On 9 August 2019, after the death of the Arbitration and Conciliation (Amendment) Bill, 2019 by the two places of the Parliament, India's President consented to the Arbitration and Conciliation (Amendment) Act, 2019. The 2019 Bill statutorily overrules BCCI v. Kochi Cricket and explains that Arbitration and Conciliation (Amendment) Act, 2015 would apply just to such procedures where the discretion started post-October 23, 2015. The Amendment Act by including Part IA (Section 43A to Section 43) in the Act sets up a free body called the Arbitration Council of India having its administrative center at New Delhi, for the advancement of discretion, intercession, pacification, and other elective debate redressal instruments. 

Arbitration Council of India
The Council will set up uniform proficient gauges on issues concerning discretion to advance assertion, mollification, intervention and other elective contest goals components in India. It likewise plots that, in addition to other things, the Council stays liable for evaluating of arbitral foundations and judges and for looking into such reviewing. The Center is being built up to substitute the International Center for Alternative Dispute Resolution (ICADR), which the Act recognizes neglected to "effectively draw in and grasp improvements in the discretion biological system and to make notoriety second to none keeping pace with the dynamic idea of the assertion. 
Foundation and fuse of Arbitration Council of India 
The Central Government will, by notice in the Official Gazette, build-up, Arbitration Council of India for the motivations behind Act, 1996. Board to be known as the Arbitration Council of India to play out the obligations and release the capacities under this Act. The Council will be a body corporate by the name previously mentioned, having unending progression and a typical seal, with power, subject to the arrangements of this Act, to procure, hold and discard property, both versatile and enduring, and to go into contract, and will, by the said name, sue or be sued. The administrative center of the Council will be in Delhi. 

Arrangement of Council 
The Council will comprise of the accompanying Members, in particular: - 
(a) Chairperson: An individual, who has been, a Judge of the Supreme Court or, Chief Justice of a High Court or, a Judge of a High Court or a prominent individual, having exceptional information and involvement with the direct or organization of mediation, to be delegated by the Central Government in meeting with the Chief Justice of India ; 
Residency: - The Chairperson of the Council, other than ex officio Members, will hold office thusly, for a term of three years. 
Age:- Chairperson, will hold office thusly after he has achieved the age of seventy years on account of Chairperson. 
(b) Member: a prominent discretion expert having considerable information and involvement with institutional intervention, both residential and global, to be selected by the Central Government ; 
(c) Member: a prominent academician having involvement with research and educating in the field of discretion and elective debate goals laws, to be designated by the Central Government in counsel with the Chairperson ; 
(d) Member, ex officio: Secretary to the Government of India in the Department of Legal Affairs, Ministry of Law and Justice or his delegate not beneath the position of Joint Secretary ; 
(e) Member, ex officio: Secretary to the Government of India in the Department of Expenditure, Ministry of Finance or his delegate not beneath the position of Joint Secretary ; 
(f) Part-time Member: one delegate of a perceived assortment of trade and industry, picked on rotational premise by the Central Government; and 
(g) Chief Executive Officer: Member-Secretary, ex officio. 

Abdication of Members 
The Chairperson or the Full-time or Part-time Member may, by notice recorded as a hard copy, under his hand routed to the Central Government, leave his office. Director or the Full-time Member will, except if he is allowed by the Central Government to give up his office sooner, keep on holding office until the expiry of a quarter of a year from the date of receipt of such notification or until an individual appropriately designated as his successor enters upon his office or until the expiry of his term of office, whichever is prior. 

Object of Arbitration Council of India 
According to Section 14, the goals of the Center are to: 
  • Develop the Center as the main organization for global and local mediation; 
  • Promote research and study, and give educating and preparing in discretion, placation, intercession, and other elective question goals matters; 
  • Provide offices and regulatory help with connection to assuagement, intercession, and arbitral procedures; 
  • Maintain boards of certifying judges, conciliators and middle people at a national and global level; 
  • Collaborate with other national and universal foundations and associations; 
  • Set up offices in India and abroad with the end goal of advancing the exercises of the Center. 
Obligations and Elements of Council 
The fundamental capacity of the Arbitration Council of India is to advance and support discretion, intervention, pacification or other elective contest goals instrument and for that reason to outline strategy and rules for the foundation, activity, and upkeep of uniform proficient benchmarks in regard of all issues identifying with mediation. 
As indicated by Section 43 D (2), Arbitration and Conciliation (Amendment) Act, 2019 For the motivations behind playing out the obligations and releasing the capacities under this Act, the Council may: 
  1. Outline strategies administering the evaluating of arbitral organizations; 
  2. Perceive proficient establishments giving accreditation of referees ; 
  3. Audit the reviewing of arbitral foundations and judges ; 
  4. Hold preparing, workshops, and courses in the territory of discretion in cooperation of law offices, law colleges, and arbitral organizations ; 
  5. Casing, survey and update standards to guarantee a palatable degree of assertion and appeasement ; 
  6. Go about as a gathering for the trade of perspectives and strategies to be received for making a stage to make India a hearty community for residential and universal assertion and assuagement ; 
  7. Make proposals to the Central Government on different measures to be embraced to make arrangement for simple goals of business debates ; 
  8. Advance institutional mediation by reinforcing arbitral foundations ; 
  9. Lead assessment and preparing on different subjects identifying with assertion and appeasement and grant declarations thereof ; 
  10. Build up and keep up a vault of arbitral honors made in India ; 
  11. Make suggestions with respect to the workforce, preparing and framework of arbitral foundations; and 
  12. Such different capacities might be chosen by the Central Government. 
The principle motivation behind the foundation of the Arbitration Council of India is to make India as a center point of intervention. The Council will be there for reviewing arbitral establishments and simultaneously, it will give accreditation to the mediators. Essentially, inter-alia, the Arbitration Council of India will perform two capacities: 
  1. Grading arbitral establishments; and 
  2. Accreditation of referees. It will likewise give certain standards. We are additionally approving the Arbitration Council of India to give the standards. Prior, there was no foundation to advance and energize assertion.

