THE INDIAN EVIDENCE ACT, 1872

Background-

The concept of evidence originated firstly in the Ancient Hindu Period. It has been conveyed in the Hindu Dharma Shastras that “the purpose or main objective of any trial is the desire to find out the truth The Shastras command, that the parties coming to the court must be persuaded to admit the truth. Three kinds of evidences have been laid down by Vasistha which are, Likhitam Sakshino Bukhti Parmanam Trividham Smritham i.e. Lekhya (Document), Sakshi (Witnesses) and Bukhthi (Possession).

Coming to the Ancient Muslim Period, it has been said or assumed that there is no real concept regarding any highly developed Muslim rules of evidence. The Al – quran puts light on justice, as justice is regarded as an attribute of god. So, the rules of evidence are highly advance and modern. Evidence under Muslim law is divided was divided under the heads of oral and documentary. The oral evidence is further classified as direct and hearsay. Documentary evidences were also recognized in accordance with the Ancient Muslim law. However, Oral evidence was preferred to documentary. As, the documents executed by a certain class of people were not accepted by the court like those of women, children, drunkard, criminals etc. Besides, when documents were produced, courts insisted upon examining the party which produced them.[1]

In the British Period, the Evidence act was originally passed by the British Parliament in 1872. It contains a set of rules and regulation which governs the admissibility of any evidence in the courts of law.

In India, the Law of Evidence is a very important part of both civil as well as criminal. The enactment of this act is known as the path-breaking judicial measure introduced in India which changed the entire system of Indian judiciary.

This act, came into force on the first day of September, 1872. It was passed by the British Parliament and it contains a set of rules and regulation regarding admissibility of the evidences in the court of law. The provisions in it, talk about both procedure and rights, as it provides the procedure as to how to proceed to the court or how to establish our claim before the court. Evidence Act has been retained in its original form except certain amendments from time to time.[2]

Fact includes state of things, or relation of things, which are capable of being perceived by the senses. A fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts. “Evidence” means and includes all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence.[3]

THE NEED FOR EVIDENCE LAW

Evidence is the only possible way by which the court can make inferences to make a decision. The evidence is the proof of any fact in issues so without evidence there will be no possibilities to prove any fact in issues or even to establish any facts in the cases. It is very obvious that it is not much difficult task to obtain trust through violating the basic structure of law but in the course of protecting those rights Evidence, Law comes into the picture. Evidence Law tells the basic principles and rules regarding collection. It helps us to achieve speedy and fair justice.

The law of evidence is not just a fundamental principle governing the process of proof rather it also has a multidimensional purpose of governing the rules relating to the process of proof in court proceedings. and fair justice. On the other hand, the evidence rules also have the

In the case of  Ratten V. Queen, the victim (wife) called the police for help as her husband was holding the gun and was about to kill her but before the operator could get connected to the call and report the statements of the victim, the call disconnected. Later the police found her dead body in her house from where she called the police for help. Later the police found that the time of the call and time of death was almost the same so the call by the victim comes under the principle of res gestae. Hence the court found the husband guilty of murder and quashed his reasoning that he shot accidentally without any intention.

In the case of Sukhar V. State of UP  the victim tried to alarm that the accused will shoot him in a few minutes. On hearing the alarm the witness almost reached the place of incident. However, the victim survived and the accused was charged under section 307 of IPC (Punishment for Attempt to Murder). Despite the circumstances, in this case, being hearsay evidence, but still, the court recognised the act in the same part of the transaction and explained it to be a case of section 6 of the Indian Evidence Act. As a result, the statements of the witnesses were admissible as it formed a part of the same transaction.

The Section 8 of the Indian Evidence Act elaborates on the importance of motive, preparation, conduct (previous & subsequent) in various cases. And it is a well-known fact that Motive & Preparation are among the first act before any conduct. Therefore Section 8 explains the importance of motive, preparation and conduct where there are no direct evidence and the facts are proven on the basis of circumstantial.[4]

Although motive and intention are the thought of to be same,there is a thin line of difference between them that intention is the pre-calculation or knowledge of ascertained consequences in the mind of the offender. In some cases, it is observed that sometimes motive behind the execution of a crime may be good but the intention is always bad or guilt-oriented.

In, Kundula Bala Vs State of A.P The son-in-law before his marriage demanded a piece of land from the deceased. But after the marriage, the deceased refused to transfer the ownership of the property and expressed that he would give this property to his daughter. Such inferences of the father in law induced the accused in committing a crime and after some time the crime commenced. The court observed that there is a strong motive with the accused of committing the crime as the father in law refused to transfer the property in the accused name.[5]

Evidence tending to show that the accused had prepared for the crime is always admissible.. It is mostly observed that the Court draw inference with certain facts in establishing or ascertaining the preparation of crime committed.

In, Mohan Lal Vs Emperor, The accused was charged for cheating as he was importing goods in Karachi port from Okha port without paying the proper custom duty as he made some arrangements with the customs department. The prosecution showed enough evidence to prove the preparation by the accused in avoiding the import duties. The Court held that the act by the accused was completely wrongful and are prohibited by the law hence the accused is liable for preparation.

