Section 26 of the Arbitration Act: Conflicting Views on Stay of Arbitral Award

The 2015 amendment to the Arbitration and Conciliation Act, 1996 which came into force from 23.10.2015 also brought with itself a host of controversy. This controversy had arisen because of the conflicting views taken by various High courts while interpreting Section 26 of the amendment Act and thereby affecting the position on the stay of an arbitral award under newly added Sections i.e. 32(2) and 36(3).

These newly added sections under enforcement of award say that mere filing of a petition under Section 34 for setting aside the arbitral award by itself will not render it unenforceable unless the court grants a stay on such award, for which now a separate application has to be moved under Section 32(2). It further gives such court the discretion to grant stay subject to such conditions as it deems fit.

Section 26 of the Amendment Act says: Nothing contained in this Act shall apply to the arbitral proceedings commenced, in accordance with the provisions of Section 21 of the principal Act, before the commencement of this Act unless the parties otherwise agree but this Act shall apply in relation to arbitral proceedings commenced on or after the date of commencement of this Act.

Some High Courts had taken the view that the term ‘in relation to’ in Section 26 of amendment act would not include the court proceedings commenced after  amendment ; hence no separate application is  needed to be filed whereas the other interpretation is that those arbitral proceedings would include the present court proceedings and would be governed by the amended provisions.

While the Madras High Court in New Tirupur Area Development Corporation Ltd. v. M/s Hindustan Construction Co. Ltd had taken the first view, the Division Bench of Kolkata in Sri Tufan Chatterjee v. Sri Rangan Dhar, had taken the latter view i.e. even the pending court proceedings relating to arbitration, which was pending as on date when the amendments were notified, must be governed by the amended act and not the unamended one.

Though the Bombay High Court in Rendezvous Sports World v. BCCI had taken the latter view, the reasoning given by it was different. It said that amendments brought to Section 36 of the Act are procedural in nature and further balances the rights of both parties and ordered the BCCI to file an application seeking stay against enforcement of arbitral awards under challenge.

The latest view is taken by Delhi high court in Ardee Infrastructure Pvt. Ltd vs Yashpal & Sons where it said; the petitions filed under section 34 for challenging the award prior to the amendment would be governed by the unamended provision and would be entitled to automatic stay whereas for the petitions filed after it, will have to move a separate application for seeking a stay on the award.

Thus all the arbitral proceedings (the entire gamut, including the court proceedings in relation to proceedings before the arbitral tribunal), which commenced in accordance with the provisions of Section 21 of the said Act prior to 23.10.2015, would be governed, subject to an agreement between the parties to the contrary, by the unamended provisions and, all those in terms of the second part of Section 26, which commenced on or after 23.10.2015 would be governed by the amended provisions.

Though the view taken by the Delhi court seems to be the most logical interpretation on this point, we must watch out for the Supreme Court’s decision which is pending adjudication in Rendezvous Sports World v. BCCI. It is essential that this controversy is put to rest by the apex court as soon as possible both for the purpose of having logical interpretation and enforcement of the award.


Mousomi Panda


Mousomi is a third-year student pursuing B.A. L.L.B. from University School of Law and Legal Studies, (IP University). She has an active interest in issues that plague the society. She’s a thinker, writer, and reader, though more of a dreamer. She’s interested in legal research in the field of ADR as well as IPR.

Is it their duty as Supreme Court judges to protect the Constitution and also the citizen’s faith in the judiciary?

“The framers of the Constitution were so clear in the federalist papers and elsewhere that they felt an independent judiciary was critical to the success of the nation.”