“There is no established jurisprudence on most substantive issues. Any legal regime this young must be considered a work in progress that requires more work to complete.”
Indian Competition law is of a very contemporary origin when compared to its contemporaries. The delay can be attributed to the reluctance of the Indian populace and political leaders towards a market-based economy. 

Statutory laws
The first Indian competition law statute, the Monopolies, and Restrictive Trade Practices Act of 1969 was replaced by the Competition Act, 2002. This statute aims at prohibiting “any agreement which causes or is likely to cause an appreciable adverse effect (AAEC) on competition within India” [2] The act presumes certain agreements to have AAEC unless they can be shown to create efficiency gains. [3] Every other agreement is presumed to be lawful unless proven to be an AAEC. The abuse of a dominant position in an agreement is also a ground for unlawfulness. [4]
Certain provisions of the CA deal with mergers and acquisitions. [5] The large companies are legally obliged to notify the government before merging or acquiring other firms. Mergers and acquisitions that have AAEC are unlawful.
CA authorizes the government to enact certain rules in order to implement the act, [6] and the government has already issued several procedural and substantial rules. 

In the Indian context, there are five institutions that play a major role in the implementation of competition law. These are:
  1. The Competition Commission of India (CCI) - The CCI comprises a Chair and 2 to 6 other members [7]. They are appointed by the Central govt. on the recommendation of a committee consisting of the Chief Justice of India, the Secretary of the Ministry of Corporate Affairs, the Secretary of the Ministry of Law and Justice and two reputed experts. CCI has the authority to determine any violations of the CA and to ban such practice(s) temporarily or permanently. It reserves the same powers as that of a civil court and exercises exclusive jurisdiction over the matters related to CA. It can impose civil and criminal liabilities up to three years of imprisonment.
  2. The Director-General- It is the part of CCI that assists in investigations. [8] Central govt. appoints the DG. He is legally bound to investigate in matters of violation of the CA when requested to do so by the CCI. Post-investigation, he has a duty to submit a report to the CCI that is non-binding in nature. The DG reserves several powers of a civil court including the power to demand and seize the documents. DG is also authorized to issue orders.
  3. The Competition Appellate Tribunal (COMPAT) - The Competition Appellate Tribunal reserves the exclusive jurisdiction to hear the appeals from the CCI. It is comprised of a chairman and two members who are appointed by the Central Government on the recommendation of the selection committee. 
  4. The Supreme Court - The SC has the exclusive jurisdiction to hear appeals from the Supreme Court. [9]
  5. Private Parties - They can provide information that can form the basis of inquiry by CCI and COMPAT.
Analyzing the Competitive Law Regime of India
There are several gaps in the Competitive law regime in India. It can be attributed to the recent origin of the system. The institutions are so recent in origin that most of their features have not been properly used in practicality. India can adopt ‘take the best and leave out the rest’ approach with respect to the successful and comparatively old regimes. These include systems like the US and the EU. Indians can learn from their shortcomings, work on them and construct craft a better competitive law regime. Indian scholars and officials should aim at avoiding the mistakes the US made and use it as a basis to build a competitive law regime for India. [10]
The basic elements of the competitive law structure of India are well up to the mark. The statutes were drafted in such a way that the institutions to decide on the matters when there is any bad conduct that is producing or likely to produce bad effects. The institutions are well-constructed to meet the tasks of inquiry and adjudication. The decisions of one intuition can be challenged in another institution which ensures that justice is rendered. 
The SC has issued two judgments that lay down rules applicable to CCI. In Rangi International Ltd. v. Nova Scotia Bank and Ors. [11] the court clearly held that the CCI has the responsibility to state the reasons to support its judgments. It gives the parties, the courts, and other officials an understanding as to the reasons behind decisions. 
Further, in the Competition Commission of India v. Steel Authority of India Ltd. and Anr, [12] that the CCI, while deciding on a matter must complete the hearing “most expeditiously” and in a time period even shorter than mentioned in the statute. The CCI may find it extremely difficult to implement this and the SC may find it even more difficult to enforce this. This problem was faced by the US regime. The unrealistic deadlines on agency actions were unable to be met effectively. [13]