Section 8 of The Indian Evidence Act also defines ‘conduct’, conduct here means an external behaviour of a person. To check if the conduct of a person is relevant to the incident then the court must establish a link between the conduct of a person who committed the crime and the conduct of incident. The most important role of this part is that the relevant conduct must bring the court to a conclusion of the dispute. If the Court came to a conclusion then the conduct was previous or subsequent, it shall be checked properly by the Court. It is very clear that conduct is one of the very important evidence explained under Section 8 and such importance is only considered when this conduct is in direct form, otherwise, if the conduct is recognised indirectly then it will lose its importance.[6]

In, Bhamara Vs State of M.P, a person X was farming on his land, on seeing another person standing near to his place he called the person for some conversation. After a few moments, the conversation turned into arguments and ended up into a fight. On seeing such activity other people came to the place of incident to stop the fight but subsequently, the offender tried escaping. But the offender was caught by some other person. The Court found that the conduct of escaping of the offender was relevant subsequent conduct.

In, Nagesha V. State of Bihar ,it was held by the Court if the first information is given by the accused himself, the fact of his giving information is admissible against him as evidence of his conduct.

Alibi- The word ‘Alibi’ is derived from the Latin word, which means ‘elsewhere’. Section 11 of the Indian Evidence Acts explains the concept of ‘Facts not otherwise relevant become relevant’ and makes the provision as a defending ground for the accused. .

In, Lakhan Singh @ Pappu vs The State of NCT of Delhi,A plea of alibi cannot be compared with a plea of self-defence although both the plea is to be taken on the very first instance of the court proceedings..

Confession- Section 23 of the Indian Evidence Act defines the word “confession” is an admission of crime by a criminal or suggesting the inferences that he committed a wrongful act, confession can be made at any time during the trial. In, Palvinder Kaur v State of Punjab the Supreme Court observed two aspects which are: Firstly, the definition of confession is that the accused must either admit the guilt or admit subsequently all or few facts which constitute the offence. On the other side, a mixed statement which also contains some confessional statement will still lead to an acquittal, is no confession. Thus, a statement that contains self-exculpatory matter which if true would negate the matter or offence, cannot amount to a confession.

EXPERT ADVICE

Section 45 to 51 of the Indian Evidence Act deals with the provision of admissibility of opinions of third persons, which is also known as ‘expert’s opinion’. Although it is a general rule that evidence can only be obtained on the basis of facts which are within the knowledge of a witness. The exception of ‘expert opinion’ is based on the principle that sometimes the court can’t conclude all the matters of the cases which are technically complicated and professionally sophisticated, as these cases are required to deal by such experts who have special knowledge and skills on those matters. The Section 45 of the Indian Evidence Act defines the meaning of ‘expert’ as a person who has special knowledge or skills or has a great experience either in foreign law or in science or in art or in handwriting or in finger impression; and such knowledge is gathered by him in the course of practising in the specific field or through observation or through proper studies in the specific field.[7]

When can an expert opinion be called?

The expert opinion can be called when there is:

1.     a) A dispute which can’t be resolved without expert opinion; and

2.     b) Such a situation that the witness expressing the opinion is a subject matter related to expert.

In, Arshad v. State of A.P.  and S. Gopal Reddy v. State of A.P, in both the cases the court observed that expert evidence are just a mere opinion and not the substantive or a probative evidence; according to the procedural rule the opinion or the inference of the expert is not safe as they don’t have any independent value so they must be corroborated with the circumstantial evidence.

In, Piara Singh v. the State of Punjab, the Court state that whenever there is a contradiction between the opinion of two experts, then the court must refer only those opinions which are supported by the direct evidence of the fact of the cases.

A witness is a person who voluntarily provides evidence to clarify or to help the court in determining the rights and liabilities of the parties in the case. Witnesses can either be the person related or experts with valuable input for the case. Pieces of Evidence are placed in the court on the basis of witness and even the genesis can be proved of the documents can be proved in the court. Therefore, the law has to be very precise with regards witness and has to check the credibility of the witness, there are some certain issues to the court before the admission of the witness’s statements such as- How many witnesses are needed to prove a fact? Who is competing to be a witness of the issues? How to check the witness credibility?

Section 118 of the Indian Evidence Act lays down certain rules that ‘who may testify’ the rule expresses the provisions that all personnel shall be competent to testify by the court unless the witnesses are protected by some other provision that they cannot understand the question presented before them to testify any facts and such exceptions can be related to extreme old age, chronic disease, being legally unsound etc.