The questions revolve around Justice Deepak Mishra’s arbitrary appointments of benches for cases. A press conference is a grave step, must have taken excessive courage for those judges to come out of their way and set a precedent.  This event had taken place on the 12th of January at Justice Chelameswar’s residence. When questioned about the reason behind the gathering Hon’ble Justice Chelameswar said that the judges were “left with no choice” other than to communicate to the nation the many “less than desirable things” those have happened “in the last few months”. They said in their statement that “certain judicial orders passed by this court” have “adversely affected the overall functioning of the justice delivery system.” Justice Chelameswar said that all four of them are “convinced that unless this institution is preserved and it maintains its equanimity, democracy will not survive in this country.”[1]

All the four judges who had participated in the press meet i.e. Justice J. Chelameswar, Justice Ranjan Gogoi, Justice MB Lokur and Justice Kurian Joseph have had a remarkable record of integrity, intellect, and impartiality. This step taken by them to inform the public about the lack of impartiality in deciding cases or in the appointment by the current CJI, Justice Deepak Mishra can be considered as their last resort. The replies given by them during the press conference can be recognized as their deep anguish and their urge to protect the democracy and the Supreme Court. They felt that it was important to educate the country about the absence of unbiasedness by the CJI in the administration of justice. They additionally said that they didn’t want the nation 20 years from now to feel that they had “sold their souls”.

The conference majorly highlighted the increasing rift between the Senior Judges and the CJI. Such a situation in the present scenario where there are a million controversial and landmark judgments which were given in the recent times and which are going to be reviewed will end up being questioned as they were given under the supervision of the current CJI, who is accused by the Senior Judges of being partial. The Adhaar card decision was opposed by Justice Chalameshwar. This is true and the linking of Adhaar has always been an issue of debate and also this was the same conclusion given by the committee appointed to look into the privacy matters when it comes to the draft policy on data.

We’ve been disappointed more often than not with the happenings of the Government and the Judiciary. There are a few people who also argue that when this took place the judiciary that is supposed to serve as a cornerstone to solidarity and justice has taken a downward spiral when it brazenly displayed disparities within itself. In my opinion, no rational or prudent person would have or will ever have such a utopic idea about one of the most hypocritical concepts that have ever sustained existence. The “fact” that an institution has disparities is but human and not news that has the shock factor it claims to have with it.

The four Judges were absolutely right when they took media as a platform to inform about the issue. The constitution has democracy as a concept enshrined in it. When the Judges informed them about the dangers which lie ahead to the public, they were well acting within their rights. If there is no democracy, there is no Constitution and no constitutional democracy. Needless to say, that independence and impartiality form the basic structure of the Constitution. A strong and united judiciary is the sine qua non for a strong and vibrant democracy. If the judiciary of a country is divided and polarized, it will have a direct effect on the very survival of democracy in that country.

Nobody is still aware of the reasons behind such a drastic step taken by the Senior Judges. The correctness can still be questioned and the issues should be sorted in a way they are supposed to be.  The general public being completely unaware of the internal discrepancies will form its opinion on the matter and deal with it differently; such a thought process once initiated will definitely raise questions on the stability of the Judiciary.



Deepa Karanam


Deepa Karanam is currently a third-year student at Symbiosis Law School, Hyderabad. She is currently working as the president of the Legal Aid Centre at Symbiosis Law School, Hyderabad. Social work and charity is something she always looks up to, and the famous JFK saying going by ‘If not us, who? If not now, when?’ fascinates her to keep going and never wait for anybody to bring about a change in the society. An aspiring bureaucrat, her pass time has always been music because of its healing power.

Wage Code Bill in Lok Sabha

The Government, in the view of labour law reforms, had rationalized 38 Labour Acts into 4 labour codes i.e. Code on Wages, Code on occupational safety, health and working conditions, Code on Industrial Relations, and Code on Social Security.

The Government on 10th August 2017 introduced ‘The Code on Wages’ in Lok Sabha which seeks to absorb four existing labour laws, namely, the Payment of Wages Act, 1936 Minimum Wages Act, 1948; the Payment of Bonus Act, 1965; and the Equal Remuneration Act, 1976. This Code of Wages will dissolve all the four prior Acts. The enactment of Code of Wages Bill will erase the complicated and multiple definitions leading to a better compliance, wage security and social security of the workers.

The gamut of the Minimum Wages Act and the Payment of Wages Act is quite reserved, catering only to Scheduled employments/establishments. This clearly shows the advantage of the Code of Wages Bill which provides for timely payment of wages irrespective to one and all and thus, covering each individual in every sector of employment without any wage ceiling.