For India to be a better competitive e law regime, the following steps are suggested:
  1. The composition in the institutions to be improved. The US and EU competitive regimes improved drastically when economists with more acumen were selected as members.
  2. Unnecessary delays in the process can be avoided by adopting procedural rules that put paper hearings on an equal pedestal as oral hearings for dispute resolution.
  3. COMPAT should be given the authority to award treble damages to the parties that are injured by a violation of CA as determined by CCI. Awarding treble damages is a quintessential element of the US competitive regime. [14]
[1] Dr. K.D. Singh, Deputy Director (Law) at the Competition Commission noted at a 2015 Symposium on Competition Law sponsored by the National Law School. 
[2] Competition Act, 2002 §3(1). 
[3] Competition Act, 2002 §3(3). 
[4] Competition Act, 2002 §4(1). 
[5] Competition Act, 2002 §5 and 6. 
[6] Competition Act, 2002 §64(1). 
[7] Competition Act, 2002 §7-12. 
[8] Competition Act, 2002 §39. 
[9] Competition Act, 2002 §53. 
[10] “TRANSCRIPT OF THE VIII NLSIR SYMPOSIUM ON COMPETITION LAW.” National Law School of India Review, vol. 27, no. 2, 2015, pp. 197–225. JSTOR, Available here 
[11] Rangi International Ltd. v. Nova Scotia Bank and Ors. (2013) 7 SCC 160. 
[12] Competition Commission of India v. Steel Authority of India Ltd. and Anr (2010) 10 SCC 744
[13] Parrillo, Nicholas R., The Endgame of Administrative Law: Governmental Disobedience and the Judicial Contempt Power (January 12, 2018). Harvard Law Review, Volume 131, Pages 685-794 (2018). Available at SSRN: Available here or here
[14] Clayton Act, 1914 §4.

Union home ministry has ordered an NIA probe into a hoax call by a Chennai resident to Delhi International Airport Limited (DIAL) in his bid to stop his wife from leaving the country. [1] The person, later distinguished as Nasrudeen, had called up DIAL on August 9, to tell that a woman named Zabina has arrived at Delhi International Airport to leave for Dubai or Saudi Arab and she can cause blast in the flight. The continuing danger of aircraft hijacking by militant associations constrained our officials to survey our current law and readiness towards such exigencies. 

The Kandhar Hijack: The Trigger
IC 814, was an Indian Airlines Airbus A300 on the way from Tribhuvan International Airport in Kathmandu, Nepal to Indira Gandhi International Airport in Delhi, India on Friday, 24 December 1999, when it was hijacked and taken to a few locations before arriving in Kandahar, Afghanistan. Harkat-ul-Mujahideen was blamed for the hijacking with the help and support from ISI. 
The aircraft was commandeered by terrorists soon after it entered Indian airspace. The hijackers commanded the pilot to take the aircraft to various locations. after landing in Amritsar, Lahore, and Dubai, the hijackers, at last, forced the aircraft to arrive in Kandahar, Afghanistan, which at the time was controlled by the Taliban. The hijackers had released several passengers in Dubai with many of them being wounded and one stabbed to death.
The rationale in the hijacking seems to have been to ensure the release of Islamist figures held in jails across India. The then Vajpayee government was forced to secure the release of the hostages by agreeing to swap them for three incarcerated terrorists - Maulana Masood Azhar, Mushtaq Ahmed Zargar and Ahmed Omar Saeed Sheikh. [2] Anti Hijacking Act was made more stringent in the light of experiences from the hijack in 1999.

Reason for bringing the Act
The seizing of Indian Airlines flight IC-814 back in 1999 and the 9/11 assaults in the U.S., in which aircraft were utilized as rockets, were wake-up calls for India to fix 1982 made anti-hijacking law. The need was likewise felt to make hijacking culpable with capital punishment. The administration felt that the Anti-Hijacking Act of 1982 had inadequate punishments and was not thorough enough to manage new problems in the field.
The Anti-Hijacking Act, 2016 revoked the 1982 Act. Its goals are in line with the Convention for the Suppression of Unlawful Seizure of Aircraft. The Act additionally fused the September 2010 Beijing Protocol Supplementary to the Convention which explicitly managed "unlawful acts against civil aviation by new types of threats". The Act featured the government's anxiety for convenient measures to be taken during threatening demonstrations of hijacks or exercise of control of aircraft which endanger the security of people and property. The Hague Convention (Convention for the Suppression of Unlawful Seizure of Aircraft) sets out the principle of aut dedere aut judicare a state that is a party to the Convention must prosecute an aircraft hijacker if no other state requests his or her extradition for prosecution. [3]

Salient Features of the Act
The point of the Act is to expand the extent of the term 'hijacking' by including in its definition even the creation of a threat to commit a hijack. Moreover, the revised definition incorporates inside its scope the individuals who organize the offense and furthermore holds such people blameworthy of abetment of hijacking. 
Another prominent component of the new enactment is universal jurisdiction, which incorporates inter-alia, if the hijacker is Indian, or if the seized aircraft is enlisted in India or if any foreign-enrolled aircraft arrives in India with the supposed offender still on board or when the aircraft is hijacked at any place on the planet and an Indian resident is present on the aircraft. 
The Act goes a stage forward by characterizing the term 'in service'. An aircraft is considered in service from the starting of the pre-flight arrangement by the ground crew or by the personnel for a particular flight until 24 hours subsequent to landing. 
From the punishment viewpoint, the Act endorses capital punishment where the offense brings about the death of a hostage or security worker, and life imprisonment in every single other case. It likewise accommodates the death penalty against plotters and abductors of any of the demonstrations of hijacking, with the goal that every one of those included, legitimately or in a roundabout way, is brought to book. 

The First Case under the new Act
A special NIA court condemned an individual, who had taken steps to hijack a Delhi-bound Jet Airways flight in 2017, to life imprisonment. 
In 2017, an air hostess found a threat note in the washroom of the business class of the plane which stated that "there are hijackers on board and explosives on the plane". [4] This risk was brought to the notice of the Captain of the flight who looked for the authorization of Air Traffic Controller in Ahmedabad for an emergency landing. 
Post investigation by the Crime Branch, NIA re-enlisted the case under sections 3(1), 3(2)(a) and 4(b) of Anti Hijacking Act, 2016 and assumed control over the investigation soon thereafter. 
Salla admitted to the crime done and told the investigators that he had done it with the intention to drive Jet Airways to close its Delhi operations and his girlfriend, who worked in the carrier's Delhi office, would return to Mumbai. A charge sheet was filed against the accused in the NIA Special Court in January 2018.