CONCLUSION

Credibility judgments can be a fundamental aspect of any case, civil or criminal, and are often the determining factors at trial.297 It is unforgivable that the legal system deliberately ignores demonstrated, relevant findings about demeanor evidence and willfully adheres to an ineffectual traditional approach. Advances in medical science and investigative techniques are integrated facilely into the insular legal system, and other advances in knowledge should be accepted, as well. When a conventional juridical policy is demonstrably unhelpful, despite all appeals to precedent or tradition, it should be reassessed in light of the data which disprove it. Social science has convincingly demonstrated the disutility of demeanor evidence as misapplied by the legal community, and its recommendations and solutions should be recognized by the legal system. Extensive revamping of judicial policy is not necessary. Rather, simple changes in evidentiary instructions and the ways in which certain constitutional rights are interpreted and applied can prevent the mistakes to which current legal assumptions about demeanor evidence easily lead. The results of these small changes can only enhance the truth-seeking process

The post Legality of Conviction based on Expert Evidence: Value and Credibility of Expert Opinion under Indian Evidence Law appeared first on Legal Desire Media and Insights.

The evolution jump started with UNCITRAL evolving conventions and model law overriding Geneva Convention of 1927 and corresponding Arbitration (Protocol and Convention) Act, 1937.

The Model Law was developed to address disparities between various municipal laws on arbitration. The constant need for improvement as well as harmonization of such laws was based on findings that various municipal laws were sometimes particularly inappropriate for international cases. India adopted the model law by enacting the Arbitration and Conciliation Act, 1996 with modification to suit its municipal needs as per the wisdom of its legislature. It contains two main parts wherein part I pertains to Arbitration, part II deals with enforcement of foreign awards- New York convention award and Geneva convention awards, the other two parts (III & IV) pertain to Conciliation, and Supplementary Provisions.¹

According to the Act of 1937, the party which pursues recognition and enforced foreign award in India was required to establish grounds of qualification for an award to be recognised and enforced, which were two-fold.

 Firstly, it had to be established that the award was made pursuant to an arbitration agreement to which the Geneva Protocol and Geneva Convention applied. Secondly, it also had to be established that the parties were “Subject to Jurisdiction” of one of the contracting states to Geneva Protocol and the Geneva Convention. Under the Foreign Award Act, 1961, an award made in any state was to be recognised and enforced, as long as it satisfied the basic conditions set down in the Act of 1961. The party seeking recognition and enforcement was required to produce to the relevant court, the award and the arbitration agreement under which it was made and the necessary evidence to prove that it was a foreign award as per the Act, 1961. When the enforcing court is satisfied that an award was a foreign award under the Act, it had to enforce it. Unless it is embraced by one of the provisions of Section 7 of the Act which had afforded several grounds on which an award could be refused by the enforcing court. However, the object of these enactments was to encourage parties to arbitration agreement to abide by their undertaking contained therein. To achieve this goal, three measures were adopted. Firstly, they recognised the validity of arbitral awards rendered by foreign arbitral tribunal in foreign land, provided it fulfilled certain conditions prescribed by these enactments. Secondly, they provided legal machinery for enforcement of foreign arbitral awards in India.

DIFFERENCES BETWEEN FOREIGN AWARD AND DOMESTIC AWARD

In broad terms the basic difference between Foreign Award and Domestic Award is two-fold. Firstly, regarding procedure of the execution of award- In case of domestic award, there is no requirement for separate execution of award. Once an award is made and objections are rejected, the award automatically gets executed and there is no requirement for application of enforcement of an award. On the other hand, foreign award is required to be enforced. Once the court is satisfied that a foreign award is enforceable the award becomes decree of the court and executable as such. Another significant difference between them is that (unlike domestic awards) foreign awards cannot be set aside. A party seeking to enforce a foreign award has to make an application for the same and the court can either accept it or reject it but the court can never set aside the award.

PUBLIC POLICY PARADOX IN ENFORCEMENT OF FOREIGN AWARDS

In case of adversarial litigation, arbitration has emerged as a mode for resolution of international commercial disputes. It is mainly caused to the judicial practice in certain jurisdictions to refuse the enforcement of international arbitral awards for their failure to meet the test of public policy of the concerned state. Global monetary flows are principally based on trust in the decisiveness of the arbitral awards. This issue is significant for the emerging economies of countries which constitute BRICS. The ones who strive to attract global capital to restructure their economies. Along with a robust in legal and judicial framework these also need uniformity in the approach to establish international credibility.²

The first time the issue of whether public policy can be considered as an exception for enforcement of foreign awards was raised in the case of Renusagar Power Electric co v. General Electric Co. This particular case dealt with enforcement of an ICC award.  This case took place before 1996 and hence it was decided under the Arbitration Act of 1961.