With the enforcement of the concept of a National Minimum Wage, no state will be allowed to fix minimum wages below the National Minimum Age for that particular area which has been notified by the Central Government. This provision will assure a basic standard of living for the employees.

The proposal of paying wages through cheques or any electronic modes will not only foster digitalization but also provide to the employee a kind of social and wage security. The provision of an Appellate Authority to be made between the Judicial Forum and the Claim Authority to lead to an efficient, feasible and faster path to grievance redressal of the employees.

Also, there are penalties for the various types of violations of the Code which will be subject to the intensity and the frequency of violations by the offender.

Recently, it had been reported that the National Minimum Wage has been fixed to Rs. 18000 per month by the Central Government. The Government denying all reports clarified that it had not fixed any wage as the National Minimum Wage and thus trashing the reports as baseless. Instead, the minimum wage would be different according to the geographical location of the area, the intensity of work done, and depending on the skills required.

According to Clause 9(3) of the Code of Wages Bill, the Central Government before setting up a National Minimum Wage is supposed to take advice from the Advisory Board which would consist of employees and employers from various sectors of employment. This means that the framework provides for a consultive mechanism for the determination of a National Minimum Wage.

Also, some reports claim that the methodology for the calculation of the National Minimum Wage has been revised increasing the units from three to six. But such provision was solely the demand of the Trade Unions in the previous meeting of the Central Advisory Board on Minimum Wages which has not been incorporated in the Code of Wages Bill. Through the bill has been criticized for being introduced with a short notice, it seems to pave a path to generate greater employment and entrepreneurship.


ashish lD


Ashish is an undergraduate student at Cluster Innovation Centre, University of Delhi. The institution has a Meta College concept and focuses on an interdisciplinary approach.  He is the co-founder of two non-profit ventures, one of which deals with education and the other in enhancing scientific communication among the masses. He has done three research projects at Cluster Innovation Centre the first aimed to create a prototype of full-fledged Hindi dictionary and another on the Study of a community’s cultural tradition (Banjara community). The third project was Hafta bazaar aimed to digitalize and study the various weekly markets in Delhi. He is quite ardent in the field of economics and journalism and is intrigued by topics from digital marketing to management, which are reflected in his undergraduate studies. He was also a part of a report published on education.

Social values v. Social Reality: Divergent perspectives on Termination of Pregnancy

In India, Abortion (voluntarily causing miscarriage) is illegal[1], only medical termination is allowed.[2] Termination of pregnancy can only be undertaken by registered medical practitioners up to 12 weeks and the opinion of more than two medical practitioners is required if termination of pregnancy is done between 12 and 20 weeks. Termination after the 20 week period is prohibited under the Act.[3]

The act has divided the gestation period into parts which have separate rights associated with them. Such bifurcation raises some fundamental questions such as: when does life begin? Should the child be protected from the time of its inception?

The personhood of the unborn has been a contention for both moral and legal discussion for a long time now. The pro-life contenders argue that the right to life of an unborn child is protected under Article 21 of the constitution of India.[4] Whereas the pro-right contenders hold the view that right to have an abortion is recognized under right to privacy which is part of right to personal liberty (which emanates from right to life).[5]

It is also argued that a child’s right to a dignified life which is a part of right to life[6] would be violated if the mother herself, being the host, is unwilling to carry on with the pregnancy (extreme detachment).[7] Though foetus should have a right to life, a meaningful and wholesome life would not be possible if the mother herself has not been able to form any emotional bonding with the foetus /would-be-child.[8]

Women’s rights activists argue that a woman should have reproductive rights and the entire purpose of introducing the MTP Act was to empower them with the same.

The prolife contenders don’t accept this argument stating that abortion is not within the “right of a women over her body” because of the doctrine of Separate Entity. Stressing on the point that the such right is limited as it is encroaching the right to life of another (the foetus).

