Delhi HC vacates order staying transfer of ICADR’s undertakings to Centre

The Delhi High Court has vacated its earlier order staying the transfer of International Centre For Alternative Dispute Resolution (ICADR)’s undertakings to the Central Government..The order was passed by a Division Bench of Chief Justice Rajendra Menon and Justice V Kameswar Rao in the Centre’s review petition against the March 7 stay order which was passed in a challenge to the promulgation of an Ordinance for establishing the New Delhi International Arbitration Centre..The Court has now permitted the authorities to take action in accordance with a March 2 order of the Deputy Secretary, Government of India, which facilitated the transfer of ICADR’s undertakings to the Centre. A custodian has been appointed for the same, subject to the final decision of the Court..The Court has nonetheless directed that all the pending arbitration cases with ICADR shall be permitted to be carried out in the same manner as they were being done prior to the issuance of the Ordinance..Similarly, all seminars, conferences and other training activities already fixed by ICADR shall also be carried out as scheduled. The Court has thus directed the custodian to provide all assistance for the same to ICADR..It is ICADR’s case that promulgation of the Ordinance under Article 123 of the Constitution during the pendency of a Bill before the Rajya Sabha was unsustainable..Relying on the principles laid down in Krishna Kumar Singh & Ors. Vs. State of Bihar & Ors (2017), the Court noted that the test to determine satisfaction of the President under Article 123 was whether the same was based on some relevant material. The Court, in exercise of its power of judicial review, would not determine the sufficiency or adequacy of the material, it said..After going to the submissions made by the Centre, the Court recorded that the decision to promulgate the Ordinance was taken on the basis of the 246th Report of the Law Commission, a July 2017 Report of the Justice BN Srikrishna Committee, and the 84th Report of the Parliamentary Standing Committee..It thus concluded,.“...we find that the decision taken to promulgate the Ordinance is based on substantive material, prima facie it cannot be said that it is actuated by any oblique motive, the satisfaction arrived at are based on relevant material….…we are of the considered view that now in the light of these materials that have come on record, it can be said that the satisfaction arrived at for promulgating the ordinance are based on certain relevant material and, therefore, prima facie judicial review of the order may be beyond the jurisdiction of the Court.”.The Court also noted that the Centre produced various material to show that it was necessary to take immediate action and that prima facie, the act of the Centre to promulgate an Ordinance could not be faulted with..The review petition was thus allowed..ICADR was represented by Senior Advocates Dushyant Dave and AS Chandhiok, along with Advocates RK Rathore, SK Verma, Ritesh Agarwal, Ramya Kutty, Sohel Rishabh, and Tushar Jaku..The Centre was represented by Additional Solicitor General Maninder Acharya and standing counsel Ripu Daman Bhardwaj..The matter will be heard next on July 25..Read the order: