this person with the death penalty outweigh this
person’s right to life? However, what social gains are we discussing here? Did we not just say
that the legislator saw the punishment as the consequence of the blameworthiness of the act,
not as the cause of some alleged social benefit? If the purpose is to impose the death penalty,
the social benefit is to impose the death penalty, not any side effect that imposing the death

13
John L Austin, How to Do Things with Words (1962).

38
penalty may have. The proportionality stricto sensu is about the social benefits of achieving
the proper purpose itself, not its side-effects14. As we can see, retributive arguments for
punishment fit uneasily in the proportionality framework. This unease with deontological
reasons is best exemplified by the Sauvé cases, which I will now discuss.

THE CANADIAN EXPERIENCE IN SAUVÉ

The problem of non-instrumentalism discussed above has manifested itself in the Canadian
context most famously in the Sauvé cases. M. Sauvé was an inmate serving a life sentence in
prison. He challenged a provision of the Canada Elections Act prohibiting inmates from voting
in federal election on the ground that this violated his constitutional right to vote as protected
by Section 3 of the Canadian Charter of Rights and Freedoms.15 In 1993, the Supreme Court
of Canada ruled that the impugned provision of the Canada Elections Act was
unconstitutional16.

In response to this first decision, Parliament enacted a new piece of legislation reforming the
Canada Elections Act and limiting the right to vote for inmates who were serving a sentence
of more than two years of imprisonment.17 Following a new constitutional challenge again
launched by M. Sauvé, the Court had to re-examine the question in 2002.18 In a surprisingly
divided decision of 5-4, the majority noted that the purpose was “problematically vague” and
“thin”. Moreover, the majority held that the new limitation was not rationally connected to its
end and struck down the impugned provisions. The minority, on the contrary, thought that the
limitation rested on a question of philosophy and principle and that it was not for the Court to
resolve it. The difference in the opinion of the majority and the minority is striking and
illustrates the unease with which justices try to impose the proportionality analysis on non-
instrumental piece of legislation. Writing for the majority, Chief Justice McLachlin said that
“symbolic” purposes were “problematic”.19 However, writing for the minority, Justice
Gonthier, explains:

My disagreement with the reasons of the Chief Justice, however, is also at a more
fundamental level. This case rests on philosophical, political and social
considerations which are not capable of “scientific proof”. It involves justifications

14
ibid (n 4) 342.
15
Charter, s 3.
16
Sauvé v Canada [1993] 2 SCR 438.
17
Criminal Code, RSC c C-46, s 743 1.
18
Sauvé v Canada (Chief Electoral Officer) [2002] 3 SC 519.
19
ibid para16.

39
 for and against the limitation of the right to vote which are based upon axiomatic
arguments of principle or value statements. I am of the view that when faced with
such justifications, this Court ought to turn to the text of s. 1 of the Charter and to the
basic principles which undergird both s. 1 and the relationship that provision has with
the rights and freedoms protected within the Charter. Particularly, s. 1 of the Charter
requires that this Court look to the fact that there may be different social or political
philosophies upon which justifications for or against the limitations of rights may be
based. In such a context, where this Court is presented with competing social or
political philosophies relating to the right to vote, it is not by merely approving or
preferring one that the other is necessarily disproved or shown not to survive Charter
scrutiny. If the social or political philosophy advanced by Parliament reasonably
justifies a limitation of the right in the context of a free and democratic society, then
it ought to be upheld as constitutional.20

What is at stake in Justice Gonthier’s comment is the very possibility of a justification that is
non-instrumental in the proportionality framework. Moreover, this is particularly well
illustrated by his comments regarding the all-or-nothing character of certain legislative
purposes. Justice Gonthier explains: “In the case at bar, there is very little quantitative or
empirical evidence either way. In such cases, the task of justification relates to the analysis of
human motivation, the determination of values, and the understanding of underlying social or
political philosophies — it truly is justification rather than measurement”21. Non-instrumental
reasons cannot be framed as scalar purposes or “value-laden”22. Furthermore, since the end
itself is not external to the legislation, you can either find it to be justified or unjustified. This
is very problematic, especially with the necessity and proportionality stricto sensu analysis.
The crucial point is that there is a kind of justification available for such piece of legislation
but outside the consequentialist framework of proportionality analysis. It does not mean that,
as long as a purpose is non-instrumental, everything is justified. It simply means that the kind
of reasons that may justify a certain limitation of a constitutional right simply cannot always
be accessed through a consequentialist analytical framework.23 I will now explore briefly how
this problem is rooted in the way the proper purpose requirement is framed.

20
ibid para 67.
21
ibid para 90.
22
Barak (n 4) 343.
23
See, Nicholas Emiliou, The Principle of Proportionality in European Law: A Comparative Study, (1996) 37.

40
SOME PROPER PROBLEMS WITH PROPER PURPOSES

As I explained in the first section with regard to the distinction between scalar and non-scalar
purposes, scalar purposes always presuppose that there is an ideal situation, which we strive to
achieve. Consequently, in a hypothetical problem-free society, there would be no use for
legislation at all. The issue here is that some legislative action, though deontologically justified,
can sometimes create problems rather than solve them24. The “proper purpose” question must
therefore be carefully probed. A purpose can be proper even if there is no problem to be solved.
This is really well exemplified by the retributive aspect of punishment. The retributive
component of punishment is not about deterrence of future crimes or rehabilitating criminals.
These last two principles are instrumental in nature. Retributivism, on the other hand, is a
deontological reason for punishment. However, is this purpose proper? Moreover, how can we
balance the purpose with the infringement of the right to liberty or the right to life? As Barak
puts it: “Proportionality stricto sensu compares the positive effect of realizing the law’s proper
purpose with the negative effect of limiting a constitutional right. This comparison is of a value-
laden nature”25. However, a legitimate legislative objective is not necessarily a solution to a
social problem. The adoption of a just principle (deontologically speaking) can make the
overall situation worse. But if the principle itself is just, should we judge it only in light of the
consequences it produces or should we recognise that it can be reasonable and have some kind
of inherent coherence and moral value? The actual proportionality framework simply does not
recognise that some pieces of legislation can be justified by these kinds of deontological
reasons.

CONCLUSION

If proportionality were not useful, it would not have spread widely across so many different
jurisdictions. The fact remains, nonetheless, that it can be refined to broaden the types of moral
reasoning it is capable of considering without distortion. Proportionality is blind to some
genuine moral considerations as its analysis is a straightforward consequentialist test. Despite
the fact that most pieces of legislation are instrumental in nature, I have shown that some
provisions are motivated by deontological considerations. A retributive consideration for
punishment is a good example of such a case. Unfortunately, as we saw in the Sauvé case,

24
Larry Alexander & Michael Moore, Deontological Ethics, in The Stanford Encyclopedia of Philosophy
(Edward N Zalta ed, Spring 2015).
25
Barak (n 4) 343.

41
courts deal only difficultly with deontological reasons. They lack, in a certain sense, the moral
grammar of deontology. This is so because the way in which the proper purpose requirement
is framed forces courts to find an external end and to see the legislation as a simple means to
achieve this external social objective.

It is unclear whether it is possible or not to merge consequentialist and deontological

considerations into one coherent analytical framework. It seems to me, however, that as an all-
encompassing test to evaluate the constitutionality of every legislative provision, the
proportionality test is too ambitious. The test suited to deontological provisions may have yet
to be designed. Nonetheless, I have tried to highlight this problem and I hope that judges,
lawyers and legal scholars will answer the call to resolve it.

42
 THE PARIS AGREEMENT: THE LANDMARK
INTERACTION OF SCIENCE, DIPLOMACY AND
INTERNATIONAL LAW
 SIDDHARTH CHATURVEDI

INTRODUCTION: THE RED CARPET IN PARIS FOR ACTION ON

CLIMATE CHANGE

Climate change has been a major concern in the contemporary times. It is not exaggerating to
consider climate change as the most important as well as the most dreaded environmental
phenomenon in the 21st century. Anthropogenic emissions of greenhouse gases have initiated
the undesirable process of bringing about an increase in the average global temperatures, and
if left unchecked, this process could culminate in a fundamental transformation of the global
landscape for the worst.

The present paper is concerned with the global efforts aimed at curbing climate change.
Chiefly, the paper aims to explore the very recent and much hyped international development
in this regard: the adoption of the text of what has been popularly referred to as the ‘Paris
Agreement’.

The representatives of 195 countries of the world assembled in the city of Paris, France to
negotiate an international agreement that would guide the future action against climate change.1
Many have hailed the adoption of the Paris Agreement as a significant achievement, and
therefore, the aim of this paper is to explore the salient features of this historic agreement.

However, the Paris Agreement is better understood along with the context in which it was
negotiated. Therefore, the present paper will not be confined to a bare perusal of the text of the
Paris Agreement and its analysis, but will provide an insight into the historical context in which
the need for such an Agreement was felt. This will require a brief look into the global attempts
at containing climate change under the aegis of the United Nations, beginning in 1992.
Moreover, it will be interesting and enlightening to understand how different countries


LLM, Ram Manohar Lohiya National Law University.
1
‘Historic Paris Agreement on Climate Change’ (UN Climate Change Newsroom, 12 December 2015)
<http://newsroom.unfccc.int/unfccc-newsroom/finale-cop21/> accessed 15 October 2016.

43
perceived their role in the global action against climate change. This will include a study of the
rift between the developed countries and the developing countries, as well as the rise of a new
group representing the most vulnerable countries. In addition, this will enable an understanding
of the contentious issues regarding climate change.

An understanding of the context described as aforesaid will then provide the groundwork for
understanding how the contentious issues were sought to be resolved during the different
negotiations that preceded the Paris climate talks, and then during the Paris climate talks.

CLIMATE CHANGE: WHAT IS THE SCIENTIFIC EVIDENCE?

To begin with, it is important to understand the reason why a consensus has emerged around
the world for the urgent action against climate change. The reason lies in the scientific evidence
in various reports that point towards the fact that a rise in global temperatures is bound to be
detrimental for the earth’s existence. It is impossible to compile all the scientific evidence
available in this regard; however, it is significant to look at that which has international
acceptance.

The Intergovernmental Panel on Climate Change (hereinafter IPCC) Assessment Report enjoys
international acceptance when it comes to relying on the evidence of climate change. The
IPCC, set up in 1988 by the World Meteorological Organization and the United Nations
Environment Programme, assesses contemporary scientific literature and publishes data that
forms the basis for international policy formulation.2

IPCC’s Assessment Reports have consistently pointed out that the threshold beyond which
climate change will have drastic effects is the figure “2 degree Celsius”. This means that an
increase in average global temperatures by more than 2 degree Celsius will be fatal to the
earth’s existence.3 In 2009, the global representatives agreed, in Copenhagen, that the threshold
limit for adverse effects of the climate change is 2 degree Celsius. The basis of such a
consensus was inter alia, the data in the Fourth Assessment Report of IPCC. The Copenhagen
Accord, a manifestation of this consensus, reads as under:

“We agree that deep cuts in global emissions are required according to science, and as
documented by the IPCC Fourth Assessment Report with a view to reduce global

2
IPCC Secretariat, ‘IPCC Factsheet: What is the IPCC?’ (Intergovernmental Panel on Climate Change,30
August 2013) <www.ipcc.ch/news_and_events/docs/factsheets/FS_what_ipcc.pdf > accessed 15 October 2016.
3
Leo Hickman, ‘Two degrees: The history of climate change’s ‘speed limit’’ (Carbon Brief, 8 December 2014)
<www.carbonbrief.org/two-degrees-the-history-of-climate-changes-speed-limit> accessed 15 October 2016.

44
 emissions so as to hold the increase in global temperature below 2 degrees Celsius, and
take action to meet this objective consistent with science and on the basis of equity.”4

However, it is also significant to note that in Copenhagen itself, the world leaders also decided
to consider, as part of a long-term goal, containing the rise in the average global temperatures
within 1.5 degree Celsius. Therefore, while the IPCC Report pointed out the threshold as 2
degree Celsius and the global community accepted it as one of its primary targets, the idea of
making efforts to curb climate change also included the idea of making 1.5 degree Celsius a
target. The relevant part of the Copenhagen Accord reads as under:

“We call for an assessment of the implementation of this Accord to be completed by

2015, including in light of the Convention’s ultimate objective. This would include
consideration of strengthening the long-term goal referencing various matters presented
by the science, including in relation to temperature rises of 1.5 degrees Celsius.”5

CLIMATE CHANGE: FROM 1992 ONWARDS, THE PACE OF

NEGOTIATIONS

The negotiations have been one of the most highlighted aspects of the issue of climate change.
This is because consensus had eluded the global community for long on the issue of climate
change. In this section of the paper, a brief survey of some important international negotiations
under the aegis of the United Nations concerning climate change is made.

The year 1992 marked a significant milestone for the international community when the world
agreed to take action to combat climate change. For significant action, this global will was
manifested in the United Nations Framework Convention on Climate Change (hereinafter
UNFCCC). Under the UNFCCC, a provision was made for setting up of the Conference of the
Parties (hereinafter COP), whose mandate is described as under:

“The Conference of the Parties, as the supreme body of this Convention, shall keep
under regular review the implementation of the Convention and any related legal
instruments that the Conference of the Parties may adopt, and shall make, within its
mandate, the decisions necessary to promote the effective implementation of the
Convention. To this end, it shall:

4
‘Copenhagen Accord’ (Draft Decision, CP 15, Copenhagen, 18 December 2009) para 2
<http://unfccc.int/resource/docs/2009/cop15/eng/l07.pdf> accessed 15 October 2016.
5
ibid (12).

45
 (a) Periodically examine the obligations of the Parties and the institutional
arrangements under the Convention, in the light of the objective of the Convention, the
experience gained in its implementation and the evolution of scientific and
technological knowledge;…”6

The UNFCCC provides for the annual sessions of the COP, and consistent with the
aforementioned mandate, attempts have been made to review the obligations of the member
countries under the UNFCCC. Therefore, the annual sessions of COP have been the platform
for global climate change negotiations and some of the important COPs have been mentioned
below, reflecting the important milestones in the global action against climate change.

The COP 3 1997: The Kyoto Protocol

The Kyoto Protocol was the result of the annual session of the COP in Kyoto, Japan in 1997.7
The “Kyoto Protocol” was adopted as a legal instrument linked to the UNFCCC. The Kyoto
Protocol prescribed a time period during which the “developed countries” consistent with the
fundamental principles governing the UNFCCC, were to reduce their greenhouse gas
emissions. In consonance with the principles of the UNFCCC the Kyoto Protocol did not
impose any obligation on the developing countries, . The relevant principles of the UNFCCC
are reproduced hereunder:

“In their actions to achieve the objective of the Convention and to implement its
provisions, the Parties shall be guided, inter alia, by the following:

1. The Parties should protect the climate system for the benefit of present and future
generations of humankind, on the basis of equity and in accordance with their common
but differentiated responsibilities and respective capabilities. Accordingly, the
developed country Parties should take the lead in combating climate change and the
adverse effects thereof.

2. The specific needs and special circumstances of developing country Parties,

especially those that are particularly vulnerable to the adverse effects of climate change,
and of those Parties, especially developing country Parties, that would have to bear a

6
‘United Nations Framework Convention on Climate Change’ (1992) art 7(2).
<http://unfccc.int/files/essential_background/background_publications_htmlpdf/application/pdf/conveng.pdf>
accessed 15 October 2016.
7
‘Making those first steps Count: An Introduction to the Kyoto
Protocol’<http://unfccc.int/essential_background/kyoto_protocol/items/6034.php> accessed 15 October 2016.

46
 disproportionate or abnormal burden under the Convention, should be given full
consideration.

….”8 (Emphasis supplied)

THE COP 13: THE BALI ACTION PLAN

This session of the COP, in Bali, Indonesia (2007), is significant in that it laid down the
framework for the future course of negotiations on climate change. 9 Among other things, it
provided that the negotiations would focus on mitigation, adaptation, climate finance and
technology transfer. As it would be seen later in this paper, most of the contentious issues in
the Paris climate talks in 2015 were in relation to the aforementioned issues. The aim was to
complete the negotiating process by 2009 so that a new legal framework could be put in place
after the commitments of the developed countries under the Kyoto Protocol end in 2012. The
relevant part of the Bali Action Plan reads as under:

“The Conference of the Parties…

Decides to launch a comprehensive process to enable the full, effective and sustained
implementation of the Convention through long-term cooperative action, now, up to
and beyond 2012, in order to reach an agreed outcome and adopt a decision at its
fifteenth session…”10

(The Fifteenth session of the COP was held in Copenhagen, Denmark in 2009, as will
be seen below)

THE COPENHAGEN COP-15

The Copenhagen COP was a huge disappointment in terms of progress on climate change
negotiations. The world leaders had assembled at Copenhagen, in Denmark (2009) to chart out
a new agreement to replace the Kyoto Protocol, which was scheduled to end in 2012. However,
the rift between the developing countries and the developed countries (for reasons that will be

8
‘United Nations Framework Convention on Climate Change’ (1992) art 3
<http://unfccc.int/files/essential_background/background_publications_htmlpdf/application/pdf/conveng.pdf>
accessed 15 October 2016.
9
‘Now, up to and beyond 2012: The Bali Road Map’
<http://unfccc.int/key_steps/bali_road_map/items/6072.php>accessed 15 October 2016.
10
‘Bali Action Plan’ (Draft Decision, 1/CP. 13,Bali,14 March 2008) page 3
<http://unfccc.int/resource/docs/2007/cop13/eng/06a01.pdf> accessed 15 October 2016.

47
described in the pages that follow) led to an impasse and no binding agreement was arrived at.
The most that could be done was to postpone matters for a later date. The major take away
from the Conference was however, the recognition of the threshold limit of 2 degree Celsius.11

CANCUN COP 1612

The negotiations in Cancun, Mexico were significant in that they resulted in Cancun
Agreements wherein the developed countries documented their commitment to cut back on
carbon emissions. This was supplemented by an agreement concerning the developing
countries where they demonstrated their readiness to cut carbon emissions. The Cancun
Agreements were also important from the point of view of climate finance as a new Green
Climate Fund was decided to be set up through the Agreements. The relevant part of the COP
Decision is being reproduced hereunder:

“102. Decides to establish a Green Climate Fund, to be designated as an operating entity

of the financial mechanism of the Convention under Article 11, with arrangements to
be concluded between the Conference of the Parties and the Green Climate Fund to
ensure that it is accountable to and functions under the guidance of the Conference of
the Parties, to support projects, programmes, policies and other activities in developing
country Parties using thematic funding windows;”13 (Emphasis supplied)

On the question of reviewing the Kyoto Protocol, as it was due to end in 2012, the same was
postponed for consideration in the upcoming COP session in Durban, South Africa.

THE DURBAN COP 17

The COP 17 session in Durban, South Africa was a marked success over the previous COP
sessions because the developed countries agreed to extend the commitment period under the
Kyoto Protocol beyond 2012, until 2020. However, it was also decided that by 2015, a new
legal agreement will have been negotiated which will take the place of the Kyoto Protocol,
once the second commitment period is completed in 2020. This implied that the developing

11
‘Q&A: The Copenhagen climate summit’ BBC News (United Kingdom, 21 December 2009)
<http://news.bbc.co.uk/2/hi/8278973.stm> accessed 15 October 2016.
12
Adam Vaughan, ‘Cancún climate agreements at a glance’ (The Guardian, 13 December 2010)
<www.theguardian.com/environment/2010/dec/13/cancun-climate-agreement> accessed 18 October 2016.
13
‘The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative
Action under the Convention’ (Draft Decision 1/CP 16 Cancun, 15 March 2011) para 102
<http://unfccc.int/resource/docs/2010/cop16/eng/07a01.pdf> accessed 18 October 2016.

48
countries could also be made to bear responsibility for the mitigation efforts in the action
against climate change.14 As the text of the decision reads:

“4. Decides that the Ad Hoc Working Group on the Durban Platform for Enhanced
Action shall complete its work as early as possible but no later than 2015 in order to
adopt this protocol, another legal instrument or an agreed outcome with legal force at
the twenty-first session of the Conference of the Parties and for it to come into effect
and be implemented from 2020;”15 (Emphasis supplied)

Further, it was also agreed that negotiations would focus on technology transfer and climate
finance to enable the developing countries to adapt to the effects of climate change.

THE DOHA COP 18

In Doha, Qatar (2012), the COP session resulted in the changes in the Kyoto Protocol to give
effect to the decisions regarding the second commitment period taken in the Durban COP.16
Moreover, the Doha COP session is important in the sense that it laid down the time table for
the negotiations for a new legal agreement to be carved out by 2015, to replace the Kyoto
Protocol at the completion of the Second Commitment period by 2020. The Decision of the
COP reads as under:

“4. Determined to adopt a protocol, another legal instrument or an agreed outcome with
legal force under the Convention applicable to all Parties at its twenty-first session, due
to be held from Wednesday, 2 December to Sunday, 13 December 2015, and for it to
come into effect and be implemented from 2020;”17

THE WARSAW COP 19

The Warsaw COP in Poland prepared the groundwork for negotiations towards a new legal
instrument for climate change, whose proposed deadline was set as December 2015. At the
COP 19, the representatives of the member countries agreed that they would submit their

14
‘Durban: Towards full implementation of the UN Climate Change Convention’
<http://unfccc.int/key_steps/durban_outcomes/items/6825.php> accessed 18 October 2016.
15
‘Establishment of an Ad Hoc Working Group on the Durban
Platform for Enhanced Action’ (Draft Decision 1/CP 17,Durban,15 March 2012) para 4
<http://unfccc.int/resource/docs/2011/cop17/eng/09a01.pdf> accessed 18 October 2016.
16
‘The Doha Climate Gateway’<http://unfccc.int/key_steps/doha_climate_gateway/items/7389.php>accessed
18 October 2016.
17
‘Agreed outcome pursuant to the Bali Action Plan’ (Draft Decision 1/CP 18, Doha, 28 February 2013) para 4
<http://unfccc.int/resource/docs/2012/cop18/eng/08a01.pdf > accessed 18 October 2016.