The Current Case
The case against Nasrudeen was first investigated by the Gurugram police. According to the primary investigation, Zabina and Nasrudeen got married in 2017 at Chennai. On August 8, 2019, while Nasrudeen was headed back to Chennai from Sitamarhi in Bihar, Zabina told him, on the telephone that she was leaving for a foreign nation for a better life. The accused made all endeavors to stop her yet she didn't agree. At last, Nasrudeen made the hoax call to Delhi International Airport. 
The hoax call created an immense frenzy at Delhi International Airport creating disarray among different security organizations which brought about temporary suspension of activities of International flights.

The term 'aircraft' is distinguished as any airplane, regardless of whether or not it is enlisted in India. But it bars an aircraft that is utilized in customs or police administration, which ought to have been incorporated. The Act additionally doesn't ensure the safety of the ground staff and security personnel. While an aircraft is on the ground or is being prepared for departure, a prospective hijacker may commit an act of violence against the ground personnel. [5]
Regardless, the new legislation is a bold move as India fixes its stand on managing hijacking occurrences. Hijacking has become a vast area of worldwide aviation law causing extraordinary concern globally. India has demonstrated its worry by updating its legislation and by setting up effective methods for battling hijacking.

[1] “NIA probe into a hoax call by a Chennai resident”, The Economic Times, 15 November 2019 available here   
[2] Bharti Jain, “Life term or death only possible punishment”, The Times of India, 12 June 2019 available here
[3] Deeptiman Tiwary, “Explained: Hijacking Act; why a hoax led to a life term”, The Indian Express, 13 June 2019 available here
[4] “NIA Court sentences man to life term under Anti-Hijacking Act”, Business Standard, 11 June 2019 available here
[5] Satvik Verma, Vikrant Pachnanda, “The Anti-Hijacking Act, 2016: An Explainer”, The Wire, 1 June 2016 available here

A statutory contract means a contract of the contents of which some portion is filled under a statue. [1] And Agreement is the meeting of minds or a mutual understanding between two or more persons about their reciprocal rights and duties regarding past or future performances. An agreement is the basis of a contract and contract is the structure constructed on these bases. An agreement starts from an offer and ends on consideration while a contract has to achieve another milestone that is enforceability. Later in the article, we will understand the relation and bifurcation of contract and agreement.

An agreement is defined as “Every promise and set of promises, forming the consideration for each other, is an agreement” in section 2(e) of the Indian Contract ac Act, 1872. When a proposal is made by one party and the same is accepted by another party, it becomes a promise and when this promise is with some consideration by any of the parties is an agreement.

Elements of Agreement
There are four elements necessary for forming an agreement:
  1. Presence of Parties: There should be always two or more parties for the formation of an agreement. An agreement cannot be made by one party or person, two parties are required as a promise cannot be made by one party only.
  2. Promise: When a proposal made by one party is accepted by another party it becomes a promise. Section 2(b) of the Indian Contract Act, 1872, defines the term “promise”. It provides: “when one person to whom the proposal is made, signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a promise”.
  3. Consideration: “Consideration” is definable as the “inducement to a contract,” or the “cause, motive, price, or impelling influence which induces a contracting party to enter into a contract.” (2)
  4. Consensus Parties: The free consent of parties is necessary for forming a valid agreement.
Types of Agreement
There are many types of Agreement, on the grounds of enforceability agreement
has two types which are as follows:

(i) Valid Agreement:
All agreements are valid agreements that are enforceable by a court of law. The agreements that can be enforced legally are valid agreements.

(ii) Void Agreement:
According to Section 2(g) of the Indian Contract Act, 1872 and agreement is not enforceable by law is said to be void. Section 24 to 31 and 56 of the Indian Contract Act, 1872 lay down the provisions relating to the agreements which are declared void are as follows:
  • If consideration and objects are unlawful in part. ( Section 24)
  • Agreement without consideration(Section 25)
  • Agreement in restraint of marriage (Section 26)
  • Agreement in restraint of trade (Section 27)
  • Agreement in restraint of legal proceedings (Section 28)
  • Uncertain Agreements (Section 29)
  • Wagering Agreement (Section 30)
  • Agreement contingent on an impossible event (Section 31)
  • Agreement to do impossible acts (Section 56)
  • Agreement to minor
  • When both parties are under the mistake of law.
All agreements are not enforceable by law and therefore, all agreements are not contracts.

A contract is defined as “an agreement enforceable by law” in Section 2 (h) of The Indian Contract Act, 1872. An agreement between private parties creating mutual obligations enforceable by law. The basic elements required for the agreement to be a legally enforceable contract are mutual assent, expressed by a valid offer and acceptance; adequate consideration; capacity; and legality.

