EVALUATION OF ARBITRATION AFTER PANDEMIC By Keshav Khandelwal

It has been more than two months since the Prime Minister of India Narendra Modi declared a national lockdown to take care of the situation of COVID-19. The cases are increasing daily and our government is dealing with it. In this pandemic, not only India but every country in the world is managing on how to deal with the arbitration cases. Alternative Dispute Resolution Mechanism is no exception in the legal system of India which has also been affected unfavourably. In this article, we will discuss the various outcomes which can be seen after the pandemic regarding Arbitration.    

The Supreme Court of India passed an order on 23^rd March 2020, regarding the time period of limitation under various acts regarding COVID19. In this pandemic, all the cases of arbitration are handled online through video conferencing. Due to COVID19, there is no physical meeting for settling the disputes. Nowadays, people are using technology to settle their disputes. Urgent cases are given utmost priority in this complete lockdown. Parties can apply through e-mail and other digital sources keeping in mind about social distancing. The Arbitration Tribunal is giving full assistance to the parties, from filing their pleading via email to their dispute solving via video conferencing. All these digital sources are taking less time than usual, no physical contact is required for solving these disputes when dealings are made digitally. The biggest benefit of the digital way of resolving disputes between the parties is that it promotes social distancing and international parties do not have to travel around the world to resolve the dispute. Though these digital platforms have their own pros. and cons, the major con of using digital platforms is whether the privacy of the parties has been maintained or not. Recently, a case National Bank of Kazakhstan v Bank of New York Mellon and Ors^[1], was streamed live on YouTube giving all access to the private information of the parties. This case was represented in an English Court. Here, Arbitration loses an advantage which was giving privacy to the parties. All the files and reports are shared virtually, so there is a constant fear of data leakage. Another disadvantage of using digital platforms is that in some cases the arbitrator cannot represent himself that good digitally. The reflexes, instinct judgment cannot be shown digitally. A person can be nervous while talking on video conferencing. This nervousness can affect a person’s case.  The issue of the internet, knowledge about computers can also be a con. We can see changes going from paper to the internet. Everything has its own advantages and disadvantages. It is society’s choice whether they have to take any good from this Online Dispute Resolution. There are three mediums for resolving a dispute using technology which is Al Dispute Resolution, Online Courts and Online or Electric mediation and arbitration. The technology has saved us a huge amount of time. The courts have adopted the online technology to save the time of parties and themselves. Online Dispute Resolution has taken out the hurdle of geographical location, lack of jurisdiction and transportability. In Online Dispute Resolution, there is no question of jurisdiction as anyone can connect to the internet from anywhere, so neither of the parties have to leave their town for Dispute Resolution.

From these things we can only conclude that Online Dispute Resolution can be a good thing for society. Arbitration is a method that saves time and cost of legal litigations, but in Online Dispute Resolution, the parties can save time, cost of legal litigations, and also travel expenses.  From anywhere in the world, through video conferencing and other digital methods people can resolve their disputes. Though the big question is about privacy.  Will the government make any online security system where the proceeding can be stored privately and securely? This is the biggest step our government has to take to resolve the arbitrations online. This is one thought about the situation of Arbitration after the pandemic, or this is just a one time measure to resolve the disputes between the parties in this pandemic. Will the government use these digital sources as an all-time measure to resolve the issues even after the pandemic or it will be back to its original paper pen method to resolve the disputes is a question for the future.

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^[1]  Claim No FL-2018-000007 - In the High Court of Justice - Business and Property Courts of England and Wales

MEDIATOR AND THE NEED OF NEW PARADIGM IN MEDIATION ETHICS By Vrinda Agrawal

Mediation is a dispute resolution process where the parties reconcile by seeking assistance from a trained third party known as mediator who assists them in reaching a common ground and settle.

It takes place in an informal environment but yet, is a formal setting. Cases which are suitable for mediation are disputes in commercial transactions, personal injury, workers labor or community relations, divorce, domestic relations, employment or any other matters which do not involve complex procedural or evidentiary issues which could be dealt only in traditional courts.

Mediator plays a vital role in the process of mediation. As it is the mediator who examines the issue of dispute between the parties, facilitates dialogue and the process of mediation and provides assistance in reconciling both the parties by helping them reach to a common ground.