49
nationally determined contributions as part of the negotiations process.18 The relevant part of
the COP Decision reads as under:

“To invite all Parties to initiate or intensify domestic preparations for their intended
nationally determined contributions, without prejudice to the legal nature of the
contributions, in the context of adopting a protocol, another legal instrument or an
agreed outcome with legal force under the Convention applicable to all Parties towards
achieving the objective of the Convention as set out in its Article 2 and to communicate
them well in advance of the twenty-first session of the Conference of the Parties (by
the first quarter of 2015 by those Parties ready to do so) in a manner that facilitates the
clarity, transparency and understanding of the intended contributions, without prejudice
to the legal nature of the contributions;”19 (Emphasis supplied)

THE LIMA COP 20

The Lima COP was intended to be the preparatory forum for the ultimate negotiations at the
2015 COP session in Paris, France. As per the decision of the COP 19 in Warsaw, Poland, the
Lima COP provided for the factors that had to feature in the intended nationally determined
contributions (hereinafter INDC) which were to form the basis for the negotiations in the Paris
COP. Moreover, the fact that INDC were solicited at Warsaw signified that the Paris COP
would take a more flexible, bottom up approach to avoid the disappointment of the Copenhagen
COP, which had resulted in a negotiation deadlock. However, there was a great deal of
uncertainty on the specifics of the legal agreement proposed to be drafted and adopted in the
next COP session in Paris.20 The relevant part of the Decision text read as under:21

“13.Reiterates its invitation to all Parties to communicate their intended nationally

determined contributions well in advance of the twenty-first session of the Conference
of the Parties (by the first quarter of 2015 by those Parties ready to do so) in a manner
that facilitates the clarity, transparency and understanding of the intended nationally
determined contributions;

18
‘Warsaw Outcomes’<http://unfccc.int/key_steps/warsaw_outcomes/items/8006.php> accessed 19 October
2016.
19
‘Further advancing the Durban Platform’ (Draft Decision 1/CP 19, Warsaw, 31 January 2014) para 2(b)
<http://unfccc.int/resource/docs/2013/cop19/eng/10a01.pdf > accessed 19 October 2016.
20
Suzanne Goldenberg, ‘Lima climate change talks reach global warming agreement’ (The Guardian, 14
December 2014) <www.theguardian.com/environment/2014/dec/14/lima-climate-change-talks-reach-
agreement>accessed 19 October 2016.
21
‘Lima Call for Climate Action’ (Draft Decision, 1/CP 20, Lima, 2 February 2015) paras 13-14
<http://unfccc.int/resource/docs/2014/cop20/eng/10a01.pdf> accessed 15 October 2016.

50
 14. Agrees that the information to be provided by Parties communicating their intended
nationally determined contributions, in order to facilitate clarity, transparency and
understanding, may include, as appropriate, inter alia, quantifiable information on the
reference point (including, as appropriate, a base year), time frames and/or periods for
implementation, scope and coverage, planning processes, assumptions and
methodological approaches including those for estimating and accounting for
anthropogenic greenhouse gas emissions and, as appropriate, removals, and how the
Party considers that its intended nationally determined contribution is fair and
ambitious, in light of its national circumstances, and how it contributes towards
achieving the objective of the Convention as set out in its Article 2;” (Emphasis
supplied to underline the factors that were suggested to be included in the INDCs that
were to be submitted by the countries)

THE WAR OF WORDS: THE POINTS OF CONTENTION ON THE EVE

OF THE PARIS CLIMATE TALKS

Before undertaking a review of the Paris Agreement, it is necessary to provide a brief insight
into the major points of difference or controversy that existed on the eve of the Paris Climate
talks and that had continued to engage the negotiators during the talks which had to be extended
beyond the scheduled period as no consensus was in sight (unless of course the consensus was
arrived upon subsequently).

The issues are more than one but it must be kept in mind that the conflict between the developed
countries and the developing countries lies at the heart of the whole debate. This aspect needs
to be understood in order to better appreciate the points of difference that exist between the
countries on the issue of climate change (the points will be elaborated upon in this section).

When the UNFCCC was agreed upon in the first place, there was a mutual agreement that the
developed countries (or the industrialised countries) were more responsible for the state of
climate change than the other countries. Their “historical” emissions were one of the major
causes that had brought the world to such a state of emergency in respect of climate change.
Moreover, being industrialised and developed, such countries also had the capacity to lead in
the global action against climate change. This implied that the developed countries are required
to take more onerous responsibilities in the fight against climate change.

51
However, the developed countries were of the view that of late, some of the developing
countries, (the ones that are designated nowadays as “emerging economies”) like India and
China, are also contributing to the burden of carbon emissions through the developmental
actions that they are undertaking. In view of the same, they are also required to bear similar
onerous responsibilities for fighting climate change. However, countries like India and China
have countered this argument by asserting that the concerns of development require continued
emissions and therefore they should reasonably be exempted from compliance with legally
binding commitments on climate change.

The aforesaid being the background of the contentious issues between the developed and the
developing countries, following are the specific points on which the countries were in
disagreement:

EFFORTS AT MITIGATION

Earlier, for the reasons mentioned above, the developing countries had been exempted from
any legally binding commitments towards mitigating the carbon emissions. This was the reason
that no developing country among the Annex I parties to the Kyoto Protocol (the parties that
were required to undertake emission cuts mandatorily). However, due to the insistence of the
developed countries, there was considerable pressure on the developing countries to undertake
responsibility for emission cuts. However, the developing countries still insisted that the
commitments under the Paris Agreement should be ones that agree with the UNFCCC’s
principles of equity and Common But Differentiated Responsibilities (hereinafter CBDR)
whereby the commitments should correspond to the level of development of the country instead
of being uniformly applicable for every nation regardless of her development needs and
capabilities.22

ADAPTION

The developing countries also emphasised the need for the proposed new legal instrument to
address the issues pertaining to “adaptation” to the effects of climate change. The developing
countries were of the view that the historical carbon emissions by the developed countries had
resulted in irreversible changes in the climate, which is evident through unseasonal rains,

22
Gwynne Taraska, ‘4 of The Most Controversial Issues At The Paris Climate Talks, Explained:
Differentiation’ (Climate Progress, 10 December 2015)
<http://thinkprogress.org/climate/2015/12/10/3730298/four-stumbling-blocks-paris/>accessed15th January,
2016.

52
droughts and floods. Therefore, the developing countries argued that the proposed legal
instrument should also focus on the aspects where the industrialised countries would actively
assist the process of adaptation by the developing countries, in view of their developmental
needs.23

CLIMATE FINANCE

Industrialised countries have enough funds to effectively counter the climate change,
something that eludes the developing countries. Being historically responsible for carbon
emissions, the industrialised countries should commit towards raising funds for the developing
countries to undertake efforts aimed at mitigation as well as adaptation. This assertion of the
developing countries had resulted in a series of initiatives under the legal framework of the
UNFCCC, such as the Green Climate Fund, as referred to in the previous section on
negotiations. However, problem arose when the developed countries failed to commit for a
specific amount to be raised and insisted on the emerging economies like India and China to
contribute to the Fund as well. This position of the developed countries did not go down well
with the developing countries.24

TECHNOLOGY TRANSFER

The developing countries have been asserting that developed countries have the green
technology that assists in mitigating emissions and adapting to the effects of climate change.
However, the pro-intellectual property regime in most of the developed countries has implied
that this technology is not accessible to the developing countries. For example, huge amount
of license fees for using an innovation will obviously discourage a “fund deficient” developing
country from being able to utilise the innovation for sustainable development. Therefore, the
developing countries have been consistently demanding a legal framework whereby the
transfer of technology can be affected to enable the developing countries to take effective action
as part of their mitigation and adaptation strategies. For example, the European Union has been
able to come up with drought resistant crops. The technology to develop similar crops could
prove very fruitful for the development concerns of a country like India, thus assisting in her
efforts at adaptation. A cost effective strategy at adaptation may enable countries like India to

23
Background Paper, ‘Adaptation to Climate Change in the context of Sustainable Development’ (TERI)
<www.teriin.org/events/docs/adapt.pdf> accessed 19 October 2016.
24
Amitabh Sinha, ‘Paris Climate Talks: Money does the talking’ (The Indian Express, 9 December 2015)
<http://indianexpress.com/article/explained/paris-climate-talks-money-does-the-talking/> accessed 19 October
2016.

53
devote more of their resources towards achieving their mitigation targets, which will be
beneficial for the whole world.25

THE THRESHOLD TEMPERATURE RISE

While the consensus among the negotiating parties has been to the effect that the average global
temperature rise has to be contained below the mark of 2 degree Celsius, yet there has been a
group of countries arguing that this limit be further reduced to 1.5 degree Celsius. This group
of countries refer themselves as “most vulnerable” and comprise mostly of the small island
nations around the globe. The rise in sea levels due to the effects of climate change is believed
to be the biggest concern for these island countries. However, their demand requires the
mitigation efforts be augmented so as to achieve the target of 1.5 degree Celsius because the
scientific opinion is that the INDC submitted by the countries are even short of meeting the 2
degree Celsius target.26 The speech of the United States President Barack Obama, at the Paris
climate talks was quite vocal of these concerns of the island nations, as he had observed:

“…We know the truth that many nations have contributed little to climate change but will be
the first to feel its most destructive effects. For some, particularly island nations –whose leaders
I’ll meet with tomorrow–climate change is a threat to their very existence…”27

THE BIG LEAP FORWARD: THE PARIS AGREEMENT AND ITS

SALIENT FEATURES

When the COP 21 began in Paris, France, there was the apprehension that Copenhagen
disappointment may be repeated, given the number of contentious issues (which have
elaborated upon above). Even during the annual session of the COP, the differences remained,
which forced the extension of the session beyond its scheduled timetable.28 However, to the
relief of all, the negotiators arrived at a landmark global agreement, “the Paris Agreement”,

25
‘Technology’ (UNFCCC Official Website) <http://unfccc.int/technology/items/2681.php> accessed 19
October 2016.
26
Gwynne Taraska, ‘4 Of The Most Controversial Issues At The Paris Climate Talks, Explained: Closing the
emissions gap’ (Climate Progress, 10 December 2015)
<http://thinkprogress.org/climate/2015/12/10/3730298/four-stumbling-blocks-paris/>accessed 19 October 2016.
27
Office of the Press Secretary, The White House, ‘Remarks by President Obama at the First Session of
COP21’(The White House Official Website,30 November 2015) <www.whitehouse.gov/the-press-
office/2015/11/30/remarks-president-obama-first-session-cop21> accessed 19 October 2016.
28
Express News Service, ‘Paris Climate Talks Extended a Day as Differences Remain’ (The New Indian
Express, 12 December 2015) <www.newindianexpress.com/nation/Paris-Climate-Talks-Extended-a-Day-as-
Differences-Remain/2015/12/12/article3172954.ece> accessed 19 October 2016.

54
which would replace the Kyoto Protocol when the Kyoto Protocol’s second commitment period
ends in 2020.

In the present section, an attempt has been made to analyse the salient features of the Paris
Agreement. Broadly, the salient features correspond to the contentious issues that had plagued
the negotiators throughout the long period preceding the drafting and adoption of the Paris
Agreement in 2015.

RESOLVING THE ISSUE OF THRESHOLD TEMPERATURE

At the very outset of the Paris Agreement, a unique compromise has been affected in respect
of the threshold of temperature rise. The Agreement stipulates that the temperature rise is to be
contained “well below” the 2 degree Celsius threshold and efforts are required to be undertaken
to limit the increase in temperature to 1.5 degree Celsius. It is important to note here that the
use of the term “well below” entirely changes the legal mandate from what it would have been
if the text would have read, “shall not exceed”. This implies that the 2 degree Celsius is not the
threshold. The relevant part of the text of the Paris Agreement reads as under:

“(a) Holding the increase in the global average temperature to well below 2 °C above
pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5 °C
above pre-industrial levels, recognising that this would significantly reduce the risks
and impacts of climate change;”29

MITIGATION EFFORTS: UNIVERSAL DUTY, WITH DIFFERENTIATION

In respect of the efforts aimed at mitigation, the principle of equity and CBDR are sought to be
maintained. However, there is a marked departure from the legal mandate of the Kyoto
Protocol. This can be appreciated through the following points:

1. Unlike the Kyoto Protocol, there is no longer any reference to “Annex I” countries, which
are to take emission cuts. Instead, the responsibility of emission cuts has now been spread out
to cover all countries, including the developing countries, which had been excluded previously
under the Kyoto Protocol. This seems to be a significant achievement for the industrialised
countries which had been advocating hitherto to make the developing countries responsible for

29
‘The Paris Agreement’ (Draft Decision-/CP 21, Paris, 12 December 2015) art 2(1)(a)
<http://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf> accessed 19 October 2016.

55
emission cuts too. As can be seen from the following extract of the text of the Paris Agreement,
“each Party” is now mandated to carry out mitigation efforts:

“2. Each Party shall prepare, communicate and maintain successive nationally
determined contributions that it intends to achieve. Parties shall pursue domestic
mitigation measures, with the aim of achieving the objectives of such contributions.”30

2. Unlike the Kyoto Protocol, there are no emission cuts prescribed by the Agreement. Rather,
a bottom up approach has been adopted whereby the mitigation efforts are to be reflected in
the INDC that have been submitted by the countries under the Lima COP framework. The Paris
Agreement accords legal recognition to the INDC and assigns specific importance to these in
that they will serve as the guiding factors for emission cuts. This is an achievement for all the
countries to some extent: this is because their sovereignty has been respected in deciding on
emission cuts rather than forcing a target on them. This is relevant because the countries are
best suited to frame their emission cut targets according to their national circumstances. This
has been recognised in the beginning of the Agreement itself where the countries’ “national
circumstances” have been accorded due weightage. As it can be seen from the text of the Paris
Agreement, relevant part of which is mentioned as under:

“3. Each Party’s successive nationally determined contribution will represent a

progression beyond the Party’s then current nationally determined contribution and
reflect its highest possible ambition, reflecting its common but differentiated
responsibilities and respective capabilities, in the light of different national
circumstances.”31

3. The fact that the Paris Agreement is a significant compromise is also evident from the fact
that the distinction between the developed and developing countries has been duly maintained.
This implies that even if the developing countries are no longer immune to legally binding
commitments, they have been accorded relaxation in the manner of implementation when it
comes to achieving the mitigation targets. This is evident from two factors:

(a). Firstly, the fact that the countries are to achieve the targets as per their INDC implies that
the developing countries can follow their developmental needs and priorities while taking

30
‘The Paris Agreement’ (Draft Decision-/CP 21, Paris, 12 December 2015), art 4(2)
<http://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf > accessed 19 October 2016.
31
‘The Paris Agreement’ (Draft Decision-/CP 21, Paris, 12 December 2015) art 4(3)
<http://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf> accessed 19 October 2016.

56
action against climate change. In fact, the Paris Agreement, at the very outset, has clearly laid
down that the principle of CBDR continues to govern the framework for action against climate
change. The text reads:

“2. This Agreement will be implemented to reflect equity and the principle of common
but differentiated responsibilities and respective capabilities, in the light of different
national circumstances.”32 (Emphasis supplied)

(b). Secondly, and very significantly, while the developed countries are required to continue
undertaking economy-wide absolute emission reduction, the developing countries are only
encouraged to move towards such reduction gradually over time keeping up with their
respective national circumstances. This means that although the developing countries are
required to undertake efforts aimed at mitigation, unlike the developed countries they have not
been mandated to take quantified emission cuts immediately. Following is the relevant portion
from the text of the Paris Agreement:

“4. Developed country Parties should continue taking the lead by undertaking
economy-wide absolute emission reduction targets. Developing country Parties should
continue enhancing their mitigation efforts, and are encouraged to move over time
towards economy-wide emission reduction or limitation targets in the light of different
national circumstances.”

The aforesaid is a big relief for the developing countries who had apprehensions of the
consequences of the new Paris Agreement considering their concerns about the development
programme. For example, India has to fight the challenges of poverty and unemployment so
this might restrain initially India’s efforts at mitigation, and therefore it would be very unfair
to expect her to undertake absolute emission cuts immediately. However, the Paris Agreement
has provided enough flexibility for countries like India to pursue their mitigation efforts while
also meeting their developmental needs.33

32
‘The Paris Agreement’ (Draft Decision-/CP 21, Paris, 12 December 2015) art 2(2)
<http://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf> accessed 19 October 2016.
33
Amitabh Sinha, ‘Paris climate talks: Differentiation of developed and developing stays, India Happy’ (The
Indian Express, 14 December 2015) <http://indianexpress.com/article/india/india-news-india/paris-climate-
talks-differentiation-of-developed-and-developing-stays-india-happy/> accessed 19 October 2016.

57
ADAPTATION EFFORTS: CONCERN FOR VULNERABLE COUNTRIES

In respect of adaptation, the Paris Agreement is quite significant in the manner that it recognises
the need for adaptation, especially in respect of the developing countries which are vulnerable
to the effects of climate change. The Agreement provides that:

“1. Parties hereby establish the global goal on adaptation of enhancing adaptive
capacity, strengthening resilience and reducing vulnerability to climate change, with a
view to contributing to sustainable development and ensuring an adequate adaptation
response in the context of the temperature goal referred to in Article 2.”34

The Paris Agreement accordingly provides for the setting up of a mechanism whereby the
information about efficient adaptation practices could be shared among the parties to the Paris
Agreement. This will enable the developing countries to identify and implement adaptation
strategies that are most suited to their needs and circumstances. More importantly, the Paris
Agreement provides for special assistance to the developing countries in their efforts aimed
towards adaptation. The relevant part of the Agreement reads as under:

“6. Parties recognize the importance of support for and international cooperation on
adaptation efforts and the importance of taking into account the needs of developing
country Parties, especially those that are particularly vulnerable to the adverse effects
of climate change.”35

FINANCIAL ASSISTANCE: DISCLOSURES IS THE NEW NORM

The financial assistance had been one issue on which the developed countries were hesitant on
committing to a specific amount. Rather they wanted the emerging economies to also
contribute towards raising the funds of action against climate change. However, the developing
countries were unequivocal in their demand for an unambiguous framework of financial
assistance under the new legal instrument.

As a result, the Paris Agreement is quite clear about the mandate on the developed countries to
contribute towards raising finance for assisting the efforts aimed at both mitigation and
adaptation. However, there is an added provision that encourages other parties to contribute to
raising finance voluntarily. This is an achievement for the developed countries that can now

34
‘The Paris Agreement’ (Draft Decision-/CP 21, Paris, 12 December 2015) art 7(1)
<http://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf> accessed 19 October 2016.
35
‘The Paris Agreement’ (Draft Decision-/CP 21, Paris, 12 December 2015) art 7(6)
<http://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf> accessed 19 October 2016.

58
create pressure on some other countries to contribute towards financial assistance even if that
contribution is to be a voluntary one. Although there is no legal obligation under the Paris
Agreement as such, this paves the way for bilateral or multilateral negotiations aimed at
pressurising all countries but the developed ones to contribute towards the pool of financial
resources which have to be mobilised for effective action against climate change. The relevant
part of the Agreement reads as under:

“1. Developed country Parties shall provide financial resources to assist developing
country Parties with respect to both mitigation and adaptation in continuation of their
existing obligations under the Convention.

2. Other Parties are encouraged to provide or continue to provide such support

voluntarily.”36

However, there is also an element of satisfaction for the developing countries in respect of their
demand for a specific commitment on the part of developed countries for financial
contributions. Although no specific amount has been earmarked as part of the operative text of
the Paris Agreement, a provision has been made for a biennial declaration of specific
commitments on the part of the developed countries, for financial contributions. This implies
that there will be certainty in the financial assistance segment under the framework of the
UNFCCC and the Paris Agreement. The relevant part of the Agreement reads as follows:

“5. Developed country Parties shall biennially communicate indicative quantitative and
qualitative information related to paragraphs 1 and 3 of this Article, as applicable,
including, as available, projected levels of public financial resources to be provided to
developing country Parties. Other Parties providing resources are encouraged to
communicate biennially such information on a voluntary basis.”37

For developed countries, the absence of a specific amount for commitment in the text of the
treaty itself is a big relief, which provides them with enough flexibility to decide on their
respective share of contribution. This is another instance of the bottom up approach that has
been followed in drafting the terms of the Paris Agreement.

36
‘The Paris Agreement’ (Draft Decision-/CP 21, Paris, 12 December 2015) art 9(1)-(2)
<http://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf > accessed 19 October 2016.
37
‘The Paris Agreement’ (Draft Decision-/CP 21, Paris, 12 December 2015) art 9(5)
<http://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf> accessed 19 October 2016.