In the case of ONGC v. Saw Pipes it was clarified that an arbitral award could be challenged as being ‘patently illegal’, in instances of the award being opposed to substantive provisions of law or being opposed to the Act or even being opposed to the terms of the contract. After this judgement, the review under section 34 shows testing an award on the compliance with substantive law and the terms of the contract to determine whether the award violates public policy. The Hon’ble Supreme Court while interpreting the ground of ‘Public Policy’ introduced first time a sub- ground known as ‘Patent Illegality’ in ONGC Ltd. v. Saw Pipes Ltd. It can be understood that if the award is patently against the statutory provisions of substantive law which is in force in India or is passed without giving an opportunity of hearing to the parties as per section 24 or without giving any reason in a case where parties have not agreed that no reasons are to be recorded, it would be against the statutory provisions. In all such cases, the award is required to be set aside on the ground of “Patent Illegality” In Saw Pipes, the Supreme Court interpreted ‘public policy’ in light of principles underlying 1996 Act, Indian Contract Act 1872 (India) and Constitutional provisions.8 The Court found that public policy concerns public good and public interest matters and not the policies of a particular government

PROBLEMS UNDER THE ACT OF 1937

Enforcement of foreign award in India under the Act of 1937 posed some difficulties. The statement of objects of the Act of 1961, itself revealed legislative intention and highlighted a few prominent drawbacks of the Protocol Act, 1937, which has been inherited from the Geneva Convention.

The Act of 1937 placed undue emphasis on the law of the land where the arbitration was to take place. It also laid down much emphasis on remedies that were available to the parties to invoke the law of the country, wherever the enforcement was sought for the purpose of setting aside the award. Difficulty arises only when an award is passed in a country other than the one where it is sought to be enforced. The Act of 1937 could not escape from such complexity. The Act imposed an obligation on the party seeking enforcement of a foreign award to establish the validity and finality of it in the country where it was passed as well as in a country also where its enforcement was sought. The onus of proof on plaintiff to establish the finality and validity of award rendered in a different country was considered a great hurdle in meeting the growing intensity of international economic relations. In practice the finality of an award could be proved only by producing an exequatur (leave for enforcement) from the country in which it is made. The party was also required to obtain a leave for enforcement from a court of a country in which he sought the enforcement of a foreign award. The problem of double exequatur emerged. The system of double exequatur explained a situation where the beneficiary of an award was not only obliged, inter alia, to demonstrate the finality of the award in the country of its origin, but also in the country in which he sought its enforcement, usually entailing the institution of a costly, time-consuming and otherwise unnecessary proceeding for judicial enforcement order.

One major problem that emerged under this act was that as to the law applicable in a situation where arbitration agreement was valid according to the law of one country but invalid under the law of another country. Arbitration agreement is generally rendered invalid on the ground usually described as violative of public policy and the law of the country where the award is sought to be enforced. There existed no indication for the law governing the validity of an agreement in situation. Owing to the diversity and complexity of national laws and the rules of the conflict of laws, it was not easy to a party seeking enforcement of an award, to prove the conformity of the procedure followed by the arbitral tribunal of a country where the award was made, with the “public policy’ and “principle of law’ of a country where award was sought to be enforced. This condition in fact provided an opportunity to the reluctant party to attack on an award on the ground that it offended the law of the ‘Forum State’. The “public policy’ and ‘principle of laws’ have not been subjected to varied interpretation. The nature and attitude of the court in respect of these two concepts have been discussed at length in the ensuing chapter.

PROBLEMS OF ENFORCEMENT OF FOREIGN AWARDS UNDER THE ACT OF 1961

The Foreign Awards Act, 1961 following had some defects concerning the enforcement of foreign arbitral awards in India. Like the Act of 1937, the Act of 1961 also did not facilitate the quick resolution of disputes through arbitration. That is why Multinational Companies like Enron preferred arbitration in London under international regulation than to be bound to the Indian law.

Under the Act of 1961, the supervisory role of the court was maximum in arbitral process. An arbitral award could not be enforced, unless the court of the country, where its enforcement was sought, made it a ‘rule of court’.

There was no provision for direct enforcement. The conversion of the award into a ‘rule of court’ was considered to be a great hurdle and was time consuming in its enforcement in India. Arbitration clause could be rendered in operative by filing a suit in the municipal court by one of the parties to the agreement, thus, preventing the arbitrator to arbitrate. To discourage this practice, the courts were empowered to grant ‘stay’ of local action under the Arbitration Act, 1940, the Arbitration (Protocol and Convention) Act, 1937 and the Foreign Award (Recognition and Enforcement) Act, 1961. It hampered the speedy resolution of the dispute through arbitration and led to the foreign companies to form a biased opinion against conducting arbitration in India pursuant to the local Act of 1940.

Under the Act of 1961, there were five grounds on which recognition and enforcement of an award could be refused at the request of the party against whom it was sought to be enforced. The burden of proving the grounds of refusal vested in the party against whom the award was invoked. Like the Act of 1937, the Act of 1961 also prescribed two additional grounds which could be raised by the relevant court on its own motion. They were, the compatibility of the obligations imposed by the foreign award with that of ‘public policy’ of India and capability of dispute to be settled through arbitration under the law in force in India. There were grave uncertainties as to what constitutes ‘public policy’ of India and discretion granted to the court for determining the arbitrabi1ity of a dispute under the law in force in India. There was also uncertainty as to the content of the term “foreign award’. India had ratified the New York Convention subject to the reservation that it would apply it only to the contract of commercial nature. This finally invited another controversy as to which contracts could be considered to be ‘commercial’. There existed no guideline for determination of a contract considered to be “Commercial’ in both the Acts of 1937 and of 1961.