Elements of Contract
The necessary elements for forming a legally enforceable contract are:
  1. Offer: An offer is a proposal made by one party to the other party which expresses the willingness of the party to be bound on terms.
  2. Acceptance: Acceptance means the offer has been accepted with the terms of the offer by the party to whom an offer was made.
  3. Consideration: A Consideration is to be made by the parties after acceptance of the offer.
  4. Intention: There must be a clear intention of both parties that the agreement is a legally binding contract.
  5. Certainty: The terms or conditions of the contract must be clear and may be discussed between the parties and may be understood in the same manner by both parties. The terms or conditions should not be unlawful or unenforceable.
All Contracts are Agreements
All Contracts are agreements as for the formation of a contract, an agreement is always necessary. There cannot be a contract where there is no agreement. Without an agreement, a contract cannot be formed. Therefore, All Contracts are Agreements. 

All Agreements are not Contracts 
Only those agreements become contract which gives rise to a legal obligation. If no legal duty is enforceable by an agreement, it can never be a contract. And hence agreement is a broader term than Contract.

When Agreement becomes Contract
An agreement is regarded as a contract when it is enforceable by law. The conditions of enforceability are stated in S. 10 of the Indian contract act 1872. According to this
section, an agreement becomes a contract when the agreement is made for some consideration between the parties which are competent to contract and are entering
into Contract with their free consent and has a lawful objective. A lease agreement between two bodies corporate was held legal where it was signed
by one only, representing both sides because he was a director in both the legal entities. [2]

What Agreements are Contracts?
All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not expressly declared to be void.
An agreement becomes a contract when the following conditions are satisfied:-

(i) There is some consideration for it. (S. 2(d) and S. 25)
In return for accepting an offer and making a promise, consideration has to be made to make a valid agreement that could be enforceable by law and thus can become a valid contract. An agreement without consideration is void and it cannot form a valid Contract as a void agreement is not enforceable by law and every valid Contract is enforceable by law.
For example, if a promises to give to B Rupees 10,000 without any consideration, it will be a void agreement. And in another example where A supports B's infant son and B promises to pay A's expenses in doing so will be a contract.

(ii) The parties are competent to contract. (S. 11 and S. 12)
Every person is competent to contract who has attained the age of majority, is of sound mind and is not disqualified by any law from contracting.

(iii) Their consent is free. (S. 13-22)
The parties should enter into a contract by their free consent. There should not be any kind of pressure on the parties to enter into a contract.

(iv) Their object is lawful. (S. 23-30)
The object and consideration need to be lawful. Any unlawful or impractical thing cannot be made an object or consideration in a contract. Every agreement of which object or consideration is unlawful is a void agreement. In B. Rajamani v. Azhar Sultana AIR 2005 AP 260: 2005 2 An LD 862, the contract was enforceable where an agreement to sell the property was reduced to writing but it was not signed by the parties. The contract came into existence when both parties agreed and the fact of non-signing did not mean there was no contract. 
For example, A, B, and C enter into an agreement for division among them of the gains acquired by them by fraud will form a void agreement as the object is unlawful.

[1] Indian Thermal Power Ltd. V State of MP 2000 SCC 379: AIR 2000 SC 1005 
[2] Mehta Alloy & Steel Works V Mehta Finance & Leasing Company Ltd. 1987 AIHC 1327 Del 

Do states have an option to refuse to implement the Citizenship (Amendment) Act (CAA), 2019 even as some of them have invoked the exclusive jurisdiction of the Supreme Court in their dispute with the Centre? Under Article 131 of the Constitution of India, the Supreme Court has exclusive original jurisdiction in any dispute between the Government of India and one or more states; or between the government of India and any state or states on one side and one or more other states on the other; or between two or more states, if and insofar as the dispute involves any question on which the existence or extent of a legal right depends. As the opposition states’ differences with the Centre on the CAA and the NPR constitute a “dispute”, and these differences are not just civic but involve judicial questions, there is no bar on the states invoking Article 131 of the Constitution to iron out the same.

The Uncertainty Among the Decisions of the Supreme Court
In 2014, a two-judge Bench of the Supreme Court, in State of Jharkhand v. the State of Bihar [1], was posed with a question about the maintainability of a petition challenging the vires of the Bihar Reorganisation Act, 2000 under Article 131 of the Constitution. Dealing with the disapproval raised by the State of Bihar that a suit challenging the constitutional validity of legislation is not maintainable under Article 131, the Court contradicted its earlier ruling in the State of Madhya Pradesh v. Union of India & Another [2], where it had held that the validity of a Central Law should “normally” not be challenged under Article 131 and recourse to Article 32 should be taken.
In 2014, however, the State of Jharkhand, placing reliance upon a constitution bench decision of the Supreme Court in 1964 (State of West Bengal v. Union of India [3]), argued that the question whether the vires of an enactment by parliament could be considered in an original suit under Article 131 was no more res integra, i.e. undecided. Most importantly, the 1964 precedent was not brought to the notice of the Supreme Court when it was considering the objections of Chhattisgarh in 2011. Therefore, the said judgment is not a jurisdiction for the premise that this court could examine the constitutional validity of enactment in a suit under Article 131”.
However, the 2014 bench – comprising Justices J. Chelameswar and S.A. Bobde, however, concluded that a state can indeed challenge a Central law under Article 131 citing two cogent reasons for this.
Firstly, the Constitution has given the Supreme Court with both original and appellate jurisdiction in addition to the jurisdiction created by Article 32 for the enforcement of fundamental rights.
Secondly, the bench pointed out that it could be considered from the language of Article 131 that the exclusive jurisdiction of the Supreme Court extends to “any dispute between the Government of India and any one or more states and the disputes arising between two or more States in various possible combinations specified in it”. Placing reliance upon a decision of another constitution bench of the Supreme Court in State of Karnataka v Union of India (1977) [4], the 2014 bench underpinned that the sole condition which is required to be contended for involving the original jurisdiction of the Supreme Court is that the dispute between the parties referred to in Article 131 must concern a question on which the existence or extent of a legal right depends.
In one of the landmark judgments, Justice P.N. Bhagwati elaborated the rationale of Article 131 thus:
“The object of the article of the constitution seems to be that since in a federal structure, which the Constitution seeks to set up, disputes may arise between the Government of India and one or more States, or between two or more States, a colloquium should be provided for the resolution of such disputes and that forum should be the highest Court in the land, so that final settlement of such disputes could be achieved speedily and expeditiously without either party having to embark on a long and time-consuming journey through a hierarchy of courts.”
In view of its difference with the law stated by the bench in State of Madhya Pradesh’s Case, the Bench, after concisely recording its reasons, referred the question to a larger bench of three judges but the dispute has never been resolved.

Can the states refuse to implement the CAA, 2019 in view of their dispute with the Centre on the issue?
A dispute between the Centre and the states on any issue is clearly visualized by the Constitution. Therefore, the states can well ask the Supreme Court to decide whether they can decline to implement the CAA during the pendency of the case in the Supreme Court. Needless to say, the Supreme Court’s decision on this will be binding on the states as well as the Centre. 
As a general rule, only a person directly affected by the infringement of a legal right or protection can launch an action before Courts of law. Depending on the nature of rights, a person affected by the infringement has the ‘locus standi’ to maintain an action against the alleged action in judicial colloquiums.
However, the situation is changed where the aggrieved person is unable to represent his or her interests. In such a situation, a government can sue on behalf of the persons under disability for the protection of their rights. In Charan Lal Sahu v. Union of India [5], the Supreme Court invoked the concept of parens patriae doctrine to sustain the powers of the Central Government in maintaining suits on behalf of the victims of Bhopal Gas Tragedy against a multinational corporation for its negligent actions before domestic courts.
Applying the doctrine, Justice KN Singh, in his coadjutant opinion, ruled that the doctrine is an aspect of sovereign and inherent power enjoyed by the State for the protection of the health, peace, morals, economic and social well being of its people.
Theoretically, Kerala can very well use the doctrine to sustain the institution of the suit under Article 131 of the Constitution. This would, however, be quite uncommon and States have never invoked the doctrine to knock the doors of the Supreme Court under Article 131.

In adjudicating the suit, the Court should consider the original intention of the framers behind Article 131 at the time of the founding and framing of the Constitution. Even though fundamental rights and secularism are seemingly involved, these considerations must not dissuade the Court in deciding the true purpose of Article 131. The conservancy of the federal structure is an equally important constitutional incident.

[1] I.A. No. 3&5 of 2014 in Original Suit No.1 of 2012 with I.A. No.7 2014
[2] I.A. No. 4 of 2009 in Original Suit No. 6 of 2004
[3] 1963 AIR 1241
[4] AIR 1978 SC 68
[5] 1990 AIR 1480

Under S. 13 of the Hindu Marriage Act 1955 or S. 27 of the Special Marriage Act 1954, spouses are given the right to obtain a divorce if any of the grounds listed in the above sections are found to be valid. However, the grounds mentioned therein are based on the fault theory, which suggests that either of the party should have committed a fault for the other party to obtain a divorce. Though the no-fault theory has come into force after the Marriage Laws (Amendment) Act of 1976 which provides for divorce by mutual consent, there is no provision to obtain a divorce where one party is not willing to live with the other party. This leads to frustration among the parties due to which the unwilling party resorts to infidelity in order to procure a divorce. Thus, the Hindu Marriage Act 1955 has proved to be a failure and a social reform is imperative in the field. [1] 
There is an urgent need to address this problem to protect the sanctity of marriage, and hence, the irretrievable breakdown should be included as a separate ground for obtaining a divorce in the marriage laws. The irretrievable breakdown theory supports the fact that marriage is not an indissoluble union and it is better to get separated than to live unhappily. This theory allows spouses, or even one spouse to take a divorce without any fault or offence. The Law Commission of India in its 71st report has also recommended to include irretrievable breakdown theory as a separate ground of divorce. Also, the Courts in many cases have come to the conclusion that husband or wife cannot be forced to live with each other. In the case of Ram Kali v. Gopal Das [2], Delhi High Court observed that it would be unreasonable and inhumane to compel the parties to keep up the facade of marriage where there are no prospects of their living together like husband and wife. The Law Commission Report also emphasized that once it is known that there is no possibility of the success of the marriage, to drag the legal tie amounts to cruelty and gives rise to crime. [3]