59
TECHNOLOGY TRANSFER: CLOSER INTERNATIONAL COOPERATION
SOUGHT

The transfer of technology, as mentioned previously in this paper, has been an important
contentious issue between the developing and the developed countries. The Paris Agreement
has made significant strides in this domain too by encouraging the countries to take a long-
term vision on this issue. The Paris Agreement provides for facilitating cooperation between
the countries in respect of transfer of technology for undertaking effective mitigation and
adaptation efforts. The Agreement reads as under:

“2. Parties, noting the importance of technology for the implementation of mitigation
and adaptation actions under this Agreement and recognizing existing technology
deployment and dissemination efforts, shall strengthen cooperative action on
technology development and transfer.”38

Again, the Paris Agreement provides for special assistance for the developing countries in
respect of transfer of technology at different stages. The Agreement reads:

“6. Support, including financial support, shall be provided to developing country Parties
for the implementation of this Article, including for strengthening cooperative action
on technology development and transfer at different stages of the technology cycle,
with a view to achieving a balance between support for mitigation and adaptation…”39

The Paris Agreement also recognises the need to promote innovation so that the existing
technology is improved upon, thereby facilitating efforts towards coming up with newer
technology to assist in the global action against climate change. The Agreement reads as
follows:

“5. Accelerating, encouraging and enabling innovation is critical for an effective, long-
term global response to climate change and promoting economic growth and
sustainable development. Such effort shall be supported appropriately(including by the
Technology Mechanism) and through financial means(by the Financial Mechanism of
the Convention), for collaborative approaches to research and development and

38
‘The Paris Agreement’ (Draft Decision-/CP 21, Paris, 12 December 2015) art 10(2)
<http://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf> accessed 19 October 2016.
39
‘The Paris Agreement’ (Draft Decision-/CP 21, Paris, 12 December 2015) art 10(6)
<http://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf> accessed 19 October 2016.

60
 facilitating access to technology, in particular for early stages of the technology cycle,
to developing country Parties.”40 Emphasis supplied)

The promotion of innovation may have the objective of liberalising the intellectual property
law and competition law regimes in countries where the protection of IPRs and competition is
weaker, which in turn discourages innovation.

Capacity Building: Assistance for Developing and Vulnerable Countries

The provision for capacity building is in a sense, the manifestation of the intention to use
technology transfer and climate finance to create capacity in countries that do not have the
same, to take effective measures towards mitigation and adaptation. This provision is especially
pro-developing and least developed countries as it highlights as well as addresses their concern
for capacity building to fight climate change. The relevant part of the Agreement reads as
under:

“Capacity-building under this Agreement should enhance the capacity and ability of
developing country Parties, in particular countries with the least capacity, such as the
least developed countries, and those that are particularly vulnerable to the adverse
effects of climate change, such as small island developing States, to take effective
climate change action, including, inter alia, to implement adaptation and mitigation
actions, and should facilitate technology development, dissemination and deployment,
access to climate finance, relevant aspects of education, training and public awareness,
and the transparent, timely and accurate communication of information.”41

IMPLEMENTATION CONCERNS REGARDING THE PARIS

AGREEMENT: AFTER CONSENSUS.WHAT NEXT?

Being an international agreement, it will always be interesting to note how the Paris Agreement
could be effectively enforced. Also, one may wonder that given the “bottom up” approach that
has been consistently adopted throughout the operative text of the Paris Agreement, how would
it be possible to dictate the countries to do what they have actually committed themselves to
doing, in their INDC? A “top down” approach towards implementation of the Agreement does
not seem appropriate for an Agreement where so much emphasis has been put upon the

40
‘The Paris Agreement’ (Draft Decision-/CP 21, Paris, 12 December 2015) art 10(5)
<http://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf> accessed 19 October 2016.
41
‘The Paris Agreement’ (Draft Decision-/CP 21, Paris, 12 December 2015) art
11(1)<http://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf> accessed 19 October 2016.

61
principles of equity, CBDR, and the national circumstances. In such a scenario, the onus of the
implementation of the Paris Agreement falls upon the countries themselves.42

The Paris Agreement seems to “facilitate” action rather than “regulating” the same. This is
evident from the provisions in the Agreement which emphasise on sharing of information
between the countries in respect of mitigation, adaptation, climate finance, technology transfer,
capacity building, etc. Some of these provisions have been mentioned previously in this section
of the paper.

In line with the same, the Paris Agreement has provided for the establishment of a transparency
mechanism for action and support so that the countries could regularly share information
regarding the carbon emissions in their respective domestic spheres and their progress in
achieving the targets of their respective INDC.43 The relevant part of the Agreement reads as
under:

“7. Each Party shall regularly provide the following information:

(a) A national inventory report of anthropogenic emissions by sources and removals by

sinks of greenhouse gases, prepared using good practice methodologies accepted by the
Intergovernmental Panel on Climate Change and agreed upon by the Conference of the
Parties serving as the meeting of the Parties to the Paris Agreement;

(b) Information necessary to track progress made in implementing and achieving its
nationally determined contribution under Article 4.”44

The intention behind such a transparency framework is to utilise the “peer pressure” that the
countries will exert over each other for meeting their INDC targets in time. The transparency
framework will also enable the information to be shared with media groups, members of the
civil society and most importantly, with the citizens of the world, who are the most affected by
the effects of climate change. Perhaps, this will enable the issue of climate change to become
an electoral issue in many democracies where the fate of the political leaders may come to
depend on their promises towards containing climate change, and their action in respect of the

42
Tyler Hamilton, ‘What’s next after the historic Paris climate change agreement?’(The Star,14 December
2015) <www.thestar.com/news/canada/2015/12/14/whats-next-after-the-historic-paris-climate-change-
agreement.html> accessed 19 October 2016.
43
The Paris Agreement, art 13(1), FCCC/CP/2015/L9/Rev1
<http://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf> accessed 19 October 2016.
44
The Paris Agreement, art 13(7), FCCC/CP/2015/L9/Rev 1
<http://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf> accessed 19 October 2016.

62
same. Although it may be acknowledged that there is no mechanism to ensure that a country in
default be penalised, that would have been ineffective given the flexibility inherent in the Paris
Agreement itself for the parties to take actions in the light of their national circumstances.

Moreover, another aspect of the transparency framework will be to enable the countries to take
stock of the measures taken by the other countries and emulate them when it comes to best
practices adopted. This will enable the achievement of the objectives of the Paris Agreement
that relate to adaptation and capacity building.

In addition, the Paris Agreement provides for “global stocktake”.45 That is, the Paris Agreement
requires the countries to take a stock of the collective progress in respect of the objectives of
the Agreement. The first such “global stocktake” is required to be taken in the year 2023 and
thereafter, the same shall be taken after every five years’ period.46The Paris Agreement requires
the global stocktake to be comprehensive in that it should be in respect of not only mitigation,
but also adaptation and “the means of implementation and support”, and the basis for the same
should be the best available science and the principle of equity.47 Among other things, the
countries would be able to assess whether their collective efforts will result in containing the
average temperature rise “well below” the figure of 2 degree Celsius, and whether the countries
would be able to achieve the more ambitious agenda of “1.5 degree Celsius”. The countries
can accordingly arrive at newer solutions to tackle with the shortcomings in their approach that
they find.

CONCLUSION: MILES TO GO BEFORE WE SLEEP!

According to a survey conducted by the United Kingdom based market research group Ipsos
Mori, 73 per cent of respondents from all countries agreed that urgent action is required to
contain the phenomenon of climate change. 78.6 percent of Indian respondents had the same
opinion.48

The aforesaid data shows, to a considerable extent, the public awareness regarding the issue of
climate change. The adoption of the Paris Agreement is merely the beginning of a new chapter

45
‘The Paris Agreement’ (Draft Decision-/CP 21, Paris, 12 December 2015) art
14<http://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf> accessed 19 October 2016.
46
‘The Paris Agreement’ (Draft Decision-/CP 21, Paris, 12 December 2015) art 14(2)
<http://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf> accessed 19 October 2016.
47
‘The Paris Agreement’ (Draft Decision-/CP 21, Paris, 12 December 2015) art 14(1)
<http://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf> accessed 19 October 2016.
48
‘Most Indians, Chinese seek urgent climate action, US most sceptical’ (The Indian Express, 14 December
2015).

63
on international cooperation on action against climate change. As seen in the paper itself, the
text of the climate change Agreement is one that persuades the countries to take effective
action. This element of persuasion has come in useful in creating a consensus in the Paris
climate talks, but the same persuasion has added another responsibility on the countries: that
of taking timely and effective action by themselves. Therefore, there are voices in the public
opinion that are sceptical about the implementation of the Paris Agreement.

However, being sceptical is of no significance. The next step should be to build upon the
mechanisms that have been provided for in the Paris Agreement and march ahead. It is fortunate
to note that there are positive signals in this respect. In fact, at the very beginning of the climate
change summit in Paris, the Indian Prime Minister Mr. Narendra Modi cooperated with the
other countries to form an ambitious “International Solar Alliance”, with a view to accelerate
the development of alternative and renewable sources of energy so that the dependency on
fossil fuels could be reduced, which are the prime source of carbon emissions in the world.49

The International Solar Alliance thus goes on to show that there is a need for more such
proactive initiatives at the global level to tackle climate change. Innovation and energetic
response is the need of the hour. Fortunately, the blame game and resistance, which had
diminished the possibility of an agreement in Copenhagen in 2009, have been overcome
successfully in Paris in 2015. The time has come for the countries to take effective action within
their respective domestic spheres and cooperate internationally. Moreover, it is time that the
media and civil society groups play their role to generate public awareness on the issue of
climate change so that the people could bring in pressure on their governments to effectively
fight against climate change.

49
G Ananthakrishnan, ‘Modi launches International Solar Alliance’ (The Hindu, 1 December 2015)
<www.thehindu.com/sci-tech/energy-and-environment/modi-launches-international-solar-
alliance/article7934560.ece>accessed 19 October 2016.

64
 TRIPLE TALAQ ROW: VALIDITY OF JUDICIAL
INTERFERENCE IN PERSONAL LAWS

EESHA SHROTRIYA

INTRODUCTION

Muslim personal law recognises three types of divorce: the first is ‘talaq ahsan’, which consists
of a single pronouncement of divorce made during a period of menstruation followed by sexual
abstinence during iddat.1 The second type of divorce is ‘talaq ahsan’, consisting of three
pronouncements made during successive tuhrs with no sexual relations taking place during this
time.2 The third form of divorce is ‘talaq-ul-biddat’. It consists of three pronouncements made
during a single tuhr in one sentence or a single pronouncement made during a single tuhr,
clearly indicating an intention to dissolve the marriage irrevocably. 3 This form of divorce can
be given in both oral and written forms. In many cases, women are notified of this intention
through telephone or any other electronic means of communication.

It is common knowledge that this form of divorce has drawn a great deal of criticism. It has
been argued that the unilateral nature of this form of divorce subjects the wife (and the
marriage) to the whims and caprices of the husband. She is subjected to constant insecurity.

“The threat of divorce casts a shadow on marital life.....Whenever he was displeased; he would
say ‘I shall divorce you.’ I was constantly worried; where will I go if he utters those words?”4

It prevents women from reporting marital abuse5 and consolidates gender inequality within the
conjugal family. She is left without financial, social, and emotional support after the divorce.

This form of divorce also causes legal confusion because it is difficult to prove its validity.6 It
is very difficult to prove the claims of either party, as they might be the only ones present when
the divorce was supposedly pronounced.


3rd Year Student, BA LLB (Hons), National Law Institute University, Bhopal.
1
Dinshah Fardunji Mulla, Principles of Mahomedan Law (Eastern Law House 1955) 267.
2
ibid.
3
ibid.
4
Gopika Solanki, State Law and the Adjudication Process (Cambridge University Press 2011) 132.
5
ibid.
6
ibid.

65
ORIGIN AND QURANIC MEANING

It is essential to understand that though originally written in Arabic, Quran has been translated
into many languages and interpreted by many jurists. Thus, it logically follows that texts were
interpreted with a view to minimize friction with existing cultures and practices. Most of the
interpretations reinforce the existing gender roles in the society. The Holy Quran lays down:

“A divorce is only permissible twice; after that, the parties should either hold together on
equitable terms, or separate with kindness...”7

This simply means that the husband can only take back his wife after two pronouncements of
divorce. If he divorces her for the third time, the divorce becomes irrevocable and he is not
allowed to take her back. He can only do so if the wife marries another man, consummates that
marriage, obtains a divorce and then remarries him.

Prof. Tahir Mahmood, an internationally recognized expert on Muslim Law, stated in an

interview8 that there are only two verses in Quran related to triple talaq - the first one allows
the husband to divorce only twice, which has been explained above and the other verse relates
to arbitration. The latter verse states:

“If ye fear a breach between them twain, appoint (two) arbiters, one from his family, and the
other from hers; if they wish for peace, God will cause their reconciliation:...”9

This verse provides that if the husband wishes to divorce his wife, he must appoint an arbiter
from his side and the wife must do the same. The arbiters must then try to bring about
reconciliation over a period of time. Only after this process has been carried out, the husband
is entitled to divorce his wife. Thus, this practice ensures that the husband does not arbitrarily
divorce his wife.10

According to Hon’ble Justice (retd.) K. Kannan, triple talaq was an innovation so that
“incorrigibly acrimonious couples” can be separated from each other as soon as possible.11

7
Abdullah Yusuf Ali (trs), The Holy Qur’an II: 229 (Baqara).
8
Ajaz Ashraf, ‘Ban Triple Talaq and Abolish Muslim Personal Law Board’ (Scroll, 5 May 2015)
<http://scroll.in/article/724902/ban-triple-talaq-and-abolish-muslim-personal-law-board-says-former-minorities-
commission-chairman> accessed 15 October 2016.
9
Abdullah (n 7) IV: 35 (Nissa).
10
Khan Noor Ephroz, Women and Law: Muslim Personal Law Perspective (Rawat Publications 2003) 283.
11
K Kannan, ‘Frames of Reference’ (The Hindu, 21 October 2016) <http://thehindu.com/opinion/lead/k-
kannan-on-triple-talaq-laws-in-india-and-in-several-muslimmajority-countries-frames-of-
reference/article9246389.ece> accessed 25 October 2016.

66
However, according to Mahmood, the Maulvis have decided that the first verse is Quranic law
and the second one is Quranic morality.12 However, this distinction has not been provided for
in the Quran and the maulvis have done so without any authority.

According to Anees Ahmed, there can be two reasons for misinterpretations of the Quranic
verses. One, the courts usually rely on inauthentic translations, because the original sources are
in Arabic and Persian and thus, inaccessible. Secondly, personal laws of Muslims have not
been interfered with, by the legislators as they fear “agitations and reprisals by conservative
Muslims”.13

TALAQ-E-BIDDAT AND THE INDIAN JUDICIARY

Being the most controversial form of divorce, triple talaq has been on the judicial radar for a
long time. The first known instance comes from a leading case on divorce, in which Justice
Costello held that – “I regret that I have to come to the conclusion that as the law stands at
present, any Mohammedan may divorce his wife at his whim and caprice.”14

Justice Batchelor held that, “It is good in law, though bad in theology.”15

It is also pertinent to mention Justice Krishna Iyer’s opinion that, “The view that the Muslim
husband enjoys an arbitrary, unilateral power to inflict instant divorce does not accord with
Islamic injunctions.....Indeed a deeper study of the subject discloses a surprisingly rational,
realistic and modern law of divorce.”16

He further opined that, “It is a popular fallacy that a Muslim male enjoys, under Quranic law,
the unbridled authority to liquidate the marriage. The Holy Quran expressly forbids a man to
seek pretexts for divorcing his wife, so long as she remains faithful and obedient to him, if they
(namely women) obey you then do not seek a way against them...”

In Marium v Shamsi Alam17, it was held that - “A divorce pronounced thrice in one breath by
a Muslim husband would have no effect in law, if it was given without deliberation and without
any intention of effecting an irrevocable divorce, such divorce is a form of talaaq-e-ahsan, and
thus is revocable by the husband before the iddat expires.”

12
Ashraf (n 8).
13
Anees Ahmed, ‘Reforming Muslim Personal Law’ [2001] EPW 36.
14
Ahmad Kasim Malla v Khatoon Bibi 59 ILR Cal 833.
15
Sarabai v Rabia Bai ILR 30 Bom 537.
16
A Yusuf Rowther v Sowramma AIR 1971 Ker 261.
17
Marium v Shamsi Alam AIR 1979 All 257.

67
In Ziaudiin Ahmad v Anwar Begum,18 Justice Bahrul Islam held that, “Under Islamic law, a
divorce is not valid unless there is a reasonable cause for it, and it has been preceded by an
(unsuccessful) attempt at reconciliation by two arbiters representing the husband and the wife,
as required by the Quran.”

While in another case19, he stated that, “A Muslim husband has effected a divorce must be duly
proved. Even if proved, the court shall not recognize it, if it is not a valid divorce under Islamic
law.”

The approach of the judiciary on this matter has been progressive and rational. The next
important event in this timeline was in 1984, when a woman named Shahnaz Shaikh, who
headed Mumbai’s first feminist Muslim group, ‘Awaaz-e-Niswaan’, filed a writ petition in the
Supreme Court, challenging the validity of triple talaq. She contended that the arbitrary
exercise of this unilateral power is against Articles 14 and 15 of the Indian Constitution. This
was an important step, which could have been a milestone in the development of Muslim
personal laws regarding divorce. But due to the raging communal tensions in the country in the
wake of the Babri Masjid demolition, Shehnaaz Shaikh withdrew her petition as she did not
think the time was right to get courts to intervene in the personal laws of an already desolated
community.20

In the landmark judgment of 2002, Shamim Ara v. State of UP21, the apex court held that
unilateral triple divorce is valid only if it is justified and pronounced in front of witnesses. A
similar verdict was given in the Dagdu Pathan case22 wherein, it was held that the mere
recitation of oral divorce in front of the witnesses or the talaqnama was not sufficient to prove
divorce.

In both the above cases, the court did not abolish the right of Muslim men to give unconditional
divorce to their wives. It merely placed some restrictions on these privileges granted to men.
Thus, it has accommodated minorities’ sensibilities while protecting the rights of Muslim
women.23

18
Ziaudiin Ahmad v Anwar Begum AIR 1978 Guahati 145.
19
Must Rukia Khatun v Abdul Khalique Laskar AIR 1982 Gau 224.
20
Jyoti Punwani, ‘Muslim Women: Historic Demand for Change’ [2016] EPW 51.
21
Shamim Ara v State of UP AIR SCW 4162.
22
Dagdu v Rahimbi Dagdu Pathan 2003 (1) BomCR 740.
23
Solanki (n 4) 135.

68
It is important to understand that despite these judgments, women continue to get divorced
arbitrarily. One of the reasons behind this can be the failure of the lower courts to comply with
these judgments. Article 141 of the Indian Constitution states that:

“The law declared by the Supreme Court shall be binding on all courts within the territory of
India”

The doctrine of legal precedent holds that, following the dictates of the Supreme Court is the
duty of the lower courts.24 But the question which arises in this case is whether all the
judgments of the higher courts have the force of law. It is unclear when a precedent is
compelling enough to command judicial obedience from judges who resist it.25

Despite legal precedents, Family Courts have accepted unilateral divorces without examining
the conditions in which the divorce took place.26 Intricacies of Muslim personal laws are not
usually debated in Family Courts because judges and lawyers are unfamiliar with them.27

One major hindrance in the way of proper coordination between the lower and higher courts
on this matter is the communal outlook of some judges.28 The comments on Prophet Mohd in
the Shah Bano judgment attracted a lot of anger from the Muslim community in the country.
Judges therefore, usually avoid commenting on Muslim Personal law in their judgments to
avoid any controversy. Meanwhile, many of the women who come to Family Courts are
illiterate and unfamiliar with such judgments; on the other hand, most of the women do not
even approach courts and those who do, do not receive adequate legal representation.

Thus, although the higher courts have specifically ruled against the practice of triple talaq, the
lower courts fail to comply with those rulings in many cases. Therefore, in order to ensure the
conformity of lower courts, these laws need to be codified.

24
Evan H Carminker, ‘Why Must Inferior Courts Obey Supreme Court Precedents’ [1994] 46 SLR 815.
25
Randall Kelso & Charles D Kelso, ‘How the Supreme Court is dealing with precedents in constitutional
cases’ [1996] 62 Brook L Rev 973.
26
Solanki (n 4) 135.
27
NS v SK Family Court Records 2002.
28
Maitreyee Mukhopadyay, Legally Dispossessed: Gender, Identity and the Process of Law (Stree 1998).

69
THE ON-GOING DEBATE

TIMELINE OF EVENTS

The issue of the inherent inhumane nature of the practice of triple talaq is once again being
discussed aggressively. To understand the current debate and its implications, it is important to
trace the genesis of the debate.

In October 2015, the court, while hearing a case29 related to gender discrimination in the Hindu
Succession Act, 2005, directed the filing of a Public Interest Litigation (hereinafter PIL) against
the practice of triple talaq and polygamy and the subsequent deprivation of fundamental rights.

In February 2016, a PIL, titled “Muslim Women’s Quest for Equality”, came up before a bench
headed by the Chief Justice. The court accepted the application of the Jamiat-Ulema-e-Hind
(hereinafter JeH) seeking to be made a party in the case. The JeH contended that Muslim
Personal Law could not be challenged for violating fundamental rights because it was not
passed by the legislature and thus did not come within “laws in force” under Article 13 of the
Indian Constitution. The All India Muslim Personal Law Board (hereinafter AIMPLB) became
a party too.

Meanwhile, in December 2015, a lawyer belonging to the Bharatiya Janata Party (hereinafter
BJP) filed a PIL in the Supreme Court asking for the enactment of a Uniform Civil Code
(hereinafter UCC). However, Chief Justice T S Thakur refused to entertain the PIL. He stated
that the drafting of a Uniform Civil Code is a matter which comes within the purview of the
legislature. He also stated that, no Muslim woman had “questioned triple talaq on the ground
that it was discriminatory. If a victim of triple talaq comes to the court and questions the
validity of the procedure, we can surely examine the legality of triple talaq and find out whether
it violated her fundamental rights.”30

In February 2016, Shayara Bano, who had received triple talaq by speed post after 13 years of
marriage, filed a petition asking for striking down the practice of triple talaq, halala and
polygamy as they violated the fundamental rights guaranteed by the constitution. One month
later, Nisa, a Kerala based women’s organisation filed a similar petition. In May 2016, Afreen

29
Prakash v Phulwati Civil Appeal No 7217 of 2013.
30
Dhananjay Mahapatra, ‘Civil code: SC lobs ball to Parl, Keeps Door Open on Triple Talaq’ The Times of
India (Mumbai, 8 December 2015)
<http://epaperbeta.timesofindia.com/Article.aspx?eid=31804&articlexml=Civil-code-SC-lobs-ball-to-Parl-
keeps-08122015001046> accessed 20 October 2016.