It is very important for the mediator to have a various set of specialize skills along with the advance knowledge of laws and regulation,work experience in the focus area and mediation training.

These professionals work outside the court system and not in a traditional setting so the award and the process to reach to that award should be different as well. To gain a mediator certificate, a person is required to have a degree in the area along with a training of 30-40 hours.

A mediator is required to have a certain set of skills which include alertness, patience and tact, credibility, adaptability and perseverance. Along with soft skills, a mediator is also required to not act bias and work ethically. An issue which is not been addressed in the theory is the biases of a mediator.

A mediator exercises a great deal of influence as to what will be the mediation award so it  is very important for him to not be bias and carry out the whole process ethically. The essence of mediation depends on the neutrality of the mediator.

 A total neutrality means that there was absolutely no biases or prejudice in the part of the mediator, procedural and outcome neutrality.

Mediation has grown to be a preferred way of dispute resolution over traditional courts and we are moving forward towards making it smoother and accessible. The widespread and the success rate make it more popular than ever.

But the not so discussed issues of mediation ethics throw us leaps back. It is the duty of the mediator to avoid any type of biases or the appearance of one. Mediator needs to have a high level of awareness about the impact his words or actions leave on both the parties and that those words and actions are neutral.

Implicit bias and Prejudice in Mediation

Implicit biasesrelates to social cognition where our brain on the basis of characteristics, categorizes people into various groups and uses schemas to sort people into group. This mental process is unconscious and the person if often unaware about it. We do this categorization on the basis of various types of stereotypes which prevail in our society and thus, have a strong hold over our mind set.

This stereotype influences the actions and decisions of the mediator unconsciously. Mediators are highly likely to be leaned towards the group they relate themselves to and be a little bias to the party of different group.

Treating a party more favorably results in a biased result even if both the parties win, there is a high change of the other party or the less favored one gaining disproportionately. Prejudice for a particular group or being implicit bias leads to forming a belief system of their own. The discussions and evidences shown are then, the mediator over-relays on the evidences which contribute to the confirmation of the pre-established belief system.

Any information contradicting to it is been ignored or is been over-shadowed. It is very important for the mediator to always aware and alert about this and not let this affect the proceedings.

Cognitive biases and itsreduction strategies

A cognitive bias is a systematic error in thinking which occurs when people are processing and interpreting information in the world around them. It affects the decisions and judgments that they make. Cognitive biases often corrupt the decision-making of the mediator and stop them from giving a fair and just decision.

The biases may be exaggerated in mediation because the heightened emotions common in conflict often cause people to react impulsively rather than slow down to analytically think and communicate. The anchoring bias occurs when people make assessments and drive decisions based upon earlier numbers that have been used, despite their accuracy. 

Some of the most common in mediation include confirmation bias, reactive devaluation, fundamental attribution error, selective perception and memory, risk aversion, loss aversion, anchoring bias, sunk cost bias and optimistic overconfidence.

The mediator has to be very careful about his actions and reaction and also has to critically analyze every aspect of the case to avoid being bias. The mediator should also use objective raw data to eliminate having any biases. 

Legal bias is not a new concept. It has prevailed through ages but it doesn’t mean that it is not alarming. It is very important for this process to be free from biases and be ethical in every way possible. 

TYPES OF MEDIATION By Mansi Verma

1. Facilitative mediation:

Facilitative mediation is also known as traditional mediation in which a professional mediator attempts to negotiate between the parties in a conflict. The mediator tries that the parties reach their own voluntary goal by understanding each other's interests more deeply rather than giving their own recommendations or imposing their own decisions. With some understanding built, the parties and the mediator work together to build a number of potential solutions. Once this is done, the parties try to find the solution with the most maximized value. In facilitative mediation, the mediator tries to keep their own views to themselves regarding the conflicts. The basic belief is that the parties can resolve the dispute on their own with a little help from the mediator.

2. Court-mandated mediation:

Mediation is defined as a completely volunteer process but sometimes when the parties want the decision to be speedy and cost-efficient it is mediated through the court. When the parties and their attorneys are reluctant in engaging in mediation, there might be a chance that their odds of settling via court-mandated mediation become low. But when both parties know the benefit of engaging in the process, the settlement rates get much higher.