Present Position Of The ‘irretrievable Breakdown Theory’
Once the marriage has come to a point that it cannot be fixed, it would be harmful to the parties if the Court compels them to live together, and would only give rise to domestic violence and infidelity. Nothing can be gained by trying to keep the parties tied when they have decided not to co-operate. It would only worsen the situation and parties who were seeking the relief would be affected the most. 
There have been many judicial pronouncements supporting the view that an irretrievably broken down marriage shall be dissolved. In the case of Kanchan Devi v. Pramod Kumar Mittal [4], Supreme Court while exercising its power under Art. 142 dissolved the marriage which has broken down irretrievably. The Supreme Court further held that where facts and circumstances of the case show that the marriage between appellant and respondent as irretrievably broken down and where there is no likelihood of rapprochement, it has the power to dissolve that marriage by exercising jurisdiction under Art. 142.
Similarly, in the case of Naveen Kohli v. Neetu Kohli [5], the Supreme Court strongly recommended that the theory of irretrievable breakdown should be incorporated as a separate ground of divorce in S. 13 of the Hindu Marriage Act 1955. 
The Court observed that the respondent-wife has made the life of the appellant-husband a hell by treating the husband with mental cruelty, and the marriage between them has broken down to the extent that their chances of living together happily have completely disappeared. The Court was also of the view that denying a divorce in such a situation would only encourage continuous bickering, perpetual bitterness and may lead to immortality. 
In the above cases, it can be seen that the Supreme Court has extraordinary powers under Article 142 to grant a divorce where a marriage has broken down irretrievably. However, such powers are not available to the Civil Courts or the High Courts as was observed by the Supreme Court in the case of Anil Kumar Jain v. Maya Jain. [6]
Therefore, it can fairly be surmised that the Apex Court of India has recognised the need for bringing irretrievable breakdown as a ground for divorce and has exercised its power to give relief to the parties by using the said ground, whenever it felt the need to do so.

Safeguards To Be Adopted
While including the irretrievable breakdown theory as a ground for divorce, certain safeguards need to be adopted considering the sanctity of the marriage. If there is a chance of preserving marriage, then it is ought to be preserved.  Also, enough care should be taken to protect the interests of both parties. There might be a situation where parties having children are coming for divorce, in that situation, Courts shall have to take extra care as children are the ones who are most affected due to the separation. The law commission suggested some safeguards to protect the misuse and abuse of the ground. The safeguards were predominantly based on two things:
  1. That the marriage ought to be protected.
  2. Where the disruption is complete, adequate stratagems should be taken to protect the interests of the suffering parties. [7]
The report stated that while providing the divorce under this ground, the best interest of the children should be taken into account. Though the presence of children does not put an absolute bar on the ground, preventive measures should be taken considering the financial condition of the spouses. 
In India, divorced women are also looked down upon and they are not even supported by their parents. They are maltreated and are considered as a bad omen. Considering all the factors, the commission has granted the Court discretion to deny the divorce decree, if it causes financial hardship to the respondent. [8]
The law commission has also laid down that the parties must be living separately for a reasonably long period in order to obtain a divorce which would prove the fact that the marriage has broken beyond reform. Divorce cannot be granted where a party has merely stated that the marriage has broken down. Adequate measures need to be taken so that the ground is not misused by the parties. So, the law commission has suggested that the separation of parties for a continuous period of three years would be fair and adequate to grant a divorce. [9]

In India, the laws relating to divorce are in a desperate need for reforms. One of the immediate reforms needed is in the field of divorce by the introduction of a separate ground of "irretrievable breakdown of marriage" for divorce. However, truth is, despite the recommendations of the Law Commission and the Apex Court, the law remains unaltered. 
Many developed countries of the world have recognised the breakdown theory as an independent ground for divorce. Though there is no explicit mention of ‘irretrievable breakdown of marriage’ as a separate ground for divorce, Supreme Court in several cases has granted divorce taking into consideration the breakdown theory. Therefore, it is high time that the Legislature should recognise the urgency and prevent the wedlock from being a deadlock by introducing ‘irretrievable breakdown’ as a separate ground for divorce. 

[2] Ram Kali v. Gopal Das, (1971) 1 ILR Delhi 10 (F.B.).
[3] Supra 1, at 2.
[4] Kanchan Devi v. Pramod Kumar Mittal, AIR 1996 SC 1515.
[5] Naveen Kohli v. Neetu Kohli, AIR 2006 SC 1675.
[6] Anil Kumar Jain v. Maya Jain, (2009) 10 SCC 415.
[7] Supra 1, at 30.
[8] Ibid, at 38.
[9] Ibid, at 29.

A literal translation of Lis Pendens means a pending legal action, it is the maxim behind the genesis for the regulation of multiplicity of the proceedings. Lis Pendens prohibits the initiation of parallel proceedings of the same cause between the same parties but simply in a different forum. It is accepted worldwide that multiplicity is undesirable as it leads to a wastage of resources. Numerous countries the world over have formulated their own methods of precluding such multiplicity with one of the most common responses being declining jurisdiction. In civil law countries, the jurisdiction is declined through the old first in time rule, which states that if a suit has been initiated in a court or an adjudicating body then similar proceedings cannot be initiated with the other body while the proceedings are still being considered. In common law countries, however, the doctrine of forum non-conveniens is used, wherein lis pendens is simply a factor for declining jurisdiction in the assessment of an appropriate forum.  In this way lis pendens forms an individual doctrine in civil law countries, but in common law countries, it is simply a part of a larger albeit an important part of the doctrine. 

Lis Pendens in India 
In India, the courts have defined the principle of forum non-conveniens as the discretionary powers of the court to entertain a suit on the grounds as to whether there exists a more appropriate forum to entertain the plea or not. As per the Delhi High court in the case of GlaxoSmithKline and Horlicks Limited v. Heinz India, the test for the application of the doctrine is of two parts
  1. Whether there is an alternative forum which is appropriate?
  2. Whether it is in the interest of justice to relegate the suit to the forum?
The balance of convenience test is also considered to be a material consideration for the same. There is a proper statutory provision that prohibits parallel proceedings as given under Section 10 of the Code of Civil Procedure. 
This section provides for the parallel proceedings instituted before and is not concerned with whether the judgment has been given or not. The suit must be between the two same parties and the court in which it has previously been instituted must be competent to grant relief for the same and must be pending before the same. The titles of the parties litigating must also be the same. 
Lis Pendens in India takes a unique position as it follows the test of first in time rule as well as the doctrine of forum non-conveniens by providing for it in the inherent powers of the court.