70
Rahman, who had received triple talaq by speed post after 17 months of marriage, approached
the court with a similar grievance with the help of Bharatiya Muslim Mahila Andolan
(hereinafter BMMA). The BMMA obtained 50,000 signatures on the petition.

In June, an advocate associated with Rashtriya Swayamsevak Sangh (hereinafter RSS) –

affiliated Rashtrawadi Muslim Mahila Sangh asked for the codification of Muslim Personal
Laws. In August, Ishrat Jahan from Kolkata also filed a similar petition.

Several other organisations like the Bebaak collective and the All India Muslim Women
Personal Law Board have joined this fight. The centre, too, filed an affidavit, opposing the
practice of triple talaq on the grounds that it is violative of fundamental rights and is not an
integral part of the religion.

ARE PERSONAL LAWS OUTSIDE THE SCOPE OF ARTICLE 13?

One major argument of the orthodox Muslim community is that the Supreme Court cannot
interfere with their personal laws because they are of divine origin. They cannot be challenged
as being violative of fundamental rights under Article 13 of the Indian Constitution. Article 13
states that:

“(1) All laws in force in the territory of India immediately before the commencement of this
Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the
extent of such inconsistency, be void

(2) The State shall not make any law which takes away or abridges the rights conferred by this
Part and any law made in contravention of this clause shall, to the extent of the contravention,
be void

(3) In this article, unless the context otherwise requires law includes any Ordinance, order,
bye law, rule, regulation, notification, custom or usages having in the territory of India the
force of law; laws in force includes laws passed or made by Legislature or other competent
authority in the territory of India before the commencement of this Constitution....”

It has been argued that Muslim Personal Laws do not come within the definition of “laws in
force” according to Article 13 as they have not been enacted by the legislature.

71
The AIMPLB in its affidavit claimed, “The Supreme Court cannot rewrite personal laws in the
name of social reform. The validity of the rights in one religion can't be questioned by a court.
As per the Quran, divorce is essentially undesirable, but permissible”31

The contention of AIMPLB and others, that personal laws are not “state-made” laws is
erroneous. According to Tahir Mahmood,32 the uncodified Muslim law is in force in India not
as part of the Muslim religion [as Muslim religious leaders presume] but because of its
recognition by state legislation, mainly the Muslim Personal Law (Shariat) Application Act
193733. According to Section 2 of the act:34

“Notwithstanding any custom or usage to the contrary, in all questions (save questions relating
to agricultural land) regarding intestate succession, special property of females, including
personal property inherited or obtained under contract or gift or any other provision of
Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and
mubaraat, maintenance... the rule of decision in cases where the parties are Muslims shall be
the Muslim Personal law (Shariat).”

In addition to this, several other personal laws of Muslims have been recognised in statutes
enacted by the legislature. Section 129 of the Transfer of Property Act protects the Muslim law
of gift. The section states that:

“Nothing in this Chapter relates to gifts of moveable property made in contemplation of death,
or shall be deemed to affect any rule of Muhammadan law.”35

Similarly, Section 2 of the Dowry Prohibition Act, 196136, defines dowry as:

“In this Act, “dowry” means any property or valuable security given or agreed to be given
either directly or indirectly —

(a) By one party to a marriage to the other party to the marriage; or

31
The Hindu, ‘AIMPLB Affidavit Reignites Debate on Women’s Rights’ The Hindu (New Delhi, 22 September
2016) <https://thehindu.com/news/national/AIMPLB-affidavit-reignites-debate-on-womens-
rights/article14621976.ece> accessed 22 October 2016.
32
Tahir Mahmood, ‘There is no Immunity for Muslim Personal Law from the Jurisdiction of Supreme Court’
(Scroll, 30 March 2016) <http://scroll.in/article/805825/opinion-there-is-no-immunity-for-muslim-personal-law-
from-the-jurisdiction-of-supreme-court> accessed 25 October 2016.
33
ibid.
34
The Muslim Personal Law (Shariat) Application Act 1937, s 2.
35
Transfer of Property Act 1882, s 129.
36
Dowry Prohibition Act 1961, s 2.

72
(b) By the parent of either party to a marriage or by any other person, to either party to the
marriage or to any other person,

At or before or any time after the marriage in connection with the marriage of the said parties,
but does not include dower or mahr in the case of persons to whom the Muslim Personal Law
(Shariat) applies.”

Thus, it expressly protects the practice of giving Mahr or dower under the Muslim Personal
Law.

Thus, it is clear that some of the provisions of the personal law are expressly protected by the
legislative enactments mentioned above. In addition to these, the Muslim Personal Law
(Shariat) Application Act provides the authority to courts to decide issues on Muslim Personal
Law, even though the personal laws are not codified in any legislative statute. According to
Mahmood, there is no difference between the two types of authority.37

Apart from these legislations, the constitution too grants power to the central and state
governments to legislate on the issues related to personal laws. Entry 5 of the Concurrent list
in Schedule VII of the Indian Constitution includes:

“Marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint
family and partition; all matters in respect of which parties in judicial proceedings were
immediately before the commencement of this Constitution subject to their personal law.”

IS ABOLITION OF TRIPLE TALAQ AGAINST FREEDOM OF RELIGION?

Another argument given against abolition of triple talaq is the freedom of religion granted by
the constitution. The chief of Jamaat-e-Islami Hind stated that laws on divorce and polygamy
are “an intrinsic part of their religion and are hence obliged to follow the Sharia in those
matters”. However, the central government’s affidavit stated that, “validity of triple talaq and
polygamy should be seen in light of gender justice” and that triple talaq, polygamy and nikaah
halal “were not integral to the practices of Islam or essential religious practices.”38 It is a fact
that the freedom of religion conferred by the constitution is not an absolute one and is subject
to public order, morality and health. The state has the power to make laws for “regulating or
restricting any economic, financial, political or other secular activity which may be associated

37
Ashraf (n 8).
38
Utkarsh Anand, ‘Triple Talaq not Integral Part of the Religion: Centre in Supreme Court’ The Indian Express
(New Delhi, 13 October 2016) <http://indianexpress.com/article/india/india-news-india/triple-talaq-not-integral-
to-religion-centre-in-supreme-court-3071125/> accessed 22 October 2016.

73
with religious practice” and for “providing for social welfare and reform or the throwing open
of Hindu religious institutions of a public character to all classes and sections of Hindus.”39 It
is clear from the provisions of the article that freedom of religion guaranteed in the Indian
Constitution can be curbed by the judiciary in appropriate circumstances.

India, being a country with a rich cultural and religious diversity, is subject to conflicts between
religion and law. Dr. BR Ambedkar stated in the Constituent Assembly Debate40 on 2nd
December, 1948, that:

“The religious conceptions in this country are so vast that they cover every aspect of life, from
birth to death. There is nothing which is not religion and if personal law is to be saved, I am
sure about it that in social matters we will come to a standstill. I do not think it is possible to
accept a position of that sort. There is nothing extraordinary in saying that we ought to strive
hereafter to limit the definition of religion in such a manner that we shall not extend beyond
beliefs and such rituals as may be connected with ceremonials which are essentially religious.
It is not necessary that the sort of laws, for instance, laws relating to tenancy or laws relating
to succession should be governed by religion.”

The Indian judiciary has laid emphasis on the fact that the principles of equality and justice
would prevail over religious laws in a number of its decisions. In Ram Prasad Seth v State of
UP41, a law which prohibited bigamy for those in public employment was challenged. The
court held that bigamy “cannot be regarded as an integral part of a Hindu religion”. It stated
that even an adopted son can perform the funeral rites of his father, thus it isnot essential to
have a bigamous marriage in order to beget a son.

In another case42, it was held that sacrificing cows is not an integral part of the religion of Islam.
The court, in a case43, held that ‘tandava’ dance is not an integral part of the Anand Margi Sect;
therefore, police can prevent such a procession. One of the important cases related to essential
religious practices is Nikhil Soni v Union of India44, in which the Rajasthan High Court held
that the practice of Santhara, which includes systemic fasting unto death, is illegal because it
amounts to ‘attempt to suicide’.

39
The Constitution of India, art 25.
40
Constitutional Assembly Deb December 1948.
41
Ram Prasad Seth v State of UP AIR 1957 All 411.
42
Mohd Hanif Qureshi v State of Bihar AIR 1958 SC 731.
43
Acharya Jagadishwara Avadhuta v Commissioner of Police AIR 1984 SC 51.
44
DB Civil Writ Petition No 7414/2006.

74
The Bombay High Court recently allowed the entry of women into Haji Ali Dargah’s inner
sanctum. The court examined whether the prohibition of entry of women in the inner sanctum
of a shrine is an integral part of Islam or not. It held that an essential religious practice
must “constitute the very essence of that religion, and should be such, that if permitted, it will
change its fundamental character”45. The Haji Ali Dargah Trust failed to prove the same
before the court.

These decisions of various courts are an evidence of the fact that the judiciary has always placed
the principles of equality and non-discrimination on a higher pedestal than the rules and
traditions of a particular religion. However, the essential religious practice test has been
criticised on several grounds, one of them is the lack of legitimacy of the courts to decide
whether a certain practice is essential to a religion or not. Gary Jacobsohn has noted that it has
become ‘an internal level of reform’ by holding that certain regressive practices do not
constitute ‘essential’ parts of a religion, the Court not only denies them constitutional
protection, but also recharacterises the religion in a more progressive light.46 Thus, the validity
of this test is yet to be determined by a lucid Supreme Court judgment.

It is upon the judiciary to decide whether it wants to go down this road or not, because even if
it doesn’t, there are many other arguments in favour of the abolition of the practice of triple
talaq.

POSITION OF OTHER COUNTRIES

It has been consistently contended by women’s organisations that triple talaq’s redundancy is
proved by the fact that 22 Muslim countries have done away with this practice. The Hanbali
scholar, Ibn Taimiyah, stated that three pronouncements of the word ‘talaq’ in one sitting would
be counted as one. Therefore, this divorce would be revocable. This view has been adopted by
many countries. Egypt was the first one to do so. Later, countries like Sudan, Syria, UAE,
Qatar, Iraq, Jordan, Indonesia, Tunisia,etc. followed suit.47 In Pakistan, Section 7 of the Muslim
Family Law Ordinance, 1961 has impliedly abolished triple talaq.

45
Dr Noorjehan Safia Niaz v State of Maharashtra [2015] PIL No 106 of 2014.
46
Gary Jeffrey Jacobsohn, The Wheel of Law: India’s Secularism in Comparative Constitutional Context
(Princeton University Press 2005).
47
Ajaz Ashraf, ‘If Pakistan and 21 Other Countries have Abolished Triple Talaq, Why Can’t India?’ (Scroll, 18
April 2016) <http://scroll.in/article/806299/if-pakistan-and-21-other-counties-have-abolished-triple-talaq-why-
shouldnt-india> accessed 23 October 2016.

75
According to Prof Tahir Mahmood, India is unable to change the Muslim Personal Laws
because of the ‘minority syndrome’. In an interview48, he explains this by giving the example
of Bangladesh, where Hindus are in a minority (12%). There has been no change in the Hindu
laws of the country since its independence. On the other hand, Muslim laws in the country have
undergone a number of changes and the practice of triple talaq has also been abolished. The
same argument can be given in the case of India, where Muslims are in a minority (14.2%).49
However, this argument fails when we look at the case of Sri Lanka, where the Muslim
population is a little less than 10%.50 Sri Lanka’s Marriage and Divorce (Muslim) Act, 1951
requires that a husband who wishes to divorce his wife should give notice of his intention to
the qazi who will then attempt reconciliation between the parties. Thus, it abides by the Quranic
law of arbitration before divorce.

THE EMERGING CONSENSUS

It has been argued by certain religious extremists that abolishing the practice of triple talaq is
an attempt at eroding the religious identity of the Muslim community. However, there are
numerous examples which show that Muslims themselves have been opposing this unjust
practice for a long time. After the Babri Masjid demolitions, standard nikahnamas (marriage
contracts) were drawn which prescribed the Quranic method of divorce (which included
arbitration) and also punishments for the men who violated it. However, the AIMPLB never
supported this. It drew up its own nikahnama in 2005, which did not prescribe any punishments
in case of violations.51

Bhartiya Muslim Mahila Andolan conducted a survey of 5000 Muslim women across 10 states
in 2015 which showed that 92% of the women wanted a ban on oral/unilateral divorce.
Similarly, 92% of the women wanted the practice of polygamy to be abolished.52

The biggest hurdle faced by Muslim women as far as triple talaq is concerned, is the absence
of a concrete law which expressly declares the practice as unconstitutional. All they have today
is a pile of judgments. There is an emerging consensus that Muslim Personal Laws should be

48
Ashraf (n 8).
49
Census of India 2011.
50
Ashraf (n 47).
51
Jyoti Punwani (n 20).
52
Dr Noorjehan Safia Niaz and Zakia Soman, ‘Seeking Justice within Family: A National Study on Muslim
Women’s Views on Reforms in Muslim Personal Law’ (Bhartiya Muslim Mahila Andolan, March 2015)
<https://bmmaindia.com/2015/08/10/bmma-publication-seeking-justice-within-family-a-national-study-on-
muslim-womens-views-on-reforms-in-muslim-personal-law/> accessed on 24 October 2016.

76
codified. This would be helpful in eradicating the confusion caused by numerous
interpretations of the Holy Quran by different jurists.

The government, even before independence, neglected the demands of the minority
communities. Under the British rule, these matters were not touched upon as they were
considered to be ‘sensitive’ issues. Not much has changed even after 69 years of independence.
The government’s approach towards personal laws is still tainted with the fear of stirring up
controversies. Even though the codification of Hindu personal laws began as early as 1955 with
the Hindu Marriage Act, none of the aspects of the Muslim personal laws have been codified
yet. This can, once again, be attributed to the ‘minority syndrome’.

CONCLUSION

Triple talaq, in its present form, is an inhumane and appalling practice, which needs to be done
away with. It would not be wrong to conclude that there is a budding consensus among all the
communities that this practice should be brought to an end. A large chunk of the Muslim
community has demanded for codification of the Muslim personal laws. The codification of
these laws can prove to be a successful step towards erasing the deeply embedded gender bias
in society. There have been demands for a Uniform Civil Code by certain groups. However, in
the present scenario, these demands seem to be motivated by political desires. The most
appropriate step would be codification of Muslim personal laws by experts who are well
acquainted with all the sources-primary and secondary, of these laws. This would help in
removing all the confusion caused by different interpretations of the same sources. Muslim
personal laws need lucidity and specificity, which can be brought by codification.

77
 ASCHEMATISING THE POSITION OF COMMON LAW
NATIONS: AN ANALYSIS OF ADMISSIBILITY OF EXPERT
EVIDENCE
 DEVERSHI MISHRA & KOMAL KHARE

INTRODUCTION

“Undoubtedly there is a natural bias to do something serviceable for those who employ you
and adequately remunerate you. It is very natural, and it is so effectual, that we constantly
see persons, instead of considering themselves witnesses, rather consider themselves as the
paid agents of the person who employs them.”1

As our technology and legal system matured, use of expert evidence has gained prominence
and is ever pervasive. In cases involving the question of science toxic tort, the process of
imparting untainted justice depends significantly on expert evidence. The perils associated with
the procedure of inviting expert opinion have increased and attracted attention over time.
Historically, the neutrality and unbiasedness in expert opinion was guarded by two systems,
wherein judges who were expert in the matter in issue and the potential expert witness both
were called to conclude the matter with a well-reasoned decision.2 This method eventually lost
its essence and use of Professional Expert witnesses became more frequent within the legal
circuit.3 Gradually, however, various problems associated with expert evidence became very
apparent.4

With the increase in the inconsistencies in relation to the expert testimonies, the common law
countries became cautious and acknowledged the possibility of flawed expert evidence due to
human fallibility. Thereon, not only common law countries but the world community started
hosting modification regarding expert evidence in their own jurisdiction.5


NALSAR University of Law, Hyderabad.
1
Lord Abinger v Ashton [1873] 17 L R E Q 358, 374 (Can).
2
Learned Hand, ‘Historical and Practical Considerations Regarding Expert Testimony’ (1901) 15 Harvard L R
40.
3
R v D D (2000) SCC 43 (Can).
4
R v J L J (2000) SCC (Can).
5
Bernard Robertson and GA Vignaux, ‘Expert Evidence: Law, Practice and Probability Review Article’ (1992)
12 Oxford Journal of Legal Studies 392.

78
Over the past two-three decades, we have witnessed a trend towards formal recognition of
expert evidence laws in various common law nations. The impact of Woolf’s “Access to
Justice”6 report in England, dominance of Daubert standard in U.S., impact of Australian Law
Reform Commission in Australia, and formulation of expert duties in Canada are a few
instances of the same.

The present study deals with the development of expert evidence laws in five common law
countries, namely, U.S.A, Canada, Australia, England and India. The study seeks to examine
the evolution of expert evidence and additionally, the reactions of the abovementioned nations
to the need of tackling the hurdles of partiality and unaccountability associated with expert
evidence.

UNITED STATES OF AMERICA: SUSTAINMENT OF DAUBERT

STANDARDS THROUGH JOINER, KUMHO AND RULE 702

REIGN OF DAUBERT TRILOGY AND STANDARDS

The U.S. federal system encompasses not only the Federal Courts but also fifty State Courts.
In recent times, an expectation has surfaced that the judges will play the role of “gate keeper”
in controlling the admission of expert opinion evidence. Most of the jurisdictions follow one
of the two principal approaches laid down in the leading cases of Frye v. United States7
[Hereinafter ‘Frye’] and Daubert v. Merrell Dow Pharmaceuticals8 [Hereinafter ‘Daubert’]
Even though Daubert is commonly described as a four-five part test, it actually is only a two-
part test which derives its source from Rule 702 of the Federal Rule of Evidence (FRE). 9 For
an evidence to be admissible under the Daubert standard, two conditions need to be fulfilled:
reliability and relevance.10 It was by way of explaining the “reliability” criterion, that the court
formulated four-five other criteria: (i) testing, (ii) peer review and publication, (iii) error rate
and standards,11 and (iv) general acceptance in the relevant scientific community.12 These

6
Sir Harry Woolf, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in
England and Wales (HM Stationery Office 1996).
7
Frye v United States 293 F 1013 (DC Cir 1923).
8
Daubert v Merrell Dow Pharmaceuticals 509 US 579 (1993).
9
ibid 588-89.
10
Daubert (n 8) 594-95.
11
Bond v State, 925 N E 2d 773, 779 (Ind Ct App 2010).
12
Gary Edmond, ‘Supersizing Daubert Science for Litigation and Its Implications for Legal Practice and
Scientific Research Symposium: Expertise in the Courtroom: Scientists and Wizards - Panel Three: Science,
Scientists and Ethics’ (2007) 52 Villanova L R 857.

79
criterions were never formulated with the intention of being used as a checklist, but as a flexible
standard to be utilized to determine the admissibility of evidence, while adjudicating.

Daubert was further explained in the two appeals before the Supreme Court: Electric v. Joiner13
[Hereinafter ‘Joiner’] and Kumho Tire v. Carmichael14 [Hereinafter ‘Kumho’], which together
constitute the Daubert Trilogy. Emphasizing the significance of flexibility in Kumho, the court
explicated that the Daubert criteria may be utilized to determine the admissibility of non-
scientific form of expert evidence, i.e., “technical” and “other specialized knowledge.”15
Joiner, significantly states that the standard of review adopted by the state courts to determine
the admissibility of evidence is “abuse of discretion.”16 As a result, decisions determining the
admissibility are not subject to strict review, and similar type of expert evidence can be treated
differently in cases, courtrooms, across jurisdiction, and in the future.

DISTINCTION BETWEEN FRYE AND DAUBERT AND INCEPTION OF RULE 702

Rule 702 of the FRE, which formed the basis of Daubert and Kumho, was amended in the year
2000, in order to meet the requirement of “reliability” more explicitly.17 It reads as:

A witness, who is qualified as an expert by knowledge, skill, experience, training, or education,

may testify thereto in the form of an opinion or otherwise if: (a) The expert’s scientific,
technical, or other specialized knowledge will help the trier of fact to understand the evidence
or to determine a fact in issue; (b) The testimony is based on sufficient facts or data; (c) The
testimony is the product of reliable principles and methods; and (d) The expert has reliably
applied the principles and methods to the facts of the case.18

However, the efficacy of the amended version seems limited and is largely understood as
statutory codification of Daubert and Kumho.

Around sixteen states in U.S., some being among the most populous, continue to follow
“general acceptance” principle laid down in the Frye judgement.19 The Frye approach is

13
Electric v Joiner 522 US 136 (1997).
14
Kumho Tire v Carmichael 526 US 137 (1999); See D Michael Risinger, ‘Goodbye to All That, or a Fool’s
Errand, By One of the Fools: How I Stopped Worrying about Court Responses to Handwriting Identification
(and Forensic Science in General) and Learned to Love Misinterpretations of Kumho Tire v Carmichael
Symposium: Daubert, Innocence, and the Future of Forensic Science’ (2007) 43 Tulsa L R 447.
15
Kumho (n 14) 147-48.
16
Joiner (n 13) 141.
17
Fed R Evi 702(c) (2000).
18
ibid.
19
Alice B Lustre, Annotation, ‘Post-Daubert Standards for Admissibility of Scientific and ther Expert Evidence
in State Courts’ (2011) 90 ALR 5 453.