3. Evaluative mediation:

This type of mediation stands in direct contrast with facilitative mediation. In evaluative mediation, the mediator can give his recommendations and suggestions to express his opinions. These opinions are generally based upon a common sense of view of the matter. Evaluative mediators give an idea of the strengths and weaknesses of their positions and may predict the court outcome. Evaluative mediators focus on the parties to help them access legal merits and make fair decisions accordingly. Evaluative mediators are generally lawyers who have better legal knowledge regarding the dispute and this type of mediation is generally used in court-mandated mediation.

When you just want things to “get done”, evaluative mediation comes into play. When the trail comes up, the attorneys may suggest an evaluative mediator with the hope of reaching a deal without going through the trial.

4. Transformative mediation:

In this, the mediators try to encourage and empower the disputants to solve their conflicts and help them recognize each other’s interests, needs, and values in a better and thorough way. Empowerment, according to Bush and Folger, means enabling the parties to define their own issues and to seek solutions on their own. Recognition means that parties understand each other’s point of view and why they want that decision of theirs. The potential in transformative mediation is that all parties or their relationships may be transformed during the mediation. Transformative mediators meet with parties together, since only they can give each other "recognition".

5. Med-Arb:

It is a hybrid of two well-established processes i.e. mediation and arbitration to resolve conflicts among the parties. It is a conjunction where a third party plays neutral as a mediator and an arbitrator. Med-Arb represents a process that serves to the best of the client’s interests. It saves time and money for the two sequential phases, mediation, and arbitration in two important respects. First, if the parties do not reach a solution in mediation then they do not have to hire another third party neutral who is unfamiliar with the case and then prepare for the arbitration phase. Second, the issues generally get narrow down in the mediation phase and can be forwarded directly into the arbitration phase.

Sometimes, a reverse hybridization process of arbitration and mediation takes place where the parties initiate with arbitration but later is forwarded to the mediation phase for negotiation purposes. This is known as Arb-Med.

6. E-mediation:

Electronic mediation comes into play when it is difficult or nearly impossible to meet face-to-face, for example: during COVID-19 times! E-mediation is an online dispute resolution (ODR) that is easy to use, cost-efficient, and a fast way as no time is consumed in traveling to resolve disputes. E-mediation is a procedure done using information and communication tools (for example computer, cell-phones, video conferencing, etc). Over recent years, e-mediation has become popular because of the global economy. More and more companies are expanding their business in different countries and the digitalization of business leads to an increase in the number of cross-border disputes. In such cases, the distance between the parties hinders the effective protection of their interests.

With benefits, some disadvantages also sweep in as it lacks empathy, rapport, and other attitudes and effects that make face-to-face mediation what it is. Messages conveyed online, especially through text can be easily misinterpreted causing deterioration in trust as face-to-face meditation is very much transparent no matter who is speaking at the moment. 

IMPACT OF COVID 19 ON ONLINE FOOD DELIVERY PLATFORMS By Author- Himanshi Sangtani Co-author- Samarth Gogia

Covid-19 - the very minuscule virus has held the whole big world to ransom. Times have gotten hard for everybody & coping up with even the daily chores have also become tedious tasks. Work for everybody has come to a standstill and stepping out not only has become a taboo but extremely unsafe.

In India also, Covid-19 has brought a standstill to almost every virtual sector except the essential commodities. Since the Lockdown was announced on March 24^th, 2020, all operational activities have stopped and lots of companies irrespective of their size are suffering great losses. This has led to many Companies taking some unwanted steps like pay cuts, lay-offs, suspending certain operations and restructuring their business in order to scale back the losses.

The consumers have become very skeptical about ordering food online due to the rapid spread of coronavirus. This reflected a 70% drop in the restaurant business in India since March 2020. The restaurants were directed to be closed for dining. In India, more than 95% restaurants operate on offline mode either due to lack of staff or lack of demand thereof. The online food delivery saw a significant drop by ~70//% in the number of orders in the past two months, reaching nearly 5mn-6mn orders per month.