ENFORCEMENT OF FOREIGN ARBITRAL AWARDS AFTER THE ACT OF 1937

 India complied to the Geneva Protocol on Arbitration Clause of 1923 and the Geneva Convention on Execution of Foreign Arbitral Awards of 1927. It also became party to the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards, 1958. It enacted the Arbitration 12 (Protocol and Convention) Act, 1937 to give effect to the Geneva Protocol and Geneva Convention. It also gave effect to the New York Convention by enacting the Foreign Awards 13 (Recognition and Enforcement) Act, 1961. The Act of 1937 did not govern the awards made after 11th October 1960 arising out of the countries which were the signatories to the 1958 Convention. This Act adopted the practice of arbitration and enforcement of the awards as embodied in the Geneva Convention and Geneva Protocol.

The Foreign Awards Act, 1961 ensured recognition and enforcement of foreign award in India in accordance to the procedure and scheme evolved under New York Convention. Both the Acts were made on the same line. However, differed in respect to burden of proof relating to the cases involving enforcement of foreign arbitral awards. The Act of 1937 under section (7)(l)(d) imposed on the party seeking enforcement of foreign award a duty to establish the validity of award and its finality in the country in which it was made. The Act of 1937 and of 1961, were simultaneously operative in respect of the enforcement of a foreign award in India. The reasons were two fold. Firstly, India being a State signatory to the Geneva Convention and Protocol on which the Act of 1937 was based, the obligation undertaken thereunder continued to bind India with regard to the award resultant of disputes between the member States of the said Convention and the Protocol. Secondly, since India had also ratified the New York Convention, 1958 and given effect to it by enacting the Act of 1961, its obligation also continued to bind India with reference to the awards coming out of the arbitration held on a dispute between the contracting states to the New York Convention 1958. A foreign award may have worldwide recognition in respect of its nature but different legal systems on account of their policies take different view as to its legal effect. Lack of specific provisions with regard to enforcement of foreign award in India coupled with the discretionary power of granting stay of a legal proceeding by the court by virtue of interpretation of the then existing statutes were considered great obstruction in the enforcement of foreign arbitral award in India prior to 1937.

The judgment of the Hon’ble High Court of Delhi in the case of NTT Docomo v. Tata Sons Limited (2016) has settled an important issue on the enforcement of foreign arbitration awards in India. The court was faced with a situation where a foreign arbitral tribunal interpreted the foreign exchange laws of India in a particular way, the enforcement was resisted by the Indian party. Interestingly the enforcement was also resisted by the Reserve Bank of India (The Central Bank), which has been conferred with the power of enacting delegated legislations (i.e. circulars, rules and regulations) for the working of Foreign Exchange law, i.e. the Foreign Exchange Management Act, 1999. The permission of Reserve Bank of India was required for performance of an obligation which was not granted. The Reserve Bank of India held the view that the enforcement of the foreign award will violate the foreign exchange laws and thus sought intervention in the matter, to oppose the enforcement of the award. It was ultimately held that entities which are not parties to an award have no locus standi to intervene in enforcement proceedings. The binding nature of the interpretation of laws by Arbitral Tribunals once the award is enforced by Court was also recognised, along with the need to consider the impact of FDI’s inflow and reputation of the country while considering the issue of the award being consistent with public policy. The judgment is a positive step in recognition and enforcement of foreign arbitration awards and answers the important question of the extent of intervention that entities which are not a party to an award have Enforcement proceedings or in proceedings challenging an award. The Arbitral Tribunal finally passed an award in favour of the petitioner (Docomo). In the award the Foreign Exchange Management Act was analysed and it was among other things held that the permission of Reserve Bank of India was not required and the Foreign Exchange laws of India does not contain any prohibition that would obstruct the enforcement of this award. ⁴

Enforceability

Part II of the Act does not set out any time after which the foreign award would become automatically enforceable which is unlike domestic arbitral awards. The whole enforcement process of a foreign award can be summed down to two major parts being firstly, under section 48 the Court determines the enforceability of the foreign award by giving a chance to the award debtor, the right to challenge the enforcement of the foreign award on the basis of the grounds set out therein. Once the Court is satisfied that the award is enforceable then according to section 49 of the Act, it is executed in the same manner as a decree of the Court. However, the objections can only be raised under section 48 of the Act in a reactionary manner by the party against whom the award has been passed after the creditor seeks enforcement. The application for enforcement is made under Section 47 and 49 of the Act. Where section 47 deals with the formal requirements necessary for making an application.

Appeal

If the Court refuses to enforce a foreign award under Section 48 of the Act. The Award holder has a right under Section 50 of the Act to file an appeal. Whereas no such remedy is available under the Act for award Debtor to file an appeal. However, Calcutta High Court has held that the award debtor is permitted to file a Letters Patent Appeal under the High Court Rules against the enforcement of the award. This decision was based on the Court’s observation that Part II of the Act is not a self – contained code, and thus the provisions of the Court rules which provide for such appeal operate to override Section 50.