80
popularly called “deference” approach as under this approach, the trial judges tend to focus on
how the “scientist community” is best placed to evaluate the evidence, rather than asking the
trial judge to evaluate the validity and reliability of the evidence in place.20

Daubert test focus on the reliability of the evidence being presented in the court. Thus, while
Frye standard talks about the general acceptability of the expert evidence, Daubert, on the other
hand, is more case-centered at the inherent reliability of the expert opinion.

Today, around twenty nine states in US follow Daubert or a similar model.21 It is also described
as ‘reliability validity’ model.22 The principle contribution of Daubert, as opposed to Frye, is
that it mandates the trial court to initiate a separate assessment of the evidence to determine its
admissibility.23 This feature of Daubert has been criticized, especially by Chief Justice
Rehnquist, for its presumption that Judges who lack scientific training, are assumed competent
enough to decide upon scientific evidence.24

IGNORING FINKELSTEIN: INJUDICIOUS OUTLOOK TOWARDS EVOLUTION

OF EXPERT WITNESS LAWS

The troubling issue attached to Rule 702 is its unforthcoming attitude towards the statutory
codification of the independence of expert witness, which makes it similar to Daubert standard.
In U.S., Federal Judicial Centre has also pointed this apprehension extensively and raised
concern about the admissibility of the expert evidence. The Centre has extensively been able
to prove that bias remains the most controversial topic in the U.S. evidence law. In Finkelstein
v. Liberty Digital,25 judges affirmed that often biased contributions are made by the experts
claiming to have academic and scientific expertise.26

CANADA: CRYSTALLIZATION OF FOUR FUNDAMENTAL

REQUIREMENTS ALONG WITH COST-BENEFIT ANALYSIS

20
Paul C Giannelli, ‘The Admissibility of Novel Scientific Evidence: Frye v United States, a Half-Century
Later’ (1980) 80 Columbia Law Review 1197.
21
David E Bernstein and Jeffrey D Jackson, ‘The Daubert Trilogy in the States Developments’ (2003) 44
Jurimetrics 351.
22
David H Kaye, The New Wigmore: A Treatise on Evidence : Expert Evidence (Aspen Publishers 2011).
23
Daubert (n 8) 585-593.
24
ibid 600-601.
25
30 Del J Corp L (2005).
26
ibid.

81
Supreme Court of Canada has clearly laid down the criterion for the admissibility of expert
evidence, securing "reliability ... and emphasizing the important role that judges should play
as 'gatekeepers' to screen out proposed evidence whose value does not justify the risk of
confusion, time, and expense that may result from its admission.”27 Canadian Supreme Court
in R v. Mohan28 formulated a two-point test to decide the admissibility of expert evidence:

A. The individual giving the evidence must meet the four basic requirements of
admissibility.
B. If the basic requirement is fulfilled, then the trial judge should perform a cost-benefit
analysis to decide "whether otherwise admissible expert evidence should be excluded
because its probative value is overborne by its prejudicial effect."29

FUNDAMENTAL REQUIREMENTS FOR THE ADMISSIBILITY OF EVIDENCE

Canadian Courts examine the following four factors in determining the admissibility of expert
evidence- relevance, absence of an exclusionary rule, necessity in assisting the trier of facts
and a qualified expert.30 Courts consider one more factor i.e., reliability, if Novel Science is
contested in any case.31 The abovementioned four requirements form the basic premise that
needs to be satisfied for the admissibility of expert evidence; any evidence failing these
requirements is rendered inadmissible.32 Once these conditions are met, only then does the
evidence proceeds to the second level of “discretionary gatekeeping” step.33

i. Relevance
Expert evidence, like any other evidence, must be relevant.34 In White Burgess Langille
Inman, Court adopted the R v. Abbey definition of relevancy as “logical relevancy.”35
To be logically relevant, evidence must “have a tendency as a matter of human
experience and logic to make the existence or non-existence of a fact in issue more or
less likely than it would be without the evidence.”36
ii. Absence of exclusionary rule

27
White Burgess Langille Inman (2015) SCC 23 [16].
28
R v Mohan [1994] 2 SCR 10-12, 20-25.
29
White Burgess Langille Inman (2015) SCC 23 [19].
30
ibid.
31
ibid 23.
32
ibid.
33
White Burgess Langille Inman (2015) SCC 23 [19].
34
Mohan (n 28).
35
White Burgess Langille Inman (2015) SCC 23 [23]; R v Abbey 2009 ONCA 624 [82]).
36
R v Abbey, 2009 ONCA 624 [82].

82
 Due to the existing parallelism between expert and any other form of evidence, expert
evidence must adhere to all exclusionary rules, whether statutory or otherwise, to be
admissible.37
iii. Necessity in assisting the trier of facts
This standard requires that the evidence presented must necessarily be beyond the
expertise and knowledge of the judges.38 Further, expert evidence provided must enable
the trier of facts, to assist the matter in issue, due to their technical nature.39
iv. Qualified expert
An expert, by virtue of being a witness, has some duties towards the court to maintain-
impartiality, independence and absence of bias.40 He must be aware of these duties and
must be willing to carry them out.41 To meet this standard, expert is required to attest
and testify that he will be discharging these duties towards the court.42
v. Reliability
Canadian courts have followed the US Daubert decision to decide reliability of the
expert evidence in the context of disputed Novel Science.43 For his purpose, court looks
into factors like: (1) “whether the theory or technique can be and has been tested;” (2)
“whether the theory or technique has been subjected to peer review and publication;”
(3) “the known or potential rate of error or the existence of standards;” and (4) “whether
the theory or technique used has been generally accepted.” 44

COST-BENEFIT ANALYSIS

As per this standard, accepted expert evidence will not be allowed if its probative value
overshadows the prejudicial effect.45 Before White Burgess Langille Inman, the pressing

37
Mohan (n 28).
38
ibid 23.
39
ibid.
40
White Burgess Langille Inman (2015) SCC 23 [32].
41
ibid [46].
42
ibid [47].
43
J-LJ (2000) SCC 51[33]; Daubert v Merrell Dow Pharmaceuticals 509 US 579 (1993).
44
ibid.
45
White Burgess Langille Inman (2015) SCC 23 [19].

83
significance of cost benefit analysis used to be emphasised but without the explanation about
its space in the overall test.46 But in this case, the court made it clear that the risks associated
with expert evidence cannot be ignored, and mere relevance and assistance of the evidence is
not enough for its admissibility.47 This standard ensures the balancing of benefits and risks
associated with expert evidence by judges and assure that benefits justify the risks.48

ENGLAND: ESTABLISHING THE PREMISE OF EXPERT LIABILITY

THROUGH WOOLF REPORT

In Pearce v. O.A. Partnership49, the court discussed the need to reformulate evidence laws to
prevent the expert witnesses from developing the contentions of the advocates recruiting them,
impartially. Justice Woolf in his report “Access to Justice”50 carved out various reforms and
suggestion pertaining to Expert evidence in England. Lord Woolf felt that the greatest difficulty
faced by expert witnesses was to maintain neutrality in face of the authoritative ambit of their
instructor. This complication arose from the fact that experts are initially recruited by an
investigating team to work for a party and develop their contention, and are then expected to
alter their roles to provide independent advice sought by the court.51 Further, he suggested that
new rules should be formulated to establish the overriding duty of the expert towards the court.
Following are essential highlights of Woolf Report:

 The primary duty of the expert lies with the court, and this duty overrides any obligation
arising out of the directives or enumeration received by an expert from any party.
 Experts must certify at the end of the report submitted that they understand and comply
with their duty towards the court.
 It is necessary to have the sanction of the court before calling or introducing expert
opinion as evidence.
 The court at any stage may call for discussion among the expert for an agreed opinion
or for reaching consensus on any issue where contention among experts, with
substantive reasoning exists.

46
ibid 20.
47
ibid 23.
48
ibid 24.
49
2001 EWHC Ch 455.
50
Woolf (n 6).
51
ibid.

84
IMPACT OF THE WOOLF REPORT: ENUMERATION OF THE DUTIES

Following the recommendation of Justice Woolf, new Civil Procedure Rules (1999) were
formulated in England. Under the new civil procedure rules, it is the duty of an expert to help
the court on matters within their expertise and this duty overrides any obligation to the person
from whom experts have received instructions or by whom they are paid.52 Further, at the end
of an expert’s report there must be a statement that the expert understands and has complied
with their duty to the court.53 The duties of the expert witnesses are as follows:

 Expert evidence must not only be independent of exigencies of litigation, but should
also appear to be independent and uninfluenced.54
 Expert witness should also assist the court by providing objective unbiased opinion
with respect to the matters within their expertise.55
 Expert witness should clearly state the material facts and assumption on which they
premise their opinion. They should not consider omitting those material facts which
could detract from their stated opinion.56
 They should clearly state if something falls outside the range of their expertise.
 If, in the opinion of the expert, evidence given is not properly researched due to lack of
data, then he must state that opinion evidence provided is a just a provisional one. 57 In
cases where an expert witness who has prepared a report could not assert that the report
contained the truth, the whole truth and nothing but the truth without some qualification,
that qualification should be stated in the report.
 If the expert witnesses alter their views after reading the other side’s report or for any
other reason, then that alteration must be communicated to the other party without any
further delay.

REPERCUSSIONS OF NON-COMPLIANCE WITH THE DUTIES

In Jones v. Kaney,58 the Supreme Court of United Kingdom clearly held that immunity from
danages cannot be attributed to the experts in civil cases if they are negligent in discharging his

52
Civil Procedure Rules 1999, s 35.3.
53
Civil Procedure Rules 1999, s 35.10 (2).
54
Whitehouse v Jordan [1981] 1 W L R 246.
55
Pollivitte Ltd v Commercial Union Assurance Company [1987] 1 Lloyd's Rep 379; Re J (1990) FCR 193.
56
Re J (1990) FCR 193.
57
ibid.
58
[2011] UKSC 13.

85
duties. Failure of compliance with an expert’s duties can result in the inadmissibility of
evidence provided by him. The court can also reject the evidence tabled, which is otherwise
admissible, if it develops unfavourable mindset about the impartiality of the expert providing
it. There is suggestion in this respect that even unsubstantiated report of the expert, which does
not fully adhere to civil procedure rules, must be tabled in the court, so that court can decide
about its admissibility and reliability on their own.59 Parallel situation arose in Anglo Group
Plc v Winter Brown,60 wherein an expert witness wrote an article expressing his views on expert
evidence and the duty of expert witnesses towards his/her instructor, in addition to his
testimony. The Judge dismissed the expert evidence citing skepticism about it.

AUSTRALIA: MANIFESTATION OF JUDICIAL PROGRESSIVENESS

THROUGH ‘COMMON KNOWLEDGE’ AND ‘ULTIMATE ISSUE’ TO
THE PRESENT LAWS

MAINTAINING THE STANDARDS: PAST TO PRESENT DEALING

Australia has always enjoyed the reputation of rigid common law jurisdiction with respect to
expert witness provisions.61 Australia, for a very long period of time, witnessed the application
of two standards, ‘Common Knowledge’ rule and ‘Ultimate Issue’ rule.62 According to
‘Common Knowledge’ rule, the court decides whether the jury is sufficiently capable to
adjudicate upon a certain matter. This not only bars the entertainment of false expert
testimonies in the court but also prevents the judges to be unduly influenced in an adversarial
system. While ‘Ultimate Issue’ rule introduced in Flavels v. Samuels, mandates the presence
of rigorous admissibility standard of expert evidence.63 The court has propounded that expert
evidence should be allowed only when it is absolutely necessary for deciding the matter in
issue, and without which proper justice delivery cannot be assured. In fact, reading of R v.
Isobel Phillips64 suggests that evolution of Australian cases has been in a way that it
significantly improvised the admissibility standard of expert evidence, warranting unbiased
opinion and illustrious accountability in the Justice system.65

59
Burgoyne v Pendlebury July 26, 2000.
60
2000 EWHC Technology 127.
61
Practice Note CM7, Federal Court of Australia 2011.
62
Australian Law Reform Commission, The Movement Towards A Uniform Evidence Law, 2014.
63
ibid.
64
ibid.
65
ibid.

86
In contemporary Australia, Section 79 of the Uniform Evidence Act, 1995 guarantees the
provision allowing for the admissibility of expert evidence, which is also followed by similar
statutes in other jurisdiction. However, this provision only refers to the admissibility of the
opinion of a person possessing special knowledge as an exception to the rule against opinion
evidence. Furthermore, the act is silent on the operation of this exception and the duties
expected from an expert.

SAME WINE IN DIFFERENT GLASSES

 Federal court
The Federal court in Australia has affected Practice direction for dealing with expert witnesses.
These practice direction largely derive their source from the guidelines of Civil Procedure
Rules [Hereinafter ‘CPR’] and Ikerian Reefer.66 The explanation of the memorandum of this
Practice Direction explicates that these provisions aim to aid the expert witnesses in
understanding the court’s expectations with respect to their duties, and to ensure a restriction
on perpetuation of unhealthy viewpoint of an expert as someone lacking objectivity and
promoting impartiality.67

Part one of the Practice Direction states that the primary duty of the expert witnesses lies with
the court, which overrides their duty towards any other person.68 Furthermore, many states in
Australia formulated their own code to guide the duties and obligation of expert witnesses.

 New South Wales

For instance, in New South Wales, Uniform Civil Procedure Rules (2005) were enacted, under
Section 9 of the Civil Procedure Act, 2005. Schedule 7 of the Act contains the code of conduct
for an expert witness.69 This code is largely influenced by common law principles, provisions
of England’s Civil Procedure Rules and the Ikerian Reefer guidelines, all of which aver the
need of an expert witness to not to act as a party’s advocate but function independently and
impartially.

Uniform Civil Procedure Rules also contains a section dealing with essentials of an expert
report. But interestingly, NSW Law Reform Commission in its reports suggested the deletion
of the provisos dealing with the numerous forms of expert evidence, instead of duties of

66
(1993) 20 FSR 563.
67
ibid.
68
ibid.
69
Supreme Court Rules 1970 (NSW) Part 36 rules 13C ff.

87
experts, because in the commission’s view too many procedural provisions might impact the
efficacy of the Code.70 In the Commission’s view, it would be better to accord separate space
to the procedural provisions by incorporating them in a Practice note or rule.71

 Queensland
Likewise in Queensland, Uniform Civil Procedure Rules 1999, rules 423 to 429, and 212(2)
governs the expert witness laws. Unlike NSW, these rules are procedural in nature and do not
prescribe a code of conduct for the expert witness, but they make inferential reference to the
duty owed by experts towards the court. These procedural requirements were basically
articulated to ensure reflection of expert obligations towards the court. An example would be
rule 436 of UCPR, which requires submission of the report and attestation by the expert,
reflecting overarching duty of the experts towards against the court.72

 Australian Capital Territory (ACT)

Australian Capital Territory witnessed a major overhaul of the system with the inauguration of
the Court Procedural Rules in 2006. Primary motivation for the introduction of these rules was
reform and consolidation of all the procedural rules applicable to ACT Supreme and Magistrate
court.73

Part 2.12 incorporates the guidelines governing expert witness rules. Rule 1202 of the Part
mandates the submission of written agreement by the expert, wherein he agrees to be bound by
the code of conduct enlisted in Schedule 1 of the Rules.

The code of conduct includes the conduct rules of the expert witnesses that were previously
mentioned in the practice direction, with slight additional inclusion of provisions from New
South Wales and Queensland. The code initiates with the reference to expert witnesses
overriding duty towards the court and goes on to state the format of the expert witness report.

70
NSW Law Reform Commission, Report 109, Expert Witnesses (June 2005) at 9.15; Community Relations
Division and NSW Department of Justice, ‘Expert Witnesses’ (1 September 2015)
<www.lawreform.justice.nsw.gov.au/Pages/lrc/lrc_completed_projects/lrc_completedprojects2000_2009/lrc_ex
pertwitnesses.aspx> accessed 24 September 2016.
71
ibid 9.
72
Wilson J, ‘The New Expert Witness Rules’ Breakfast Address to Australian Insurance Law Association
Brisbane Club (28 October 2004).
73
Explanatory Statement to the Court Procedure Rules 2006 SL2006-29 available at:
<www.courts.act.gov.au/supreme/content/pdfs/Ct%20Procedures%20Rules%202006%20Explanatory%20State
ment.pdf > accessed 24 September 2016.

88
The fourth part of the code empowers the court to summon a conference of expert witnesses
and list out rules governing such conferences.

 Professional Bodies
Professional bodies in Australia whose members may be called upon to undergo the role of an
expert witness have also articulated their Code enumerating the guidelines for the experts. For
instance, Australian Council of Professions has their own guidance paper detailing the role and
duties of experts, if called as expert witness in any legal matter.74

INDIA: AUGMENTING THE NEED FOR CODIFICATION THROUGH

EXPERT WITNESS STANDARDS ESTABLISHED IN LANDMARK
JUDICIAL DECISIONS

EXPERT EVIDENCE AND INDIAN EVIDENCE ACT, 1872

Expert evidence is dealt from Section 45 to 51 under the Indian Evidence Act, 1872. Section
4575 of the Act allows expert evidence in cases which involve any question of science or art
demanding recourse to previous study, and on which an inexperienced person is likely to render
erroneous judgement. The Act permits an expert to produce evidence pertaining to the fact in
issue and display his scientific and unbiased credibility. Section 4676 says that facts, otherwise
irrelevant, would be relevant if they are inconsistent or support the opinion rendered by an
expert whose opinion is relevant. Section 4777 deals exclusively with the opinion of experts
with respect to handwriting, while admissibility of opinion evidence relating to customs is
permitted under section 48.78

74
Professions Australia ―Role and Duties of an Expert Witness in Litigation (1998) available at:
<www.professions.com.au/index.cfm?paraID=61> accessed on 25 September 2016.
75
S 45 - Opinions of experts —When the Court has to form an opinion upon a point of foreign law or of science
or art, or as to identity of handwriting [or finger impressions], the opinions upon that point of persons specially
skilled in such foreign law, science or art, [or in questions as to identity of handwriting] [or finger impressions]
are relevant facts. Such persons are called experts.
76
S 46 - Facts bearing upon opinions of experts—Facts not otherwise relevant, are relevant if they support or
are inconsistent with the opinions of experts, when such opinions are relevant.
77
S 47 - Opinion as to handwriting, when relevant.—When the Court has to form an opinion as to the person by
whom any document was written or signed, the opinion of any person acquainted with the handwriting of the
person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is
a relevant fact.
78
S 48 - Opinion as to existence of right or custom, when relevant.—When the Court has to form an opinion as
to the existence of any general custom or right, the opinions, as to the existence of such custom or right, of
persons who would be likely to know of its existence if it existed, are relevant.

89
UNDERSTANDING THE EVOLUTION THROUGH LANDMARKS CASES AND
THE NEED FOR CODIFICATION

In Delhi Administration v. Pali Ram,79 the court elucidated that, “no expert could be absolutely
sure of his opinion, as the opinion depends to a large extent upon the material put before him
and the nature of the question asked.”

In Ramesh Chandra Agarwal v. Regency Hospital Ltd,80 court defined expert as any person
who invested his study and time to a special subject of learning. It was said that expert is not a
judge but a mere witness possessing credibility. Further, in order to admit expert witness’s
evidence, it must be shown that he possesses special knowledge of the subject and has expertise
appertaining to the same. The true function of an expert is to bring forth a report along with
reason which helped him reach the conclusion, so that the court, who although is not expert,
can pronounce a judgement, based on its observation of the report. An expert witness is of
advisory character due to the absence of first-hand witnessing of the fact in issue. Hence, the
duty of the expert is to render all scientific/specialised assistance to inspect accuracy of a
conclusion, so that the judge can deliver a judgement by relying on those standards.

Further, in State of Maharashtra v. Gopinath Shinde,81 it was held that mere assertion or
mention without prudent rationale basis or data cannot be counted as evidence, even if it is
produced by an expert. The court also said that such evidence although admissible, may be
discarded or rendered inconsiderable later when it does not assist in reaching a correct
judgment. Hence, expert opinion needs to be corroborated. Supreme Court through this
decision, in a way, raised the standard of admissibility of expert evidence.

In Kabul Singh v. Gurinder Singh,82 expert opinion regarding handwriting was sought.
However, if in addition to the opinion sought, expert also delivers some opinion which was not
required, such an opinion would be ignored. It further held that, unsought opinion should not
be delivered and expert should limit their opinion to relevant facts and what is required to
render justice. Furthermore, in cases where probability of the expert opinion going in favor of
the party inviting them exists, and a possibility of conflict of opinion between the experts, the
court in such cases can formulate and rely on its own opinion vis-à-vis signature on a

79
Delhi Administration v Pali Ram (1979) 2 SCC 158.
80
Ramesh Chandra Agarwal v Regency Hospital Ltd (2009) 9 SCC 709.
81
State of Maharashtra v Gopinath Shinde AIR 2000 SC 1691.
82
Kabul Singh v Gurinder Singh PLR (1999) 121 P&H 816.

90
documents or any such issue. This case is important in two aspects: first, it absolutely
discouraged judicial interpretation of any additional expert opinion provided and second, it
mandated an expert to maintain an unbiased attitude.

In Malay Kumar Ganguly v. Dr. Sukumar Mukherjee,83 in response to whether courts are bound
by the opinion submitted to them on a particular fact in issue, court held that courts are not at
all bound by the expert evidence delivered, which are basically advisory in nature. The court
further added that it has the right to admit only that portion of the expert evidence which it
considers necessary.