Since the food delivery business has been severely affected and the effect will be there for a short period of time, online food delivery companies in India like Zomato and Swiggy have taken some drastic steps. Zomato announced to lay off nearly 13% of its workforce which comprises nearly 600 employees on Zoom video call and along with salary cuts up to 50% for other members of the company for the next sixth months starting from June.

Joining arch rival Zomato, Swiggy also announced to lay off nearly 14% of its workforce which is nearly as 1100 employees as Covid-19 has hit their business across verticals. But all the employees will receive at least three months salary irrespective of their notice period or tenure. Also, they will be offering an extra month of ex-gratia to them in addition to their notice period pay accordingly for every year they have spent with the company.

As the order volumes have reduced drastically, the online food delivery companies have shifted their focus on online grocery delivery in order to sustain their revenues and optimize their operational fleet. Market players such as Zomato, Swiggy and Box8 have jumped to online grocery delivery in order to cater to the increasing demand as a result of panic purchase either by tying up with grocery stores or by partnering up with existing grocery delivery platforms to support them in delivering the groceries. Last mile delivery companies such as ShadowFax and Delhivery are partnering up with FMCG, Retail Players and Grocery Shops to support delivery of essential products. Restaurant chains with big fleets are partnering up with FMCG brands to supply essential commodities. For example, Dominos India has partnered up with ITC to deliver essential goods and groceries.

The potential lack of transparency on how the food is prepared and notably lack of hygiene is the new concern of the customers in the wake of the Global Pandemic. Therefore, hygiene has become the focus area for aggregators such as Swiggy and Zomato. These companies are trying to adapt new ways in order to overcome the sentiments of their customers regarding the safety of the food being delivered to them. Also, the reasons to opt for online food delivery services  are indeed plentiful since ordering groceries online reduces human interaction as opposed to going to a supermarket or a corner shop, and for people living alone or unable to cook for several reasons can get their food delivered at their doorstep in these hard times.

Many aggregators are offering contactless delivery and one such company Rebel Foods have introduced a live body temperature tracker on their application. The Companies are suggesting the customers to transfer the food to different utensils post delivery and to reheat the food before consumption. Also, some of the companies have promised to give an online record of the temperature logs of the food handlers such as the chef, food packers and the delivery boys in order to be more transparent towards their customers.  After the lockdown restrictions have been lifted, Zomato is preparing for contactless dining by adding a new feature in their application which allows the consumer to use the menu, place orders and make payments online without coming in direct contact with any restaurant staff.

Although a very slow recovery is expected by August end, the demand for online delivery for the year 2020 will be nearly 50%-60% less than the year 2019. The future trend of the Food and Beverage industry will be health and hygiene centric. The restaurant industry will also take stringent measures to ensure that both its staff and the food preparation follow the best hygiene practices. The hygiene parameter will play a major role for the consumers in order to decide whether to order out or dine out because of the health scare around Covid-19. The night clubs and pubs will be worst affected because of the social distance norms leading to decline in walk-ins into restaurants. Majorly, the clubs and pubs will be focusing on online alcohol and food delivery through the aggregators. Live Videos, Temperature Logs, Contactless Delivery, focus on health & hygiene will result in increased transparency in turn boosting customer confidence.

Conclusion

Due to Covid-19, the global pandemic, the Food and Beverage industry is one of the worst hit industries because of which many small restaurants and family-owned businesses will have to step into the online delivery world. The businesses which were already providing online services need to step-up their game by turning towards mainstream ordering apps and providing more offers. The industry is forced to rethink their approach.

Industry experts have revealed that the business volumes and revenues will suffer due to the health scare. However, they believe that the businesses will take time to revive and we can expect the industry to fall back to normal only by the first half of 2021. Till then the only way to deal with the anticipated decline in the business is to maintain hygiene at each level and intimate the consumers for every small or big step taken to ensure their safety. Despite the anticipated set back, the online food delivery market of India is expected to grow with a CAGR of 27.4% through the future period of 2019-2025. 

