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Article Published in the Express Magazine Dated
November 25,
2001
General Attorney : Rajiv K. Luthra
In various contracts and discussions, I have
come across arbitration proceedings. But who
exactly is an 'arbitrator' and what is it that
makes arbitration so popular compared to filing a
case in court?
Neeraj Budhiraja, Calcutta
An ARBITRATOR, as has been described in the book "Russel
on Arbitration" is "neither more nor less than a
private judge of a private Court who gives a
private judgment. He is a judge in that a dispute
is submitted to him. He is not a mere investigator
but a person before whom the parties place
material, being either or both of evidence and
submissions; he gives a decision in accordance
with his duty to hold the scales fairly between
the disputants in accordance with some recognised
system of law and the rules of natural justice. He
is private in so far as he is chosen and paid by
the disputants; he does not sit in public; he acts
in accordance with privately chosen procedure so
far as that is not repugnant to public policy ---
so far as the law allows he is set up and to the
exclusion of the State Courts; his authority and
powers are only whatever is given in the
disputants agreement. The effectiveness of his
power derives wholly from the private law of the
contract and accordingly the nature and exercise
of these powers must not be contrary to the proper
law of the contract or the public policy bearing
in mind that the paramount public policy is that
freedom of contract is not lightly to be
interfered with."
An arbitrator is appointed in accordance with the
wishes of the parties failing which in accordance
with the procedure laid down in the applicable
arbitration act/rules. He must be a disinterested
person, and should be someone in whom the parties
have complete confidence.
There are several reasons why arbitration is more
preferred in resolving contractual disputes, most
obvious of which being that the procedure is
simpler and less technical. Besides the procedure
could be much speedier. It may be relevant to
highlight that with the coming of the new
Arbitration and Conciliation Act, 1996 the
arbitral process has become even smoother since
the new Act has omitted / amended various sections
of the earlier Arbitration Act, which allowed
interference or intervention by courts at almost
every stage.
I heard that somebody was wearing a national
flag as a costume. I wanted to do the same for a
fashion party, but was informed that wearing the
National Flag as a dress or as a costume is
prohibited. Could you please enlighten me on that
issue?
Gigi Bandra, Delhi
Article 51A of the Constitution stipulates that it
is the fundamental duty of every Indian citizen to
respect its ideals and institutions, the National
Flag and the National Anthem. The Prevention of
Insults to National Honor Act, 1971 (“Act”),
clearly stipulates that whoever in any public
place within public view burns, mutilates,
defaces, defiles, disfigures, destroys, tramples
upon or otherwise brings into contempt, whether by
words, either spoken or written or by acts, the
National Flag or any part thereof shall be liable
to be punished under the Act. Further, according
to the Flag Code containing executive instructions
as guidelines, "the Tiranga must not be used as a
portion of a costume or uniform of any
description".
In a petition challenging the restrictions
contained in the Flag Code, the Hon'ble Delhi High
Court held that the Flag Code is not law and its
contravention cannot be enforced. However, it also
held that the national flag is to be revered and
if there is contravention of any of the
instructions / guidelines of the Flag Code which
comes within the purview of the Emblems Act, and
the Act, the same would be punishable. The issue
of wearing a costume made of the national flag and
whether the same would amount to being
disrespectful is pending before the Hon'ble
courts.
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