Jurisdiction

According to the explanation of Section 47 of the Act, High Court has original jurisdiction to decide the questions forming the subject matter of the arbitral award if the same had been the subject matter of the suit, and in rest of the cases the High Court has the jurisdiction to hear appeals from the decrees of its subordinate courts. The Hon’ble Supreme Court has held that in case the subject- matter is money, then the execution petition must be filed before a Court within whose jurisdiction the money is held. Accordingly, the application for enforcement of a foreign award may be filed before a Court in whose jurisdiction the award debtor has its office or is carrying on its business,20or where the assets of the award debtor are present.

Time Period

The Act does not provide for any period of limitation for filing an application for enforcement of a foreign award. However, the High Court of Bombay held that since the enforcement of foreign awards required that an application is to be made before a civil court, the provisions of the limitation Act would be applicable Also, it was held that since foreign award goes through two distinct stages i.e., determination and execution, different provisions of the Limitation Act would apply to each stage. The Madras High Court on the other hand, has taken a contrary view on this, it held that since the foreign award is to be enforced in a combined proceeding involving enforcement and execution, only Article 136 of the Limitation Act would be applicable, setting out the time period of twelve years from the date on which the foreign award was rendered

CONCLUSION

It would be seen that the enactment governing the enforcement of foreign arbitral awards in India were fraught with several loopholes and practical impediments. Prior to 1937, the Indian Court used to take recourse to such a statute which even did not contain any provision in respect of enforcement of foreign awards in India. The courts devised short term remedies by way of interpretation of the then existing statute namely the Indian Arbitration Act, 1889, whenever they were approached to decide cases concerning enforcement of foreign awards in India. The use of such a statute which was no way concerned with the problems dealt with, consequently brought discretion in the hand of the courts to decide the cases of the said nature, by extracting the authority by way of interpretation of the Indian Arbitration Act, 1889. The parties to foreign agreements taking advantage of the said discretion of the courts could have easily taken the stay of legal proceeding” concerning enforcement of foreign awards, even in the cases where under the term of contract parties had agreed upon to refer all their disputes to the court of a particular country. Lack of any specific provision with regard to meet the widely expressed desire of the commercial world that India should ensure effective recognition and protection of foreign arbitration agreement, so that international mercantile community could establish trade relations with India. Both the Acts were accordingly made applicable only to a foreign award arising out of matters, which, by the law in force in India, were considered ‘commercial’. At the same time there existed no explanation to the term ‘commercial’ under the said enactments which consequently, led to a great difficulty to comprehend the exact content of the term ‘foreign award’ as a sole ground to make the Act of 1937 and of 1961 applicable in respect of enforcement of foreign awards in India. Growing intensity of modern international trade and resort to arbitration as a forum of settlement of international commercial disputes have exposed several inbuilt weaknesses and consequential practical impediments of the Act of 1937 and of 1961 in respect of enforcement of foreign arbitral awards in India.

The arbitration laws in India are very much at its crossroads. Today, arbitration is poised to effect great changes to the ways in which dispute resolution is conducted. It brings with it the solemnity and finality of the judicial process and along with the procedural flexibilities of alternate dispute resolution methods. However, there is an equally pressing need to recognize that much more can and should be done in order to improve the conduct of arbitral proceedings in India but most importantly, we feel that there is a need to bring a change in perceptions. As our nation moves towards increasing litigiousness, alternative methods of dispute resolution might just provide the key to resolving the problems of overburdened caseloads, long pendency of cases and an all too frequent case of justice being delayed. For long, the problem plaguing the effective implementation of ADR methods has been their perception as being subordinate to the court process- a perception shared and fostered by lawyers and people alike. It is imperative, that this be changed and this can only be achieved if there is active engagement from all the stakeholders in this process. Certainly, there are some disputes inherently unsuited for alternative channels but there are so many more which fit perfectly within the vision envisaged for a system of rendering justice that runs concurrent to the Courts. m. As our country grows and flowers, taking wing on issues unimagined before, it is time also for our dispute resolution systems, the undisputed backbone of our nation, to follow suit. At the end of the day arbitration would see the day light of reality and true success when people would start accepting the arbitral award and its finality as that of a judgment by the Supreme Court not because it is justice always but because it is final always, having no further appeal.

CITATIONS AND REFERENCES

1.Kachwaha, S., 2008. Enforcement of Arbitration Awards in India. Asian Int’l Arb. J., 4, p.64.

2.Bansal, C.L. and Aggarwal, S., 2017. Public policy paradox in enforcement of Foreign Arbitral Awards in BRICS countries. International Journal of Law and Management.

3.Ansari, A.T., 1995. Enforcement of Foreign Arbitral Awards in India-An Analytical Study with Special Reference to Arbitration and Conciliation Ordinance, 1996 (Doctoral dissertation, Aligarh Muslim University).