PRESENT DAY ARBITRATION By Muskan Sihag

In India, arbitration is regulated by the Arbitration and Conciliation Act, 1996. The present date arbitration law is a development of several endorsements and ordinances passed by the government of India to meet the economic reforms taking place in the country from time to time. Arbitration Law in India, is initially contained in the Act of 1996. An Act that was approved to amalgamate the laws relating to domestic, international arbitration and its enforcement. In an effort to make arbitration an ideal mode of settlement of commercial disputes and making India a hub of international commercial arbitration some major amendments were introduced in the year to 2015 and 2019. Arbitration is the buzzword in the present day business. The law grants a choice upon the parties to enter into commercial transactions knowing well that in case of a dispute, they will refer their dispute to this modest, quick, convenient and cost effective process saving them from tedious and knotty procedures of a court. The Act covers both Domestic and International Arbitration. The current law is a symphony of several such amendments with the latest amendments being introduced in 2019. After this amendment new provisions were added, international jurisdictions were included, alteration of powers to the arbitrator were made etc. After the 2015 amendment-

•    The applicability of interim orders by the court, arbitral tribunal, appealable orders was applicable to international commercial arbitration even if the place of arbitration is outside India. Whereas earlier it was only applied to matters where the place of arbitration was India.
•      Court now has the power to refer to parties to arbitration unless it thinks that a valid arbitration agreement cannot exist. Earlier courts referred only those cases to arbitration where the subject matter of arbitration was mentioned in the case.
•     Court has confined itself to the examination of the existence of a valid arbitration agreement. Whereas before these parties were to appoint arbitrators on their own and if unable to do so, the matter was referred to the court to make appointments for the same.
•       The arbitral tribunals are required to make its award within a time period of 12 months. If it is delayed beyond the specified time period, the fees of the arbitrator will be reduced up to 5% for each month of delay. No such provisions were made earlier regarding the time period for arbitral awards.
•      The time period for disposal of a case is up to one year. Award that is made before a court, must be positioned within a year.
•  This amendment also permits the parties to choose to conduct arbitration proceedings in a fast track manner. The case to be disposed of within six months.

The 2015 amendments tried to safeguard quick enforcement of contracts, easy recovery of monetary claims, cut the pendency of cases in courts and accelerate the process of dispute resolution through arbitration, so as to urge foreign investment by projecting India as an investor friendly country having a sound legal framework and ease of doing business in India. The two kinds of arbitration practiced today are ad-hoc arbitration and institutional arbitration. Ad-hoc Arbitration can be defined as a system of arbitration where a tribunal will conduct arbitration between the parties, following the rules which have been fixed by the parties beforehand or by following the rules which have been rested down by the tribunal, in case the parties do not have any agreement amongst them. The few negatives of ad-hoc arbitration are it tends to be protracted and costly in some cases in the absence of monitoring, it is only effective when both parties are ready to cooperate with one another. The second type of arbitration is institutional arbitration which refers to the administration of arbitration by an institution in accordance with its rules of procedure. The institution offers appointment of arbitrators, case management services incorporating oversight of the arbitral process, venues for holding hearings, etc. Currently there are over 35 arbitral institutions in India, which are domestic, international arbitral institutions, arbitration services by PSUs, trade and merchant associations, and city-specific chambers of commerce and industry. Indian institutions that govern arbitrations have a mounting popularity but insufficient workload. Many arbitrations involving Indian parties are governed by the international arbitral institutions such as the Court of Arbitration of the International Chamber of Commerce, the Singapore International Arbitration Centre and the London Court of International Arbitration. Institutional arbitration has a clear set of arbitration rules, a specified timeline for the conduct of arbitration, a panel of arbitrators to choose from. But it also has some drawbacks which include lack of credible arbitral institutions, lack of government support for institutional arbitration and legislative support, the rules followed are often inadequate, delayed proceedings. Over the past few decades, the courts have enlarged the scope of arbitration, reduced the ability of individuals to sidestep arbitrating their disputes, and narrowed the possibility of obtaining judicial review. They have implemented such extensive pro-arbitration doctrines that arbitration clauses are almost always upheld when challenged in the courts.

  

  

THE TWO Fs GOVERNING CONTRACTS IN THE TIME OF COVID-frustration and force majeure By- Eesha Vij

INTRODUCTION

No one ever imagined the present-day world to be a reality one day! All of us might have seen a number of sci-fi movies which revolved around corona like pandemics but who thought that the reel and real-life differences will become so bleak one day that we won’t be able to distinguish. The world today revolves around – sanitizers, social distancing, face masks and lockdown.

Lockdowns have brought about a devastating effect on the national economy as well as the life of every citizen but have you ever thought what impacts do these lockdowns have on the contracts and their performances? In this article, we will discuss the two major principles which govern the contracts during these times of distress- the doctrine of frustration and force majeure. For a better understanding, let us look at a brief timeline of the national lockdown which the country has been under since March’20 after the World Health Organisation (WHO) officially declared coronavirus/covid-19 as a pandemic on March 11, 2020:-

14 March 2020: The Government of India declared COVID-19 as a "notified disaster".

22 March 2020: Nation observed 22-hour voluntary curfew on the appeal of PM.

24 March 2020: The Government of India ordered a nationwide lockdown for the next 21 days.

14 April 2020: Lockdown extended till 3^rd of May, with a conditional relaxation after 20^th  April for the specific regions where the spread of the virus was under control.

01 May 2020: GOI extends the lockdown further by two weeks until 17 May. 

12 May 2020: PM announces economic relief package with the aim of Self-reliant India.

17 May 2020: The lockdown was further extended till 31 May by the ‘National Disaster Management Authority’.

30 May 2020: The ongoing lockdown further extended till 30 June in containment zones, with services resuming in a phased manner starting from 8 June. It is termed as "Unlock 1".

Now, when we think about the obstruction and hindrance presented in the performance and fulfilment of various commercial contracts due to covid-19, two major legal concepts need to be highlighted, namely- the doctrine of frustration and force majeure. In this part of the article, we will try and understand these concepts and in the later parts, further topics like correlation and their application in the suits filed in courts will be dealt with.

The term ‘force majeure’ has been defined in Black’s Law Dictionary, as ‘an event or effect that can be neither anticipated nor controlled.  It is a contractual provision allocating the risk of loss if performance becomes impossible or impracticable, especially as a result of an event that the parties could not have anticipated or controlled.’

What if a contract doesn’t include a force majeure clause?

If a contract does not include a force majeure clause, the parties would have to ascertain in light factors such as the nature of the contract, the nature of the event and so forth, as to whether Section 56 of the Contract Act (which deals with agreements between the parties to do an impossible act) and which has been briefly discussed below, can be applied to such contract so as to discharge the parties from their contractual obligations.

The doctrine of frustration comes into action in these two situations- first where the performance is physically cut off, and second where the object has failed. The SC of India has held that the section 56 will apply to both kinds of frustration[1].

For better justification, many explanations have been put forward for the doctrine of frustration as a part of the law of contract. Most well-known theories are- theory of implied term and just and reasonable solution, but these theories are not applicable under Indian laws as the Supreme Court  justice B.K. Mukherjea said in the case of Satyabrata Ghose v Mugneerma Bangur & Co.,^[2] “These differences in the way of formulating legal theories really do not concern us so long as we have statutory provision in the Indian Contract Act. In deciding cases in India, the only doctrine we go by is that of supervening impossibility or illegality as laid down in section 56 of the Contract Act, taking the word ‘impossible’ in its practical sense and not literal…”.

There are specific grounds of frustration and some of the well- established grounds are-

·       Destruction of subject matter

·       Change of circumstances

·       non- occurrence of the contemplated event

·       Death or incapacity of a party

·       Government, administrative or legal interference

·       Application to leases

It has to be taken into notice that only a few of these grounds are applicable during the present conditions put forward due to the coronavirus outbreak. One of the grounds being ‘change of circumstances’ gels to the legality of the current subject-“where circumstances arise which make the performance of the contract impossible in the manner and at the time contemplated”[3].

Sometimes the performance of a contract remains entirely possible, but due to the non-occurrence of an event contemplated by both parties as the reason for the contract, the value of performance is destroyed

.

Similarly, a contract will be dissolved when legislative or “administrative intervention has so directly operated upon the fulfilment of the contract for a specific work to transform the contemplated conditions of performance. The effect of an administrative intervention has to be viewed in regard with the terms of the contract, and if the terms show that the parties have undertaken an absolute obligation regardless of administrative changes, they cannot claim to be discharged[4].

Claims under this situation- quantum meritum claims.