Considering both the liberal and moral issues, it is pertinent to note that the life of a child is intrinsically connected to that the mother. Consequently, she before anyone else should have the right to make such a decision based on financial, medical and emotional considerations which would affect the future of both.

There also exists a lot of criticism regarding the 20 week period restriction mentioned in the MTP Act. The question of extending the same first came up in Dr. Nikhil D. Datar v. Union of India & Ors[9] and has since been under judicial scrutiny. Doctors argue that the limit is arbitrary and that the same should be extended as a lot of complexities such as cardiac deformities can only be detected after the 20 week period.

Recently a 10 year old gave birth to a child (conceived as a result of rape) because the Supreme Court rejected the plea for abortion by her parents as the 20 week period had elapsed.[10] Should the court follow the black letter of law in all cases? Should a decision that can alter the course of a minor’s life be not taken by her guardians? Such cases are not uncommon and dilemma of choosing between a solution that either suits our morality or reality still persists.

It’s sad that despite the huge numbers in which such cases are brought before the court, the court has not set precedents or guidelines for governing termination post the 20 week period. It is inhuman to expect a woman pregnant for 20 weeks to knock the doors of the court to decide about her fate and is also unreasonable to expect a speedy decision which is of an essence in these cases.

Another ethical dilemma is regarding abortions conducted in “good faith” under Section 2(b)(2) of the Act, which allows medical practitioners to conduct abortions during the 12 to 20 week period if the foetus is suffering from any physical or mental abnormalities. Does the relaxation in the time period provided for in the act point towards the fact that under our constitution, Right to life of a child with physical or mental abnormalities is lesser than that of a Perfect baby?[11]

It has been observed that a hike in the number of such abortion has arguably lead to further devaluation of differently-abled people. It points towards the darkness that seems to have overtaken our society where individual liberty is now been given more importance than social responsibility and where weeding out of potentially “abnormal” babies is being increasingly normalized.

These issues are neither dealt with in our constitution nor in any international treaty, these are issues that have troubled the consciousness of legal theorist and medical practitioners alike for centuries.

But for most cases that reach the courts, decision is taken according to the provisions of an act (MTP) which was intended to be a population lobby law and not a pro rights law.  Law reflects the consciousness of the society and therefore unless changes are brought into the same, the parameters for deciding its threshold would remain low.

[1] Section 312 of The Indian Penal Code,1860:

 Causing miscarriage.—Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprison­ment of either description for a term which may extend to seven years, and shall also be liable to fine. Explanation.—A woman who causes herself to miscarry, is within the meaning of this section.

[2] Section 3(2)(i) of Medical Termination of Pregnancy Act, 197:

(i)  the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health ; or

(ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.

[3] Section 3(2) of Medical Termination of Pregnancy Act, 1971:

(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,-

(a) where the length of the pregnancy does not exceed twelve weeks if such medical practitioner is, or

(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are.

[4] Article 21 of the Constitution of India, 1950:

Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.

[5] Roe v. Wade 410US 113(1973).

[6] AIR 1978 S.C. 597.

[7] Section 3 of Medical Termination of Pregnancy Act, 197:

Explanation 1.-Where any, pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

[8] Sunanda Bharti (2013) Legal Personality of Unborn: a Jurisprudential Analysis. Retrieved form

[9] W.P. (L) 1816/2008.

[10] Agence France-Presse (7th August, 2017) 10-year-old rape victim denied abortion gives birth to baby girl in India

 Retrieved form

[11] Geeta Seshu (October 1, 2007) Abortion Dilemmas: Perfect Baby, Imperfect Society. Retrieved form




Tanvi Singh is a fourth-year Law student pursuing B.Com. LL.B. (Hons.) at Gujarat National Law University. Tanvi believes that deductions and deliberations must be made sincerely based on well-researched information. Her academic interests are in the field of International Trade Law, Law and Economics, Contracts and Arbitration.