Lis Pendens in The United Kingdom
The United Kingdom followed the doctrine of forum non-conveniens for adjudicating the jurisdiction of a suit. However, this was altered after the 1968 Brussels Convention as the major states of the convention were of a civil nature. In articles 21 and 22, the principle of lis pendens was expressly provided that the courts cannot overlook if the proceedings were pending in another court. Article 21.  This makes it clear that the doctrine of lis pendens is expressly provided for, articles 22 and 23 ask the courts other than the court first seized to disregard jurisdiction if the proceedings are pending before another court. This was also exhibited in the Brussels I Regulation’s article 27 which seeks to prevent contrary proceedings.
In the UK this convention was implemented by passing the Civil Jurisdiction and the Judgements Act 1982, though as a result of the convention the doctrine of forum non-conveniens was diluted this was not done for the cases pertaining exclusively to the Scottish courts where the Convention rules and the domestic UK rules did not apply. Section 49 of the act preserves the doctrine by declining the jurisdiction on its basis except where to do so will not be inconsistent with the convention.
Furthermore, there is also the element of res sub judice in the UK law which applies to the reporting of the ongoing proceedings, it aims to prevent the formation of any preconceived idea for an ongoing proceeding this is now dealt with the Contempt of Courts Act.

Lis Pendens in the U.S.A.
In the United States, the doctrine of forum non-conveniens holds significance one of the earliest examples being that of Gulf Oil Corpn v. Gilbert the court while dismissing the suit held that the only precondition is, that there must be an adequate alternative forum where the suit could be taken up. There must be at least one forum that has the jurisdiction to hear the case. A second test, called the balancing test is present which checks the private and public interests in the dismissal of a suit, the mere existence of a parallel proceeding is not a reason enough for the dismissal of the claim.
Although rule 41 of the federal rules of civil procedure provides for the involuntary dismissal of suits there has been no case where the same was applied to dismiss a suit in case of parallel litigation. In toto, there are no federal rules governing the dismissal of any parallel litigation and is only found in the federal common law. There are usually other preferable remedies than outright dismissal such as transfer or consolidation and antisuit injunctions.
Though there is no particular federal statute governing such parallel litigation it is provided for in the common law as a test of forum non-conveniens, a lack of outright dismissals could be because of the dual nature of the country and the multiplicity of interstate claims.  
Similar to the United Kingdom it provides for any media reporting of the court proceedings for prevention of any bias that may form in the minds of the jurors in the American Bar Association Model Rules of Conduct.

Lis Pendens in Civil Law Countries
Lis Pendens in Japan
The Japanese code of civil procedure of 1890 provided for the duplicity of proceedings by prohibiting it under article 231 of the code. This was later reformed in 1996 and as such the provision for the duplicity of the proceedings was shifted to article 142.
The rationale behind the provision stands the same as those provided for in Section 10 of the Indian Civil Procedure Code and in those provided for the Brussels Convention. 
As per Takkaki Hattori the pendency of a suit even if it is not brought properly to the court bars the parties in the suit to initiate another suit with the same subject matter between the same parties. It is also considered to be a waste and an unnecessary expenditure of the labour.
The duplicity, unlike the USA, is barred regardless of the litigant’s interest, the court also provides that the judgment of the court if the final is applicable throughout the country. The code also provides for the transfer of the suit to a different forum if it is against the litigant’s interest as given in articles 17 to 20. 

There has been a general practice in the civil law countries to use the legal tradition and the practice of first in time to stop the multiplicity of proceedings as the court that has been first seized and any subsequent proceedings would be stopped or order of stay would be passed. In cases of common law countries, the doctrine of forum non-conveniens is usually followed as in the cases of common law and the doctrine of lis pendens in the domestic laws is usually considered as a factor of the same with the test of the balance of convenience. We see that though common law is considered to follow this, however, most countries like the United Kingdom and India usually have had a separate provision of the same as in the civil law countries. It can be observed that this is followed by the USA as there is no separate provision in the federal law but the doctrine is found in the federal common law.

[1] Yuval Shany, The Competing Jurisdictions Of International Courts And Tribunals 8 (Oxford University Press, 2003).
[2] Campbell Mclachlan, ‘Lis Pendens In International Litigation’ 337 (Recueil Des Cours 199 2008).
[3] James J. Fawcett (ED), Declining Jurisdiction In Private International Law: Reports To The Xivth Congress Of The International Academy Of Comparative Law, Athens, August 1994 (Clarendon Press, 1995).
[4] GlaxoSmithKline and Horlicks Limited v Heinz India, CS(COMM) 808/2017, available here.
[5] The Code of Civil Procedure, 1908, § 10, No. 5, Acts of Parliament, 1908 (India).
[6] Escorts Const. Equipment Ltd v. Action Const. Equipment Ltd (1999)79 DLT 300, available here.
[7] Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968, available here 
[8] Brussels I Regulation, Jurisdiction and The Recognition and Enforcement of Judgments in Civil and Commercial Matters, (EU) No 1215/2012, available here
[9] Gulf Oil Corpn v Gilbert,330 U.S. 501 (1947), available here.
[10] American Bar Association [ABA], Center for Professional Responsibility, Model Rules of Professional Conduct, available here.