A well-known English law doctrine of quantum meritum has been allowed by the courts under this section. The Supreme Court observed in State of Madras v Gannon Dunkerley & Co.[5] that a claim for quantum meritum is a claim for damages for breach of contract. The value of the material used or supplied is a factor which furbished a basis for assessing the amount of compensation.

The Supreme court has passed a few recent judgements concerning this sphere of contracts which shall be taken up and scrutinized in the next part.

REFERENCES

[1] AIR 1945 SC 44

[2] AIR 1954 SC 44

[3] Viscount Maugham in Joseph Constantine Steamship Line Ltd. V Imperial Smelting Corp. Ltd., 1942 AC 154 (HL)

[4] Naihati Jute Mills Ltd. V Khayaliram Jagannath AIR 1968 SC 522: (1968) 1 SCR 821

[5] AIR 1958 SC 560

CRIMINAL LAW: CULPABLE HOMICIDE AND MURDER By Akshay Sharma

Introduction:

In Indian Penal Code, 1860, Culpable Homicide and murder are two different and most confusing terms. There is a very thin line difference between the terms. Culpable Homicide is genus and murder is its specie. All murder is Culpable Homicide but culpable homicide is not necessarily murder. Section 299 of IPC and Section 300 of IPC defines Culpable Homicide not amounting to murder and murder respectively. These two sections are also called the weakest section of the Indian Penal Code, 1860 because there is a very thin difference between the two terms. The word Culpable Homicide is a latin word which consist of two words Culpable and Homicide where Culpable means Punishable and homicide means killing of a human being by a human being. The main difference between Culpable Homicide and murder lies in the gravity with which the offence has been perpetrated.

Culpable Homicide and murder- both the offence can be enforced when a human being was killed by another human being only. The discretion to measure the gravity of the offence depends on case to case and on the basis of circumstances the court have discretion to decide that this particular case falls in section 299 i.e. Culpable Homicide or Section 300 i.e. Murder.

Similarities between the two :

As the author stated above that there is very thin difference between the term Culpable Homicide and Murder. Hence there must be similarities between the two. Some of the similarities are –

●      Both Culpable Homicide and Murder can be applied on death of the victim.

●      All Murder are Culpable Homicide.

●      Both Culpable Homicide and Murder are punishable under Indian Penal Code.

●      Both Culpable Homicide and Murder have same ingredients like intention and knowledge.

●      In both these offences death of the victim is caused by the offender.

Main differences :

Culpable Homicide and murder are two different offences of Indian Penal Code, 1860. and there is a very minute difference between these terms. There are certain instrument to categorize the concepts of murder and culpable homicide. The dissimilarity is hidden with the terms of seriousness of the intention. The First and real attempt to distinguish between the two was made in the case of Reg v. Govinda^[1]  In this case the accused kicked his minor wife and gave her a few blows on the body as a resultant to which she fell down on the ground. Then he put one knee on her chest and gave some more blows and due to extravasations of blood she died. Court after a long study of the case reached to a conclusion that  whenever is death caused with intention of causing death, the liability is always of Murder. Other main differences between the Culpable Homicide and murder are :

•  Culpable homicide is genus and the murder is the species.
•  The term Culpable Homicide is wider than the term murder. All murders are culpable homicide but all culpable homicides can’t be considered as murder.
•  In murder, the offender has a definite knowledge that the act would result in the death while as   in culpable homicide the knowledge is not so definite.
•  The probability of intention and knowledge to cause death is higher in murder than  culpable     homicide.
•  Definition of Murder is given under Section 300 of Indian Penal Code, 1860 while definition of Culpable Homicide is given under Section 299.
•  Punishment for Murder is given under Section 302 while Punishment for Culpable  Homicide is given under Section 304 of Indian Penal Code, 1860.
• Murder is a provoked form of culpable homicide.

Critical analysis

Culpable Homicide and murder are Seems to be the same in certain senses but they are differ in certain other aspect like the probability of death or seriousness of the act. It totally depends upon the act done by the offender and the probability of death depends upon case to case. For example, A single head injury has a higher probability of causing death then a large number of injuries of legs or feet. Hence it depends on case to case that which injury has high probability and which has less probability and on the basis of the same court decides whether the act of the offender falls under Culpable Homicide or Murder. There are some act which are so dangerous that it will cause death without any other result it would fall under Section 300 of Indian Penal Code i.e. Murder. If any act which leaves victim alive with certain grievous hurt only with the probability of escaping death, then it will fall under Section 299 of Indian Penal Code i.e. Culpable Homicide not amount to Murder.