The Consumer Protection Act, 1986 and the Indian Society – An Analysis

The Consumer Protection Act of 1986 (the Act) envisaged protecting the interests of consumers by establishing consumer councils and other such authorities for settling consumer disputes. The perceived guiding principle behind this Act is that business organizations must adopt utmost ethical practices while conducting their business transactions. If and when the businesses gallivant and fail to fulfil their social and ethical obligations, the government will come to the assistance of the consumer.

Another oblique purpose of this Act, as stated by H.K.L Bhagat, the then Minister of Parliamentary Affairs, was to spur strong voluntary consumer movement at the grass root level. However, a law is a part of society, it takes issues from society. Hence, laws are not immune to the fault-lines prevalent in the society.

The Act has failed to substantially stimulate the welfare of consumers belonging to subaltern groups. Here subaltern group refers to consumers from lower socio-economic classes. The Act envisaged bringing in a behavioral change in the attitudes of the buyers and sellers, shifting the focus from caveat emptor to caveat venditor. This behavioral change can be brought on a macro level only when people are aware of the Act, its contents, and its consequences.

However, we have dismal awareness about the Act in India, especially in rural areas. As per a study sponsored by Department of Consumer Affairs the awareness of the Act is directly proportional to the level of education and income level. Subsequently, the Act has had a much less impact on the marginalized and subaltern groups of the society who lack education and are living in rural areas with minimal levels of income. Thus, to a large extent, socio-economic background of the consumer will determine the impact that this Act has on them.

Further, the Act aimed to provide speedy and effective justice to aggrieved consumers by establishing three-tier consumer redressal forums. It was deemed that shifting consumer dispute cases from the judiciary to specialized forums would ensure speedy redressal. However, most of the specialized consumer forums do not have the minimum facilities to function and the members appointed, especially non-judicial members, lack the basic legal expertise to deal with the legality of myriad issues.

According to a report submitted by a committee headed by retired Supreme Court Justice Arijit Pasayat, most of the non-judicial members are political appointees, serving political interests, who are incapable of even writing or dictating order.  Fearing delays and further complications, the consumers have been generally cautious of approaching these special forums.

Marketization and privatization have further lead to overtly strengthening the caste and class consciousness deepening the archaic social hierarchies and innate biases. The members of the redressal forums are also not immune to it. Most of the appointed members belong to the affluent class and castes of the society and hence they have certain predispositions toward other members of the society, especially those from the less privileged sections.

The graded and structural inequalities in social, political and economic edifices of society are also reflected in the working of the Act. Superficially, it seems that the Act provides equal opportunities for consumers to put forth their point of view before the forum.

However, under the Act, consumers can argue their case either through the medium of an advocate or they can represent themselves before the consumer forums. The latter arrangement is based on the assumption that the process and technicalities in the consumer forums are far too benign and easy as compared to the one followed in the civil courts and as such even a layman may understand the proceeding, or the lack thereof, and may represent himself saving the fees of advocacy.

However, this procedure, although established with a benign intent, does not help the subaltern consumers. This is due to the following two factors:

1) The poor, being illiterate in most cases, do not have proper guidance and understanding of the legal processes to present their own arguments before the redressal forums, and as such, they don’t get any assistance with this regard from the officials present therein.

2) Most the subaltern people don’t have the pecuniary resources to hire a lawyer to fight a case on their behalf.

Thus, the Act, and consequently consumerism, has failed to protect the interests of the subaltern consumers for whom every hard-earned penny matters.


Pratik Dixit


Law Student pursuing BA LLB (Hons) at NLSIU, Bangalore. Interested in social and political issues.

Privacy versus National Interest – An overview

The journey of privacy has been a roller-coaster ride in INDIA. This topic has been debated a lot and has again come to highlight because of the controversial biometric project.

Most people value their ability to keep their private lives private, to protect information that they consider private. Some people do it to hide information about their financial status, or relationship status.The importance of such a right cannot be denied – secret voting enshrines the principle that how people vote is ultimately their own private decision – even if they choose to publicly back a particular candidate, nobody is allowed to scrutinize their DECISION.

However, in the case of the biometric project, it has caused great concern among civil liberties campaigners, who argue that such state intervention threatens the privacy of ordinary citizens and also many experts believe it is not a fair trade-off for protecting the national interest.