CONCLUSION

The present study of expert evidence within common law nations suggests a trend towards
increased codification of expert evidence laws in various nations. It is submitted that
codification is a healthy and welcome step, if taken in the right direction. However, it is
essential to ensure the formulation of a well developed expert law, outlining the rights,
functions and standard of duty for expert witnesses and the consequences of failure to non-
compliance with these standards. Well codified laws can ensure the liability of the expert giving
false testimony, as that testimony given can be used subsequently to indict him.

Canada has been quite successful in launching potential steps towards modification of expert
evidence laws to ensure unbiasedness and objectivity. In Canada, the expert is liable to
specifically declare that his primary duty lies towards the court. This declaration warrants
liability of the expert witness as mentioned above. Furthermore in Canada, expert is
necessitated to pass the two point test laid down in R v. Mohan for the admissibility of his
evidence. Under the aforementioned test, firstly, expert is required to meet the four basic
admissibility criteria and secondly, the probative value given by the expert must not
overshadow the prejudicial effect.

England has also maintained decent expert evidence standards by incorporating the changes
suggested by Woolf report. In England, duty of the expert witness lies towards the court and
he is required to certify that he understands those duties and will comply with them.
Additionally, an expert is required to procure the approval of the court before the admissibility

83
Malay Kumar Ganguly v Dr Sukumar Mukherjee (2009) 9 SCC 221.

91
of the evidence. These steps have proven effective in ensuring objectivity and impartiality of
expert opinion in England.

In Australia, the use of ‘Ultimate Issue rule’ and ‘Common Knowledge rule’ for a very long
period of time had guaranteed the authenticity of expert evidence. Moreover, Australian courts
have declared that the mechanism of expert evidence should be employed only when it is
absolutely necessary for deciding the case. Furthermore, many states in Australia have also
developed their own strict admissibility standards for expert evidence mandating written
acknowledgement by the expert that their primary duty is towards the court.

However, US appears to be only nation that almost reproduced the Daubert standard in the
Rule 702. Therefore in US, Daubert continues to reign as the dominant expert admissibility
standard criteria mandating no requirement of express declaration by the expert witness that
his primary duty is towards the court. Hence, it is submitted that U.S. has failed to evolve their
expert evidence laws properly, relying entirely on the Daubert standards. Hence, in US, there
is an absence of codified expert admissibility standard which mandates a written or oral
acknowledgement by the expert witness regarding his primary duty towards court and
maintaining impartiality and neutrality. However, United States has adopted a careless and
irresponsible attitude towards the requirement of codification even at the later stages of
adjudicatory discourse. United States has emphatically ignored the judicial pronouncement in
Finkelstein v. Liberty Digital wherein judges highlighted the frequent biased contributions by
experts claiming to have academic and scientific expertise. Hence, it is submitted that there is
need of codification in US, on the lines of Canada, to ensure better objectivity and impartiality.

Indian courts have been quite progressive in this aspect by coming up with well reasoned and
coherent judgements in cases like Pali Ram, Ramesh Chandra Agarwal, State of Maharashtra
v. Gopinath Shinde, Kabul Singh and Malay Kumar Ganguly, regarding expert admissibility
standards. These judgments have clearly specified the duty of an expert witness towards the
court to provide impartial opinion. In doing so, the Courts have clearly demarcated expert
admissibility standards. However, there still persists a need of statutory codification of the
standards enshrined in these judgments in India to prevent any remote possibility of miscarriage
of justice.

92
 THE IMPLICATIONS OF IMPLICATION:
DECONSTRUCTING THE MOORCOCK & THE CURIOUS
CASE OF THE OFFICIOUS BYSTANDER
*
ARMAAN PATKAR

INTRODUCTION

“Implication of terms is, in its character, oil for the wheels of commerce”1

Contracts include both written terms and terms hidden in spaces between such terms. These
hidden terms are silent things that are not said.2 These hidden terms can be extrapolated by
Judges from the silences of the contract, by implication in fact. This allows judges to find
contractual expression outside the written form of the contract and by doing so, give effect to
the true contractual bargain. Once such an implied term is found, it can be effectuated with the
same force as express terms.3 This lubricates the wheels of commerce, which would otherwise
come to a grinding halt.

In terms of procedure, implication begins with identification of the reason for silence, which
could be forgetfulness, or poor drafting; because the term was so obvious that there was no
need to state it; or because the parties did not contemplate the term at all. Another reason could
be that the parties favored business convenience during contract formation over drafting
perfection, by focusing on and expressing, only important terms in written words, but leaving
other terms to be understood. Having identified the reason for the silence, the Judge must
determine whether there is sufficient ground to replace the silence in the contract with an
implied term. In this process, Judges usually refer to the question “what did the parties intend?”

The raison d'être of this implication ensures that the answer to this question is rarely and readily
apparent. Answering this question requires the application of subjective principles which can

*
Associate, AZB Partners, Mumbai.
1
Richard Austen Baker, Implied Terms in English Contract Law (Edward Elgar Publishing 2011).
2
Carolyn Heaton, ‘The Significance of Implied Contractual Terms’ (30 August 2012)
<www.morrisonkent.co.nz/uploads/PDF%20Articles/THE%20SIGNIFICANCE%20OF%20IMPLIED%20CO
NTRACTUAL%20TERMS.pdf> accessed 11 September 2016..
3
Imam Din v Dittu [1925] AIR 174 (Lah) [3]; Pollock and Mulla, Indian Contract & Specific Relief Acts (13th
edn, Lexis nexis 2006).

93
tempt judges to become silent parties to a contract and imaginatively introduce terms 4 by
presuming the intentions of the parties. This temptation clashes with the Common Law
principle of freedom of contract (i.e. that there must be no interference with the right of the
parties to choose the terms on which they contract).5 Therefore, it is writ large that the mandate
of a Judge is not to impose his own views of contractual bargain or make the contract better,
fairer or more reasonable. Further, in presuming the intentions of parties, judges cannot be
presumptuous; they should not substitute their view as to that intention.6

In light of the above, Parts II, III and IV of this Article trace the milestones in the evolution of
principles of implication, starting from Slade’s case in 1602 and then evaluating Bowen, L.J.’s
Business Efficacy Test and Mackinnon, L.J.’s Officious Bystander Test. In Part V, I critique
two recent English judgements viz. Attorney General of Belize v. Belize Telecom Limited7
(Belize Telecom) (which proposed a reasonability based test) and Marks and Spencer PLC v.
BNP Paribas Securities Services Trust Company (Jersey Ltd)8 (M&S) (which reinforced a
nuanced, necessity-based business efficacy test); I propose that Belize Telecom should not be
followed as reasonability is not enough, by itself, for implication. Instead, I advocate the
nuanced principle making approach followed in M&S. In Part VI, applying a similar approach
to principles of implication in India, I propose a restated principle of implication, with a caveat
for implication of terms in commercial contracts.

SLADE’S CASE: THE DEVELOPMENT OF IMPLIED PROMISES

While the Business Efficacy Test (1889) and the Officious Bystander Test (1939) are
ubiquitous to implication, review of implication would be incomplete without venturing further
in time to 1602, three centuries before Bowen, L.J. and Mackinnon, L.J. pronounced their
celebrated tests. In 1602, while Shakespeare was writing The Twelfth Night, Popham’s C.J.

4
Electronique Grand public SA v British Sky Broadcasting Limited [1995] EMLR 472 (Phillips Electronique
case).
5
Printing and Numerical Registering Co v Sampson [1875)] LR 19 Eq 462, 465 (Sir George Jessel MR);
George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd [1983] QB 284, 297 (Lord Denning MR).
6
Andrew Phang ‘The challenge of principled gap-filling: a study of implied terms in comparative context’
[2014] 4 JBL 263, 312 (Phang J).
7
[2009] 1 WLR 1988.
8
[2015] UKSC 72 (M&S).

94
pronounced his far-reaching decision in Slade’s Case.9 In this case, Popham C.J. implied a
promise to perform into executory contracts actionable in assumpsit, in the following words:

“That every contract executory importeth in itself an assumpsit, for when one agreeth to pay
money, or to deliver anything, thereby he promiseth to pay, or deliver it; and therefore when
one selleth any goods to another, and agreeth to deliver them at a day to come, and the other
in consideration thereof promiseth to pay so much money to the other, in this Case both parties
may have an action of debt, or an action upon the case on assumpsit, for the mutual executory
agreement of both parties importeth in itself reciprocal Action upon the Case, as well as Action
of debt.”10

Before Slade’s Case, an action in assumpsit was only maintainable if there was a debt and a
subsequent separate and express promise to repay the debt. Ames postulates that is was because
the action of debt was originally conceived of as a grant, rather than as a contract. As such, at
the time it was difficult to conceive that the same words used to create a debt, could also create
another promise to repay this debt. It was more natural to consider that the force of the words
used to create the debt was spent in creating the debt and that a separate expression of a promise
to repay this debt would be required to succeed in an action for assumpsit.11 Nevertheless,
Popham C.J. gave a remedy in assumpsit for breach of this promise, though the debt itself could
only be recovered in an action of debt.12 This led to cases where the Courts supplied an implied
promise to pay the amount of the services rendered or the worth of the goods delivered, where
no price had been fixed by the parties. Therefore, it is considered that Popham C.J.’simplication
of assumpsit may well be the source for the technique of implication, as we understand it
today.13

9
[1602], Rep 92a, 76 Eng Rep 1073; Baker (n 1); B Ames, ‘The History of Assumpsit II, Implied Assumpsit’
[1888] 2 Harvard LR 55 (Ames J); Theodore Plucknett, ‘A Concise History of the Common Law’ (5th edn,
Little Brown & Co) 647, 649.
10
Sir Edward Coke, The Selected Writings and Speeches of Sir Edward Coke (Steve Sheppard, edn 2003, vol
1).
11
Ames (n 9) 55.
12
Richard Austen-Baker, ‘Implied Terms in English Contract Law in Commercial Contract Law, Transatlantic
Perspectives’ (L Dimatteo, edn 2013), 232.
13
John Baker, ‘An Introduction to English Legal History’ (2nd edn 1979); Baker (n 1).

95
THE BUSINESS EFFICACY TEST: THE MOORCOCK SAILS INTO
CONTRACT LAW

In 1887, three centuries after Slade’s Case, a steamship by the name of The Moorcock sailed
into the river Thames. Its owner contracted with a wharfinger to discharge and load the
Moorcock at a wharf by the river. At low tide, the Moorcock, which was moored alongside the
jetty of the wharfingers, ran aground. Its hull was damaged due to the uneven condition of the
river bed and the owner of the Moorcock successfully sued the wharfingers for damages. On
the facts of the case, Bowen, L.J. treated the contract to contain an implied representation by
the wharfingers to the ship-owner, that the wharfingers had examined the river bed and
ascertained that it was in a condition which would not damage the vessel. 14 He stated that
implication is justified if it follows the obvious or presumed intentions of the parties to the
contract. In such cases, an implied term is necessary to give efficacy to the transaction and
prevent a failure of consideration, which neither party would have intended. For this purpose,
Bowen, L.J. put forth his Business Efficacy Test, which carries favour with English and Indian
Courts to this day, thus:

“In business transactions such as this, what the law desires to effect by the implication is to
give such business efficacy to the transaction as must have been intended at all events by both
parties who are business men”.

This was a new principle of law that went beyond the authorities cited before the Court of
Appeal.15 It has been moulded, applied and restated into various formulations since.16

SHIRLAW V. SOUTHERN FOUNDRIES: THE CURIOUS CASE OF

THE OFFICIOUS BYSTANDER

Fifty years after the case of The Moorcock, Mackinnon, L.J, speaking for the Court of Appeal
in Shirlaw v. Southern Foundries Limited (“Shirlaw”),17 criticized the Business Efficacy Test.
He stated that Bowen, L.J.’s words did not amount to a principle of law, though he admitted
them to be sound and sensible. He lamented that the early 20th century witnessed the Moorcock

14
(1889) 14 PD 64 (Esher LJ).
15
ibid.
16
BP Refinery (Westernport) Pty Limited v President, Councillors and Ratepayers of the Shire of Hastings
[1977] HCA 40 (BP Refinery); KC Sethia v Partabmull Rameshwar [1950] 1 All ER 51.
17
Shirlaw v Southern Foundries Limited (1939) 2 KB 206.

96
principle make frequent voyages into courtrooms, often in support of vague and uncertain
grounds. Disappointed with this result and believing that implication must be exercised with
care, he pronounced his Officious Bystander Test. This test is expressed as a conversation
between the parties to the contract and an officious bystander, as follows:18

“Prima facie that which in any contract is left to be implied and need not be expressed is
something so obvious that it goes without saying; so that, if, while the parties were making
their bargain, an officious bystander were to suggest some express provision for it in their
agreement, they would testily suppress him with a common 'Oh, of course!”

It is interesting to note that Mackinnon, L.J. did not conceive this test in the Shirlaw judgement.
He had already devised the test and had expressed it in an essay in 1926; in fact, the test is a
direct quote.19 Incidentally, history repeated itself another fifty years later, when Hoffmann,
L.J. criticized the Officious Bystander Test in an extra-judicial paper, as follows:

“Lord Justice Mackinnon was a witty and cultured man, for many years’ president of the Jane
Austen Society. His little scene is plainly based upon the contemporary cartoons of Bateman,
in which some unfortunate person is always asking a question which causes general
astonishment all around him. But I do not imagine Lord Justice Mackinnon ever thought how
seriously this little jeud’esprit would be taken, how many times it would be cited, analysed,
applied or distinguished in courts all over the world.”20

Bowen, L.J. and Mackinnon, L.J. both criticized the decisions of their predecessors; first
praising the intellectual merits of the judge in question and then lamenting that the judge did
not understand the full import of their words. Much like Mackinnon, L.J. did in Shirlaw,
Hoffmann, L.J. acted on his extra-judicial opinion in 2009 when he dismissed the Officious
Bystander Test as irrelevant, in Belize Telecom21, speaking for the Judicial Committee of the
Privy Council. He explained that the test carried the danger of barren argument, as the parties
who may respond with an “Oh, of course” are as likely to reply with a “Certainly not”; this is
especially so since this test refers to the parties, as they were during negotiations, where both

18
ibid.
19
Mackinnon, ‘Some Aspects of Commercial Law - A Lecture Delivered at the London School of Economics’
(OUP 1926) 24; Phang (n 6) 13, J, ibid 7, p13.
20
Hoffmann LJ, ‘Anthropomorphic Justice: The Reasonable Man and His Friends’ (1995) 29 Law Teacher 127,
138.
21
Belize Telecom (n 7).

97
parties would invariably try to protect their competing interests at all times.22 This makes it
probable (almost certain, to my mind) that the suggestion of a term which is specifically
onerous to one party would be considered by the officious bystander to be met with a “Certainly
not” by the suffering party. This would not meet the requirements of the Shirlaw test since it
requires the term to be such that ‘they’ (i.e. both parties) would answer with 'Oh, of course’”23
Therefore, this test may only be suited for implication of neutral terms. However, even in case
of neutral terms, an officious bystander may not be capable of posing the correct question to
the parties, especially in case of complex contracts and disputes.24 Further, the Officious
Bystander Test may not be suited for universal application, since the result of the test is
influenced by the formulation of the question posed to the bystander; two different but
appropriate questions may elicit different answers from the bystander.25 Ultimately, Hoffmann,
L.J. held that to require the Courts to conjure imagery of the parties and the officious bystander
would divert their attention from the objectivity which should inform the process of
implication.26

I am broadly in agreement with Hoffmann, L.J. especially in case of non-neutral terms. Further,
on a purely academic note, I refer to the judgement of Falsaw, J. in Delhi Cloth & General
Mills,27(discussed in Part VI of this Article in detail, in exploring the development of the Indian
law of implication); this judgement describes Scrutton, L.J.’s decision in Reigate v. Union
Manufacturing Co.28(the “Reigate Case”) as an expression of the Shirlaw principle in “even
more homely language”.29 The relevant portion of the Reigate Case is as follows:

“If it is necessary in the business sense to give efficacy to the contract, i.e. if it is such a term
that it can confidently be said that if at the time the contract was being negotiated someone
had said to the parties what will happen in such a case, they would both have replied. Of course
so and so will happen; we did not trouble to say that; it is too clear.”

22
Liverpool City Council v Irwin [1977] AC 239, 258, 266.
23
cf Chartbrook ibid (n 48).
24
Ashmore and Others v Corporation of Lloyd’s (No 2) [1992] 2 Lloyd’s Rep 620; A Marcan Shipping
(London) Ltd v Polish Steamship Co (The Manifest Lipkowy) [1998] 2 Lloyd’s Rep 138, 142; M&S (n 10) [21]
(Neuberger J); Andrew Kramer, ‘Implication in fact as an instance of contractual interpretation’ (2004) 63(2)
CLJ 404.
25
Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24, [10]-[13] (Mason J).
26
Belize Telecom (n 7) 25.
27
Delhi Cloth & General Mills Co Ltd v KL Kapur Co Ltd [1958] AIR 93 (P&H) (Delhi Cloth & General
Mills).
28
(1918) 2 KB 532 (B).
29
Delhi Cloth & General Mills (n 27) 19-20.

98
On a bare reading, the above paragraph of the Reigate Case simply appears to paraphrase the
principles of implication and taken by itself does not add much substance. It appears to combine
The Moorcock and Shirlaw principles, by treating the Officious Bystander Test as the practical
mode by which the Business Efficacy Test is to be implemented. In doing so, Scrutton, L.J.
omitted Mackinnon, L.J.’s pesky officious bystander and replaced him with “someone.”
Further, Scrutton, L.J.’s someone does not propose a term like the officious bystander does in
Shirlaw, but instead asks the parties to answer the question “what will happen in such a case”.
However, Scrutton, L.J. could perhaps be credited with conceiving the Officious Bystander
Test; while the officious bystander is missing in the letter of the Reigate Case, he appears to
have made his first appearance in judicial history in spirit.30 Interestingly, Mackinnon, L.J. was
a pupil of Scrutton, L.J. and had close professional ties with him.31 Mackinnon, L.J. did not
refer to, or credit Scrutton, L.J. in Shirlaw with the development of the Officious Bystander
Test; though in Broome v. Pardess Co-operative Society of Orange Growers Ltd.32, one year
after Shirlaw, Mackinnon, and L.J. applied the Reigate Case instead of referring to his own test
in Shirlaw.

SIGNIFICANT DEVELOPMENTS IN ENGLISH LAW IN THE 21ST

CENTURY

BELIZE TELECOM: IS BEING REASONABLE, REASONABLE ENOUGH?

Belize Telecom is considered by some to be a long overdue rethinking of the implication of

terms since The Moorcock;33 a tour de force,34 a re-definition of the modern law of implied
terms.35 It was predicted that its extensive analysis would be regularly referred to by Courts in
deciding cases of implication, which turned out to be true.36 The crux of this analysis is
Hoffmann, L.J.’s restatement of the principle of implication (the “Belize Principle”), thus:37

30
Gardner v Coutts & Company [1968] 1 WLR 173, 176 (Cross J).
31
Forefront Medical Technology (Pte) Ltd v Modern-Pak Pte Ltd [2006] 1 SLR(R) 927[36], GR Rubin,
‘MacKinnon, Sir Frank Douglas (, Oxford Dictionary of National Biography’ (OUP 2004).
32
[1940] 1 All ER 603.
33
Brandon Kain, ‘The Implication of Contractual Terms in the New Millennium’, 51 CBLJ 170 (Kain);,
Michael Davar, ‘The supreme court re-frames the modern law of implied terms’ (December 15, 2015)
<www.lexology.com/library/detail.aspx?g=a5b370c8-489f-49fc-9dae-0be4fb23c78b> accessed September
2016.
34
Spencer v The Secretary of State for Defence [2012] EWHC 120 (Ch) [50] (Vos LJ).
35
Davar (n 33).
36
Mediterranean Salvage &Towage Ltd v Seamar Trading & Commerce Inc [2009] EWCA Civ 531 (CA) [8]r
(Clark LJ).
37
Belize Telecom (n 7) 16; Delhi Cloth & General Mills (n 27) 19.

99
“There is only one question: is that what the instrument, read as a whole against the relevant
background, would reasonably be understood to mean?”38

The Belize Principle replaces the officious bystander with a reasonable addressee who must
now answer, not ask, the relevant question.39 This reasonable addressee is steeped in English
jurisprudence; he was once known as the “man on the Clapham omnibus”, a phrase coined by
Charles Bowen (Bowen, L.J. of The Moorcock, as he later came to be known), acting as a
junior counsel in case of The Tichborne Claimant (1871).40 This phrase was coined in an era
of horse-driven omnibus services; these services are long gone and have been replaced by
modern public transport, though Hoffmann, L.J. notes that the Courts of common law still hear
the ghostly creak of wheels of the omnibus and the crack of its driver’s whip.41

But who is this man who rides the omnibus? He is an ordinary reasonable man who exists only
as a fictional embodiment of the good sense of the judge presiding over the case. The judge
becomes the spokesman of this man, representing anthropomorphized justice as the focal point
of the Belize Principle.42

Hoffmann, L.J. and the Belize Principle make this man read the contract as a whole and in
context and then decide whether it is necessary to imply a term into a contract. Instead of the
intentions of the parties, this focuses on the perspective of the reasonable addressee who
decides whether the term should be implied. On the contrary, MacKinnon, L.J. in Shirlaw
required the officious bystander to simply ask the relevant question; the bystander neither
answers the question nor is he required to be reasonable. This aspect is left to the parties, who
must approve the implied term in unison in reply to the bystander’s question, to justify
implication. Therefore, in the Belize Principle, there is the anxiousness as to whether the judges
may be allowed to improve contracts by imposing reasonable outcomes on the parties, under a
smokescreen that suggests party autonomy.43 Further too, it does not shed light on the rules to
be applied in arriving at a decision and therefore, references to The Moorcock or Shirlaw may

38
ibid (n 30) 21.
39
Spencer v The Secretary of State for Defence [2012] EWHC 120 (Ch) [38] (Vos LJ).
40
Mcquire v Western Morning News Company [1903] 2 KB 109 (CA).
41
Lord Hoffmann, ‘Anthropomorphic Justice: The Reasonable Man and His Friends’ (1995) 29 The Law
Teacher 127; McQuire v Western Morning News Company Limited [1903] 2 KB 100; Hall v Brooklands
Autoracing Club [1933] 1 KB 205; Mayo Moran, ‘The Reasonable Person: A Conceptual Biography in
Comparative Perspective’ (2010) 14 LCLR 4.
42
Davis Contractors Limited v Fareham Urban District Council [1956] AC 696, 728 (Radcliffe, J).
43
Catherine Mitchell, ‘Obligations in Commercial Contracts: A Matter of Law or Interpretation?’ (2012) 65
CLP 455, 474.