There is an illustration for better understanding of culpable Homicide is :

• Ram is diagnosed with fatal poor health and requires certain drugs to survive. Shyam wrongfully restricts him in a room and denies him his medicine. As a result of which, Ram dies. Shyam is guilty of culpable homicide. 

There is an illustration for better understanding of Murder is :

• Ram, by instigation, voluntarily causes, Raj, a person under eighteen years of age to commit suicide. Here, on account of Raj, youth, was unable of giving consent to his own death; Ram has therefore abetted murder.

There are some cases to discuss culpable homicide and murder are :

In Laxman Kalu v. State^[2] The accused went to his father in law’s home to bring back his wife and they were scheduled to return by the next morning. In the evening the accused quarreled with his wife’s brother and stabbed him with a knife resulting in his death. Medical Report said that even though the injury was serious, it had not penetrated the lung and the death had resulted mainly because the axillary artery and veins were snapped which caused shock and haemorrhage. The Supreme Court held that it was by chance that the artery was cut, and so the accused did not have any intention but he can presumed to know the consequence of his act, and was thus guilty under section 304 Part II.^[3]

In Namdeo v. State of Maharashtra^[4]  the accused attacked the deceased in his head with an axe. The Medical report said that the injury was sufficient in an ordinary course of nature to cause death. The Supreme court applied clause (1) of Section 300 observing that the intention to cause death was clear.

So from the above discussion we can also conclude that Culpable Homicide and murder are similar to each other but are not same. It is always very challenging for the courts to decide whether the case falls under Section 299 of Indian Penal Code or Section 300 Indian Penal Code. There are many interpretations of the statues as we discussed above in various cases various reasoning has been given for these two terms. As we also can see due to these multi-interpretations many culprits escape from punishment or get less punishment than what they deserve. We should follow strict interpretation and it should also with proper care because it is the idea of Blackstone’s ratio

“It is better that ten guilty persons escape than that one innocent suffer”

Culpable Homicide and Murder are depends mainly upon the probability of causing death due the act of the offender. If it is proved that the intention and knowledge of the offender is to cause death and the probability of causing death by the act of offender is so high then the offender will be liable under section 302 of Indian Penal Code otherwise under section 304 of Indian Penal Code.

Conclusion :

There is a thin line difference between culpable homicide and murder. Culpable Homicide is more wider term than murder. Murder includes culpable homicide but culpable homicide does not include murder in all cases. Intention and knowledge are very important ingredients to decide that in which offence the act of offender will fall, whether it is culpable homicide or murder. If the probability of death in the intention and knowledge of the offender is higher then it will be fall under section 300 Indian Penal Code and will be punished under section 302 of Indian Penal Code otherwise it will fall under section 299 Indian Penal Code and will be punished under section 304 of Indian Penal Code and as we can understand till now that there are many interpretations in different precedents to decide the degree or probability of causing death, it totally depends upon the view of the court, in which section or offence they will put the matter. Obviously they are Rules & laws and Judges have to consider these criteria but even then different points of view can affect the judgments.

Reference :

1.      Prof. T. Bhattacharyya : The Indian Penal Code (Reprint 2018, Ninth Edition, Central Law Agency)
2.  https://www.shareyouressays.com/knowledge/legal-provisions-regarding-murder-under-section 300-of-indian-penal-code-1860/119092
3.           https://acadpubl.eu/hub/2018-120-5/1/82.pdf
4.           https://www.lawnn.com/murder-section-300-indian-penal-code/
5.           https://indiankanoon.org/doc/626019/
6.  https://www.latestlaws.com/articles/difference-between-murder-and-culpable-homicide-explained-by-roopali-lamba/
7.           www.indiankanoon.com

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[1] (1876) 4 SCC382.

[2] AIR 1968 SC 1390

[3] T.Bhattacharyya

[4] 2007 Cr LJ1819(SC)