When it comes to defining National Interest, it is the interest of a nation as a whole held to be an independent entity separate from the interests of subordinate areas or groups and also of other nations or supranational groups. In this case, it seems to be a fair decision to trade off citizen’s privacy for national security.

What actually privacy is? Privacy is widely regarded as an important right in free and democratic societies. Article 17 of the United Nations International Covenant on Civil and Political Rights states that: “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation” and “Everyone has the right to the protection of the law against such interference or attacks”.

In India, the Right to privacy is one such right, which has come to its existence after widening up the dimensions of Article 21. The constitution in specific doesn’t grant any right to privacy as such. However, such a right has been culled by the Supreme Court from Art. 21 and several other provisions of the constitution read with the Directive Principles of State Policy.

Security versus privacy

The idea of government possessing citizen’s private information can be associated with AUTHORITARIAN REGIMES and can be a key feature of George Orwell’s dystopian novel 1984, in which privacy is all but eliminated.

Despite a general consensus on the value of privacy, many argue it has limits or rather it must have some restrictions. If the government is able to maintain the right balance between privacy and security enabling the authorities to keep tabs on personal information, without giving them carte blanche to snoop on citizens. For those in favour of compromising on privacy for the sake of national security, the key point is that seeking such information is no big deal given the rationale behind it.  In other words, privacy might be important, but is it so important that we should risk national and international security rather than compromise a little?

Even the supreme court of India quoted that “Right to privacy can never be an absolute entitlement.” In my own opinion, I believe that both privacy, as well as security, are important for different reasons. I believe that national security is important because we are and will be protected as a whole. On the other hand, our privacy is important as well because everyone wants to keep their personal business to their self’s, or at least have the opinion to keep it that way. I believe that people should be able to have their own personal privacy without worrying that it’ll be interrupted. I also believe that national security is important so that people will know they are and will be protected without worry. What is to be done is maintaining the right balance and a reasonable compromise between privacy and security. Well, as many say, “We should be willing to compromise our privacy in the interests of national and international security”


The right to privacy is seeded in several articles of Part III of the Constitution.

To pass the test of privacy, any law framed must be constitutionally valid. It must be need-based and it must be proportionated to the abridgement sought to the right to privacy consistent with actual need.


The government faces a formidable legal challenge in implementing its ambitious unique identification programme. Pleas have been made before the Supreme Court questioning the lack of a statutory basis for the collection of biometric details, and the government has to meet this point to the court’s satisfaction. Instead of arguing that privacy is not a fundamental right, it would do well to assure the court that it has the technology and systems to protect the data collected. And that it would do everything possible to prevent unauthorised disclosure of or access to such data.


A Group of Experts appointed by the Planning Commission and headed by Justice (retd.) A.P. Shah came out with a comprehensive report in 2012 containing a framework for a Privacy Act. Such a law, it said, should recognise all dimensions of the right to privacy and address concerns about data safety, protection from unauthorised interception, surveillance, use of personal identifiers and bodily privacy. Underscoring a set of privacy principles, the committee said the underlying idea should be that the data controller should be accountable for the collection, processing and use to which data are put. In its zeal to aggregate data in electronic form and target subsidies better, the government cannot ignore its responsibility to protect citizens from the perils of the cyber era.

BUT To pass the test of privacy, any law framed must be constitutionally valid. It must be need-based and it must be proportionate to the abridgement sought to the right to privacy consistent with actual need.

Also, many people who totally protest that privacy should not be compromised at any cost should not forget what former president of Obama quoted, THAT YOU CANNOT HAVE 100% SECURITY AND 100% PRIVACY.




Deeksha Kathayat is currently pursuing BLS LLB (third-year) from Dr. D. Y. Patil College of Law. An enthusiast debater and avid mooter, she’s into occasions where she can express her views on various issues. She believes that we realize the importance of our voice only when we are silenced. An aspiring bureaucrat, she describes herself as Unstoppable, Unconstrained, and Zealous.