100
be required to complete the process of implication.

It should also be noted that Hoffmann, L.J. admitted that the Belize Principle is open to
reformulation. He also observed that the Business Efficacy Test or that the term must go
without saying, are not different or additional tests, but they subsume in the Belize Principle.44
However, Hoffmann, L.J. sought to avoid a strict necessity test because there may be contracts
which work perfectly without implication of a term (as such, the term is not necessary and need
not be implied). In such cases, the strict necessity test would require a judge to refuse to imply
such a term; however, this may contradict a reasonable persons understanding of the contract
(even though the term is not necessary).45 The Belize Principle seeks to provide relief in such
cases, as it allows a judge to give effect to what the instrument can be reasonably understood
to mean, though this may not give effect to a meaning that is “necessary” or “always” what the
contracting parties would have intended.46

Hoffmann, L.J. reiterated this principle three months after Belize Telecom, this time speaking
for the House of Lords in Chartbrook Limited v. Persimmon Homes Limited and others.47
Notably he also stated obiter that an unduly favourable term (to one party), may well be what
the contract says. This may not make sense when judged from the perspective of the reasonable
addressee, who is an outsider to the contract. However, such a term may not actually be so
unreasonable in its true context, for example, if the term was accepted by the suffering party,
to leverage a favourable position elsewhere in the contract; but the reasonable addressee is not
privy to the negotiations and could not possibly know this, this seems to suggest that the
subjective intentions of a party are irrelevant, and that the only thing that matters is what the
reasonable addressee understands the contract to mean. Further, the Belize Principle is, to my
mind, also open to barren argument48 as it also requires a subjective review based on a
reasonable understanding of the contract. Furthermore, should the judges be allowed to make
an efficacious contract more efficacious? The Belize Principle blurs the lines in such cases.
Such cases should be contained with reference to The Moorcock, which stated that only
minimum efficacy should be secured or that the least onerous term should be implied, without

44
Belize Telecom (n 7) 21-25.
45
ibid 23-24.
46
ibid 16.
47
[2009] UKHL 38 [14].
48
Belize Telecom (n 7) 21-25; Shirlaw (n 17) 226.

101
which honest business could not be carried on.49

In this light, a necessity test (which would, in any event, include only a reasonable term, for no
Court would exercise the extraordinary power of implication unreasonably) may fare better
than a reasonability test.50 This does not mean that the Courts should impose a one-sided term
simply because a judge deems it necessary; such a term should only be implied if it was proved
to be in the contemplation of both parties.51

Theoretically, the necessity principle could also reconcile Business Efficacy Test and the
Officious Bystander Test, since both tests can be considered to implement necessity, albeit at
different stages in the life of the contract. While the Business Efficacy Test implements
necessity at the time of performance of the contract (as there would be no justification to
perform a contract which lacks business efficacy), the Officious Bystander Test implements
necessity at the formation of the contract (to prevent the parties from having to include every
pedestrian term in the contract).52 In fact, the Officious Bystander and Business Efficacy tests
may be considered to be merely useful practical aids evolved by the Courts to explain the
criterion of necessity and to determine whether the single legal test of necessity has been
satisfied.53 Whilst such a necessity test may not be appropriate for interpretation of express
terms, it is appropriate for implication; this is because implication requires a higher standard
of proof, as it gives effect to rights or obligations that are not expressly stated, instead of
interpreting and applying express ones.54 To put it otherwise, being reasonable is not reasonable
enough in matters of implication.

Therefore, to my mind, the Belize Principle should not be followed and Courts should reach
beyond the written form of the contract, only if it is necessary (but not if it is merely reasonable)
to do so.

49
Phang (n 6).
50
Liverpool City Council (n 22); Reigate v Union Manufacturing Co [1918] 1 KB 592, 605; In re Comptoir
Commercial Anversois v Power, Son & Co [1920] 1 KB 868, 899.
51
Satya Jain (D) through LRs and Ors v Anis Ahmed Rushdie (D) through LRs and Ors 2013 [AIR] 434 (SC)
[22].
52
Kain (n 33) 185.
53
Society of Lloyd's v John Stewart Clementson [1995] CLC 117, 132.
54
Trollope & Colls Ltd v North West Metropolitan Regional Hospital Board [1973] 1 WLR 601, 609,
(Hoffmann LJ).

102
THE MARKS AND SPENCER PRINCIPLE: EMPHASIZING THE NECESSITY OF
NECESSITY

Despite people’s consideration of Belize Telecom to be a path-breaking review of implication

and a tour de force,55 the truth is that it received a mixed response. Some considered it to be an
unclear principle, which often gave rise to major issues.56 Further, while it was regularly
referred to by Courts in the U.K., it was not applied consistently; some Courts considered it to
encapsulate existing law, whilst others recognized it as a persuasive departure from the existing
law.57 Even a few years later, it was still being absorbed and ingested.58

This continued until the UK Supreme Court delivered its decision in M&S, wherein Neuberger,
L.J. disregarded the Belize Principle and rightly re-emphasized the importance of necessity.59
He declared that Hoffmann, L.J.’s observations should be treated as characteristically inspired
discussion rather than as an authoritative guidance on the law of implication. He also qualified
the Belize Principle, by adding two conditions, thereby infusing the Belize Principle with the
necessity principle, viz:

(i) the reasonable reader should be treated as reading the contract at the time it was
made; and

(ii) such reader would consider the term (a) so obvious as to go without saying; or
(b) to be necessary for business efficacy.

Another significant aspect of M&S was Neuberger, L.J.’s assessment of BP Refinery

(Westernport) Pty. Limited v. President, Councilors and Ratepayers of the Shire of Hastings
(“BP Refinery”).60 Simon, L.J. had in BP Refinery collected five principles of implication in
one paragraph, which made it simple and convenient to cite. It set-out five criteria to be
considered for implication, which the Court declared may or may not overlap:

(i) the term must be reasonable and equitable;

56
Stena Line Ltd v Merchant Navy Ratings Pension Fund Trustees Ltd [2011] EWCA Civ 543 [44]; Wuhan
Ocean Economic & Technical Cooperation Co Ltd v Schiffahrts-Gesellschaft “Hansa Murcia” MBH & Co KG
[2012] EWHC 3104 (Comm) [15].
57
Spencer and Anr v The Secretary of State for Defence [2012] EWHC 120 (Ch)[52] (Vos LJ).
58
Stena Line (n 56) 36.
59
M&S (n 8) 21.
60
BP Refinery (n 16) 40.

103
 (ii) the term must be necessary to give business efficacy to the contract, so that no
term will be implied if the contract is effective without it;

(iii) the term must be so obvious that it goes without saying;

(iv) the term must be capable of clear expression;

(v) the term must not contradict any express term of the contract.

Hoffmann, L.J. did not treat these principles as cumulative, but treated them as different ways
of expressing the central idea that the proposed term must spell out what the contract actually
means.61 To my mind, BP Refinery is a simplistic aggregation of principles of implication,
which may have unintended consequences. These can, and should, be contained by a nuanced
prescription of principles. This seems to be the approach adopted by Neuberger, L.J. in M&S,
who clubbed necessity for business efficacy and obviousness together, treating them as
alternative requirements.62 Further, Neuberger, L.J. stressed that implication depends on
reference to reasonable people in the position of the parties at the time of contract formation,
as opposed to proof of the actual intentions of the parties during negotiations; further too, in
detailed commercial contracts, the mere fact that a term appears fair or such that the parties
would have agreed to it, would not be sufficient by itself to justify implication.

The net result after M&S, is that BP Refinery’s condition (i) cannot be de-linked from
conditions (ii) and (iii), which may be satisfied in the alternative. Conditions (iv) and (v) are
fairly straightforward and go without saying. To put it simply, for implication in accordance
with the M&S principle, a term must be (a) reasonable and equitable; and (b) either (i) obvious;
or (ii) necessary for business efficacy.

IMPLICATION OF TERMS UNDER INDIAN LAW

TWO CENTURIES OF IMPLICATION: A HISTORICAL PERSPECTIVE

While the Indian Contract Act, 1872 does not contain a positive rule in favour of implication
of terms, Section 9 recognizes implied promises; it provides that promises are express when
made in words and implied where it is made otherwise than by words.63 Further, the Act is not

61
Belize Telecom (n 7) 27; Hickman v Turn and Wave Limited [2011] NZCA 100, 248.”.
62
M&S (n 8) [21]; McNeill v Gould [2002] 4 NZConvC 193, 557 [25]-[27].
63
Law Commission of India, The Indian Contract Act 1872, Report No 13, 18 (September 1958) [33]
<http://lawcommissionofindia.nic.in/1-50/Report13.pdf> accessed on 27 September 2017.

104
intended to be a complete code, which allows the import of common law principles into the
Act.64 For example, The Moorcock was frequently cited by lawyers in Indian Courts in the
early 20th century,65 though it soon developed a poor reputation; it was considered to be an all
too convenient last-resort argument for lawyers in cases where support from the written form
of the contract was not forthcoming,66 as Mackinnon, L.J. also observed.67

Therefore, Courts had to be careful in exercising the extraordinary power of implication to

ensure that implication does not undermine the freedom of contract. To do so, Courts laid down
principles circumscribing this power to cases where the implied term does not involve a
contradiction or variance of express terms of contracts. It was also clarified that implication
could not be used simply to render a contract more attractive in the eyes of reasonable men.
Accordingly, implication was only justified if the term was clearly intended or because the
term would remedy an obvious oversight. Further, in such cases, only the minimum term
necessary to save the contract from a shipwreck could be supplied, and nothing more.68Further
too, Falsaw, J. in Delhi Cloth & General Mills in 1958, observed that implication would be
justified if it repairs an intrinsic failure of expression in a contract, which omits to cover an
incidental contingency. In such cases, an implied term may be supplied to give effect to
business efficacy to the contract and to prevent the design of the parties from being frustrated.69
He also referred to Re Comptoir Commercial Anverpois and Power Son & Co. 70 where
Scrutton, L.J. held that neither reasonableness nor the fact that one party would not have made
the contract without including the term (had he thought about the matter) would not be
sufficient. He stressed that the term must be one which was necessarily intended by the parties
to form a part of the contract, though they did not express it because the term was so obvious
that it was taken for granted.71

Thereafter, both the Business Efficacy Test and the Officious Bystander Test were referred to

64
Irrawaddy Flotilla Co v Bugwandas 18 Cal 621 (PC); Satyabrata Ghose v Mugneeram Bangur and Company
and Anr [1954] AIR 44 (SC) [12].
65
Delhi Cloth & General Mills (n 29) [18]; Lakurka Coal Company Ltd v Jumnadass Bhagwandass (1916) 33
Ind Cas 838 (Cal)[13], [51]; The Fort Press Co Ltd v The Municipal Corporation of the City of Bombay (1919)
21 BOM LR 1014 (Bom)[20], [23]; Rajkishor Mohanty and Anr v Banabehari Patnaik and Ors [1951] AIR 291
(Ori) [5]; Afshar MM Tackiv Dharamsey Tricamdas (1946) 48 BOM LR 661 [20]; The State of Maharashtra v
SN Dahad and Ors (1994) 96 BOM LR 315 [10].
66
Delhi Cloth & General Mills (ibid28, para19); ibid (n 6).
67
Shirlaw (n 17).
68
Delhi Cloth & General Mills (n 27) 19.
69
Delhi Cloth & General Mills (n 27) 17.
70
Re Comptoir Commercial Anverpois and Power Son & Co (1920) 1 KB 868.
71
Delhi Cloth & General Mills (n 27) 35.

105
by Indian Courts and were in some cases, applied together.72 However, in the late twentieth
century, there was a perceived ceiling on the use of The Moorcock and instead, the prevailing
tendency was to apply the BP Refinery formulation.73

IMPLICATION IN 21ST CENTURY: SUPREME COURT WEIGHS IN

Indian case law on implication has largely followed English case law, summarized established
principles and contextually applied them to the facts of each case. This continued till December
2012, when the Supreme Court pronounced its decision in Satya Jain (D) through L.Rs. and
Ors. v. Anis Ahmed Rushdie (D) through L.Rs. and Ors. (Satya Jain);74 in this case, Gogoi, J.,
speaking for a Division Bench of the Court, noted that The Moorcock is normally invoked to
achieve the intended results of the parties and to avoid a failure of consideration that neither
party would have intended as reasonable businessmen. In such cases, only the bare minimum
term required to achieve this goal should be read into the contract and nothing more. 75 This is
because it is for the parties to determine the nature of their liabilities and not judges (it naturally
follows that if the contract makes business sense without the term, the term should not be
implied). Further too, the implication of an unfair term should not be allowed, where one side
is either saddled with, or emancipated from, all the perils of the transaction, excepting those
terms which must have been in the contemplation of both parties;76 to the extent that this allows
a one-sided (and consequently, not fair and reasonable) term to be imposed if proved to be in
the contemplation of both parties, this takes exception to the M&S principle, which assumes
(in passing, and not absolutely or conclusively) that terms which satisfy the other criteria (set
out in BP Refinery) would also be fair and reasonable. However, this principle does not take
into consideration cases where such term was not contemplated at all by the parties. To my
mind, if an unfair term should only be implied if it was contemplated by both parties, only a
fair term should be implied if the parties have not contemplated the term at all.

In summation, the Supreme Court ring-fenced the Business Efficacy Test as follows (the “Satya

72
Deviprasad Khandelwal & Sons v The Union of India, [1969] AIR 163 (Bom) [12]; Noel Frederick Barwell v
John Jackson and Ors [1948] AIR 146 (All) [65]-[66], [100], [101]; United India Insurance Company Limited v
Manubhai Dharmasinhbhai Gajera and Ors and New India Assurance Company Limited v Consumer Education
and Research Society and Ors [2009] AIR 461 (SC) [47]; Shirlaw (n 19); Enercon (India) Ltd and Ors
vEnercon GMBH and Anr [2014] AIR 3152 (SC) [85]; R v Marshall [1999] 3 SCR 456 [43]; Aberdeen City
Council v Stewart Milne Group Limited (Scotland) [2011] UKSC 56 [33] (Clarke LJ).
73
The State of Maharashtra v SN Dahad and Ors (1994) 96 Bom LR 315 [10].
74
Satya Jain (n 51).
75
The Moorcock ibid [22].
76
ibid 48.

106
Jain Principle”):

“The business efficacy test, therefore, should be applied only in cases where the term that is
sought to be read as implied is such which could have been clearly intended by the parties at
the time of making of the agreement.”

The Satya Jain Principle links the test to terms which “could have been” clearly intended by
the parties. It is not entirely clear whether this would include cases where parties did not
contemplate the term at all. In such a case, the Satya Jain Principle can be interpreted to have
two meanings:

On one hand, it could be argued that the phrase “could have been” includes cases where the
parties who did not contemplate the term at all, would have included such a term had they
thought about it. This interpretation would be in line with Delhi Cloth and General Mills, which
held that implication of a term which remedies an obvious oversight would be justified in cases
where the term was “not clearly intended”;77 in such cases, the term not contemplated is the
obvious oversight and implication is the remedy. This suggests that the parties need not have
contemplated such a term, but would have done so, or could have done so, and if they did, they
would have both agreed to such a term. This would also be in line with my earlier observation
that the term should be fair (if not contemplated by both parties); and

On the other hand, it could be argued that “could have been” means the same as “must have
been” or “was” i.e. the term must have been actually intended by the parties. The paragraphs
of the judgment immediately preceding the Satya Jain Principle suggest this interpretation, as
they use language such as “must have been intended at all events”, “must have been in the
contemplation of both parties” and “the parties must have intended that term to form part of
their contract”.78

THE RESTATED PRINCIPLE

In view of the interpretive ambiguity in the Satya Jain Principle discussed in Part VI.B above,
the Satya Jain Principle should be modified to ensure that the business efficacy principle can
be extended to cases where the parties did not contemplate a term at all. Coupled with the

77
Delhi Cloth & General Mills (n 27) 19, 36 (Kapur J).
78
Satya Jain (n 51) 22.

107
judicial acceptance of implication of terms not clearly intended to remedy an obvious
oversight,79 the Satya Jain Principle may be restated thus (the “Restated Principle”):

“A term should be implied in a contract, only when it is necessary to give business efficacy to
the contract, in cases where the term was clearly intended by the parties at the time of making
of the agreement, or would have been clearly intended by the parties, if not contemplated at
the time of making of the agreement, and such term remedies an obvious oversight of the
parties.”

In cases falling within the latter half of the Restated Principle, there would be no cause for
concern of retrospective judicial over-reach, since a term is only to be supplied to remedy an
obvious oversight.

COMMERCIAL CONTRACTS

Indian Courts have historically treated commercial contracts as instruments to be construed

broadly, with the aim being to validate rather than invalidate them.80 This has been expressed
in various ways, such as; one must not be astute to find defects in them or reject them as
meaningless;81 or that the Courts must, as far as possible, uphold a bargain and give efficacy
to a commercial transaction; or that the law should not incur the reproach of being the destroyer
of bargains, etc.82 This embodies the words of Cardozo, L.J. of the N.Y. Court of appeals in
Otis F. Wood v. Lucy, Lady Duff-Gordon,83 pronounced at the time when Scrutton, L.J. was
laying the foundation for the Officious Bystander Test on the other side of the Atlantic Ocean;
in this case, Cardozo, L.J. observed that the law has outgrown its earlier primitive formalism
when the precise word was the sovereign talisman.84 It has developed so that every omission
is not fatal and the Courts can take a broader view of the words used in a contract. Referring,
inter alia, to The Moorcock, Cardozo, L.J. on the facts of the case upheld an implied promise.
He held that if the whole writing is “instinct with an obligation” though imperfectly expressed,

79
Delhi Cloth & General Mills (n 27) 19, 36.
80
Citibank NA v TLC Marketing [2008] AIR 118 (SC) [28].
81
Dhanrajamal Gobindram v Shamji Kalidas & Co [1961] AIR 1285 (SC) [22]; Adamastos Shipping Co Ltd v
Anglo-Saxon Petroleum Co Ltd [1958] 1 All ER 725 (HL).
82
Coffee Board, Bangalore v Janab Dada Haji Ibrahim Halari [1966] AIR 118 (Kant) [24]; Hillas & Co v
Acros Ltd [1932] All ER Rep 494.
83
Otis F Wood v Lucy, Lady Duff-Gordon 222 NY 88 (1917).
84
Antoine Vey, ‘Assessing the Content of Contracts: Implied Terms from a Comparative Perspective’ Paper No
26/2011 <http://ssrn.com/abstract=1837545> accessed 15 September 2016; Lord Nicholls, ‘My Kingdom for a
Horse: The Meaning of Words’ (2001) 121 LQR 577, 579; Prenn v Simmonds [1971] 3 All ER 237
(Wilberforce LJ); Hindustan Lever Ltd. v Ashok Vishnu Kate and others [1996] AIR 285 (SC) [41]; Antaios
Compania Naviera SA v Salen Rederierna AB [1985] AC 191, 201 (The Antaios).

108
there is an enforceable promise.85 Without this promise, the transaction cannot have such
business efficacy as both parties must have intended it to have and therefore, the term could be
implied. The Supreme Court also adopted such a wide interpretation in Sumitomo Heavy
Industries Ltd. v. Oil and Natural Gas Company86 in relation to a clause in an international
commercial contract, which provided for compensation in the event the contractor had to bear
any extra costs, due to any change in law. It was argued that a strict interpretation should be
taken for the clause, similar to the interpretation that would be applicable if the clause were
contained in a contract of indemnity or insurance. However, the Supreme Court did not disturb
the wide interpretation adopted by the arbitral tribunal and held it to be within the commercial
purpose of the contract.

This wide view would not be appropriate for implication. As discussed above, there is a
principled rationale to adopt stricter tests for implication vis-à-vis interpretation;87 more so in
case of detailed and carefully drafted contracts, where even the slightest imbalance can have
severe consequences. In such cases, a strict necessity test may be preferred;88this is because
detailed and elaborate drafting, though not entirely faultless, suggests that the parties have
applied their minds to the terms of the contract.89Further, easy and understandable language
must be interpreted in accordance with its tenor, since the parties have entered into the contract
with open eyes, conscious of the merits of the clauses of the contract and their implications.90

Given the above, implication of terms in such cases could amount to a destruction of bargains.
Therefore, Neuberger, L.J in M&S highlighted that terms should not be implied into
commercial contracts, merely because if appears fair or that one considers that the parties
would have agreed to it if it had been suggested to them. In another case, Neuberger, L.J. held
that where wording is clear, it should be given its natural meaning even if it results in
commercial disaster.91 As such, commercial common sense and attendant circumstances should
not be allowed to undermine express language of such contracts. Therefore, parties have to be
careful while drafting their contracts, as even the most obvious terms may be refused, if it can

85
ibid; McCall Co v Wright 133 App Div 62; Moran v Standard Oil Co 211 N Y 187, 198 , Otis F Wood v Lucy,
Lady Duff-Gordon (n 86).
86
Sumitomo Heavy Industries Ltd v Oil and Natural Gas Company [2010] AIR 3400 (SC) [25], [35]-[39].
87
Photo Production Ltd v Securicor Transport Ltd [1980] 1 All ER 556 (Diplock LJ).
88
Shell UK Ltd v Lostock Garage Ltd [1977] 1 All ER 481 (Ormrod LJ); Liverpool City Council (n 22).
89
J Lauritzen AS v Wijsmüller BV [1989] EWCA Civ 6.
90
Kamala Sugar Mills Ltd v Ganga Bishen Bhajan Singh [1978] AIR 178 (Mad) [19], [20]; Navnit Lal & Co v
Kishan Chand & Co [1956] AIR 151 (Bom) [8].
91
Arnold v Britton and others [2015] UKCS 36; Satya Jain (n 51) 22.

