List of Current Affairs

Source: Uttarakhand High Court 

Why in News? 

Recently, the Uttarakhand High Court in the matter of Dr. Kirti Bhushan Mishra vs. State of Uttarakhand and another has held that the husband shall not be punished under Section 377 of Indian Penal Code for committing rape on his wife. 

What was the Background of the Dr. Kirti Bhushan Mishra vs. State of Uttarakhand and another Case? 

• A suit has been instituted by the wife (respondent) against her husband (petitioner) for having unnatural intercourse with her. 
• She also pleaded that she has been assaulted and mistreated by her husband regularly due to which she needs medical attention. 
• She further added that her husband allegedly shows sexually explicit content to their child and performs forced sexual activities with her in front of the child. 
• It is also stated that the petitioner sometimes behaves very weirdly by throwing things in the house and urinating in front of the room, etc. 
• It was also added by the respondent that due to prolonged forced anal sex and brutal beating she has been suffering from injuries and needs medical attention. 
• The Additional Sessions Judge/Special Judge (POCSO) Haridwar summoned the petitioner under Section 377 Indian Penal Code (IPC) and under Section 11 and 12 of Protection of Children from Sexual Offences Act (POCSO Act). 
• The petitioner then challenged the order of the Trial Court before the Uttarakhand High Court. 

What were the Court’s Observations? 

• The Uttarakhand High Court observed that under the exception 2 of provision of Section 377 IPC, exempt husband from the charge of rape if the wife is not below the age of 15 years. 
• Therefore, the High Court set aside the ruling of the trial court for summoning the petitioner under Section 377 of IPC. 
• The Uttarakhand High court also observed that showing sexually explicit content to the child amounts to sexual harassment and to be covered under the provisions of Section 11 read with Section 12 of the POCSO Act. 
• Therefore, the High Court upheld the Trial Court ruling regarding summoning the petitioner under Section 11 read with Section 12 of the POCSO Act. 

Provisions of IPC 

• Section 375 : 
  • It is now inserted under Section 63 of BNS, 2023 where the age of consent by a married woman for sexual intercourse has been increased from 15 years (as given under IPC) to 18 years. 
  • Section 375 of IPC states rape as .— 
    • Clause (1) states that a man is said to commit "rape" if he— 
      • penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or 
      • inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or 
      • manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or 
      • applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions 
        • Description 1st states against her will. 
        • Description 2nd states without her consent. 
        • Description 3rd states with her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. 
        • Description 4th  with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. 
        • Description 5th with her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. 
        • Description 6th states with or without her consent, when she is under eighteen years of age. 
        • Description 7th states when she is unable to communicate consent. 
    • Explanation 1. — For the purposes of this section, "vagina" shall also include labia majora. 
    • Explanation 2. — Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act 
    • It is provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. 
    • Exception 1. — A medical procedure or intervention shall not constitute rape. 
    • Exception 2. — Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. 
• Section 377: Unnatural offences.— 
  • Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 
  • Explanation.— Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section. 

Provisions of POCSO 

• Section 11: Sexual harassment. — 
  • A person is said to commit sexual harassment upon a child when such person with sexual intent, —  
    • utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or  
    • makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or  
    • shows any object to a child in any form or media for pornographic purposes; or  
    • repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or  
    • threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or  
    • entices a child for pornographic purposes or gives gratification therefor.  
  • Explanation. —Any question which involves “sexual intent” shall be a question of fact.  
• Section 12 Punishment for sexual harassment. — 
  • This section states that whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.  

Cases Referred by the Court in Dr. Kirti Bhushan Mishra vs. State of Uttarakhand and another Case 

• Umang Singhar v. State of Madhya Pradesh (2023): It was held that when Section 375 IPC (as amended by the 2013 Amendment Act) includes all possible parts of penetration of the penis by a husband to his wife, and when consent for such an act is immaterial, there is no scope for the offense under Section 377 IPC to be attracted where the husband and wife are involved in sexual acts. 
• Sanjeev Gupta v. State of U.P. and another (2023): It was held that the protection of a person from marital rape continues in cases where his wife is 18 years of age or older. 

Constitutional Validity of Section 377 of IPC  

• Partial Constitutionality: 
  • The offence under Section 377 related to non-consensual intercourse, child sexual abuse, and bestiality are still criminalized in India. 
• Partial Unconstitutionality: 
  • The offences related to the criminalization of consensual intercourse between same-sex couples have been held unconstitutional and violative of Article 14, Article 15, Article 19, and Article 21 of the Constitution of India. 

Evolution Through Precedents 

• Naz Foundation v. Government of NCT of Delhi (2009):  
  • In this case the provisions related to criminalization of consensual intercourse between the same sex couples was held invalid by the Delhi High Court. 
• Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors. (2013): 
  • In this case the judgment passes in the case of Naz Foundation was challenged where the judgement of Delhi High Court was overruled by the Supreme Court and held the provisions of Section 377 valid. 
  • High Court ignored the fact that only a small percentage of the country’s LGBTQIAs have faced charges and prosecution under Section 377, and that “this cannot be made a sound basis” for declaring the law unconstitutional. 
• National Legal Services Authority v. Union of India (2014):  
  • In this case finally the transgenders got their right to be identified as third category apart from male and female and the right to gender identity was granted to them. 
• Navtej Singh Johar v. Union of India (2018):  
  • In this case court relied on the judgement passed by the Delhi High Court in the case of Naz Foundation and held the part of Section 377 of IPC unconstitutional which criminalizes consensual intercourse between same sex. 
• Position of Section 377 Under Bhartiya Nyaya Sanhita (BNS), 2023 
  • Section 377 of the IPC has been deleted from the BNS, and it has been highly criticized by the people. 
  • It has been noted that due to the deletion of this provision, males and transgender individuals will have no scope to protect themselves against acts of unnatural sex. 
  • The Supreme Court judges have reiterated that the government should take some measures to curb this menace.