4.Hashmi, S., 2020. The Impact of NTT Docomo INC v. Tata Sons Limited on the Enforcement of Foreign Awards in India. Tata Sons Limited on the Enforcement of Foreign Awards in India (March 8, 2020).

https://uncitral.un.org/

http://www.whiteblacklegal.co.in/

http://www.legalservicesindia.com/article/941/Enforcement-of-Foreign-Awards.html

https://indiankanoon.org

https://www.britannica.com/topic/international-law/International-law-and-municipal-law

The post Enforcement of Foreign Awards in India appeared first on Legal Desire Media and Insights.

·       If the person who took the photograph or commissioned it, owns the copyright or not.

·       Whether the objects which have been included in the photograph have a right to privacy.

^·            Whether copyright and privacy rights change considering the location and context as to where the photograph was taken.²

The copyright and privacy laws are almost similar across the world, and follow the rules which have been laid down by the World Intellectual Property Organization (WIPO). But some differences exist in certain points. In India, the Copyright Act, 1957 deals with the issues which relate to copyright for photographs and images. Photographs are considered in intellectual property, covered under the copyright acts. The individuals which have been featured in these photographs have the right to privacy.

The right to privacy was declared a fundamental right recently and even though there is no definite law to protect it, there are sub-laws that provide great assistance. But such right is not absolute as clarified by various case laws. The question of what constitutes a public place is pertinent to decide if an object featured in an image or photograph can expect privacy.

 Photography in public is not restricted by Law in India but one can still take action against those who invade privacy or misuse one’s pictures or videos. Information Technology, Sexual Harassment Laws could help in filing a case. Under Article 19 “you are free to take pictures for private use of other people in public areas under the Constitution of India”. Whereas, publishing a photo in a manner that might be “embarrassing, mentally traumatic” or causing “a sense of insecurity about the activities the person in the photograph is involved in” is illegal under Article 21.³ Asking for permission becomes mandatory incase the photograph is being uploaded for commercial use. Public restrooms and changing rooms are off limits when we consider public areas because they are a violation of an individual’s privacy. This is called as voyeurism.

Provisions in the Indian Copyright Act 1957

Section 13 of the Indian Copyright Act, 1957 offers copyright protection for original artistic works. Section 2c of this act includes photographs under artistic work. Section 4 of the act prevents publishing the copyrighted work in the public without the license of the owner who has the copyright. The copyright owner can use the photograph in any way and even commercially. Section 17 of the Copyrights Act, 1957 conveys that the first owner of the copyright is the author of a work. The author, with respect to a photograph, is the person taking the photograph, or the artist unless there is an express agreement stating otherwise. This position derives from the WIPO convention of 1967, of which India is a signatory. There are, however, certain caveats associated with the general provision of Section 17 of the Indian Copyrights Act, 1957. As per Section 17 (a), when the work has been made by the author in the course of employment, the employer owns the copyright. Considering an example where a newspaper hires a photographer under a contract to procure his service, the newspaper, or the owner of the newspaper, will own the copyright for the photographs clicked by the photographer during the course of employment, in the absence of any agreement to the contrary. Section 17(b) of the act provides that “where a photograph is taken or a cinematograph film is made, for valuable consideration, in the absence of any agreement to the contrary will be the first owner of the copyright” The services of an independent contractor hired for creating or doing a work on a given subject fall under this definition. ⁴

In case of wedding photographs, the copyright of the wedding images belongs to whoever has paid the photographer to take the snaps, unless there is an express agreement assigning the copyright of the photographs to the photographer. But if the photographer clicks some photographs which are outside the scope of the contract, the photographer will retain copyright for such pictures. For an example, let us consider that the agreement is to click 100 pictures, the copyright for these 100 photographs is for the person who paid for these photographs. If the photographer takes an additional 20 photographs, he retains copyright for these other photographs.

Section 52 of the Indian Copyright Act 1957 deals with fair use. This section lists out specific instances or conditions wherever the overall rule concerning copyright doesn’t apply. Section 52(1) (a) of the Indian Copyright Act, 1957 permits the employment of proprietary work for personal or personal use, together with analysis, criticism or review. As per this exemption, the artist will maintain a private portfolio of the photographs he has taken for somebody else. This exemption doesn’t offer him any rights to take advantage of his portfolio commercially, or sell the pictures from the portfolio to any third-parties. Section 52 (h) of the Indian Copyright Act, 1957 exempts the publication of extracts restricted to 2 passages, however this is often specifically for revealed literary or dramatic works, and not applicable to images. Section 52 (d) of the Indian Copyright Act, 1957 permits the copy of any work for proceedings or maybe for the aim of a report of a proceeding. ⁵ So, if the marriage photograph may be a very important clue to a criminal offense scene, or later within the course of a divorce proceedings, it is often freely used and shared for the aim, without worrying of violation.