109
be shown that the language of the contract is otherwise clear and the contract is otherwise
operable. In such cases, the Courts may refuse to read an implied term into the contract, which
may at best “lie uneasily beside the express terms of the contract”.92

COMMERCIAL CONTRACTS RIDER

The discussion in Part VII.A supports the case for adoption of differential necessity standards
for implication of terms in commercial contracts. As Kain puts it, necessity is not a uniform
proposition; as while food is necessary for human life, water is more necessary, and neither of
these is as necessary as air.93 Further, as Neuberger, L.J. rightly explained, necessity does not
refer to “absolute necessity”, but refers to a value judgment in relation to business efficacy.94
As such, a variegated approach contingent on the commercial sophistication of the parties, the
detail of the contract and other relevant factors may be helpful.95 Accordingly, I propose that
the Restated Principle should separately provide for detailed commercial contracts; in such
cases, Courts should consider factors such as the detail of the instrument, care taken in drafting
the contract and unique complexities, including attendant facts and circumstances, of that
particular contract or kind of contracts (the “Commercial Contracts Rider”). This principle can
be properly applied to formally negotiated and documented commercial arrangements. On the
other end of the spectrum, it can also be applied to contracts which are not thoroughly drafted
as they place business convenience above drafting formalities, such as purchase-order style
contracts; in such cases, the parties settle key commercial terms in an email or a letter and
boiler-plate terms and conditions which may be added later or imported by reference. These
boiler-plate clauses are not negotiated to suit the contract and may leave significant gaps in the
document which could have been addressed in negotiated document.96

Take for example, a carefully drafted and negotiated investment agreement which grants the
investor a call-option to acquire equity shares of the promoter at a fixed price upon the
occurrence of certain events, such that the investor’s shareholding goes up to a maximum of
51%. The agreement provides that the call-option is to be exercised within one year of such
event, on certain terms and conditions. However, it does not specify whether the call-option is

92
M&S (n 8) [20]; APJ Priti [1987] 2 Lloyd’s Rep 37 (Bingham, LJ).
93
Kain (n 33); Liverpool City Council (n 22).
94
M&S (n 8) 21.
95
Kain (n 33); Codelfa Construction Proprietary Ltd v State Rail Authority of New South Wales [1982] HCA 24
[6] (Mason J).
96
Smith v South Wales Switchgear Ltd [1978] 1 All ER 18.

110
to be exercised in one go or may be exercised by the investor in tranches, reserving the right to
call the balance equity until the one year period expires. Let us assume that on the occurrence
of such event, the investor calls upon the promoter to sell the required number of shares to the
investor such that the investor reaches a shareholding of 26% in the company, within one month
of the event; in this situation, does the investor have the right to call the remaining 25% over
the next eleven months? Or does the call-option fall away?

Given that this agreement has been carefully drafted and negotiated, a Court tasked with
interpreting the call-option using the Commercial Contracts Rider may be unwilling to read an
implied term in the agreement which provides that partial exercise of the call-option shall not
preclude its further exercise (within the specified time period of one year and up to the limit of
51% equity), unless there are unique complexities, facts or circumstances that attend to the
investment agreement or agreements of this nature, which can justify the implication of such a
term. If no such factors exist, Courts may be inclined to hold that the call-option once exercised,
falls away and that if the parties intended that the call-option can be exercised in tranches, they
should have included a term to that effect. Per contra, in cases of standard-form contracts and
other contracts drafted to suit business convenience, the Courts may find it easier, and at least
not unconscionable, to read such a term into the contract. In such cases, it would be easier to
find that there has been a failure of expression by the Parties, allowing the Courts, not to
intrude, but to protect the contract, which the parties themselves failed to do.

To my mind, the Restated Principle should be flexible so as to distinguish between the different
kinds of commercial contracts and prevent unfair formalist results. At this point, it is worth
noting that the High Court of Australia observed (in the context of the Officious Bystander
Test), that standard form contracts (such as Government tenders) ipso facto suggest that the
words of the contract contain the only terms on which the contract maker is prepared to
contract.97 However, to my mind this is counter-intuitive to the nature of standard form
contracts which are made for negotiation and business convenience, rather than function as a
disclaimer that a party will not accept any term not stated therein.

In this light, the Restated Principle could be better applied if the Commercial Contracts Rider
is added to it, which would read as follows:

97
Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24 [13] (Aikin J).

111
“A term should be implied in a contract, only when it is necessary to give business efficacy to
the contract, only in cases where the term is such that it was clearly intended by the parties at
the time of making of the agreement, or would have been clearly intended by the parties, if not
contemplated at the time of making of the agreement and such term remedies an obvious
oversight of the parties. However, in case of commercial contracts, the Courts may consider
factors such as the detail of the instrument, manner of formation, care taken in drafting the
contract and unique complexities of that particular contract of kind of contracts, before
determining whether or not to imply a term in the contract. However, it should be clear that
only the bare minimum or the most limited term must be supplied and nothing more.”98

CONCLUSION

Deconstructing the tests of implication and rebuilding it into the Restated Principle, required a
journey through judicial history and the theoretical underpinnings of implication, including
illuminating extra-judicial opinion. The result is a principle which would permit implication of
terms in a manner which will serve the true purpose of contracts (i.e. to act as a framework of
rights and obligations, like a contractual map for the future). Notwithstanding, the Restated
Principle would protect contracting parties, from the concern of judicial temptation to
imaginatively imply terms. It does so by limiting its application to cases where implication is
necessary to give business efficacy to the contract. This is not a rigid test of necessity as,
amongst other reasons, what is necessary for one contract may not be necessary for another.
Accordingly, the Restated Principle includes the Commercial Contracts Rider that promotes
certainty of interpretation in carefully drafted and detailed commercial contracts, but allows
interpretative flexibility in contracts that are not so well drafted .If implication is not possible
even after application of the Restated Principle to a disputed contract, the loss should lie where
it falls, even if it is unreasonable for one party. With the exception of flawless contracts, this
contractual gamble is always inextricably linked to the freedom of contract.

98
Satya Jain (n 51) 22; Delhi Cloth & General Mills (n 27) 19.

112
 IMPLEMENTATION OF FOREIGN AWARDS IN INDIA, UK
AND USA
 RAGHUVEER SINGH MEENA

INTRODUCTION

In the area of trade and commerce, invariably relief sought and granted from judges and
arbitrators is in some form of monetary payments. With international trade involving a number
of currencies, it is but natural that disputes relating to international trade, will include issues
relating to the currencies involved.1 When any relief or judgment is made in favour of a party,
it must be in monetary terms, if damages or compensation is involved. Monetary expression
must be in some currency. Accordingly, judgments and awards, indicating relief, do so in
currency.2

Due to the international nature of dispute settlement, currency expressions may be alien to the
place where the judgments or awards are to be enforced.3 These and other issues are discussed
in this paper with an emphasis on a comparative position by taking the case of three countries
namely, India, United States (hereinafter US) and United Kingdom (United Kingdom).

JUDGMENTS IN FOREIGN CURRENCY

OVERVIEW

A judgement rendered at home or abroad in a foreign currency throws up several problems. An

important problem is the reference point for the rate of exchange. Somewhere along the way,
a sum expressed in a foreign currency judgement may require conversion into the home
currency.4 When the money of amount differs from the money of payment, it is necessary to


Student, National Law School of India University.
1
F Mann, The Legal Aspect of Money (7th edn, OUP 2012) 120.
2
ibid 121.
3
Paul A Samuelson et al, Economics (16th edn, The McGraw-Hill Companies 1998) 45.
4
ibid 48.

113
ensure that the rates of exchange do not cause injustice in a conversion from one ‘money’ to
another.5

It can be shown through an illustration; one can assume that an Indian seller and an American
buyer enter into a contract for the supply of some item, worth $100,000. The American buyer
breaches this contract and does not pay the sum.6 Now, the Indian seller is entitled to claim
$100,000, but various options are possible in expressing the same in Indian
currency.7Assuming that the rupee depreciates gradually vis-à-vis the dollar then,

Rate of Exchange Sum that can be claimed

Contract Date 1$= Rs.60 $100,000= Rs. 60,00,000

Breach Date 1$= Rs.65 $100,000= Rs. 65,00,000

Judgment Date 1$= Rs.70 $100,000= Rs. 70,00,000

Payment Date 1$= Rs.75 $100,000= Rs. 75,00,000

From the above table, one can discern that the date on which the $100,000 sum is converted
into Indian rupees is of crucial importance for the buyer, as he may obtain either a far greater
sum than he is entitled to if the earliest date, the breach date is followed or he could perhaps
obtain at the current rate, a sum truly representative of the dollar claim.8 Assuming if the rupee
were to appreciate against the dollar then,

Rate of Exchange Sum that can be claimed

Contract Date 1$= Rs.75 $100,000= Rs. 75,00,000

Breach Date 1$= Rs.70 $100,000= Rs. 70,00,000

Judgment Date 1$= Rs.68 $100,000= Rs. 68,00,000

Payment Date 1$= Rs.65 $100,000= Rs. 65,00,000

5
Mann (n 1) 98.
6
Mann (n 1) 125.
7
Paul (n 3) 78.
8
Paul (n 3) 79.

114
Here, the Indian seller would favour conversion at the earliest date, the contract date since that
would give him a great advantage.9

STATUTORY POSITION IN INDIA

The law on foreign currency obligations in India is very scanty. It is considered in two
judgments of the Supreme Court, which have attempted to lay down the principles.10 There
exist no direct statutory provisions on the point and it would be appropriate to refer to the few
sections in the Foreign Exchange Management Act (hereinafter FEMA) for guidance. 11

The Code of Civil Procedure (hereinafter CPC) is silent on the point, but there are general
provisions dealing with enforcement of foreign judgment that perhaps could be applied in a
foreign currency judgment, provided it is a foreign one. 12 The CPC clarifies that a foreign
judgment shall be decisive with regard to any matter directly decided upon the same parties or
between parties under whom they or any of them claim litigating under the same title. 13 The
bar in case of foreign currency judgments being enforced is that it will result in breach of Indian
Law.14 Hence, it is essential to examine whether a foreign judgment expressed in a foreign
currency will violate the relevant Indian law i.e. FEMA.15

POSITION IN ENGLAND

The law in England relating to foreign currency judgments has undergone change since 1960.16
In that year, a rule of three hundred and fifty years vintage, has affirmed, that stated English
Court has no power to decide the cases where the payment of claim is in foreign currency hence
to resolve such issues in England, a foreign currency debt must be converted into sterling with
reference to the rate of exchange prevailing on the date when the debt was payable. 17 The
modern foundations of this rule are discernible in Manners v. Pearson18, wherein it was held
that courts of England had no jurisdiction to order payment of money except in the currency of

9
Mann (n 1) 108.
10
The Foreign Exchange Management Act 1999.
11
Vaughan Black, Foreign Currency Claims in the conflict of Laws vol 2 (Hart 2010) 167.
12
The Code of Civil Procedure 1908.
13
James Grandolfo et al,‘India’ [2010] 44(01) The International Lawyer 663, 680.
14
The Foreign Exchange Management Act 1999 s 3(b); Forasol v ONGC AIR 1984 SC 24.
15
The Foreign Exchange Management Act 1999 s 2(m).
16
Roger Bowles et al, ‘Judgments in Foreign Currencies: An Economist's View’ [1976] 39(02) MLR 196, 201.
17
Woodhouse AC v Nigerian Produce Marketing [1972] AC 741 (HC).
18
Manners v Pearson [1898] 1 Ch 581 (CA).

115
England.19 This was called the home currency rule. Besides, it was also held that the date of
breach of the contract was the appropriate time for determining the exchange rate for
conversion.20

The pronouncement in the Tomkinson v. First Pennsylvania Banking & Trust (hereinafter
Havana Case21) was different from earlier precedents that had struck to the breach date-home
currency rule since the injured party had actually benefitted from them in those cases.22
However, in the Havana Case, the pound lost its value and consequently the injured creditor
had to be content with receiving an iniquitous sum. This was criticised as unjust.23

Interestingly enough, after the decision in Havana, a series of statutory changes were effected
that allowed for conversion of the judgment sum on the date of judgment instead of the breach
date.24 They included conversion in cases involving carriage of goods by air. Besides, in respect
of carriage of goods by railroad and rail, conversion could take pace upon the date of payment.
Thus, parliament itself intervened to remove sanctity attached to this rule.25

Meanwhile in Beswick v. Beswick26, the House of Lords held that to make money payment,
House of Lords could order a specific performance. This was sufficient to allow for extending
by analogy specific performance of a contract to make a foreign money payment. 27

Miliangos Case

The Miliangos case28, which proved to be a turning point in the law relating to foreign currency
judgments, arose under interesting circumstances before the House of Lords.29 It essentially
concerned an action brought by a Swiss against an English company claiming a certain sum of
Swiss Franc due to him for the price of polyester sold and delivered to the English Company
under a written contract.30 The court in England that demanded adherence to the home
currency-breach date rule was probably known to the plaintiff, for he originally asked for

19
ibid.
20
Black (n 11) 189.
21
Tomkinson v First Pennsylvania Banking & Trust [1960] 2 All ER 332.
22
ibid.
23
ibid.
24
Black (n 11) 119.
25
Black (n 11) 120.
26
Beswick v Beswick [1973] 3 All ER 498.
27
ibid.
28
Miliangos v George Frank Textiles [1975] 3 All ER 801 (HL).
29
ibid.
30
ibid.

116
satisfaction of his claim in sterling. However, upon the judgment in Schorsch Meier G.M. B.H.
v. Hennin31, the claim of the plaintiff was amended asking for the amount to be paid in Swiss
francs as an alternative prayer. The trial court refused to grant this new prayer and decreed the
amount in sterling. The Court of Appeal reversed the trial court’s ruling and granted the claim
in terms of Swiss francs. The English company preferred on appeal to the House of Lords.32

In the House of Lords, the majority abrogated the longstanding home currency rule and
recognized that English Court was entitled to grant judgment in terms of foreign currency but
qualified this to a situation where the sum of payment as well as the money of amount was
foreign and the contract was governed by foreign law.33 Thus, a practice direction of the House
of Lords was invoked to depart from the old rule, for a new and more satisfactory rule to
emerge.34

Post Miliangos Era

The principles in Miliangos were extended to other situations, as a claim based on damages for
tests and for breach of contract.35 In two connected appeals, the House of Lords extended the
Miliangos principle of allowing claims in foreign currency beyond the mere action for a sum
due to other claim.36 The Miliangos rule that the money of payment as well as the money of
amount be foreign and that the contrast be governed by foreign law was dispensed with in later
cases. The Owners of M.V. Eleftherotria v. the Owners of M.V. Despina R.37 went further in
demonstrating the wisdom of moving away from the sterling judgment and breach date rules.
Miliangos and, its progeny have recognised that, while the mechanical sterling judgment and
breach date rules may have achieved just results when the sterling was a strong world currency,
this foundation for the rules disappeared with the advent of floating currencies, a development
made possible through the judicial mind.38

31
Schorsch Meier GM BH v Hennin [1975] 1 All ER 152.
32
Miliangos Case [1975] 3 All ER 801 (HL).
33
Cheshire et al, Private International Law (14th edn, OUP 2009) 225.
34
Black (n 11) 136.
35
Ross P Buckley, ‘The Bankruptcy of Nations: An Idea Whose Time Has Come’ [2009] 43(03) The
International Lawyer 1189, 1216.
36
ibid 1192.
37
Owners of MV Eleftherotria v Owners of MV Despina R [1979] 1 AC 685.
38
ibid.

117
INDIAN CASE LAWS

Forasol v. Oil & Natural Gas Corporation.39

In India, the issue of foreign currency conversion came for the first time before SC in the case
of Forasol for the enforcement of foreign currency claims.40 There was a contract entered into
by Forasol, a foreign company and Oil & Natural Gas Corporation (hereinafter ONGC), a
Government of India undertaking. Dispute arose between the parties when certain terms and
conditions of the contract were not followed and subsequently the matter was taken to
arbitration as per the arbitration clause under the contract.41 The matter was governed under
Indian Arbitration Act, 1940. The award by the court was in French franc but the issue was
about converting the same into Indian rupees so that claim can be settled. 42 Now, there were
different dates of conversion before the court, such as the date when the action was
commenced, or the one when the court gave the final order or the date when the order of the
court was executed.43

Faced with these difficulties, the judgment in Forasol proceeded to choose the date of judgment
as the appropriate date for converting the sum expressed into Indian Rupees as this was the
latter date and was beset with the least difficulties.44 In relation to arbitration, the date when
the award is expressed through a decree would be the relevant time to calculate the sum in
Indian rupees.45

Renusagar Power Co. Ltd v. General Electric Co46: The subject matter was an arbitral award
that had been rendered in which the sum payable was expressed in foreign currency. 47 It was
however first contended that the ruling in Forasol applied to only arbitral awards governed by
the Indian Arbitration Act, 1940 and not to Foreign Awards falling within the realm of Foreign

39
Forasol v ONGC AIR 1984 SC 24.
40
ibid.
41
ibid.
42
ibid.
43
ibid.
44
ibid.
45
Cheshire (n 33) 156.
46
Renusagar Power Co Ltd v General Electric Co AIR 1994 SC 860.
47
Union of India v AL Rallia Ram AIR 1963 SC 1685.

118
Awards (Recognition and Enforcement) Act, 1961.48 The contention was in the negative,
stating that no such selective application of the decision in Forasol could be made.49

The contention that the matter of conversion of foreign currency is a matter substance and is
governed by proper law of the contract was also rejected using various authorities in English
Law and Private International Law.50 The reconsideration of Forasol that was urged in favour
of a date of payment rather than a date of judgment was not accepted by the SC, due to the
difficulties apparent in doing as pointed out in the Forasol judgment.51

POSITION IN USA

The American legal system approached the currency-of-judgment problem in the same way as
the English courts did, and the cases that have come before its judges have presented problem
similar to those faced by the English counterparts.52 Yet the position to which the US arrived
at differs from the English one in a number of ways.53

The United States adheres to the strict rule of home currency-breach date that has been a
virtually unquestioned assumption that the U.S. courts can render judgment only in U.S.
currency, supported by judgments and commentators.54 The American judge, Justice Holmes,
in two opinions considered that in case judgments rendered abroad where expressed in foreign
currency then they must necessarily be converted into U.S. currency by following the Date of
Breach. However, the federal courts also seem to follow the practice that in case the obligation
payable or the cause of action arose in foreign jurisdiction, the exchange rate existing on the
date of judgment will apply.55

The US courts sometimes follows the federal rule that alternates between the dates of payment;
otherwise, they follow the Breach Rule uniformly regardless of the place of payment.56
However, confronted with the fact that even the mighty dollar is subject to the possibility of
violent fluctuations, the law in America seems to undergo change from the rigid position of

48
Oil and Natural Gas Commission v Offshore Enterprises AIR 1993 Bom 217.
49
State of Haryana v M/S SL Arora & Company (2010)2 SCR 297.
50
Shin-Etsu Chemical Co Ltd v M/S Aksh Optifibre Ltd AIR 2005 SC 5048.
51
RM Investments & Trading Co v Boeing Co AIR 1994 SC 1136.
52
A Dicey et al, Conflict of Laws (15th edn, Sweet & Maxwell 2016) 122.
53
Cheshire (n 33) 175.
54
Vikram Raghavan, ‘Foreign Currency Judgments: Need for a Proper Legal Regime’ [1998] 10 National Law
School Journal 61, 81.
55
Black (n 11) 106.
56
Jennifer Freeman, ‘Judgments in Foreign Currency: A Little Known Change in New York Law’ [1989]
23(03) The International Lawyer 737, 753.

119
home currency-breach date.57 The trend in America thus seems to be changing in favour of a
judgment date and for recognition of judgments and awards rendered in foreign currency.58

CONCLUSION

It would be pertinent to suggest the incorporation of the judgment of the Supreme Court on
foreign currency into the relevant statute. For this purpose, whole series of amendments to
various acts are required. Especially against the background of incomplete capacity for private
parties to reduce the existing uncertainty through contractual provisions, the room for some
jurisdictions to modify their current approach to the currency-of-judgment problem is obvious.

The UK and various American states have enacted legislation based on the Uniform Foreign-
Money Claims Act (hereinafter UFMC), and have adopted systems that conduce a greater
certainty. The UFMC Act goes furthest in this regard, it provides clear standards for
determining the mandatory proper money of a claim and reserves the inherently uncertain
feeling-the-loss test for that limited class of cases where its primary rules cannot apply.

The greater problem is that no amount of certainty achieved within any jurisdiction will
eliminate the difficulties that exist in the cross-border arena, including international
commercial arbitration. Until international action addresses that, traders, litigants and their
legal advisors will have to do their best to cope with the confusing situation described in this
paper.

57
Cheshire (n 33) 198.
58
Cheshire (n 33) 199.

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