Source: High Court of Delhi 

Why in News? 

A bench of Justice Prateek Jalan held that the subsequent shareholders here cannot be treated as a consortium or partnership.     

• The Delhi High Court held this in the case of M/S Ktc India Pvt. Ltd v. Randhir Brar & Ors. 

What is the Background of M/S Ktc India Pvt. Ltd v. Randhir Brar & Ors. Case? 

• In the present case a dispute arose between the petitioner and the respondents (fifteen individuals out of which thirteen were termed as “subsequent shareholders”). 
• Ktc India Pvt. Ltd (Petitioner) filed a petition under Section 11 of the Arbitration and Conciliation Act, 1996 in the High Court and sought the appointment of an arbitrator to resolve disputes arising from a Shareholders Agreement. 
• A key preliminary question was whether the petition was maintainable in the court, given that one of the parties to the Agreement, Mr. Nicholas Valladares, is neither a national nor a habitual resident of India. 
• The main issue here was whether Section 2(1)(f)(iii) would be applicable in this case or not. 

What were the Court’s Observations? 

• The Court held that it is a settled position of law that the respondents cannot be held to constitute an “association or body of individuals” under Section 2 (1)(f)(iii) of the Arbitration Act. 
• The Court observed that the thirteen individuals were listed separately, and it is not the case involving a consortium or partnership. 
• Hence, the Court held that the “Subsequent shareholders” didn’t constitute a single entity as each shareholder subscribes to a specific number of shares, retains the right to exit the company individually under defined conditions and undertakes individual rights and obligations. 
• It held that treating these shareholders as a single association under Section 2(1)(f)(iii) of the Arbitration Act would be analogous to considering shareholders in a company as a collective entity solely because of their shareholding. 
• Consequently, the Cout held that the status of Respondent no. 5 is that of a resident of a country other than India and hence the High Court lacked the jurisdiction to entertain the petition under Section 11 of the Act.  

What is International Commercial Arbitration?  

• Section 2 (1) (f) of the Arbitration and Conciliation Act, 1996 lays down the definition of the term “international commercial arbitration”. 
• It means an arbitration relating to disputes arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India and where at least one of the parties is: 
  • an individual who is a national of, or habitually resident in, any country other than India; or 
  • a body corporate which is incorporated in any country other than India; or 
  • an association or a body of individuals whose central management and control is exercised in any country other than India; or 
  • the Government of a foreign country 
• As per Section 11 (9) of the Arbitration and Conciliation Act, 1996   provides that in the case of appointment of sole or third arbitrator in an international commercial arbitration, [the Supreme Court or the person or institution designated by that Court] may appoint an arbitrator of a nationality other than the nationalities of the parties where the parties belong to different nationalities.   

What is the Interpretation Given to the Term “Association or Body of Individuals” by the Court? 

• Meera & Co v. CIT (1997) 
  • The Court in this case interpreted the term in the context of Income Tax Act, 1961. 
  • In this case the Court held that “association of persons” is not something distinct and separate from a “body of individuals”. 
    • It has been added to obviate any controversy as to whether only combination of human beings are to be treated as a unit of assessment. 
• Ramanlal Bhailal Patel v. State of Gujarat (2008) 
  • The Court interpreted the term in the context of Bombay General Clauses Act, 1904 and the Gujarat Agricultural Lands Ceiling Act, 1960. 
  • The Court held in this case that the terms “association of persons” and “body of individuals” (which are interchangeable) have a legal connotation and refer to an entity having rights and duties. 
  • It was held that where there is a combination of individuals by volition of the parties, engaged together in some joint enterprise or venture, it is known as “association of persons/body of individuals”. 

What are the Case Laws Relating to International Commercial Arbitration? 

• Larsen & Toubro SCOMI Engineering BHD v. Mumbai Metropolitan Region Development Authority (2019) 
  • In this case the contracting parties were a consortium comprising an Indian company and a Malaysian company on one side, and the Mumbai Metropolitan Region Development Authority (MMRDA) on the other.   
  • In these circumstances, the Court came to the conclusion that the consortium was an unincorporated association, of which the Indian company was the lead partner and had the determining voice, i.e., that the central management and control of the consortium was exercised in India. 
  • The Supreme Court therefore held that petition under Section 11 of the Act would not come before the Supreme Court and hence it was dismissed. 
• Perkins Eastman Architects DPC v. HSCC (India) Ltd. (2020) 
  • In this case again the disputes arose under the contract between the consortium and the respondent, HSCC India Ltd. 
  • The Court held that the lead member of the consortium was a foreign entity and hence the requirements of Section 2(1) (f) were satisfied.