The issue of privacy
The right to privacy may be a natural right, enshrined as elementary rights by most legal jurisdictions of the globe. as an example, taking images while not consent is violation of Article 88 of European Convention of Human Rights (ECHR.) In India, the proper to privacy may be a elementary right, bonded below Article twenty one of the Constitution of India.⁶ varied courts have conjointly enshrined the proper to privacy below common law, principles of equity, and also the law of breach of confidence. supported such natural and elementary rights, anyone during a personal place features a legal and cheap expectation of privacy, however such right isn’t absolute. Most legal jurisdictions don’t extent the proper of privacy to public places. Anyone during a public place, has no legal expectation of privacy
The question is do people that attend personal functions like weddings have a right to privacy. will celebrities et al. United Nations agency attend personal or public functions expect privacy?
in September 2012, a photographer revealed the photographs of Catherine, the noblewoman of Cambridge sunbathing topless at her husband’s cousin’s vacation target France. The noblewoman claimed right of privacy while at the house. The magazine that revealed the photograph retorted that the photographs had been taken from the general public route. The French court granted the noblewoman Associate in Nursing injunction, restraining the magazine from business the pictures in France, to not sell the photographs, and fork up the initial material of the revealed photos below threat of a €10,000 fine for each day delay in doing therefore. The court awarded €100,000 (£91,000) in damages and interest. The magazine’s editor and also the chief operating officer of the publisher was more penalized €45,000 each^{. 7}
Indian courts have conjointly followed the same mechanical phenomenon. A landmark case in India is independent agency Development (International) v. Arvee Enterprises. The urban center tribunal discovered that “The right of message has evolved from the proper of privacy and may lie in solely in a private or in any indicia of a personality like his name, temperament attribute, signature, voice, etc. a private could acquire the proper of message by virtue of his association with an occasion, sport, movie, etc. However, that right doesn’t include the event in question, that created the individual notable, nor within the corporation that has caused the organization of the event. Any effort to require away the proper of message from the people, to the organiser of the event would be violation of Articles 19 and 21 of the Constitution of India. No persona is often monopolised. the proper of message vests in a private and him alone is entitled to exploit it. for instance, if any entity, was to use Kapil Dev or Sachin Tendulkar’s name, persona or indicia in reference to the ‘World Cup’ while not their authorisation, they’d have a legitimate and enforceable reason for action.” ⁸
In Sonu Nigam v. Amrik Singh (alias Mika Singh) , the parties to the case were to seem at the Mirchi Awards 2013, and were shown through images on the official posters of the event, with their due consent. Mika Singh, so as to push himself displayed hoardings and posters, that were completely different from official hoardings and posters of the event, carrying Brobdingnagian photos of himself beside smaller photos of the opposite artists, together with Sonu Nigam, while not their consent and permission. The metropolis tribunal restrained the litigators from displaying the photographs of the litigant while not consent and ordered the defendant to pay Rs. ten Lakhs as damages towards nominative charities, as consented by the parties^{. 9}
These analogies have created it clear that the pictures taken at a private space, and that includes people who haven’t given their consent are often used just for the aim that it absolutely was taken.

Photographs used for Criminal Investigation

A good record should be processed properly and printed. It should be focussed, sharp and should not converge in the print. A photograph should include everything regarding the subject and needs to be relevant to its purpose. Photographs of crime scenes are examined with a detailed plan to show a true picture that is obtained. These should not be marked or retouched. They should be taken from eye level. For Example- traffic accident photographs, where views of other drivers play as an important factor. The police photographers keep in mind these requisites of a good record picture that will standardise the procedure and technique. ⁴

In presenting photographs to the court, the police photographer states on oath, date. Day and time on which he took the photographs and he processed the negatives himself.  If this cannot be done, an affidavit is sworn by technician who processed the film and on status of photographer as witness to the ’truth’. He may be regarded as an expert witness and competent within his own field to express an opinion if asked by the court to do so. The court places a great deal of reliance on experience of witness. Legal photographs are made ultimately to be used in the courtroom.

 There is a thin line between professional photography and perversion acts, but according to Law, the nature of photograph plays an important role in the major decision of registering a complaint.

REFERENCES

1.     https://www.mondaq.com/india/trademark/777368/celebrity-rights-is-it-important-in-india#_ftnref2

2.     (Naseer, N., Ernakulam, K. and Mrudula, M., Whose Photograph is It Anyway? The Law Related to Photography.)

3.     https://www.edexlive.com/news/2018/jan/08/indian-law-wont-cover-you-being-photographed-secretly-but-there-is-still-some-hope-1864.html

4.     Tagg, J., 1994. The Photograph as Evidence in Law”. Michel Foucault, 7(36), pp.17-55)

5.     http://nujslawreview.org/wp-content/uploads/2016/12/souvanik-mullick-and-swati-narnaulia.pdf

6.     Copyright Act, 1957. https://indiankanoon.org/doc/1136195/

7.     Constitution of India, https://www.india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf

8.     https://www.theguardian.com/uk-news/2017/sep/05/topless-photos-of-duchess-of-cambridge-were-invasion-of-privacy

9.     https://indiankanoon.org/doc/358048/

10.  http://www.the-laws.com/Encyclopedia/Browse/Case?CaseId=314102951100

The post Photography and Law appeared first on Legal Desire Media and Insights.